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May-01-2003 1:55 pm
Case Number: CGC-02-414536
Filing Date: May-01-2003 1:53
Juke Box: 001 Image: 00677164
ANSWER
MARY M WILLIAMS et al VS. A.W. CHESTERTON COMPANY et al
001000677164
Instructions:
Please place this sheet on top of the document to be scanned.ent b
ry
BISHOP BARRY HOWE HANEY & RYDER 5105968876;
05/01/03 11:23AM; Jetfax #730;Page 2
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1 | DOUGLAS G. WAH, State Bar No. 64692
| STUART A. MCINTOSH, State Bar No. 89641
2 | BISHOP, BARRY, HOWE, HANEY & RYDER
2000 Powell Street, Suite 1425
3 | Emeryville, California 94608
Telephone: (510) $96-0888
4 || Facsimile: (510) 596-0899
5
6 | Attorneys for Defendant
BUTLER-JOHNSON CORPORATION
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SAN FRANCISCO - COURT OF UNLIMITED JURISDICTION
g 10
4 de
a a8 11 | MARY M. WILLIAMS, individually and Case No. 414536
z s$ as successor in interest to MELVIN
& Be 12 WILLIAMS, deceased; and MARY M. ANSWER OF DEFENDANT BUTLER-
Bess WILLIAMS, individually and as Guardian JOHNSON CORPORATION TO
2 Ese 13 | as Litem of RAQUEL L. WILLIAMS and PLAINTIFFS’ FIRST AMENDED
BEE JUVON D. WILLIAMS, minors; COMPLAINT FOR
o6a2 14] KIMBERLY C. WILLIAMS, and SURVIVAL/WRONGFUL DEATH AND
2 34, MICHELLE DeLEON, as legal heirs of LOSS OF CONSORTIUM AND REQUEST
mex g 15 | MELVIN WILLIAMS, deceased, FOR JURY TRIAL — ASBESTOS
yds
2825 16 Plaintiffs,
a £
a 2S 17 vs.
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a gz 18 | A.W. CHESTERTON COMPANY, etal.,
R 19 Defendants.
20
2 Defendant BUTLER-JOHNSON CORPORATION ("Defendant"), in answer to the
22 complaint of survivorship and wrongful death of Decedent MELVIN WILLIAMS, filed by
23
o -~, 44 Plaintiffs MARY M. WILLIAMS, Individually and as Successor-In-Interest to the Estate of
Sr
5 g& 25 MELVIN WILLIAMS ("Plaintiffs Decedent"); and MARY M. WILLIAMS, Individually and as
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a< 26 Guardian ad Litem of RAQUEL L. WILLIAMS and JUVON D. WILLIAMS, minors;
27 | KIMBERLY C. WILLIAMS; and MICHELLE DeLEON, as legal heirs of MELVIN WILLIAMS
28 || ("Plaintiffs"), admits, denies and alleges as follows:
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qt FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGFUL DEATH
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APROFESSIONAL CORPORATION.
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2000 Powcll Street, Suite 1425, Emeryville, California 94608
BISHOP, BARRY, HOWE, HANBY & RYDER
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Tel. No. (510) 596-0888 Facsimile (51
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Pursuant to the provisions of section 431.30(d) of the Code of Civil Procedure, Defendant
denies each and every, all and singular, both generally and specifically, the allegations of
Plaintiffs unverified complaint, and further denies that Plaintiffs have been damaged as alleged,
or at all, by reason of any act or omission on the part of Defendant or its agents, servants or
employees.
FIRST AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ complaint, fails to state facts sufficient to constitute a cause of
action against Defendant.
SECOND AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs have failed to join all persons and parties needed for a just
adjudication of this action.
THIRD AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ claim is barred by laches, waiver and/or estoppel.
FOURTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that this Court does not have subject matter jurisdiction over this action or
alternatively that the Court lacks jurisdiction due to insufficiency of process or the service thereof
and/or improper venue.
FIFTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs have failed to commence this action within the time required by
the applicable statute of limitations, including but not limited to California Code of Civil
Procedure sections 337.1, 337.15, 338(a), 338(d), 340(3), 340.2, 343 and 361.
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FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGFUL DEATH
11:25 51@S5968876 , PAGE .23Sent by: BISHOP BARRY HOWE HANEY & RYDER 5105968676; 05/01/03 11:24AM; Jethax #730;Page 4
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1 | SIXTH AFFIRMATIVE DEFENSE
2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
3 | Defendant alleges that Plaintiffs Decedent was careless and negligent in and about the matters
alleged in the complaint and said carelessness and negligence of Plaintiffs Decedent proximately
contributed to the happening of the accident, incident and occurrence alleged in the complaint,
contributory negligence bars a recovery or proportionately reduces any potential verdict.
4
5
6 || and to the injuries, losses and damages complained of therein, if any there were, and said
7
8g SEVENTH AFFIRMATIVE DEFENSE
3 | AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs Decedent failed to mitigate his alleged damages, if any there
1
were.
EIGHTH TIVE DEFENSE
14 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
15 | Defendant alleges that if Plaintiff Decedent was injured by products used or installed at
16 | Defendant's premises, which is denied, such injury occurred after the expiration of the useful safe
BISHOP, BARRY, HOWE, HANBY & RYDER
APROFESSIONAL CORPORATION
Tel. No. (510) 596-0888 Facsimile (510) 596-0899
2000 Powell Street, Suite 1425, Emeryville, California 94608
17 | ife of such products.
18
19 | NINTH AFFIRMATIVE DEFENSE
20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
21 | Defendant alleges that if Plaintiffs Decedent suffered any damages, which are denied, such
2 damages were the sole and proximate result of an unavoidable accident,
23 TENTH AFFIRMATIVE DEFENSE
u AS A SEPARATE AND AFFIRMATIVE DEFENSE TO RACH CAUSE OF ACTION,
25 Defendant alleges that if Plaintiffs Decedent suffered any damages, which are denied, such
26 damages were caused and/or contributed to by Plaintiffs Decedent's misuse of the product or
27 products and Plaintiffs’ recovery should be barred or reduced accordingly.
2g | /
3.
FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGFUI. DEATH
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| ~ ~
1 ELEVENTH AFFIRMATIVE DEFENSE
2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
3 || Defendant alleges that if Plaintiffs Decedent suffered any damages, which are denied, such
4
damages were solely and proximately caused by material modifications or alterations of the
5 | product or products involved in this action after it or they left the custody and control of
6 | Defendant.
7 TWELFTH AFFIRMATIVE DEFENSE
8 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
9 | Defendant alleges that any asbestos-containing product or products alleged to have caused
10 |) Plaintiffs Decedent’s injuries were manufactured, used, installed and/or distributed in mandatory
11 } compliance with specifications promulgated by the United States government under its war
12 | powers, as set forth in the U. S. Constitution, and that any recovery by Plaintiffs are barred as a
13 || consequence of the exercise of those sovereign powers.
THIRTEENTH AFFIRMA’ DEFENSE
15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
16 | Defendant alleges that any product or products alleged by Plaintiffs Decedent to have caused their
17 | injuries were manufactured, installed, used or distributed in compliance with specifications
Tel. No. (510) 596-0888 Facsimile (510) 596-0899
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18 | provided by third parties to Defendant and/or in compliance with all applicable health and safety
BISHOP, BARRY, HOWB, HANEY & RYDER
APROFESSIONAL CORPORATION
2000 Powell Strect, Suite 1425, Emeryville, California 94608
19 || statutes and regulations.
20 FOURTEE! AFFIRMA EFENSE
21 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
22 | Defendant alleges that if Plaintiff's Decedent suffered any damages, which are denied, the tisk of
23 || any such damages was not foreseeable to Defendant. Defendant at all times material hereto acted
24 | in accordance with the industry custom and practice and the state of scientific knowledge
25 || available to manufacturers, installers and/or users of asbestos-containing products.
26 | Mv
27 4 4
28 |“
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FLUGR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGPUL DEATH
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1 FIFTEENTH AFFIRMATIVE DEFENSE
2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
3 || Defendant alleges that it received no notice of any dangerous, hazardous or defective condition or
4 | any breach of warranty, either expressed or implied.
5 SIXTEENTH AFFIRMATIVE DEFENSE
6 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
7 | Defendant alleges that Plaintiff's Deoedent’s claim against Defendant is barred by the holding of
8 | Privette v. Superior Court (1993) 5 Cal.4th 689.
9 SEVENTEENTH AFFIRMATIVE DEFENSE
10 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
11 | Defendant, alleges that Plaintiffs’ claim against Defendant is barred by the holding of Hooker v.
12 || Dept. of Transportation, (2002) 24 Cal.4" 198, in that Defendant, a general contractor, did not
13 || retain control over any independent contractor sufficient to affirmatively contribute to Plaintiffs’
14 | Decedent’s alleged injuries.
APROFESSIONAL CORPORATION
2000 Powel! Strect, Suite 1425, Emeryville, California 94608
15 EIGHTEENTH AFFIRMATIVE DEFENSE
16 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
17 | Defendant alleges that Plaintiffs’ exposure to any asbestos-containing product or products
18 | allegedly used or installed at Defendant's premises was minimal and insufficient to establish the
BISHOP, BARRY, HOWB, HANEY & RYDER
Tel. No. (510) 596-0888 Facsimile (510) 596-0899
19 | probability that said product or products were a legal cause of Plaintiffs' alleged injuries.
20 | NINETEENTH AFFIRMATIVE DEFENSE °*
21 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
22 | Defendant alleges that this action is barred by the applicable state and/or federal industrial
23 | insurance and/or Workers’ Compensation laws, including, but not limited to, California Labor
24 || Code sections 3601 and 3602, and 33 U.S.C. Section 905.
25 TWENTIETH AFFIRMATIVE DEFENSE
26 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
27 | Defendant alleges that at the time of the injuries alleged in Plaintiffs' complaint, Plaintiffs
28 | Decedent MELVIN WILLIAMS was employed by persons other than Defendant; was entitled to
5
FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGTUL DEATH
MAY @1 2009 11:26 5105968876 “PAGE. 86Sent by: BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:25AM; Jetfax #730;Page 7/15
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1 | receive and did receive Workers' Compensation benefits from said employer(s) or their insurers;
and that said employer(s) were negligent and careless in and about the matters referred to in
Plaintiffs' complaint. Defendant is, therefore, entitled to set-off any such benefits received by
any recovery by lien or otherwise against Defendant in connection with this matter.
2
3
4 || Plaintiffs against any judgment rendered in Plaintiffs’ favor and said employer(s) are barred from
5
6 TWENTY-FIRST AFFIRMATIVE DEFENSE
7 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
8 | Defendant alleges that Plaintiffs’ Decedent voluntarily and knowingly assumed the alleged risks
9 | and hazards incident to the alleged operations, acts and conduct at the times and places alleged in
10 | Plaintiffs’ complaint and that Plaintiffs’ said acts proximately caused and contributed to the
11 | alleged damages, if any there were.
12 | TWENTY-SECOND AFFIRMATIVE DEFENSE
13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that at all times relevant to the matters alleged in Plaintiffs complaint,
15 || Plaintiffs’ Decedent’s employers were sophisticated users of asbestos-containing products and
16 | said employers’ negligence in providing said products to its employees was a superseding and/or
17 | intervening cause of Plaintiffs’ Decedent’s injuries, if any there were.
18 TWENTY-THIRD AFFIRMATIVE DEFENSE
19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Tel. No. (510) 596-0888 Facsimile (51 0) 596-0899
S
BISHOP, BARRY, HOWE, HANEY & RYDBR
APROFESSIONAL CORPORATION
2000 Powell Strect, Suite 1425, Emeryville, California 94608
20 | Defendant alleges that there was no concert of action among Defendant and other defendants to
21 || this action and that any alleged liability or responsibility of Defendant, which is denied, is
22 | minimal in proportion to the alleged liability and responsibility of this person and entities
23 | including the other defendants herein. Plaintiffs should therefore be limited to seeking recovery
24 | from Defendant for a proportion of the alleged injuries and damages for which Defendant is
25 | allegedly liable or responsible, all such alleged liability and responsibility being denied.
26 TWENTY-FOURTH AFFIRMAT! D SE
27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
28 || to the extent the complaint alleges that Defendant has "market share" liability or "enterprise
6.
TLUOR CORPORATION'S ANSWER TO COMPLAIN’ FOR SURVIVAL/WRONGFUL DEATH
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BISHOP, BARRY, HOWE, HANEY & RYDER
APROFESSIONAL CORPORATION
2000 Powell Street, Suite 1425, Bmeryville, California 94608
Tel. No. (510) 596-0888 Facsimile (S) 0) 596-0899
MAY @1 2083
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liability", the complaint fails to state facts sufficient to constitute a cause of action against
Defendant.
TWENTY-FIFTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it is entitled to set-off any settlement, judgments, or similar amounts
received by Plaintiffs, against any judgment rendered against it in Plaintiffs' favor.
TWENTY-SIXTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges, in accordance with section 1431.2 of the Civil Code, known as the Fair
Responsibility Act of 1986, that if Plaintiffs’ complaint states a cause of action, each defendant is
liable, if at all, only for those non-economic damages allocated to each defendant in direct
proportion to each defendant's percentage of fault, if any. Defendant requests a judicial
determination of the amount of non-economic damages, if any. Defendant also requests a judicial
determination of the amount of non-economic damages, if any, allocated to Defendant in direct
proportion to Defendant's percentage of fault, if any, and a separate judgment in conformance
therewith.
TWENTY-SEVENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the damages and injuries, if any, were proximately caused or contributed
to, in whole or in part, by the negligence or fault or other acts and/or omissions of persons or
entities other than Defendant, for which Defendant is not responsible.
TWENTY-EIGHTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that neither the complaint nor any purported causes of action alleged therein
state facts sufficient to entitle Plaintiffs to an award of punitive damages against Defendant.
TWENTY-NINTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ instant action is barred or, alternatively, merged into a prior
7
FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVALAWRONGFUL DEATH
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1 || cause of action for which Plaintiffs have previously sued upon, recovered, and dismissed with
2 | prejudice, thereby requiring a complete extinguishment of the instant action due to the doctrines
3 | ofres judicata and collateral estoppel.
THIRTIETH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
U.S.C. section 1141(d), and that Plaintiffs’ action violates the pending injunction against such
4
5
6 | Defendant alleges that Plaintiffs’ instant action is barred and discharged, pursuant to Title 11
7
8 | claims that exists, by operation of law, pursuant to Title 11 U.S.C. section 524(a)(2).
9
THIRTY-FIRST AFFIRMATIVE DEFENSE
10 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
11 | Defendant alleges that its products were manufactured, produced, supplied, sold and distributed
596-0899
12 | pursuant to contract with the United States government, and that any recovery by Plaintiffs are
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=2 13 | barred by consequence of the judicially recognized doctrine of immunity conferred upon that
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2 Hi 15 THIRTY-SECOND AFFIRMATIVE DEFENSE
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3 ga8 16 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
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= 23 17 | Defendant alleges that the allegations of the complaint are uncertain, vague and ambiguous.
a ae 18 THIRTY-THIRD AFFIRMATIVE DEFENSE
R 19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
20 || Defendant alleges that the allegations of the complaint should be dismissed pursuant to sections
21 583.210 through 583.250, and 583.410 through 583.430 of the Califomia Code of Civil
22 | Procedure, and other applicable code sections.
23 THIRTY-FOURTH AFFIRMATIVE DEFENSE
24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
25 | Defendant alleges that it does not have and never has had a successor, successor-in-business,
26 || successor-in-product line or portion thereof, successor-in-interest, assignee, predecessor,
27 | predecessor-in-business, predecessor-in-product line or portion thereof, predecessor-in-interest,
28 | partner, subsidiary, whole or partial or ownership or membership relationship with the entity upon
8.
FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGFUL DEATH
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1 | which Plaintiffs bases their allegations of liability.
2 THIRTY-FIFTH AFFIRMATIVE DEFENSE
3 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it did not have a sufficient market share with respect to products and
materials which Plaintiffs allegedly caused the alleged injuries and damages. Defendant may not
be held liable to Plaintiffs for any alleged share of said market or upon any theory premised upon
THIRTY-SIXTH AFFIRMATIVE DEFENSB
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO BACH CAUSE OF ACTION,
10 || Defendant alleges that if Plaintiffs’ Decedent sustained injuries or damages attributable to the use
4
5
6
7 | market-share liability.
8
9
11 || of any product researched, tested, studied, manufactured, fabricated, inadequately researched,
0) 596-0899
12 | designed, inadequately tested, labeled, assembled, distributed, leased, bought, offered for sale,
13 | sold, inspected, serviced, installed, contracted for installation, repaired, marketed, warranted,
14 || arranged, rebranded, manufactured for others, packaged, advertised and/or which contained or
15 | lacked warnings by Defendant, which allegations are expressly denied, the injuries or damages
were proximately caused by the unreasonable and unforeseeable misuse, abuse, alteration, or
17 || improper maintenance of the product by Plaintiff's Decedent or by others.
18 THIRTY-SEVENTH AFFIRMATIVE DEFENSE
19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Tel. No. (510) 596-0888 Facsimil
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BISHOP, BARRY, HOWE, HANBY & RYDER
A PROFESSIONAL CORPORATION
2000 Powell Strect, Suite 1425, Emeryville, California 94608
20 | Defendant alleges that at all times mentioned, Plaintiffs’ Decedent consented to the alleged acts
21 || of Defendant.
22 THIRTY-BIGHT AFFIRMATIVE DEFENSE
23 | AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
24 | Defendant alleges that all claims asserted by Plaintiffs and Plaintiffs’ Decedent were proximately
25 | caused by a superseding, intervening cause.
26 | THIRTY-NINE AFFIRMATIVE DEFENSE
27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
28 | Defendant alleges that the entire complaint and each cause of action thereof, is barred on the
9.
FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGPUL DEATH
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2000 Powell Street, Suite 1425, Bmeryville, California 94608
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grounds that the products or materials referred to in the complaint, if any, were not a substantial
factor in bringing about the injuries and damages alleged by Plaintiff.
FORTIETH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that the Plaintiffs are not entitled to an award of punitive or exemplary
damages in this action. Such an award would be unconstitutional unless Defendant is accorded
the safeguards provided under the Constitution of the State of California and the Fourth, Fifth,
Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
FORTY-FIRST AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that to the extent Plaintiffs’ Decedent’s claims arise out of contract Plaintiffs’
claims do not state facts sufficient to entitle Plaintiffs to an award of punitive or exemplary
damages against Defendant.
FORTY-SECOND AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ Decedent, at all times mentioned, was not in privity of contract
with Defendant, and that said lack of privity bars any recovery by Plaintiffs against Defendant
under any theory of breach of warranty.
FORTY-THIRD AFFI T. DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ Decedent failed to give adequate and timely notice of any
alleged breach of warranty.
FORTY-FOURTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs’ entire complaint, is barred by the Statute of Frauds to the extent
that any such causes of action are based on alleged oral agreements.
“
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FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGFUL DEATH
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Tel. No, (510) 596-0888 Facsimile (510) 596-0899
BISHOP, BARRY, HOWB, HANEY & RYDBR
APROFESSIONAL CORPORATION
2000 Powell Street, Suite 1425, Emeryville, California 94608
MAY 81 2883
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FORTY. AFF! TIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that al] products and materials researched, tested, studied, manufactured,
fabricated, inadequately researched, designed, inadequately tested, labeled, assembled,
distributed, leased, bought, offered for sale, sold, inspected, serviced, installed, contracted for
installation, repaired, marketed, warranted, arranged, rebranded, manufactured for others,
packaged, advertised and/or which contained or lacked wamings by Defendant which allegations
are expressly denied, were not defective in any manner, as said products and materials conformed
with the state-of-the-art in existence at all times mentioned in the complaint.
FORTY-SIXTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that its alleged actions, which are the subject of the complaint, were lawful.
FORTY-SEVENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that its alleged actions, which are the subject of the complaint, were justified.
FORTY-EIGHT AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs lack standing to sue Defendant.
FORTY-NINTH AF! (ATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that any danger or defect on the premises was obvious or could have been
observed by Plaintiffs' Decedent’s exercise of reasonable care.
EYETIETH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it wamed Plaintiffs' Decedent’s employers of all dangers on the premises
known to Defendant.
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FLUOX CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAI/WRONGFUL DEATH
11:28 5105968876 “——PAGE.12Sent by: BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:27AM; Jetfax #730;Page 13/15
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ATROFESSHONAL CORPORATION
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2000 Powell Street, Suite 1425, Emeryville, California 94608
Tel. No. (510) 596-0888 Facsimile (510) 596-0899
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FIFTY-FIRST AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that Plaintiffs have improperly split their causes of action and seeks to maintain
a duplicative lawsuit based on the same facts and circumstances as a lawsuit previously filed.
FIFTY-SECOND AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant alleges that it 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 the right to assert additional defenses in the event discovery indicates that they would be
appropriate.
‘WHEREFORE, Defendant prays for judgment as follows:
1. That Plaintiffs take nothing by reason of their complaint herein;
2. ‘That judgment is entered in favor of Defendant;
3. For costs of suit incurred herein;
4, For appropriate credits and set-offs arising out of any payment of Workers'
Compensation benefits as alleged above;
5. For a judicial determination of the amount of non-economic damages, if any,
allocated to Defendant in direct proportion the Defendant’s percentage of fault, if
any, and a separate judgment in conformance therewith; and
6. For such other and further relief as the Court may deem just and proper.
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-12-
FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGTUL DEATH
11:28 siesgsse76 ~ . “PAGE.13oe BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:27AM; Jetfax #730;Page 14/15
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1 NOTICE OF REQUEST FOR JURY TRIAL
2 Pursuant to California Code of Civil Procedure §631, BUTLER-JOHNSON
3 || CORPORATION hereby gives Notice of Its Request for Trial by Jury.
4|
5 || Dated: April 30, 2003 BISHOP, BARRY, HOWE, HANEY & RYDER
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7 Douglas G. Wah, Esq.
Stuart A. McIntosh, Esq.
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FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGPUL DEATH
MAY @1 2843 11:29 5185968876 PAGE.14aa HOWE HANEY & RYDER 5105968876; 05/01/03 11:28AM; Jetfax #730;Page 15/15
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2000 Powell Street, Suite 1425, Bmeryville, California 94608
Tel. No. (510) 596-0888 Facsimale (51.0) 596-0899
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MAY @1 2883 11:29 5185968876 PAGE.1S
PROOF OF SERVICE
lam a citizen of the United States and employed in the County of Alameda, City of Emeryvil!
California. I am over the age of eighteen years and not a party to the within action. My business address
is Bishop, Barry, Howe, Haney & Ryder, P.C., 2000 Powell Street, Suite 1425, Emeryville, California
94608.
T am familiar with Bishop, Barry, Howe, Haney & Ryder’s practice whereby each document is
placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon, and the sealed
envelope is placed in the office mail receptacle. Each day the mail is collected and deposited in a United
| States Postal mailbox at or before the closed of business each day.
On the date below-written, I served the following document(s):
| ANSWER OF DEFENDANT BUTLER-JOHNSON CORPORATION TO PLAINTIFFS’
FIRST AMENDED COMPLAINT FOR SURVIVAL/WRONGFUL DEATH AND LOSS
OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS
{X) By placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in
the designated area for outgoing mail at Emeryville, California, addressed as set forth below:
Dean A. Hanley, Esq.
PAUL HANLEY & HARLEY, LLP
1608 Fourth Street, Suite 300
Berkeley, CA 94710
() By causing personal delivery of a true copy thereof to the person and/or office of the person at the
address set forth below:
() By delivering a true copy thereof to (check service used) ___ U.S. Postal Express Mail;__ UPS
Overnight Mail; ___ Federal Express Overnight Service to be delivered to the person at the address set
forth below:
() By transmitting pursuant to C-R.C, Rule 2008, a true copy thereof via facsimile transmission to the
facsimile telephone number referenced at the address set forth below. The transmission was reported as
lete_and_without error_and a copy of the transmission report, which was properly issued by the
transmitting facsimile machine, is attached hereto,
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct to the best of my knowledge.
Executed on, SH Ulf 2003, at Emeryville, California.
Iwas (iloabarg
Nathan Matsubara
MARY M. WILLIAMS, et al. vs. A.W. CHESTERTON COMPANY, et al.
SAN FRANCISCO COUNTY SUPERIOR COURT NO. 414536
CiAMy Documents'Naw Anmvertipas Williams 05.61.08.dor
Preview
CO San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet May-01-2003 1:55 pm Case Number: CGC-02-414536 Filing Date: May-01-2003 1:53 Juke Box: 001 Image: 00677164 ANSWER MARY M WILLIAMS et al VS. A.W. CHESTERTON COMPANY et al 001000677164 Instructions: Please place this sheet on top of the document to be scanned.ent b ry BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:23AM; Jetfax #730;Page 2 VY \ 1 | DOUGLAS G. WAH, State Bar No. 64692 | STUART A. MCINTOSH, State Bar No. 89641 2 | BISHOP, BARRY, HOWE, HANEY & RYDER 2000 Powell Street, Suite 1425 3 | Emeryville, California 94608 Telephone: (510) $96-0888 4 || Facsimile: (510) 596-0899 5 6 | Attorneys for Defendant BUTLER-JOHNSON CORPORATION 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO - COURT OF UNLIMITED JURISDICTION g 10 4 de a a8 11 | MARY M. WILLIAMS, individually and Case No. 414536 z s$ as successor in interest to MELVIN & Be 12 WILLIAMS, deceased; and MARY M. ANSWER OF DEFENDANT BUTLER- Bess WILLIAMS, individually and as Guardian JOHNSON CORPORATION TO 2 Ese 13 | as Litem of RAQUEL L. WILLIAMS and PLAINTIFFS’ FIRST AMENDED BEE JUVON D. WILLIAMS, minors; COMPLAINT FOR o6a2 14] KIMBERLY C. WILLIAMS, and SURVIVAL/WRONGFUL DEATH AND 2 34, MICHELLE DeLEON, as legal heirs of LOSS OF CONSORTIUM AND REQUEST mex g 15 | MELVIN WILLIAMS, deceased, FOR JURY TRIAL — ASBESTOS yds 2825 16 Plaintiffs, a £ a 2S 17 vs. ge a gz 18 | A.W. CHESTERTON COMPANY, etal., R 19 Defendants. 20 2 Defendant BUTLER-JOHNSON CORPORATION ("Defendant"), in answer to the 22 complaint of survivorship and wrongful death of Decedent MELVIN WILLIAMS, filed by 23 o -~, 44 Plaintiffs MARY M. WILLIAMS, Individually and as Successor-In-Interest to the Estate of Sr 5 g& 25 MELVIN WILLIAMS ("Plaintiffs Decedent"); and MARY M. WILLIAMS, Individually and as ow a< 26 Guardian ad Litem of RAQUEL L. WILLIAMS and JUVON D. WILLIAMS, minors; 27 | KIMBERLY C. WILLIAMS; and MICHELLE DeLEON, as legal heirs of MELVIN WILLIAMS 28 || ("Plaintiffs"), admits, denies and alleges as follows: -l- qt FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGFUL DEATH MAY @1 2003 11:24 siesessasa SHEE BeSent by: BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:24AM; Jetfax #730;Page 3 Coo QW HH PF WH YD ee oe nbn FF Oo soe oe us w APROFESSIONAL CORPORATION. a 2000 Powcll Street, Suite 1425, Emeryville, California 94608 BISHOP, BARRY, HOWE, HANBY & RYDER a Tel. No. (510) 596-0888 Facsimile (51 eoN wy Mw Y NN NY NY Se & ou a A F OB HY = Ss © ow MAY @1 2883 Y Vy Pursuant to the provisions of section 431.30(d) of the Code of Civil Procedure, Defendant denies each and every, all and singular, both generally and specifically, the allegations of Plaintiffs unverified complaint, and further denies that Plaintiffs have been damaged as alleged, or at all, by reason of any act or omission on the part of Defendant or its agents, servants or employees. FIRST AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs’ complaint, fails to state facts sufficient to constitute a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs have failed to join all persons and parties needed for a just adjudication of this action. THIRD AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs’ claim is barred by laches, waiver and/or estoppel. FOURTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that this Court does not have subject matter jurisdiction over this action or alternatively that the Court lacks jurisdiction due to insufficiency of process or the service thereof and/or improper venue. FIFTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs have failed to commence this action within the time required by the applicable statute of limitations, including but not limited to California Code of Civil Procedure sections 337.1, 337.15, 338(a), 338(d), 340(3), 340.2, 343 and 361. i i 2- FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGFUL DEATH 11:25 51@S5968876 , PAGE .23Sent by: BISHOP BARRY HOWE HANEY & RYDER 5105968676; 05/01/03 11:24AM; Jethax #730;Page 4 wy Us 1 | SIXTH AFFIRMATIVE DEFENSE 2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 3 | Defendant alleges that Plaintiffs Decedent was careless and negligent in and about the matters alleged in the complaint and said carelessness and negligence of Plaintiffs Decedent proximately contributed to the happening of the accident, incident and occurrence alleged in the complaint, contributory negligence bars a recovery or proportionately reduces any potential verdict. 4 5 6 || and to the injuries, losses and damages complained of therein, if any there were, and said 7 8g SEVENTH AFFIRMATIVE DEFENSE 3 | AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs Decedent failed to mitigate his alleged damages, if any there 1 were. EIGHTH TIVE DEFENSE 14 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 15 | Defendant alleges that if Plaintiff Decedent was injured by products used or installed at 16 | Defendant's premises, which is denied, such injury occurred after the expiration of the useful safe BISHOP, BARRY, HOWE, HANBY & RYDER APROFESSIONAL CORPORATION Tel. No. (510) 596-0888 Facsimile (510) 596-0899 2000 Powell Street, Suite 1425, Emeryville, California 94608 17 | ife of such products. 18 19 | NINTH AFFIRMATIVE DEFENSE 20 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 21 | Defendant alleges that if Plaintiffs Decedent suffered any damages, which are denied, such 2 damages were the sole and proximate result of an unavoidable accident, 23 TENTH AFFIRMATIVE DEFENSE u AS A SEPARATE AND AFFIRMATIVE DEFENSE TO RACH CAUSE OF ACTION, 25 Defendant alleges that if Plaintiffs Decedent suffered any damages, which are denied, such 26 damages were caused and/or contributed to by Plaintiffs Decedent's misuse of the product or 27 products and Plaintiffs’ recovery should be barred or reduced accordingly. 2g | / 3. FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGFUI. DEATH MAY 61 2883 11:25 51@5868876 “PAGE .04Sent by: BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:24AM; Jetfax #730;Page 5/15 | ~ ~ 1 ELEVENTH AFFIRMATIVE DEFENSE 2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 3 || Defendant alleges that if Plaintiffs Decedent suffered any damages, which are denied, such 4 damages were solely and proximately caused by material modifications or alterations of the 5 | product or products involved in this action after it or they left the custody and control of 6 | Defendant. 7 TWELFTH AFFIRMATIVE DEFENSE 8 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 9 | Defendant alleges that any asbestos-containing product or products alleged to have caused 10 |) Plaintiffs Decedent’s injuries were manufactured, used, installed and/or distributed in mandatory 11 } compliance with specifications promulgated by the United States government under its war 12 | powers, as set forth in the U. S. Constitution, and that any recovery by Plaintiffs are barred as a 13 || consequence of the exercise of those sovereign powers. THIRTEENTH AFFIRMA’ DEFENSE 15 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 16 | Defendant alleges that any product or products alleged by Plaintiffs Decedent to have caused their 17 | injuries were manufactured, installed, used or distributed in compliance with specifications Tel. No. (510) 596-0888 Facsimile (510) 596-0899 _ S 18 | provided by third parties to Defendant and/or in compliance with all applicable health and safety BISHOP, BARRY, HOWB, HANEY & RYDER APROFESSIONAL CORPORATION 2000 Powell Strect, Suite 1425, Emeryville, California 94608 19 || statutes and regulations. 20 FOURTEE! AFFIRMA EFENSE 21 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 22 | Defendant alleges that if Plaintiff's Decedent suffered any damages, which are denied, the tisk of 23 || any such damages was not foreseeable to Defendant. Defendant at all times material hereto acted 24 | in accordance with the industry custom and practice and the state of scientific knowledge 25 || available to manufacturers, installers and/or users of asbestos-containing products. 26 | Mv 27 4 4 28 |“ 4- FLUGR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGPUL DEATH MAY @1 2083 11:25 5185968876 PAGE.a5Sent by: BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:25AM; Jetfax 4730;Page 6/15 ~~ A 1 FIFTEENTH AFFIRMATIVE DEFENSE 2 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 3 || Defendant alleges that it received no notice of any dangerous, hazardous or defective condition or 4 | any breach of warranty, either expressed or implied. 5 SIXTEENTH AFFIRMATIVE DEFENSE 6 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 7 | Defendant alleges that Plaintiff's Deoedent’s claim against Defendant is barred by the holding of 8 | Privette v. Superior Court (1993) 5 Cal.4th 689. 9 SEVENTEENTH AFFIRMATIVE DEFENSE 10 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 11 | Defendant, alleges that Plaintiffs’ claim against Defendant is barred by the holding of Hooker v. 12 || Dept. of Transportation, (2002) 24 Cal.4" 198, in that Defendant, a general contractor, did not 13 || retain control over any independent contractor sufficient to affirmatively contribute to Plaintiffs’ 14 | Decedent’s alleged injuries. APROFESSIONAL CORPORATION 2000 Powel! Strect, Suite 1425, Emeryville, California 94608 15 EIGHTEENTH AFFIRMATIVE DEFENSE 16 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 17 | Defendant alleges that Plaintiffs’ exposure to any asbestos-containing product or products 18 | allegedly used or installed at Defendant's premises was minimal and insufficient to establish the BISHOP, BARRY, HOWB, HANEY & RYDER Tel. No. (510) 596-0888 Facsimile (510) 596-0899 19 | probability that said product or products were a legal cause of Plaintiffs' alleged injuries. 20 | NINETEENTH AFFIRMATIVE DEFENSE °* 21 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 22 | Defendant alleges that this action is barred by the applicable state and/or federal industrial 23 | insurance and/or Workers’ Compensation laws, including, but not limited to, California Labor 24 || Code sections 3601 and 3602, and 33 U.S.C. Section 905. 25 TWENTIETH AFFIRMATIVE DEFENSE 26 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 27 | Defendant alleges that at the time of the injuries alleged in Plaintiffs' complaint, Plaintiffs 28 | Decedent MELVIN WILLIAMS was employed by persons other than Defendant; was entitled to 5 FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGTUL DEATH MAY @1 2009 11:26 5105968876 “PAGE. 86Sent by: BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:25AM; Jetfax #730;Page 7/15 Y 1 | receive and did receive Workers' Compensation benefits from said employer(s) or their insurers; and that said employer(s) were negligent and careless in and about the matters referred to in Plaintiffs' complaint. Defendant is, therefore, entitled to set-off any such benefits received by any recovery by lien or otherwise against Defendant in connection with this matter. 2 3 4 || Plaintiffs against any judgment rendered in Plaintiffs’ favor and said employer(s) are barred from 5 6 TWENTY-FIRST AFFIRMATIVE DEFENSE 7 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 8 | Defendant alleges that Plaintiffs’ Decedent voluntarily and knowingly assumed the alleged risks 9 | and hazards incident to the alleged operations, acts and conduct at the times and places alleged in 10 | Plaintiffs’ complaint and that Plaintiffs’ said acts proximately caused and contributed to the 11 | alleged damages, if any there were. 12 | TWENTY-SECOND AFFIRMATIVE DEFENSE 13 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that at all times relevant to the matters alleged in Plaintiffs complaint, 15 || Plaintiffs’ Decedent’s employers were sophisticated users of asbestos-containing products and 16 | said employers’ negligence in providing said products to its employees was a superseding and/or 17 | intervening cause of Plaintiffs’ Decedent’s injuries, if any there were. 18 TWENTY-THIRD AFFIRMATIVE DEFENSE 19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Tel. No. (510) 596-0888 Facsimile (51 0) 596-0899 S BISHOP, BARRY, HOWE, HANEY & RYDBR APROFESSIONAL CORPORATION 2000 Powell Strect, Suite 1425, Emeryville, California 94608 20 | Defendant alleges that there was no concert of action among Defendant and other defendants to 21 || this action and that any alleged liability or responsibility of Defendant, which is denied, is 22 | minimal in proportion to the alleged liability and responsibility of this person and entities 23 | including the other defendants herein. Plaintiffs should therefore be limited to seeking recovery 24 | from Defendant for a proportion of the alleged injuries and damages for which Defendant is 25 | allegedly liable or responsible, all such alleged liability and responsibility being denied. 26 TWENTY-FOURTH AFFIRMAT! D SE 27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 28 || to the extent the complaint alleges that Defendant has "market share" liability or "enterprise 6. TLUOR CORPORATION'S ANSWER TO COMPLAIN’ FOR SURVIVAL/WRONGFUL DEATH MAY @1 2883 11:26 S1@5968876 PAGE .8?Sent by: BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:25AM; Jetfax #730;Page 8/15 BISHOP, BARRY, HOWE, HANEY & RYDER APROFESSIONAL CORPORATION 2000 Powell Street, Suite 1425, Bmeryville, California 94608 Tel. No. (510) 596-0888 Facsimile (S) 0) 596-0899 MAY @1 2083 WY ww liability", the complaint fails to state facts sufficient to constitute a cause of action against Defendant. TWENTY-FIFTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it is entitled to set-off any settlement, judgments, or similar amounts received by Plaintiffs, against any judgment rendered against it in Plaintiffs' favor. TWENTY-SIXTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges, in accordance with section 1431.2 of the Civil Code, known as the Fair Responsibility Act of 1986, that if Plaintiffs’ complaint states a cause of action, each defendant is liable, if at all, only for those non-economic damages allocated to each defendant in direct proportion to each defendant's percentage of fault, if any. Defendant requests a judicial determination of the amount of non-economic damages, if any. Defendant also requests a judicial determination of the amount of non-economic damages, if any, allocated to Defendant in direct proportion to Defendant's percentage of fault, if any, and a separate judgment in conformance therewith. TWENTY-SEVENTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that the damages and injuries, if any, were proximately caused or contributed to, in whole or in part, by the negligence or fault or other acts and/or omissions of persons or entities other than Defendant, for which Defendant is not responsible. TWENTY-EIGHTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that neither the complaint nor any purported causes of action alleged therein state facts sufficient to entitle Plaintiffs to an award of punitive damages against Defendant. TWENTY-NINTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs’ instant action is barred or, alternatively, merged into a prior 7 FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVALAWRONGFUL DEATH 11:2? 5165968876 ~~ PAGE.28Sent by: BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:26AM; Jetfax #730;Page 9/15 WY Vy 1 || cause of action for which Plaintiffs have previously sued upon, recovered, and dismissed with 2 | prejudice, thereby requiring a complete extinguishment of the instant action due to the doctrines 3 | ofres judicata and collateral estoppel. THIRTIETH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, U.S.C. section 1141(d), and that Plaintiffs’ action violates the pending injunction against such 4 5 6 | Defendant alleges that Plaintiffs’ instant action is barred and discharged, pursuant to Title 11 7 8 | claims that exists, by operation of law, pursuant to Title 11 U.S.C. section 524(a)(2). 9 THIRTY-FIRST AFFIRMATIVE DEFENSE 10 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 11 | Defendant alleges that its products were manufactured, produced, supplied, sold and distributed 596-0899 12 | pursuant to contract with the United States government, and that any recovery by Plaintiffs are 8 8 & Sz “2 ga > a =2 13 | barred by consequence of the judicially recognized doctrine of immunity conferred upon that ibe af ’ E 2 14 | contractual relationship and any occurrences arising therefrom. 2 Hi 15 THIRTY-SECOND AFFIRMATIVE DEFENSE Sess 3 ga8 16 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Be = 23 17 | Defendant alleges that the allegations of the complaint are uncertain, vague and ambiguous. a ae 18 THIRTY-THIRD AFFIRMATIVE DEFENSE R 19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 20 || Defendant alleges that the allegations of the complaint should be dismissed pursuant to sections 21 583.210 through 583.250, and 583.410 through 583.430 of the Califomia Code of Civil 22 | Procedure, and other applicable code sections. 23 THIRTY-FOURTH AFFIRMATIVE DEFENSE 24 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 25 | Defendant alleges that it does not have and never has had a successor, successor-in-business, 26 || successor-in-product line or portion thereof, successor-in-interest, assignee, predecessor, 27 | predecessor-in-business, predecessor-in-product line or portion thereof, predecessor-in-interest, 28 | partner, subsidiary, whole or partial or ownership or membership relationship with the entity upon 8. FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGFUL DEATH MAY @1 2003 11:27 Siassese76COts—~S “PAGE .23Sent by: BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:26AM; Jetfax #730;Page 10/15 Y wy 1 | which Plaintiffs bases their allegations of liability. 2 THIRTY-FIFTH AFFIRMATIVE DEFENSE 3 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it did not have a sufficient market share with respect to products and materials which Plaintiffs allegedly caused the alleged injuries and damages. Defendant may not be held liable to Plaintiffs for any alleged share of said market or upon any theory premised upon THIRTY-SIXTH AFFIRMATIVE DEFENSB AS A SEPARATE AND AFFIRMATIVE DEFENSE TO BACH CAUSE OF ACTION, 10 || Defendant alleges that if Plaintiffs’ Decedent sustained injuries or damages attributable to the use 4 5 6 7 | market-share liability. 8 9 11 || of any product researched, tested, studied, manufactured, fabricated, inadequately researched, 0) 596-0899 12 | designed, inadequately tested, labeled, assembled, distributed, leased, bought, offered for sale, 13 | sold, inspected, serviced, installed, contracted for installation, repaired, marketed, warranted, 14 || arranged, rebranded, manufactured for others, packaged, advertised and/or which contained or 15 | lacked warnings by Defendant, which allegations are expressly denied, the injuries or damages were proximately caused by the unreasonable and unforeseeable misuse, abuse, alteration, or 17 || improper maintenance of the product by Plaintiff's Decedent or by others. 18 THIRTY-SEVENTH AFFIRMATIVE DEFENSE 19 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Tel. No. (510) 596-0888 Facsimil o n BISHOP, BARRY, HOWE, HANBY & RYDER A PROFESSIONAL CORPORATION 2000 Powell Strect, Suite 1425, Emeryville, California 94608 20 | Defendant alleges that at all times mentioned, Plaintiffs’ Decedent consented to the alleged acts 21 || of Defendant. 22 THIRTY-BIGHT AFFIRMATIVE DEFENSE 23 | AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 24 | Defendant alleges that all claims asserted by Plaintiffs and Plaintiffs’ Decedent were proximately 25 | caused by a superseding, intervening cause. 26 | THIRTY-NINE AFFIRMATIVE DEFENSE 27 AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, 28 | Defendant alleges that the entire complaint and each cause of action thereof, is barred on the 9. FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGPUL DEATH MAY @1 2003 11:27 5105968876 PAGE. 18Sent by: BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:26AM; Jetfax #730;Page 11/15 Co Om 2 A A Rw Pe es sis aA ah wR | DO APROFESSIONAL CORPORATION 2000 Powell Street, Suite 1425, Bmeryville, California 94608 ss BISHOP, BARRY, HOWE, HANBY & RYDER e Tel. No. (510) 596-0888 Facsimile (51 0) 596-0899 NRoN Ye nw =| S&S wo 23 | SS OD grounds that the products or materials referred to in the complaint, if any, were not a substantial factor in bringing about the injuries and damages alleged by Plaintiff. FORTIETH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that the Plaintiffs are not entitled to an award of punitive or exemplary damages in this action. Such an award would be unconstitutional unless Defendant is accorded the safeguards provided under the Constitution of the State of California and the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. FORTY-FIRST AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that to the extent Plaintiffs’ Decedent’s claims arise out of contract Plaintiffs’ claims do not state facts sufficient to entitle Plaintiffs to an award of punitive or exemplary damages against Defendant. FORTY-SECOND AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs’ Decedent, at all times mentioned, was not in privity of contract with Defendant, and that said lack of privity bars any recovery by Plaintiffs against Defendant under any theory of breach of warranty. FORTY-THIRD AFFI T. DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs’ Decedent failed to give adequate and timely notice of any alleged breach of warranty. FORTY-FOURTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs’ entire complaint, is barred by the Statute of Frauds to the extent that any such causes of action are based on alleged oral agreements. “ “ «10- FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGFUL DEATH MAY @1 2603 11:28 51@5968876 PAGE.11Sent by: BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:27AM; Jetfax #730;Page 12/15 — soe -~ Oo 12 Tel. No, (510) 596-0888 Facsimile (510) 596-0899 BISHOP, BARRY, HOWB, HANEY & RYDBR APROFESSIONAL CORPORATION 2000 Powell Street, Suite 1425, Emeryville, California 94608 MAY 81 2883 Co Om IN DAH FF YW WN VY VU FORTY. AFF! TIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that al] products and materials researched, tested, studied, manufactured, fabricated, inadequately researched, designed, inadequately tested, labeled, assembled, distributed, leased, bought, offered for sale, sold, inspected, serviced, installed, contracted for installation, repaired, marketed, warranted, arranged, rebranded, manufactured for others, packaged, advertised and/or which contained or lacked wamings by Defendant which allegations are expressly denied, were not defective in any manner, as said products and materials conformed with the state-of-the-art in existence at all times mentioned in the complaint. FORTY-SIXTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that its alleged actions, which are the subject of the complaint, were lawful. FORTY-SEVENTH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that its alleged actions, which are the subject of the complaint, were justified. FORTY-EIGHT AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs lack standing to sue Defendant. FORTY-NINTH AF! (ATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that any danger or defect on the premises was obvious or could have been observed by Plaintiffs' Decedent’s exercise of reasonable care. EYETIETH AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it wamed Plaintiffs' Decedent’s employers of all dangers on the premises known to Defendant. ut | uv “le FLUOX CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAI/WRONGFUL DEATH 11:28 5105968876 “——PAGE.12Sent by: BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:27AM; Jetfax #730;Page 13/15 i 12 em ON AW HW B&F WN Se oe ee Oo w= Oo eo nn BISHOP, BARRY, HOWE, HANEY & RYDER ATROFESSHONAL CORPORATION we 3 2000 Powell Street, Suite 1425, Emeryville, California 94608 Tel. No. (510) 596-0888 Facsimile (510) 596-0899 ~ h Re = co 0D Om MAY @1 28893 | VY Ud FIFTY-FIRST AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that Plaintiffs have improperly split their causes of action and seeks to maintain a duplicative lawsuit based on the same facts and circumstances as a lawsuit previously filed. FIFTY-SECOND AFFIRMATIVE DEFENSE AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, Defendant alleges that it 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 the right to assert additional defenses in the event discovery indicates that they would be appropriate. ‘WHEREFORE, Defendant prays for judgment as follows: 1. That Plaintiffs take nothing by reason of their complaint herein; 2. ‘That judgment is entered in favor of Defendant; 3. For costs of suit incurred herein; 4, For appropriate credits and set-offs arising out of any payment of Workers' Compensation benefits as alleged above; 5. For a judicial determination of the amount of non-economic damages, if any, allocated to Defendant in direct proportion the Defendant’s percentage of fault, if any, and a separate judgment in conformance therewith; and 6. For such other and further relief as the Court may deem just and proper. “u i It “ “ -12- FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGTUL DEATH 11:28 siesgsse76 ~ . “PAGE.13oe BISHOP BARRY HOWE HANEY & RYDER 5105968876; 05/01/03 11:27AM; Jetfax #730;Page 14/15 SU 1 NOTICE OF REQUEST FOR JURY TRIAL 2 Pursuant to California Code of Civil Procedure §631, BUTLER-JOHNSON 3 || CORPORATION hereby gives Notice of Its Request for Trial by Jury. 4| 5 || Dated: April 30, 2003 BISHOP, BARRY, HOWE, HANEY & RYDER ‘ Set MA 7 Douglas G. Wah, Esq. Stuart A. McIntosh, Esq. 8g Attomeys for Defendant BUTLER-JOHNSON CORPORATION 9 s 10 ag eae ou 2 $2 12 et as moe wea 14 Beak 16 Zegs | x 2 17 Q 32 g fz 18 R19 20 21 | 22 23 24 25 26 27 28 ~13- FLUOR CORPORATION'S ANSWER TO COMPLAINT FOR SURVIVAL/WRONGPUL DEATH MAY @1 2843 11:29 5185968876 PAGE.14aa HOWE HANEY & RYDER 5105968876; 05/01/03 11:28AM; Jetfax #730;Page 15/15 w VW ome YM DH F&F WD Hw ee a uw PBR WN | Oo BISHOP, BARRY, HOWE, HANEY & RYDER APROFESSIONAL CORPORATION - a 2000 Powell Street, Suite 1425, Bmeryville, California 94608 Tel. No. (510) 596-0888 Facsimale (51.0) 596-0899 NN ee & = & © oo 22 MAY @1 2883 11:29 5185968876 PAGE.1S PROOF OF SERVICE lam a citizen of the United States and employed in the County of Alameda, City of Emeryvil! California. I am over the age of eighteen years and not a party to the within action. My business address is Bishop, Barry, Howe, Haney & Ryder, P.C., 2000 Powell Street, Suite 1425, Emeryville, California 94608. T am familiar with Bishop, Barry, Howe, Haney & Ryder’s practice whereby each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon, and the sealed envelope is placed in the office mail receptacle. Each day the mail is collected and deposited in a United | States Postal mailbox at or before the closed of business each day. On the date below-written, I served the following document(s): | ANSWER OF DEFENDANT BUTLER-JOHNSON CORPORATION TO PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR SURVIVAL/WRONGFUL DEATH AND LOSS OF CONSORTIUM AND REQUEST FOR JURY TRIAL - ASBESTOS {X) By placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the designated area for outgoing mail at Emeryville, California, addressed as set forth below: Dean A. Hanley, Esq. PAUL HANLEY & HARLEY, LLP 1608 Fourth Street, Suite 300 Berkeley, CA 94710 () By causing personal delivery of a true copy thereof to the person and/or office of the person at the address set forth below: () By delivering a true copy thereof to (check service used) ___ U.S. Postal Express Mail;__ UPS Overnight Mail; ___ Federal Express Overnight Service to be delivered to the person at the address set forth below: () By transmitting pursuant to C-R.C, Rule 2008, a true copy thereof via facsimile transmission to the facsimile telephone number referenced at the address set forth below. The transmission was reported as lete_and_without error_and a copy of the transmission report, which was properly issued by the transmitting facsimile machine, is attached hereto, I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge. Executed on, SH Ulf 2003, at Emeryville, California. Iwas (iloabarg Nathan Matsubara MARY M. WILLIAMS, et al. vs. A.W. CHESTERTON COMPANY, et al. SAN FRANCISCO COUNTY SUPERIOR COURT NO. 414536 CiAMy Documents'Naw Anmvertipas Williams 05.61.08.dor