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

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Apr-28-2003 2:35 pm

Case Number: CGC-02-414536
Filing Date: Apr-17-2003 2:32
Juke Box: 001 Image: 00673448
ANSWER

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

001000673448

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John K. Kirby, State Bar No. 104590
Sarah Valentine, State Bar No. 157827
BURNHAM BROWN

A Professional Law Corporation

P.O. Box 119

Oakland, California 94604

1901 Harrison Street, 11th Floor
Oakland, California 94612
Telephone: (510) 444-6800
Facsimile: (510) 835-6666

Attorneys for Defendant
NIBCO INC.

COURT
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2003 APR 17 AM
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
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 legal heirs of.
MELVIN WILLIAMS, deceased,

Plaintiffs,
Vv.
A.W. CHESTERTON COMPANY, et al.,

Defendants.

No. 414536

DEFENDANT NIBCO INC.'S ANSWER
TO FIRST AMENDED COMPLAINT
FOR SURVIVAL/WRONGFUL DEATH
AND LOSS OF CONSORTIUM -
ASBESTOS

First Am. Complaint Filed: January 23, 2003

Defendant NIBCO INC. (“Defendant”), in answer to Plaintiffs’ first amended complaint,

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 Plaintiffs 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 legal heirs of MELVIN WILLIAMS, deceased, have been damaged in any sum or sums or at

all.

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DEF. NIBCO INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL/

NO. 414536

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WHEREFORE, this answering Defendant asserts the following affirmative defenses:
AFFIRMATIVE DEFENSES

1. As a first affirmative defense to each cause of action, the complaint does not state
facts sufficient to constitute a cause of action against this Defendant.

2. As a second affirmative defense, each cause of action is barred by the applicable
statute of limitations, including, but not limited to, California Code of Civil Procedure
sections 340.2 and 361.

3. As a third affirmative defense to each cause of action, Plaintiffs and Decedent
MELVIN WILLIAMS (“Decedent”) failed to mitigate or make reasonable efforts to mitigate
their damages, if any, as required by law.

4. As a fourth affirmative defense to each cause of action, the damages sustained by
Plaintiffs and Decedent, if any, were caused, in whole or in part, by the negligence, strict
liability or fault of others for which this Defendant is not liable or responsible.

5. As a fifth affirmative defense to each cause of action, Plaintiffs or Decedent 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.

6. As a sixth affirmative defense to each cause of action, if Plaintiffs or Decedent
sustained injuries attributable to the use of any product, which allegations are expressly denied,
the injuries were caused in whole or in part by the unreasonable, unforeseeable and inappropriate
purpose and/or improper use which was made of the product.

7. As a seventh affirmative defense to each cause of action, Plaintiffs and Decedent
were partially, if not wholly, negligent or otherwise at fault on their own part pursuant to the
doctrine of comparative fault, and Plaintiffs are barred from recovery of that portion of the
damages directly attributable to Plaintiffs’ or Decedent’s proportionate share of fault.

8. As an eighth affirmative defense to each cause of action, Defendant alleges that
the products were as safe as could be designed under the state of technology and medical and
scientific knowledge existing at the time the products were manufactured.

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DEF. NIBCO INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL/ NO. 414536
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9. As a ninth affirmative defense to each cause of action, Defendant alleges that any
claim for punitive or exemplary damages is barred by the United States Constitution, including
the First, Fifth, Eighth and Fourteenth Amendments, and by the California Constitution,
including Article I, and that Civil Code section 3294 is invalid on its face or as applied in this
action.

10. As a tenth affirmative defense to each cause of action, at the time and place of the
happening of the incident alleged in the complaint, Decedent was employed by various
employers, and was working within the course and scope of employment and certain sums have
been or will be paid under the applicable provisions of the Labor Code and any award made
must be reduced by the payments.

11. Asan eleventh affirmative defense to each cause of action, 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 Plaintiffs’ or
Decedent’s prosecution and/or settlement of their claims in prior actions.

12. As a twelfth affirmative defense to each cause of action, Defendant alleges that if
Decedent worked for this answering Defendant then Plaintiffs’ or Decedent’s claim is barred by
the exclusive remedy provisions of the appropriate state or federal law.

13. Asa thirteenth affirmative defense to each cause of action, Defendant alleges that
Decedent was provided and/or was covered by workers’ compensation insurance by each of
Decedent’s employers, and Decedent and his employer and/or employers were subject to the
provisions of the Workers’ Compensation Act of the State of California. Accordingly,
Plaintiffs’ and Decedent’s actions were barred by the doctrine articulated in Privette v. Superior
Court, 5 Cal. 4th 689 (1993).

14. As a fourteenth affirmative defense to each cause of action, this Defendant
alleges that Plaintiffs or Decedent assumed whatever risk or hazard, if any, that existed at the
time and place of the alleged accident set forth in Plaintiffs’ complaint, and said assumption of
tisk or hazard is imputed to said Plaintiffs or Decedent.

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DEF. NIBCO INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL/ NO. 414536
WRONGFUL DEATH AND LOSS OF CONSORTIUM ~ ASBESTOS15. Asa fifteenth affirmative defense to each cause of action, Plaintiffs and Decedent
acknowledged, ratified, consented to and acquiesced in the alleged acts or omissions, if any, of
this Defendant, thus barring Plaintiffs’ recovery.

16. As a sixteenth affirmative defense to each cause of action, the injuries and
damages sustained by Plaintiffs and Decedent, if any, were solely and legally caused by the
modification, alteration or change of the product referred to in the complaint and said
modification, alteration or change was performed by persons or entities other than this answering
Defendant and without its knowledge or consent.

17. Asa seventeenth affirmative defense to each cause of action, 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.

18. As an eighteenth affirmative defense to each cause of action, the provisions of the
“Fair Responsibility Act of 1986” (commonly known as Proposition 51, Civil Code sections
1430, 1431, 1431.1, 1431.2, 1431.3, 1431.4, 1431.5 and 1432) are applicable to this action to the
extent that Plaintiffs’ or Decedent’s injuries and damages, if any, were legally caused or
contributed to by the negligence or fault of persons or entities other than this answering
Defendant.

19. Asa nineteenth affirmative defense to each cause of action, the asbestos products,
if any, for which Defendant may have legal responsibility, were manufactured, packaged,
distributed, sold or installed in accordance with contract specifications imposed by Co-
Defendant(s), by the U.S. Government, by Decedent’s employers and/or by third parties yet to
be identified.

20. As a twentieth affirmative defense to each cause of action, Plaintiffs’ complaint,
and each cause of action therein, is barred by the doctrine of laches.

21. Asa twenty-first affirmative defense to each cause of action, Decedent’s
employers were partially, if not wholly, negligent or otherwise at fault on their own part
pursuant to the doctrine of comparative negligence, and Plaintiffs and Decedent should be barred

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DEF. NIBCO INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL/ NO. 414536
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from recovery of that portion of the damages directly attributable to Decedent’s employers’
proportionate share of the negligence or fault. Witt v. Jackson, 57 Cal. 2d 57 (1961).

22. Asa twenty-second affirmative defense to each cause of action, Plaintiffs’
complaint, and each cause of action therein, is vague, ambiguous, unintelligible and uncertain.

23. As a twenty-third affirmative defense to each cause of action, Plaintiffs have
failed to join all persons and parties needed for a just adjudication of this action.

24. Asa twenty-fourth affirmative defense, with respect to some or all of Plaintiffs’
alleged claims and causes of action, this Court lacks jurisdiction.

25. Asa twenty-fifth affirmative defense, with respect to some or all of Plaintiffs’
alleged claims and causes of action, in the interest of substantial justice, the action should be
heard in a forum outside this state.

WHEREFORE, this answering Defendant prays for judgment as follows:

1. That Plaintiffs take nothing by reason of the complaint on file herein;
2. For costs of suit incurred herein; and
3. For such other and further relief as the Court deems just and proper.
DATED: April /S’, 2003 BURNHAM BROWN
J K. KIRBY
Attorneys for Defendant
NIBCO INC.
607020
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DEF. NIBCO INC.’S ANSWER TO FIRST AMENDED COMPLAINT FOR SURVIVAL/ NO. 414536

WRONGFUL DEATH AND LOSS OF CONSORTIUM - ASBESTOSRe: Mary M. Williams, et al. v. A. W. Chesterton, et al.
Court: San Francisco Superior
Action No: 414536

PROOF OF SERVICE

I declare that I am over the age of 18, not a party to the above-entitled action, and am an
employee of Burnham Brown whose business address is 1901 Harrison Street, 11" Floor,
Oakland, Alameda County, California 94612 (mailing address: Post Office Box 119, Oakland,
California 94604).

On April 16, 2003, I served the following document(s) in the following manner(s):

DEFENDANT NIBCO INC.'S ANSWER TO FIRST AMENDED
COMPLAINT FOR SURVIVAL/WRONGFUL DEATH AND LOSS OF CONSORTIUM
- ASBESTOS

&X MAIL: By placing the document(s) listed below in a sealed envelope with
postage thereon, in the United States mail at Oakland, California, addressed as set
forth below.

FACSIMILE: By transmitted a true copy, via facsimile electronic equipment
transmission (fax) to the office(s) of the addressee(s) at the fax number(s) below.
The number of pages transmitted (including the Proof of Service Form) was

PERSONAL DELIVERY: By personally delivering to and leaving a true copy
thereof with the following person(s) at the following address(es) on the date set
forth above.

PERSONAL DELIVERY BY MESSENGER: By consigning the document(s)
listed below to a messenger service for personal delivery to the following
person(s) at the following address on the date set forth below.

OVERNIGHT: By placing a copy thereof into envelope(s) bearing the name(s)
and address(es) and county(ies) of the person(s) to be served by commercial
carrier service for overnight delivery as shown below.

Richard L. Vanderslice Plaintiffs' counsel
Paul Hanley & Harley LLP
608 Fourth Street, Suite 300
Berkeley, CA 94710

I declare under penalty of perjury under the laws of the State of California that the
‘oregoing is true and correct.

DATED: April 16, 2003

LEE ROMANO

PROOF OF SERVICE CASE NO. 414536