On November 08, 2002 a
Answer
was filed
involving a dispute between
Aqua-Chem Inc,
Thomas Dee Engineering Company,
Deleon, Michelle,
Williams, Juvon D,
Williams, Kimberly C,
Williams, Mary M,
Williams, Raquel L,
and
American Standard Inc,
Aqua-Chem Inc,
Asarco Inc,
Asbestos Corporation Ltd,
A.W. Chesterton Company,
Bigelow Company Inc,
Brown & Root Technical Services Inc,
Bryan Steam Llc Formerly Bryan Steam Corporation,
Buffalo Pumps Inc,
Butler-Johnson Corp,
Carver Pump Company,
Cemex Inc,
Certainteed Corporation,
Coltec Industries,Inc,
Combustion Engineering Inc,
Congoleum Corporation,
Crane Co.,
Csr, Ltd.,
Dana Corporation,
Darcoid Company Of America,
Db Riley, Inc.,
Does 1-820,
Dresser Industries, Inc.,
Durabla Manufacturing Company,
Durametallic Corporation,
Familian Corporation,
Fraser-Edwards Company,
Fraser'S Boiler Service, Inc.,
Garlock Inc,
Garlock Packing Company,
General Electric Company,
Georgia Pacific Corporation,
Goodyear Tire & Rubber Company,
Goulds Pumps,Incorporated,
Hanson Permanente Cement, Inc. Fka Kaiser Cement,
Hill Brothers Chemical Company,
Imo Industries, Inc.,
Ingersoll-Rand Company,
John Crane Inc,
John Crane, Inc.,
J.T. Thorpe & Son Inc.,
J.T. Thorpe & Son, Inc.,
Kaiser Gypsum Company, Inc.,
Lac D'Amiante Du Quebec, Ltee,
Metalclad Insulation Corporation,
Metropolitan Life Insurance Company,
Moore Dry Dock Company,
M.Slayen & Associates, Inc.,
Nibco, Inc.,
Parker Hannifin,
Parker-Hannifin Corporation,
Quigley Company, Inc.,
Quintec Industries, Inc.,
Sepco Corporation,
Southwest Martines, Inc,
Syd Carpenter, Marine Contractor,Inc.,
The Flintkote Company,
Thomas Dee Engineering Company,
Thorpe Insulation Company,
Todd Shipyards Corporation,
Triple A Machine Shop, Inc.,
Walashek Industrial & Marine, Inc., Dba Walashek,
Zurn Industries, Inc.,
for civil
in the District Court of San Francisco County.
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Document Scanning Lead Sheet
May-02-2003 3:10 pm
Case Number: CGC-02-414536
Filing Date: May-02-2003 3:07
Juke Box: 001 Image: 00678310
ANSWER
MARY M WILLIAMS et al VS. A.W. CHESTERTON COMPANY et al
001C00678310
Instructions:
Please place this sheet on top of the document to be scanned.\Q
GABRIEL A. JACKSON, ESQ., CsB #98119
RUTH K. BURKE. ESQ., csp #178696
JACKSON & WALLACE tp
55 Francisco Street, 6th Floor
San Francisco, CA 94133
(415) 982-6300
Attorneys For Defendant
ZURN INDUSTRIES, INC.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA.
IN AND FOR THE COUNTY OF SAN FRANCISCO
MARY M. WILLIAMS, individually and
as Successor-in-Interest to MELV.
WILLIAMS, deceased; and MARY M.
WILLIAMS, individually and as Guardian
ad Litem of RAQUEL L. WILLIAMS and
JUVON D. WILLIAMS, minors,
KIMBERLY C. WILLIAMS and
MICHELLE DeLEON as legal heirs of
MELVIN WILLIAMS, deceased;
Plaintiff(s),
Vv.
A.W. CHESTERTON COMPANY,
etal.,,
Defendants.
hi. £ 22 258
No. 414536
ANSWER OF DEFENDANT ZURN
INDUSTRIES, INC. TO UNVERIFIED
COMPLAINT FOR PERSONAL INJURY
DEFENDANT ZURN INDUSTRIES, INC., (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 and specifically each and every, all and singular, the allegations of said
Complaint, and each cause of action thereof and further denies that plaintiff(s) have
been damaged in any sum or sums at all.
WHEREFORE, this answering defendant asserts the following affirmative
defenses:
ZURN INDUSTRIES, INC., ANSWER TO COMPLAINT FOR PERSONAL INJURYws VY
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
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.
THIRD 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.
FOURTH 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.
FIFTH 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.
SIXTH AFFIRMATIVE DEFENSE
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 337.1, 337.15, 338(1), 338(4), 339(1), 340(1), 340(3), 340.2, 343 and 353 and
California Commercial Code, section 2725. -
SEVENTH 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
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ZURN INDUSTRIES, INC., ANSWER TO COMPLAINT FOR PERSONAL INJURYLp YY
LY
such delay; accordingly, his action is barred by laches and by section 583 et. seq. of the
Code of Civil Procedure.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff(s) 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 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).
NINTH AFFIRMATIVE DEFENSE
Plaintiff(s), by their actions, knew of and appreciated the risks involved, and
voluntarily and reasonably assumed the risk of said injuries, proximately causing or
contributing to the damages alleged.
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().
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.
TWELFTH AFFIRMATIVE DEFENSE
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, if any, incurred by
plaintiff(s).
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ZURN INDUSTRIES, INC., ANSWER TO COMPLAINT FOR PERSONAL INJURYVY
THIRTEENTH AFFIRMATIVE DEFENSE
Defendant alleges that its products, if any, 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
damages; accordingly, the amount of damages to which plaintiff(s) is 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
is 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 Workers' 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,
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ZURN INDUSTRIES, INC., ANSWER TO COMPLAINT FOR PERSONAL INJURYVU
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
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
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ZURN INDUSTRIES, INC., ANSWER TO COMPLAINT FOR PERSONAL INJURY27
28
Ww W
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
equal each other, pursuant to California Code of Civil Procedure section 431.70.
TWENTY-SECOND AFFIRMATIVE DEFENSE
Atall 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.
TWENTY-THIRD AFFIRMATIVE DEFENSE
Plaintiff(s) was barred from recovery in that all products produced, if any, by
Defendant were in conformity with the existing state-of-the-art, and as a result, these
products, if any, were not defective in any manner.
TWENTY-FOURTH AFFIRMATIVE DEFENSE
Defendant denies 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.
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ZURN INDUSTRIES, INC., ANSWER TO COMPLAINT FOR PERSONAL INJURYWU
TWENTY-FIFTH AFFIRMATIVE DEFENSE
Defendant alleges that the action is barred under the "primary right" doctrine
on the basis that causes of action may not be split, by the doctrines of res judicata and
collateral estoppel and by virtue of plaintiff's prosecution and/or settlement of their
claims in prior actions.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
Defendant presently has insufficient knowledge or information on which to
form a belief as to whether it may have additional, as yet unstated, defenses available.
Defendant reserves herein the right to assert additional defenses in the event discovery
indicates that they would be appropriate.
WHEREFORE, Defendant prays:
(1) That plaintiff takes nothing by his 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 1, 2003
JACKSQN & WALLACE tp
BY:
Ruth|Koller
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ZURN INDUSTRIES, INC., ANSWER TO COMPLAINT FOR PERSONAL INJURYWU
PROOF 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, David S. Mandle, 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; lam 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 May 1, 2003 I served a copy of the following documents: ZURN
INDUSTRIES, INC., ANSWER TO UNVERIFIED COMPLAINT FOR
PERSONAL INJURY 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 1, 2003, 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:
Paul, Hanley & Harley LLP
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 1,
2003.
vu.
David S. Mandle
8
ZURN INDUSTRIES, INC., ANSWER TO COMPLAINT FOR PERSONAL INJURY