Answer: JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)

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San Francisco Superior Courts
Information Technology Group

Document Scanning Lead Sheet
Jul-16-2004 3:38 pm

Case Number: CGC-01-402113
Filing Date: Jul-16-2004 3:37
Juke Box: 001 Image: 00998579
ANSWER

JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC)

001000998579

Instructions:
Please place this sheet on top of the document to be scanned.27

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GABRIEL A. JACKSON, ESQ. CsB# 98119
MICHELE C. BARNES, ESQ., CSB# 187239
JACKSON & WALLACE trp

55 Francisco Street, 6th Floor

San Francisco, CA 94133

(415) 982-6300

Attorneys For Defendant
POWER

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

JAMES JORDAN and SHERYL No. 402113
LYNN JORDAN,
ANSWER OF DEFENDANT POWER
Plaintiffs, ENGINEERING and EQUIPMENT
COMPANY, INC. TO RIFIED
v. COMPLAINT FOR PERSONAL INJURY
ASBESTOS DEFENDANTS, (BP)
etal.,
Defendants.

Comes now defendant POWER ENGINEERING and EQUIPMENT
COMPANY, INC., for itself alone, and in answer to plaintiffs’ Complaint on file
herein, and to each and every cause of action thereof, and by virtue of the provisions
of CCP §431.30, now files its general denial to said Complaint and to each and every
cause of action thereof, and in answer to all the allegations thereof, denies that the
plaintiffs have been damaged in any sum or sums whatsoever, or at all, by any act or
omission of this answering defendant.

AS AND FOR A FIRST, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the Complaint and each cause of
action therein, fails to state facts sufficient to constitute a cause of action.

AS AND FOR A SECOND, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that plaintiffs are barred from recovery

by the applicable statute of limitations, including but not limited to California Code

POWER ENGINEERING and EQUIPMENT COMPANY, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY2

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of Civil Procedure Sections 319, 320, 337.1, 337.15, 338, 399, 340(3) 340.2, 343, and
California Commercial Code Sections 2725(1) and 2725(2).

AS AND FOR A THIRD, SEPARATE and DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the plaintiffs were themselves
negligent and careless in an about the matters and events alleged in the Complaint,
and said negligence proximately contributed to the alleged damages, if any there were,
and as a result thereof, the principles of equitable comparative negligence must be
applied to bar plaintiffs’ action.

AS AND FOR A FOURTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the injuries, loss and/or damages
alleged in said Complaint by plaintiffs, if any there was, were caused by the
carelessness and negligence on the part of the remaining defendants in that said
carelessness and negligence on the part of said remaining defendants proximately
contributed to the happening of the subject event and the injuries, loss or damages
alleged by the plaintiffs’ herein, and that any judgment rendered against this
answering defendant be reduced or nullified to the extent of such negligence and
carelessness on the part of the remaining defendants as aforesaid.

AS AND FOR A FIFTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the plaintiffs’ injuries and damages
which may been sustained as a result of events mentioned in the Complaint, if any
there was, were proximately caused by the carelessness and negligence of plaintiffs and
the remaining defendants, and that the respective negligence of each said party to this
suit ought to be equitably apportioned among the parties hereto.

AS AND FOR THE SIXTH, SEPARATE AND DISTINCT DEFENSE, this
answering defendant alleges that at the time of the occurrence of the matters
mentioned in the plaintiffs’ Complaint, the plaintiffs themselves had knowledge of
those matters alleged in the Complaint and plaintiffs did, with said knowledge,

voluntarily and of their free will and act, place themselves in an unsafe and dangerous

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POWER ENGINEERING and EQUIPMENT COMPANY, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INIURY27

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position and by reason thereof, plaintiffs did assume the risk and all risks ordinarily
incident thereto.

AS AND FOR A SEVENTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that the products
referred to in the Complaint were not used in a safe and normal manner or in the
manner in which they were intended to be used, and that such misuse proximately
contributed to the injuries to plaintiffs and the damages and losses resulting
therefrom, if any there were, and bars plaintiffs’ recovery herein.

AS AND FOR A EIGHTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that prior to and at the time referred to
in plaintiffs’ Complaint, the products referred to in the Complaint were abused,
altered, modified, or changed in a manner that was not reasonably foreseeable, that
such abuse, modification, alteration, or change proximately contributed to the injuries
to plaintiffs and the damages and losses resulting therefrom, if any there were, and
bars plaintiffs’ recovery herein.

AS AND FOR A NINTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that at all times herein mentioned,
plaintiffs were in the course and scope of their employment and that the injuries
sustained by plaintiffs, if any there were, were caused or contributed to by the
carelessness and negligence of plaintiffs’ employers, entitling this answering defendant
to a set-off in the amount equal to the extent of payments made by said employers’
workers’ compensation carrier.

AS AND FOR A TENTH, SEPARATE AND DISTINCT AFFIRMATIVE
DEFENSE, this answering defendant alleges that the plaintiffs’ employers were
negligent and careless in about the matters alleged in the Complaint and proximately
contributed to the injuries and damages, if any there were, sustained by plaintiffs; that
by reason of the premises said employers and their workers’ compensation carrier are

barred from recovery of any payments heretofore or hereafter made to plaintiffs

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POWER ENGINEERING and EQUIPMENT COMPANY, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY\ WY
pursuant to the workers’ compensation laws of the State of California under the
doctrine of Witt v. Jackson, 57 Cal.2d 57.

AS AND FOR A ELEVENTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs’
Complaint herein is barred by Labor Code §3600, et seq.

AS AND FOR A TWELFTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs’
Complaint herein is barred by the Doctrine of Laches.

AS AND FOR A THIRTEENTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that the asbestos-
containing products of defendant which are alleged to have caused injury to plaintiffs
were manufactured in compliance with and supplied pursuant to mandatory
government specifications which required the use of asbestos. Accordingly, defendant
is immune from liability or any damages suffered by plaintiffs as a consequence of
exposure to asbestos contained in such products.

AS AND FOR A FOURTEENTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that its compliance with
all governmental standards is a;complete defense to plaintiffs’ action.

AS AND FOR A FIFTEENTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs failed and
neglected to use reasonable care to protect themselves and to minimize the losses and
damages complained of, if any there were.

AS AND FOR A SIXTEENTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs are barred
from asserting any claim based on breach of warranty by reason of their failure to
fulfill the conditions of warranties alleged in the Complaint in the event such alleged

warranties are proved at trial.

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POWER ENGINEERING and EQUIPMENT COMPANY, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURY27

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AS AND FOR A SEVENTEENTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs within a
reasonable time failed to give notice to defendant of the claimed breach of warranty or
defects alleged in the Complaint on file herein in the manner and form prescribed by
law.

AS AND FOR A EIGHTEENTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that there was no
privity or other legal relationship between this answering defendant and plaintiffs
herein sufficient to entitle the plaintiffs to any legal relief by said defendant.

AS AND FOR A NINETEENTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs claim for
punitive damages is prohibited because it would deprive defendant of its property
without due process of law under the 14" Amendment of the United States
Construction and under the California Constitution. See U.S. Constitution,
Amendment XIV, §1; Cal. Constitution, Art I. §7().

AS AND FOR A TWENTIETH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs’ claim for
punitive damages is barred by the Constitutional Prohibition against excessive fines.
(See U.S. Constitution, Amendment VII; California Constitution, Art I. §17.)

AS AND FOR A TWENTY-FIRST, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs’ claim for
punitive damages is barred by the Constitutional Prohibition against impairing the
obligation of contracts. See U.S. Constitution, Art I, §X, C1. See California
Constitution, Art. 1 $9.

AS AND FOR A TWENTY.SECOND, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that any claim for
punitive or exemplary damages pursuant to California law herein constitutes a

violation of equal protection prohibited by the United States Constitution and the

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POWER ENGINEERING and EQUIPMENT COMPANY, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURYNS wv
Constitution of the State of California and therefore fails to make a claim upon which
relief can be granted.

AS AND FOR A TWENTY-THIRD, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that the Complaint on
file herein fails to state facts sufficient to constitute a cause of action for punitive
damages.

AS AND FOR A TWENTY-FOURTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs’ claim for
punitive damages must consider the degree of reprehensibility of defendant’s conduct,
the disparity between the compensatory damages and punitive damages and the
difference between punitive damages and the civil sanctions that could or would be
imposed for comparable conduct. These considerations were outlined by the U.S.
Supreme Court in BMW of North America v. Gore (1996) 517 U.S. 559, and Cooper
Industries v. Leatherman Tool Group, Inc. (2001) 532 U.S. 524.

AS AND FOR A TWENTY- FIFTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that, to the extent
plaintiffs may be able to prove their allegations concerning liability, injuries and
damages, which are specifically denied, they were the result of intervening acts of
superceding negligence on the part of a person or persons over whom this defendant
had neither control nor the right of control.

AS AND FOR A TWENTY-SIXTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs’ are
barred from asserting any causes of action by the Doctrine of Waiver.

AS AND FOR A TWENTY-SEVENTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs are
stopped from asserting any causes of action by their conduct.

AS AND FOR A TWENTY-EIGHTH, FIFTH, SEPARATE AND
DISTINCT AFFIRMATIVE DEFENSE, this answering defendant alleges that

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POWER ENGINEERING and EQUIPMENT COMPANY, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURYNS WS
plaintiffs have failed to join necessary and indispensable parties.

AS AND FOR A TWENTY-NINTH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs have
improperly joined or misjoined it and other parties to this action.

AS AND FOR A THIRTIETH, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that any claims that the
alleged products are unsafe or defective in any manner are preempted by federal law.

AS AND FOR A THIRTY-FIRST, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that any injuries and
damages, if any there be, alleged by plaintiffs in the Complaint, were proximately
caused by an unforeseeable reaction to the product or products and/or one or more of
its, of their, components.

AS AND FOR A THIRTY-SECOND, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that if plaintiffs’ claims
were already litigated and resolved in any prior action, plaintiffs’ claims herein are
barred based on the primary right and res judicata doctrines which prohibit splitting a
single cause of action into successive suits, and seeking new recovery for injuries for
which the plaintiffs were previously compensated by alleged joint tortfeasors.

AS AND FOR A THIRTY-THIRD, SEPARATE AND DISTINCT
AFFIRMATIVE DEFENSE, this answering defendant alleges that plaintiffs’ claims
are barred by the principles of res judicata.

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POWER ENGINEERING and EQUIPMENT COMPANY, INC.'S ANSWER TO COMPLAINT FOR PERSONAL INJURYa

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WHEREFORE, this answering defendant prays for judgment as follows:

1.

That plaintiffs take nothing by way of their Complaint or any cause of

action thereof against this answering defendant;

2.

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4.
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That the Court award judgment in favor of this answering defendant;
For reasonable attorney fees;
For costs of suit and disbursements; and

For such other and further relief as the Court may deem proper.

DATED: July 19, 2004

JACKSON & WALLACE tip

BY: Wye Parnanas>

Michele C. Barnes, Esq.

Attorney For Defendant
POWER ENGINEERING and
EQUIPMENT COMPANY, INC

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POWER ENGINEERING and EQUIPMENT COMPANY, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURYPROOF OF SERVICE BY MAIL
(Code Civ. Proc., §§ 1013, 2015.5
Cal. Rules of Court, rule 2008(e))

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

I, Nicholas L. Lawson, declare as follows:

Iam over 18 years of age and not a party to the within action; my business
address is 55 Francisco Street, San Francisco, California 94133; Iam employed in San
Francisco County, California.

Iam readily familiar with my employer's practices for collection and
processing of correspondence for mailing with the United States Postal Service.

On July | 4 , 2004, I served a copy of the following documents:

POWER ENGINEERING and EQUIPMENT COMPANY, INC
ANSWERS UNVERIFIED COMPLAINT FOR PERSONAL INJURY
- Ss

on the interested parties in the above-referenced case by following ordinary business
practices and placing for collection and mailing at 55 Francisco Street, San Francisco
on July !9_, 2004, a true copy of the above-referenced document, enclosed in a sealed
envelope; in the ordinary course of business, the above documents would have been
deposited for first-class delivery with the United States Postal Service the same day
they were placed for deposit, with postage thereon fully prepaid.

The foregoing envelope was addressed as follows:
BRAYTON PURCELL
222 Rush Landing Road
Novato CA 94948

I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and that this declaration was executed on July (5 _,

Ale lili ober

U { Nicholas L7 Lawson

V:\~ Answers\Power Engineering\JORDAN\JORDANO71504pi.wpd

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POWER ENGINEERING and EQUIPMENT COMPANY, INC.’S ANSWER TO COMPLAINT FOR PERSONAL INJURY