Answer: DOUGLAS KIRK VS. ASBESTOS DEFENDANTS (BHC)AS REFLECTED ON EXHIBITS et al

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San Francisco Superior Courts
Information Technology Group

Document Scanning Lead Sheet
Oct-18-2002 3:45 pm

Case Number: CGC-02-410512
Filing Date: Oct-18-2002 3:44
Juke Box: 001 Image: 00532322
ANSWER

DOUGLAS KIRK VS. ASBESTOS DEFENDANTS (BHC)AS REFLECTED ON EXHIBITS ¢€

001000532322

Instructions:
Please place this sheet on top of the document to be scanned.~e NY

GABRIEL A. JACKSON, ESQ., CsB #98119
RUTH K. BURKE. ESQ., CSB #178696

ACKSON & WALLACE ip
I Francisco Street, 6th Floor San Francisco County Superior Court
San Francisco, CA 94133 .

(415) 982-6300 OCT 1 8 2002

Attorneys For Defendant G@RDON PARK-Ly Stark
DURAMETALLIC CORPORATION BY: ere :
wputy Sloth

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

DOUGLAS KIRK, No. 410512
Plaintiff, ANSWER OF DEFENDANT
DURAMETALLIC CORPORATION TO
v. UNVERIFIED COMPLAINT FOR
PERSONAL INJURY

ASBESTOS DEFENDANTS (BHC)

DEFENDANT DURAMETALLIC CORPORATION (hereinafter
"Defendant") answers the unverified Complaint herein on its own behalf and on
behalf of no other defendant or entity as follows:

Pursuant to California Code of Civil Procedure section 431.30(d), Defendant

denies generally each and every allegation of the Complaint.

FIRST AFFIRMATIVE DEFENSE

Neither the Complaint nor any purported cause of action alleged by the
plaintiff(s) therein states facts sufficient to constitute a cause of action against
Defendant.

SECOND AFFIRMATIVE DEFENSE

To the extent the Complaint asserts Defendant's alleged "market share"
liability, or “enterprise liability," the Complaint fails to state facts sufficient to

constitute a cause of action against Defendant.

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DURAMETALLIC CORPORATION'S ANSWER TO COMPLAINT FOR PERSONAL INJURY~~ Ve
THIRD AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged therein states
facts sufficient to entitle plaintiff(s) to an award of punitive damages against
Defendant.
FOURTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would deprive
Defendant of its property without due process of Jaw under the California
Constitution and United States Constitution.
FIFTH AFFIRMATIVE DEFENSE
The imposition of any punitive damages in this matter would violate the
United States Constitution's prohibition against laws impairing the obligation of
contracts.
SL EFENSE
The imposition of any punitive damages in this matter would constitute a criminal
fine or penalty and should, therefore, be remitted on the ground that the award
violates the United States Constitution.
VENTH AFI EFENSE
Plaintiff's action, and each alleged cause of action, is barred by the applicable
statute of limitations, including but not limited to California Code of Civil Procedure,
sections 338(1), 338(4), 339(1}, 340(1), 340(3), 340.2, 343 and 353 and California
Commercial Code, section 2725.
EIGHTH AFFIRMATIVE DEFENSE

Plaintiff(s) unreasonably delayed in bringing this action, without good cause
therefore, and thereby has prejudiced Defendant as a direct and proximate result of
such delay; accordingly, his action is barred by laches and by section 583 et. seq. of the
Code of Civil Procedure.

NINTH AFFIRMATIVE DEFENSE

Plaintiffs) was negligent in and about the matters alleged in the Complaint and

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DURAMETALLIC CORPORATION'S ANSWER TO COMPLAINT FOR PERSONAL INJURY~~ we
in each alleged cause of action; this negligence proximately caused, in whole or in
part, the damages alleged in the Complaint. In the event plaintiff(s) is entitled to any
damages, the amount of these damages should be reduced by the comparative fault of
plaintiff(s) and any person whose negligent acts or omissions are imputed to
plaintiff(s).
TENTH AFFIRMATIVE DEFENSE

Plaintiff(s) knowingly, voluntarily and unreasonably undertook to encounter
each of the risks and hazards, if any, referred to in the Complaint and each alleged
cause of action, and this undertaking proximately caused and contributed to any loss,
injury or damages incurred by plaintiff(s).

ELEVENTH AFFIRMATIVE DEFENSE

Any loss, injury or damage incurred by plaintiff(s) was proximately caused by
the negligent or willful acts or omissions of parties whom Defendant neither
controlled nor had the right to control, and was not proximately caused by any acts,
omissions or other conduct of Defendant.

WELFTH AFFIRMATIV} FE!

The products referred to in the Complaint were misused, abused or altered by
plaintiff(s) or by others; the misuse, abuse or alteration was not reasonably foreseeable
to Defendant, and proximately caused any loss, injury or damages incurred by
plaintiff(s).

THIRTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that its products were manufactured, produced, supplied,
sold and distributed in mandatory conformity with specifications promulgated by the
United States Government under its war powers, as set forth in the United States
Constitution, and that any recovery by plaintiff(s) on the Complaint on file herein is
barred in consequence of the exercise of those sovereign powers.

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiff(s) failed to exercise due diligence to mitigate his loss, injury or

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DURAMETALLIC CORPORATION'S ANSWER TO COMPLAINT FOR PERSONAL INJURYdamages; accordingly, the amount of damages to which plaintiff(s) is enticed, ifany,
should be reduced by the amount of damages which would have otherwise been
mitigated.
FIETEENTH AFFIRMATIVE DEFENSE

The Court lacks subject matter jurisdiction over the matters alleged in the
Complaint because the Complaint and each alleged cause of action against Defendant
are barred by the provisions of California Labor Code, section 3600, et seq.

SIXTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint,
plaintiff(s) was employed and was entitled to receive Worlers' Compensation benefits
from his employer's workers’ compensation insurance carrier; that all of plaintiff's
employers, other than Defendant, were negligent in and about the matters referred to
in said Complaint, and that such negligence on the part of said employers proximately
and concurrently contributed to the happening of the accident and to the loss or
damage complained of by plaintiff(s), if any there were; and that by reason thereof
Defendant is entitled to set off and/or reduce any such workers’ compensation
benefits received or to be received by plaintiff(s) against any judgment which may be
rendered in favor of plaintiff(s). (Witt v. Jackson, 57 Cal.2d 57, 366 P.2d 641)

SEVENTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at the time of the injuries alleged in the Complaint,
plaintiff's employers were negligent in and about the matters referred to in said
Complaint, and that such negligence on the part of said employers proximately and
concurrently contributed to any loss or damage, including noneconomic damages,
complained of by plaintiff(s), if any there were; and that Defendant is not liable for
said employers’ proportionate share of non-economic damages.

EIGHTEENTH AFFIRMATIVE DEFENSE
Defendant alleges that at the time of the injuries alleged in the Complaint,

parties other than this Defendant were negligent in and about the matters referred to

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DURAMETALLIC CORPORATION'S ANSWER TO COMPLAINT FOR PERSONAL INJURY27

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NY NS

in said Complaint, and that such negligence on the part of said parties proximately
and concurrently contributed to any loss or damage, including non-economic
damages, complained of by plaintiff(s), if any there were; and that Defendant herein
shall not be liable for said parties’ proportionate share of non-economic damages.

NINETEENTH AFFIRMATIVE DEFENSE

Defendant alleges that at all times relative to matters alleged in the Complaint,
all of plaintiff's employers, other than Defendant, were sophisticated users of
asbestos-containing products and said employers‘ negligence in providing the product
to its employees in a negligent, careless and reckless manner was a superseding cause
of plaintiff's injuries, if any.

TWENTIETH AFFIRMATIVE DEFENSE

If plaintiff(s) has received, or in the future may receive, Worker's
Compensation benefits from Defendant under the Labor Code of the State of
California as a consequence of the alleged industrial injury referred to in the
Complaint, and in the event plaintiff(s) is awarded damages against Defendant,
Defendant claims a credit against this award to the extent that Defendant is barred
from enforcing his rights to reimbursement for Worker's Compensation benefits that
plaintiff(s) has received or may in the future receive.

TWENTY-FIRST AFFIRMATIVE DEFENSE

If plaintiff(s) has received, or in the future may receive Worker's
Compensation benefits from Defendant under the Labor Code of the State of
California as a consequence of the alleged industrial injury referred to in the
Complaint, Defendant demands repayment of any such Worker's Compensation
benefits in the event that plaintiff(s) recovers tort damages as a result of the industrial
injury allegedly involved here. Although Defendant denies the validity of plaintiff's
claims, in the event those claims are held valid and not barred by the statute of limita-
tions or otherwise, Defendant asserts that cross-demands for money have existed

between plaintiff(s) and Defendant and the demands are compensated, so far as they

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DURAMETALLIC CORPORATION'S ANSWER TO COMPLAINT FOR PERSONAL INJURYVY NS
equal each other, pursuant to California Code of Civil Procedure section 431.70,

IWENTY-SECOND AEFIRMATIVE DEFENSE

At all times and places in the Complaint, plaintiff(s) was not in privity of
contract with Defendant and said lack of privity bars plaintiff's recovery herein upon

any theory of warranty.

IWENTY-THIRD AFFIRMATIVE DEFENSE

Plaintiff(s) was barred from recovery in that all products produced by
Defendant were in conformity with the existing state-of-the-art, and as a result, these

products were not defective in any manner.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

The Defendant did not and does not have a substantial percentage of the
market for the asbestos-containing products which allegedly caused plaintiff's
injuries. Therefore, Defendant may not be held liable to plaintiff(s) based on this
Defendant's alleged percentage share of the applicable market.

IWENTY-FIFTH AFFIRMATIVE DEFENSE

Defendants deny any and all liability to the extent that plaintiff asserts
Defendant's alleged liability as a successor, successor in business, successor in product
line or a portion thereof, assign, predecessor, predecessor in business, predecessor in
product line or a portion thereof, parent, alterego, subsidiary, wholly or partially
owned by, or the whole or partial owner of or member in an entity researching,
studying, manufacturing, fabricating, designing, labeling, assembling, distributing,
leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting
for installation, repairing, marketing, warranting, rebranding, manufacturing for
others, packaging and advertising a certain substance, the generic name of which is
asbestos.

WHEREFORE, Defendant prays:

(1) That plaintiff takes nothing by his Complaint;

(2) That Judgment be entered in favor of Defendant;

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DURAMETALLIC CORPORATION'S ANSWER TO COMPLAINT F ‘OR PERSONAL INJURY/ wo

(3) For recovery of Defendant's costs of suit;

(4) For appropriate credits and set-offs arising out of any payment of Worker's
Compensation benefits as alleged above; and

(6) For such other and further relief as the Court deems just and proper.
DATED; October te 2002,

JACKSON & WALLACE up

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DURAMETALLIC CORPORATION'S ANSWER TO COMPLAINT FOR PERSONAL INJURYPROOF OF SERVICE BY MAIL
‘Code Civ. Proc., §§ 1013, 2015.5
al. Rules of Court, rule 2008(e))

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO

I, David $. Mandle, declare as follows:

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

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

On October /# , 2002, I served a copy of the following documents:
DURAMETALLIC CORPORATION'S ANSWER TO ERIFIED
COMPLAINT FOR PERSONAL INJURY - ASBESTOS 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 October {t, 2002, a
true copy of the above-referenced document(s), 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 envelopes were addressed as follows:

Brayton Purcell
P.O, Box 2109
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 October

LF, 2002.

t
"David S. Mandle

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DURAMETALLIC CORPORATION'S ANSWER TO COMPLAINT FOR PERSONAL INJURY