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

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San Francisco Superior Courts
Information Technology Group

Document Scanning Lead Sheet
May-05-2003 2:33 pm

Case Number: CGC-02-414536
Filing Date: May-01-2003 2:30
Juke Box: 001 Image: 00679690
ANSWER

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

001000679690

Instructions:
Please place this sheet on top of the document to be scanned.Michael T. McCall, Esq. Bar No. 109580 1
WALSWORTH, FRANKLIN, BEVINS & McCALL
550 Montgomery Street

Eighth Floor

San Francisco, California 94111
(415) 781-7072

San Frangisco ‘Sounty Suoerior Court

way 0 1 2003

ORDON PARK Ll, Clerk

._f A a
Attorneys for Defendant cea aes
QUINTEC INDUSTRIES, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO - COURT OF UNLIMITED JURISDICTION

MARY M. WILLIAMS, individually and as
successor-in-interest to MELVIN
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

Case No. 414536

ANSWER OF DEFENDANT
QUINTEC INDUSTRIES, INC
TO PLAINTIFFS’ FIRST
AMENDED COMPLAINT FOR
SURVIVAL, WRONGFUL

legal heirs of MELVIN WILLIAMS, DEATH AND LOSS OF
Plaintiffs,
vs.

A. W. CHESTERTON COMPANY; et al.,

)
)
)
)
)
)
deceased, ) CONSORTIUM - ASBESTOS

)
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Defendants. )

)

Defendant QUINTEC INDUSTRIES, INC. (hereafter "Defendant"),
in answering the Plaintiffs’ unverified First Amended Complaint
(hereafter "complaint") for itself alone and severing itself from
all others, admits, denies and alleges as follows:

1. Pursuant to California Code of Civil Procedure Section

431.30, Defendant denies, both generally and specifically, each,
every and all allegations of each and every purported cause of
action or count of Plaintiffs’ complaint, denying specifically
that Plaintiffs have been, are, or will be injured or damaged in

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QUINTEC INDUSTRIES, INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTthe manner or sum alleged, or in any other manner or sums at all,
and further denying that Defendant was negligent in any manner,
that the alleged product(s) were defective in any way, or that
the alleged defect (s) were the proximate cause of the injuries
and damages alleged by Plaintiffs in their complaint.

DEFENDANT HEREIN ALLEGES AND SETS FORTH SEPARATELY AND
DISTINCTLY THE FOLLOWING AFFIRMATIVE DEFENSES TO EACH AND EVERY
CAUSE OF ACTION ALLEGED IN PLAINTIFFS’ COMPLAINT AS THOUGH EACH
DEFENSE WERE PLEADED SEPARATELY TO EACH AND EVERY CAUSE OF
ACTION:

First Affirmative Defense

2. The complaint and each and every purported cause of
action or count thereof fails to state facts sufficient to
constitute a cause or causes of action against Defendant.

Second Affirmative Defense

3. Defendant is informed and believes and thereon alleges
that the acts, injuries and damages alleged in the complaint
occurred and were proximately caused by either the sole
negligence or fault of Plaintiffs’ decedent, which sole
negligence or fault bars Plaintiffs’ recovery, or were
contributed to by the decedent’s negligence or fault.

Plaintiffs’ recovery, if any, should be reduced by an amount
proportionate to the amount by which the decedent’s negligence or
fault contributed to the happening of the alleged incident and/or
alleged injury.

Third Affirmative Defense

4. Defendant is informed and believes and thereon alleges
that the negligence, carelessness and other acts or omissions of

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QUINTEC INDUSTRIES, INC.°S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT27

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other Defendants in this lawsuit, as well as other persons and
entities not parties to this lawsuit, proximately caused or
contributed to Plaintiffs’ damages, if any. The negligence,
carelessness and other acts or omissions of the other Defendants
in this lawsuit and other persons and entities not parties to
this lawsuit account for one hundred percent (100%) of the causal
or contributing factors relating to Plaintiffs’ damages, if any,
and/or constitute the supervening and/or intervening causes of
Plaintiffs’ damages, if any.

Fourth Affirmative Defense

5. Defendant is informed and believes and thereon alleges
that the accident, injury and damages alleged in Plaintiffs’
complaint occurred and were proximately caused by either the sole
negligence of the decedent’s employers other than Defendant, or
co-employees, which sole negligence bars Plaintiffs’ recovery, or
were contributed to by the negligence of the decedent's employers
other than Defendant, or decedent’s co-employees. Plaintiffs’
recovery, if any, must be reduced by an amount proportionate to
the amount by which the negligence of the decedent’s employers
other than Defendant, and/or the negligence of the decedent’s co-
employees contributed to the happening of the alleged accident
and the alleged injuries.

Fifth Affirmative Defense

6. Defendant is informed and believes and thereon alleges
that while at all times denying any liability whatsoever to
Plaintiffs, any alleged liability or responsibility of Defendant
is small in proportion to the alleged liability and
responsibility of other persons or entities, including other

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QUINTEC INDUSTRIES, INC."S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTpersons and entities who are parties herein, and Plaintiffs
should be limited to seeking recovery from Defendant for the
proportion in which Defendant is allegedly liable or responsible,
all such alleged liability and responsibility being expressly
denied.

Sixth Affirmative Defense

7. Defendant is informed and believes and thereon alleges
that at the time the alleged operations, acts and conduct
occurred, the decedent was acting within the course and scope of
employment and was entitled to receive and may have received
workers’ compensation benefits. The decedent’s employers other
than Defendant failed to provide the decedent with a safe place
in which to work and these employers’ negligence, carelessness
and other acts and omissions proximately caused the injuries and
damages claimed by Plaintiffs. Therefore, these employers and
their workers’ compensation carriers are barred from any recovery
by lien or otherwise herein, and Defendant is entitled to set off
any such benefits Plaintiffs and/or the decedent have received
against any judgment rendered in favor of Plaintiffs.

Seventh Affirmative Defense

8. Defendant is informed and believes and thereon alleges
that the decedent knew of thé risks and dangers inherent to the
decedent's conduct, and with full knowledge of those risks and
dangers, and with an appreciation for the magnitude of the risks
and dangers, did voluntarily assume the risk and injuries and
damages, if any, sustained thereby. The decedent’s assumption of
risk bars or proportionately reduces any recovery by Plaintiffs.
J//7/

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QUINTEC INDUSTRIES, INC."S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTNY Kd

Eighth Affirmative Defense

9. Plaintiffs have failed to make reasonable efforts to
mitigate their damages, if any.

Ninth Affirmative Defense

10. The complaint and each and every cause of action are
barred by the applicable statute of limitations including, but

not limited to, Code of Civil Procedure Sections 338, 339,

340(1), 340(2), 340(3), 340.2 and 343.

Tenth Affirmative Defense

11. Plaintiffs’ action is barred by the provisions of Labor

Code Section 3600, et seq.

Eleventh Affirmative Defense

12. Defendant is informed and believes and thereon alleges
that Plaintiffs have waived and are estopped from asserting any
claim against Defendant by reason of the decedent’s approval and
consent to the risk of the matters causing the damages, if any,
and the decedent's acknowledgment of, acquiescence in and consent
to the alleged acts or omissions, if any, of Defendant.

Twelfth Affirmative Defense

13. This action is barred by laches as Plaintiffs
unreasonably delayed in the bringing of this action and thereby
prejudiced the rights of Defendant.

Thirteenth Affirmative Defense

14. Defendant alleges that Defendant distributed and/or
marketed product(s) in full compliance with regulations and/or
specifications promulgated by the United States Government and
any recovery by Plaintiffs is barred as a consequence.

////

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QUINTEC INDUSTRIES, INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTSe 4

Fourteenth Affirmative Defense

15. Defendant alleges that Plaintiffs are barred from
asserting any claim based on breach of warranty against Defendant
by reason of failure to fulfill the conditions of warranties
alleged in Plaintiffs’ complaint in the event such alleged
warranties are proved at trial.

Fifteenth Affirmative Defense

16. Defendant alleges that Plaintiffs have waived whatever
rights they might otherwise have had for breach of warranty in
that Plaintiffs and/or the decedent failed to notify Defendant of
any alleged breach of warranty, express or implied, and/or of any
alleged defects in any product(s) distributed or marketed by
Defendant within a reasonable time after they discovered, and/or
should have discovered, any defect or nonconformity, if any
existed, thereby prejudicing Defendant from being able to fully
investigate and defend the allegations contained in Plaintiffs’
complaint.

Sixteenth Affirmative Defense

17. Defendant alleges that Plaintiffs are now estopped from
claiming that any product(s) distributed or marketed by Defendant
were in any way defective or failed to conform to any alleged
warranties in that Plaintiffs and/or the decedent failed to
notify Defendant of any defect or nonconformity in any product (s)
within a reasonable time after they discovered, or should have
discovered, any defect or nonconformity, if any existed.

Seventeenth Affirmative Defense

18. Defendant alleges that neither Plaintiffs nor the
decedent were in privity of contract with Defendant and that such

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QUINTEC INDUSTRIES, INC.7S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTlack of privity bars recovery herein upon any theory of warranty.

Eighteenth Affirmative Defense

19. Defendant is informed and believes and thereon alleges
that any injuries or damages alleged by Plaintiffs, the existence
thereof being expressly denied, are the direct and proximate
result of the decedent’s particular, idiosyncratic, peculiar or
unforeseeable susceptibility to the alleged product (s)
distributed or marketed by Defendant, which reaction was not the
result of any conduct or omission of Defendant, nor the result of
any defect in any product distributed or marketed by Defendant.

Nineteenth Affirmative Defense

20. Defendant alleges that if the decedent was injured by
any product distributed or marketed by Defendant, Defendant,
irrespective, did not breach any duty to Plaintiffs or the
decedent and is not liable for any injuries or for any claimed
damages as the product(s) when distributed or marketed conformed
to the then current state-of-the-art specifications and because
the then current state-of-the-art medical, scientific and
industrial knowledge, art and practice were such that Defendant
did not and could not know that the product(s) might pose a risk
of harm in normal and foreseeable use.

Twentieth Affirmative Defense

21. Defendant alleges that neither Plaintiffs nor the
decedent reasonably relied upon any act, omission or
representation of Defendant.

Twenty-First Affirmative Defense

22. In the event Plaintiffs are entitled to non-economic
damages including, but not limited to, pain, suffering,

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QUINTEC INDUSTRIES, INC.’S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTinconvenience, mental suffering, emotional distress, loss of
society and companionship, loss of consortium and/or injury to
reputation and humiliation, Defendant shall be liable only for
the amount of non-economic damages allocated to Defendant’s
percentage of fault, and a separate judgment shall be rendered
against Defendant for that amount pursuant to Civil Code §1431.2.

Twenty-Second Affirmative Defense

23. Defendant denies any and all liability to the extent
that Plaintiffs may 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, alter
ego, subsidiary, wholly or partially owned by, or the whole or
partial owner or member in an entity in which there has been
research, study, manufacturing, fabricating, designing, labeling,
assembling, distributing, leasing, buying, offering for sale,
selling, inspecting, servicing, installing, contracting for
installation, repairing, marketing, warranting, re-branding,
manufacturing for others, packaging and advertising of a certain
substance, the generic name of which is asbestos.

Twenty-Third Affirmative Defense

24. Defendant alleges that Plaintiffs’ complaint and each
and every cause of action fail to state facts sufficient to
constitute a cause or causes of action for punitive damages
against Defendant.

Twenty-Fourth Affirmative Defense

25. Defendant is informed and believes and thereon alleges
that the decedent and/or other persons, without Defendant's

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QUINTEC INDUSTRIES, INC.7S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT27

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knowledge and/or approval, redesigned, modified, altered and used
products distributed or marketed by Defendant contrary to the
instructions and warnings and the customs and practices of the
industry so as to substantially change the character of the
product(s). Defendant further alleges that if product(s)
distributed or marketed by Defendant were defective in any way,
which defectiveness is specifically denied, such defectiveness
resulted solely from the redesign, modification, alteration, use
and/or other changes therein and not from any act or omission of
Defendant. Therefore, the defect, if any, so created by the
decedent and/or other persons or parties, as the case may be, was
the sole and proximate cause of the injuries and/or damages, if
any, alleged by Plaintiffs.

Twenty-Fifth Affirmative Defense

26. Defendant is informed and believes and thereon alleges
that the accident, injury and damages alleged in Plaintiffs’
complaint were solely and proximately caused by the decedent's
misuse of the product(s). Defendant could not have reasonably
foreseen this misuse and the decedent’s misuse thereof bars
recovery against Defendant.

Twenty-Sixth Affirmative Defense

27. Defendant is informed and believes and thereon alleges
that if the decedent was injured by any product(s) distributed or
marketed by Defendant, the product(s) were intended and sold in
bulk to a knowledgeable and sophisticated user over whom
Defendant had no control and who was fully informed as to the
risks and dangers, if any, associated with the products and the
precautions, if any, required to avoid any risks and dangers, if

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QUINTEC INDUSTRIES, INC.“S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINTany.

Twenty-Seventh Affirmative Defense

28. Defendant is informed and believes and thereon alleges
that if the decedent was injured by any product(s) distributed or
marketed by Defendant, the products were accompanied by good and
sufficient labeling when they left the custody, possession and
control of Defendant which gave conspectus, reasonable and
adequate warnings and directions to the users of the products
concerning the purpose for which, and manner in which, the
products were to be used and concerning the risks and dangers, if
any, attendant to said use. Defendant alleges that as a result
of the warnings and directions, Defendant fulfilled whatever
duty, if any, that is owed to Plaintiffs and/or the decedent. If
the decedent was injured by any product, the injuries were
proximately caused by the use of the product(s) in disregard of
the warnings and directions which was not reasonably foreseeable
to Defendant.

Twenty-Eighth Affirmative Defense

29. Defendant alleges that insofar as the instant complaint
is an attempt to recover punitive or exemplary damages from
Defendant, it violates the following United States Constitutional
and California State Constitutional principles:

a. Excessive fines clause of the United States
Constitution, Eighth Amendment and Fourteenth
Amendment ;

b. The contract clause, Article I, Section 10,
clause 1, and the Fourteenth Amendment of the
United States Constitution;

c. The due process clause of the United States

Constitution, Fourteenth Amendment ;

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QUINTEC INDUSTRIES, INC."S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT27

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d. The equal protection clause of the United
States Constitution;

e. The California Constitution due process and
equal protection clauses, Article 1, Section
Ta);

f£. The California Constitution excessive fines
clause, Article 1, Section 17.

WHEREFORE, Defendant QUINTEC INDUSTRIES, INC. prays for
judgment as follows:

1. That Plaintiffs take nothing from Defendant by virtue of
the complaint herein;

2. That Defendant be awarded costs of suit and attorneys’
fees herein; and

3. That Defendant be granted such other and further relief

as the Court may deem just and proper.
DATED: April 29, 2003 Respectfully submitted,

WALSWORTH, FRANKLIN, BEVINS & McCAL

By:

MICHAEL T. “McCALL
Attorneys for Defendant
QUINTEC INDUSTRIES, INC.

quintec/gen/anshanley/williamsans

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QUINTEC INDUSTRIES, INC.°S ANSWER TO PLAINTIFFS’ FIRST AMENDED COMPLAINT27

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NY Sw

PROOF OF SERVICE BY MAIL

I, DEANNA M. CICCOIANNI, declare as follows:

I am over the age of 18 years, employed in the County of
Orange, and not a party to the within action. My business address
is 1 City Boulevard West, Fifth Floor, Orange, California 92868.

I am readily familiar with the business practice at my place
of business for collection and processing of correspondence for
mailing with the United States Postal Service. Correspondence so
collected and processed is deposited with the United States Postal
Service that same day in the ordinary course of business.

On April 29, 2003, I served a copy of ANSWER OF DEFENDANT
QUINTEC INDUSTRIES, INC. TO PLAINTIFFS’ FIRST AMENDED COMPLAINT on
the party or parties named below, by following ordinary business
practice, placing a true copy thereof enclosed in a sealed
envelope, for collection and mailing with the United States Postal
Service where it would be deposited for first class delivery,
postage fully prepaid, in the United States Postal Service that
same day in the ordinary course of business, 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 April 29, 2003 at Orange,

\ dana lance

‘ANNA M. CIEGCOIANNI