On December 06, 2001 a Answer was filed involving a dispute between Jordan, Cheryl Lynn, Jordan, James, Thomas Dee Engineering Company, and 4520 Corp., Abblummus Global, Inc., A C And S,Inc., A.H. Voss Company, Albay Construction, Allis-Chalmers Corp. Product Liability Trust, American Honda Motor Co., Inc., American Standard, Inc., Asbestos Corp. Limited, Asbestos Corporation Ltd., Asbestos Defendants, Babcock Borsig Power Inc Ref To Db Riley Inc, Blue Diamond Corp., Borg Warner Inc., Borgwarner Inc. Fka Borg-Warner Automotive, Inc., Bragg Investment Company, Inc., Bridgestone Firestone Americas Holdings, Inc., Bridgestone Firestone,Inc., Bridgestone Firestone North American Tire, Llc,, Bwd Automotive, Calaveras Cement Co., Certainteed Corporation, Chevron Products Company, Colonial Sugar Refining Company, Conocophillips Company, Consolidated Insulation, Inc., Crane Co., Crown Cork & Seal Company,Inc., Daimlerchrysler Corporation, Dana Corporation, D. Cummins Corporation, Diamond International Corp., Dillingham Construction N.A.,Inc., Dixon Boiler Works Inc, Dixon Boiler Works, Inc., Does 1-800, Dow Chemical Company, Dresser Industries Inc., D.W. Nicholson Corporation, Eaton Corporation, Elliott Company, Elliott Turbomachinery Co., Inc., Fisher Controls International, Llc, Flintkote Co., Flintkote Mines Ltd., Flowserve Us Inc, Flowserve Us Inc., Fluor Corporation, Fmc Corporation -Turbo Pump Operation, Ford Motor Company, Foster Wheeler Llc, Garlock Sealing Technologies, Ll, Gatke Corporation, General Electric Company, General Motors Corporation, General Refractories Company, Genstar Co., Genuine Parts Company, Goodrich Corporation, Grinnell Corporation, Halliburton Company, Hanson Cement, Inc., Henry Vogt Machine Co., Hercules Powder Company, Honeywell International, Inc. Fka Alliedsignal, Imo Industries Inc.,, Imo Industries, Inc., J.R.Simplot Company, J.R. Simplot Company, A Nevada Corporation,, J.T. Thorpe & Son, Inc., Kaiser Gypsum Company, Inc., Keenan Properties, Inc, Kubota Corporation, Lamons Gasket Company Dba Power Engineering &, Lear Siegler Diversified Holdings Corp., Maremont Corporation, Metalclad Insulation Corporation, Monsanto Company, Morton International, Inc. A Rohm And Haas Company, Oakfabco, Inc., Oscar E. Erickson, Inc., Owens-Illinois, Inc., Pacific Coast Building Products, Inc Dba Pacific, Parker Hannifin Corporation, Parker-Hannifin Corporation, Parsons Energy & Chemical Group, Inc., Parsons Energy & Chemicals Group Inc, Plant Insulation Company, Pnuemo Abex Corporation, As Successor, Power Engineering & Equipment Co. Inc., Quigley Company, Inc., Rapid-American Corporation, Republic Supply Company, Rheem Manufacturing Co, Rheem Manufacturing Company, Robertson-Ceco Corporation, Rosendahl Corporation, Santa Fe Braun, Inc. As Successor-In-Interest To, Sequoia Ventures, Inc., Shell Oil Company, Soo Line Railroad Company, Standard Motor Products, Stuart Radiator Core Manufacturing Co Inc, Stuart Radiator Core Manufacturing Co. Inc., Stuart-Western, Inc., Sugar City Building Materials Inc., Taylor Plumbing Supply Company, Dba Globe Plumbing, Taylor Plumbing Supply Inc., Temporary Plant Cleaners, Inc., The Budd Company, Thomas Dee Engineering Company, Thorpe Insulation Company, Tosco Corporation, Tosco Refining Company, Trimon, Inc., Union Carbide Corporation, Unocal Corporation, Viacom Inc., Successor By Merger To Cbs Corporatio, Vogt Valve Company, Waldron, Duffy, Inc., Westburne Supply, Inc., Yale Industrial Products, Inc., Zurn Industries, Inc., for ASBESTOS in the District Court of San Francisco County.
For full print and download access, please subscribe at https://www.trellis.law/.
Please wait a moment while we load this page.
Preview
MOAN San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet May-13-2004 10:57 am Case Number: CGC-01-402113 Filing Date: May-10-2004 10:57 Juke Box: 001 Image: 00955164 ANSWER JAMES JORDAN VS. ASBESTOS DEFENDANTS (BHC) 001000955164 Instructions: Please place this sheet on top of the document to be scanned.McNAMARA, DODGE, NEY, BEATTY, SLATTERY & PFALZER LLP ATTORNEYS AT LAW P.O. BOX 5288, WALNUT CREEK, CA 94596 TELEPHONE: (925) 939-5330 0 ON DH FF Ww YN woN RY RYN N NN SF Bee Se Be es Be we Se eS o UM A A BON FF SOD OY DH BF WN = OS THOMAS E. PFALZER (State Bar No. 85261) FILED DENISE J. SERRA (State Bar No. 80602) SUPERIOR CO! JAMES A. PORTER IV (State Bar No. 226918) COUNTY OF SAN FI MCNAMARA, DODGE, NEY, BEATTY, SLATTERY & PFALZER LLP 1211 Newell Avenue Post Office Box 5288 WAY 10 Walnut Creek, CA 94596 GORDO! -LI, Clerk Telephone: (925) 939-5330 wy. er Facsimile: (925) 939-0203 Deputy Clerk Attorneys for Defendant FMC Corporation - Turbo Pump Operation, Sued as DOE #3 SUPERIOR COURT OF CALIFORNIA, CITY AND COUNTY OF SAN FRANCISCO CIVIL - UNLIMITED JURISDICTION JAMES JORDAN, Case No. 402113 Plaintiff, ANSWER TO FIRST AMENDED COMPLAINT vs. ASBESTOS DEFENDANTS (BHC) As Reflected on Exhibits B, B-1, C, F, and H; and DOES 1-800., Defendant. Defendant FMC CORPORATION - TURBO PUMP OPERATION responds to plaintiff's(s’) Unverified First Amended Complaint as follows: Answering the allegations of plaintiff's(s') First Amended Complaint on file herein, this answering defendant denies each and every, all and singular, generally and specifically, the allegations contained in said first amended complaint, and each and every part thereof, and in this connection denies that plaintiff(s) has/have been injured or damaged in any sum or sums, or at all, by reason of any careless-ness, negligence, act, or omissions of this defendant. AFFIRMATIVE DEFENSES 1. Defendant alleges that plaintiff(s) voluntarily and knowingly entered into and engaged in conduct alleged in said First Amended Complaint, and voluntarily and knowingly assumed all risks incident to said First Amended Complaint at the time and place mentioned in ANSWER TO FIRST AMENDED COMPLAINTMcNAMARA, DODGE, NEY, BEATTY, SLATTERY & PFALZER LLP ATTORNEYS AT LAW P.O. BOX 5288, WALNUT CREEK, CA 94596 TELEPHONE: (925) 939-5330 oC mw ND HW FF WN Nw oN NY NY NN N NN Fee SF KF SF DS Hrs &B F&F A RF OoNnH fF SBD we NIN DH FY NF OS said First Amended Complaint for damages. 2. Defendant alleges that said First Amended Complaint fails to set forth facts sufficient to state a cause of action against this answering defendant. 3. Defendant alleges that said First Amended Complaint fails to state a cause of action for punitive damages against this answering defendant. 4. Defendant alleges that plaintiff(s) was/were careless and negligent in and about the matters alleged in the First Amended Complaint, and that said carelessness and negligence on said plaintiffs(s’) own part proximately contributed to the happening of the incident and to the loss and damages complained of, if any there were. 5. Defendant alleges that if negligence is found on the part of this defendant, which said negligence is expressly denied, that said negligence should be compared with the negligence of the plaintiff(s), and all other parties herein, and apportioned accordingly. 6. Defendant alleges that the plaintiff's(s') First Amended Complaint is barred by the provisions of the Code of Civil Procedure Section 340, et seq.. in particular, Sections 340 (3) and 340.2. 7. Defendant alleges that at all times referred to in plaintiffs(s') First Amended Complaint, the plaintiff(s) was/were guilty of abuse and misuse of the product(s) and compound(s) and at locations referred to in said First Amended Complaint and the plaintiff's(s') injuries and damages, if any there were, were a direct and proximate result of said abuse and misuse by plaintiff(s). 8. By way of pleading laches, defendant alleges that plaintiff(s) has/have delayed an unreasonable period of time in bringing this action as alleged in said First Amended Complaint; said unreasonable delay is prejudicial to this answering defendant in that the period of time involved places an unreasonable burden on defendant in attempting to obtain evidence to defend said allegations in plaintiff's(s') First Amended Complaint, said unreasonable delay upon the part of plaintiff(s) unreasonably prejudiced this answering defendant and plaintiff(s) is/are thereby guilty of laches and should be barred from any recovery as to this answering defendant. Jl 2 ANSWER TO FIRST AMENDED COMPLAINTMcNAMARA, DODGE, NEY, BEATTY, SLATTERY & PFALZER LLP ATTORNEYS AT LAW P.O. BOX 5288, WALNUT CREEK, CA 94596 TELEPHONE: (925) 939-5330 om ND WH FF WN woN yy RN RNR Se ee ee eS ee Se So a aA A KR OD +=§ SO we IY DH FF YW NY = SO 9. In further answers to the allegations of plaintiff's(s') First Amended Complaint, this answering defendant denies that plaintiff(s) is/are entitled to punitive damages in any sum, or otherwise, or at all, by reason of any carelessness, negligence, act or omission of this defendant. 10. As an Affirmative Defense to the Second Cause of Action to the First Amended Complaint, this defendant alleges that said cause of action fails to set forth facts sufficient to state a cause of action (upon which to base a claim for Strict liability) against this answering defendant. 11, As an Affirmative Defense to the Third Cause of Action to the First Amended Complaint, this defendant alleges that said cause of action fails to set forth facts sufficient to state a cause of action (upon which to base a claim for False Representation) against this answering defendant. 12. As an Affirmative Defense to the Fourth Cause of Action to the First Amended Complaint, this defendant alleges that said cause of action fails to set forth facts sufficient to state a cause of action (upon which to base a claim for Intentional Tort) against this answering defendant. 13. Defendant alleges that at the time the alleged incident occurred, plaintiff was employed and was acting within the course and scope of his/her employment. It is alleged by this defendant that plaintiffs employers, other than this answering defendant, and their agents, servants, and employees were themselves negligent and careless in and about the matters set forth in the First Amended Complaint, in that at the time and place described therein said employer(s), other than this answering defendant, failed to use due care and caution for the protection of plaintiff; that said acts of negligence and carelessness on the part of said employer(s), other than this answering defendant, proximately caused the injury to said plaintiff, and any and all liability and/or expenditure under the workmen's compensation laws of the State of California incurred by said employer(s) on account of said injuries to employee. 14. Defendant alleges that the First Amended Complaint, and each cause of action therein, is barred as against this answering defendant by the provisions of California Labor Code §3601, et seq. Wil 3 ANSWER TO FIRST AMENDED COMPLAINTMcNAMARA, DODGE, NEY, BEATTY, SLATTERY & PFALZER LLP ATTORNEYS AT LAW P.O. BOX 5288, WALNUT CREEK, CA 94596 TELEPHONE: (925) 939-5330 0 oN DW 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. Plaintiff's(s') First Amended Complaint is barred by statute of limitations pursuant to Title 45 U.S.C. Section 56. 16. Defendant alleges that it acted solely under the direction and control of the United States of America pursuant to government specifications; that this defendant acted at all times in conformity with one or more government specifications and properly performed all work thereunder according to such specifications; that the United States of America is immune as expressed in Feres v. United States, 340 U.S. 135, 71 S.CT.153, 95 L.Ed. 152 (1950); and that this defendant is therefore immune under suit under the so-called government contract doctrine as set forth in Yearsley v. W.A. Ross Construction Company, 309 U.S. 18, 60 S.CT. 89, 84 L.Ed 454 (1940), and In Re Agent Orange Product Liability Litigation, 506 F.Supp. 762 (D.C.N.Y. 1980). 17. Defendant alleges that plaintiff's(s') First Amended Complaint fails to state facts sufficient to constitute a cause of action under Sindell vy. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr, 132 (1980), or any other so-called rule of "enterprise liability." 18. The causes of action for breach of warranty, if any, are barred (a) because there is no privity of contract between defendant and plaintiff(s); (b) because timely notice of any claim to breach of warranty was not given to defendant; (c) because plaintiff(s) did not reasonably rely on the claimed warranty. WHEREFORE, defendant prays that plaintiff(s) take nothing by way of his/her/their First Amended Complaint; that defendant be awarded its costs of suit incurred herein; together with such other and further relief as the Court may deem just and proper. Dated: May 6, 2004 MCNAaMaRA, DODGE, NEY, BEATTY, SLATTERY & PFALZER LLP we 2 AAEM homas E. Pfizer Denise J. Serra James A. Porter IV Attorneys for Defendant FMC Corporation - Turbo Pump Operation, Sued as DOE #3 4 ANSWER TO FIRST AMENDED COMPLAINTMcNAMARA, DODGE, NEY, BEATTY, SLATTERY & PFALZER LLP ATTORNEYS AT LAW P.O, BOX 5288, WALNUT CREEK, CA 94596 TELEPHONE: (925) 939-5330 PROOF OF SERVICE BY MAIL (C.C.P. §§ 1013a, 2015.5) Ihereby declare that I am a citizen of the United States, am over the age of eighteen years, and not a party to the within action; my business address is 1211 Newell Avenue, Walnut Creek, California 94596. On this date I served the foregoing FMC Corporation - Turbo Pump Operation's Answer to First Amended Complaint on the parties in said action, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Post Office mail box at Walnut Creek, California, addressed as follows: Attorneys For Plaintiff James Jordan: Alan R. Brayton, Esq. Brayton & Purcell 222 Rush Landing Road P.O. Box 2109 Novato, CA 94948-6169 Phone: 415-898-1555 Fax: 415-898-1247 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 May 7, 2004 at Walnut Precis Seoul Roséann Woodward Creek, California.