Answer: MARY M WILLIAMS et al VS. A.W. CHESTERTON COMPANY et al

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San Francisco Superior Courts
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May-20-2003 4:36 pm

Case Number: CGC-02-414536
Filing Date: May-20-2003 4:35
Juke Box: 001 Image: 00692685
ANSWER

MARY M WILLIAMS et al VS. A.W. CHESTERTON COMPANY et al

001C00692685

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

GABRIEL A. JACKSON, ESQ., CsB #98119

RUTH K. BURKE. ESQ., CSB #178696 Sag ERED

JACKSON & WALLACE tip YRANCISCg
55 Francisco Street, 6th Floor O3 Nay 20 ps
San Francisco, CA 94133 a O Pi hs 38
(415) 982-6300 heey
Attorneys For Defendant by: 9 g
DURAMETALLIC CORPORATION 35 pn eey

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Ta lac,
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA QA.

IN AND FOR THE COUNTY OF SAN FRANCISCO

MARY M. WILLIAMS, individually and | No. 414536

as Successor-in-Interest to MELVIN

WILLIAMS, deceased; and MARY M. ANSWER OF DEFENDANT
WILLIAMS, individually and as Guardian | DURAMETALLIC CORPORATION
ad Litem of RAQUEL L. WILLIAMS, TO UNVERIFIED COMPLAINT FOR
and JUVON D. WILLIAMS, minors, WRONGFUL DEATH - ASBESTOS
KIMBERLY C. WILLIAMS, and

MICHELLE DeLEON, as legal heirs of

MELVIN WILLIAMS, deceased;

Plaintiff(s),
v.

A.W. CHESTERTON COMPANY,

Defendants.

DEFENDANT DURAMETALLIC CORPORATION (hereinafter
"Defendant") answers plaintiffs' unverified Complaint 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

plaintiffs therein states facts sufficient to constitute a cause of action against

Defendant.

DURAMETTALLIC CORPORATION'S ANSWER TO COMPLAINT FOR WRONGFUL DEATHWw Ne
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.
THIRD AFFIRMATIVE DEFENSE
Neither the Complaint nor any purported cause of action alleged therein states
facts sufficient to entitle plaintiffs 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 law 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.
SIXTH AFFIRMATIVE DEFENSE
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.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiffs’ 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, 353 and California
Commercial Code, section 2725.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs unreasonably delayed in bringing this action, without good cause
therefor, and thereby has prejudiced Defendant as a direct and proximate result of

such delay; accordingly, this action is barred by laches.

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DURAMETTALLIC CORPORATION'S ANSWER TO COMPLAINT FOR WRONGFUL DEATHWw Ne
NINTH AFFIRMATIVE DEFENSE

Plaintiffs' decedent was negligent in and about the matters alleged in the
Complaint and in each alleged cause of action; this negligence proximately caused, in
whole or in part, the damages alleged in the Complaint. In the event plaintiffs are
entitled to any damages, the amount of these damages should be reduced by the
comparative fault of plaintiffs and any person whose negligent acts or omissions are
imputed to plaintiff.

TENTH AFFIRMATIVE DEFENSE

Plaintiffs' decedent 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.

ELEVENTH AFFIRMATIVE DEFENSE

Any loss, injury or damage incurred by plaintiffs 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.

TWELFTH AFFIRMATIVE DEFENSE

The products referred to in the Complaint were misused, abused or altered by
plaintiffs’ decedent 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.

THIRTEENTH AFFIRMATIVE DEFENSE

Defendant alleges that their 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 plaintiffs on the Complaint on file herein is

barred in consequence of the exercise of those sovereign powers.

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DURAMETTALLIC CORPORATION'S ANSWER TO COMPLAINT FOR WRONGFUL DEATH~~ NS

FOURTEENTH AFFIRMATIVE DEFENSE

Plaintiffs' decedent failed to exercise due diligence to mitigate their loss, injury
or damages; accordingly, the amount of damages to which plaintiffs are entitled, if
any, should be reduced by the amount of damages which would have otherwise been
mitigated.

FIFTEENTH 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,
plaintiffs' decedent was employed and was entitled to receive Workers' Compensation
benefits from his employer's workers' compensation insurance carrier; that all of
plaintiffs’ decedent'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, 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 plaintiffs against any judgment
which may be rendered in favor of plaintiff. (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,
plaintiffs’ decedent'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 non-economic
damages, complained of by plaintiff, if any there were; and that Defendant is not

liable for said

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DURAMETTALLIC CORPORATION'S ANSWER TO COMPLAINT FOR WRONGFUL DEATHWw Ne
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
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, 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 plaintiffs’ decedent'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 intervening cause of plaintiffs' injuries, if any there were.

TWENTIETH AFFIRMATIVE DEFENSE

If plaintiffs have 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 plaintiffs are awarded damages against Defendant,
Defendant claims a credit against this award to the extent that Defendant is barred
from enforcing its rights to reimbursement for Worker's Compensation benefits that

plaintiffs have received or may in the future receive.

TWENTY-FIRST AFFIRMATIVE DEFENSE

If plaintiffs have 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

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DURAMETTALLIC CORPORATION'S ANSWER TO COMPLAINT FOR WRONGFUL DEATHplaintiffs recover tort damages as a result of the industrial injury allegedly involved
here. Although Defendant denies the validity of plaintiffs’ claims, in the event those
claims are held valid and not barred by the statute of limitations or otherwise,
Defendant asserts that cross-demands for money have existed between plaintiffs’ and
Defendant and the demands are compensated, so far as they equal each other,
pursuant to California Code of Civil Procedure section 431.70.

TWENTY-SECOND AFFIRMATIVE DEFENSE

Atall times and places in the Complaint, plaintiffs were not in privity of
contract with Defendant and said lack of privity bars plaintiffs' recovery herein upon
any theory of warranty.

TWENTY-THIRD AFFIRMATIVE DEFENSE

Plaintiffs are barred from recovery in that all products produced by Defendant
was 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 do not have a substantial percentage of the market
for the asbestos-containing products which allegedly caused plaintiffs’ injuries.
Therefore, Defendant may not be held liable to plaintiffs based on this Defendant's
alleged percentage share of the applicable market.

TWENTY-FIFTH AFFIRMATIVE DEFENSE

Defendant denies any and all liability to the extent that plaintiffs assert
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,

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DURAMETTALLIC CORPORATION'S ANSWER TO COMPLAINT FOR WRONGFUL DEATHnv

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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 plaintiffs take nothing by their Complaint;
(2) That Judgment be entered in favor of Defendant;
(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

(5) For such other and further relief as the Court deems just and proper.

DATED: May \A_, 2003
JACKSON & WALLACE up

BY:
uth Koller Burke

Attorneys For Defendant
DURAMETALLIC CORPORATION

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DURAMETTALLIC CORPORATION'S ANSWER TO COMPLAINT FOR WRONGFUL DEATHPROOF 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 S. Mandle, declare as follows:

Tam 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.

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

On May?=® , 2003, I served a copy of the following documents:
DURAMETA CORPORATION ANSWER TO RIFIED
COMPLAINT FOR WRONGFUL DEATH- 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 May 2 >, 2003, a true
copy of the above-referenced document(s), enclosed in a sealed envelope; in the
ordina 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:

Paul, Hanley & Harley
1608 Fourth Street, Suite #300
Berkeley, CA 94710

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 2,
2003.

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DURAMETTALLIC CORPORATION'S ANSWER TO COMPLAINT FOR WRONGFUL DEATH