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
Apr-17-2003 11:49 am

Case Number: CGC-02-414536
Filing Date: Apr-17-2003 11:47
Juke Box: 001 Image: 00666292
ANSWER

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

001C00666292

Instructions:
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BeRRRBREBGEeSerWR DESH ETS

GEORGE D. YARON, ESQ. (State Bar #96246)
D. DAVID STEELE, ESQ. (State Bar #171636)
TRACE O. MAIORINO, ESQ. (State Bar #179749)
YARON & ASSOCIATES

111 Pine Street, 12th Floor

OEP IT

San Francisco, California 94111-5614 PARK ~ LL CLERK
Telephone: (415) 658-2929 ov. Anhur Moy
Attorneys for Defendant DEPUTY CLERK

TODD SHIPYARDS CORPORATION

(dy. £ 22\.28
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

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.

CASE NO. 414536

TODD SHIPYARDS
CORPORATION’S ANSWER TO
PLAINTIFFS’ FIRST AMENDED

WILLIAMS, minors; KIMBERLY C. COMPLAINT FOR

WILLIAMS; and MICHELLE DeLEON, as SURVIVAL/WRONGFUL DEATH

legal heirs of MELVIN WILLIAMS, deceased, AND LOSS OF CONSORTIUM -
ASBESTOS

Plaintiffs,
v.
A.W. CHESTERTON COMPANY, et al.
and DOES 1-820,

Defendants.

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Defendant TODD SHIPYARDS CORPORATION ("TODD"), in answer to Plaintiffs
MARY M. WILLIAMS, individually and as Guardian ad Litem of RAQUEL L. WILLIAMS and
JUVON D. WILLIAMS, minors, KIMBERLY C. WILLIAMS and MICHELLE DeLEON’s
(collectively “Plaintiffs”) unverified First Amended Complaint for wrongful death and survival
admits, denies, and alleges as follows:
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Pursuant to the provisions of section 431.30(d) of the Code of Civil Procedure, Defendant
TODD denies each and every, all and singular, both generally and specifically, the allegations of
Plaintiffs’ unverified First Amended 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 TODD or its agents,
servants or employees.

FIRST AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that the First Amended Complaint fails to state facts sufficient to constitute
a cause of action against Defendant TODD.

SECOND AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD 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 TODD alleges that Plaintiffs’ claims are barred by laches, waiver and/or estoppel.
FOURTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD 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 TODD alleges that Plaintiffs failed to commence this action within the time required by
the applicable statutes of limitation, including but not limited to, California Code of Civil Procedure
§§ 337.1, 337.15, 338(a), 338(d), 340(3), 340.2, 343, 583.110, 583.210, 583.310, 583.410, and
Commercial Code § 2725.

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SIXTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that Plaintiffs’ damages, if any, were proximately caused, in whole or in
part, by Decedent MELVIN WILLIAMS’ (‘‘Decedent”) own fault and negligence in failing to
exercise reasonable care for his own safety. Plaintiffs’ recovery from Defendant TODD, if any,
should therefore be reduced proportionate to Decedent’s comparative fault.

SEVENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that Plaintiffs and/or Decedent failed to mitigate the alleged damages, if
any there were.

EIGHTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that if Decedent was injured by products used or installed at Defendant
TODD's premises, which is denied, such injury occurred after the expiration of the useful safe life
of such products.

NINTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that if Plaintiffs and/or Decedent suffered any damages, which is denied,
such damages were the sole and proximate result of an unavoidable accident.

TENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that if Plaintiffs suffered any damages, which is denied, such damages were
caused and/or contributed to by Decedent’s misuse of the product or products, and Plaintiffs’
recovery should be barred or reduced accordingly.

ELEVENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,

Defendant TODD alleges that if Plaintiffs and/or Decedent suffered any damages, which is denied,

such damages were solely and proximately caused and/or contributed to by the negligence of third

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persons or entities over whom or which this Defendant had no control or supervision.
TWELFTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that if Plaintiffs and/or Decedent suffered any damages, which is denied,
such damages were solely and proximately caused by material modifications or alterations of the
product or products involved in this action after it or they left the custody and control of Defendant
TODD.

THIRTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that any asbestos-containing product or products alleged to have caused
Decedent’s injuries were manufactured, used, installed and/or distributed in mandatory compliance
with specifications promulgated by the United States government under its war powers, as set forth
in the U. S. Constitution, and that any recovery by Plaintiffs are barred as a consequence of the
exercise of those sovereign powers.

FOURTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that any product or products alleged by Plaintiffs to have caused
Decedent’s injuries were manufactured, installed, used or distributed in compliance with
specifications provided by third parties to Defendant TODD and/or in compliance with all applicable
health and safety statutes and regulations.

FIFTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that if Plaintiffs and/or Decedent suffered any damages, which is denied,
the risk of any such damages was not foreseeable to Defendant TODD. Defendant TODD at all times
material hereto acted in accordance with the state of scientific knowledge available to installers
and/or users of asbestos-containing products.

H/T
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SIXTEENTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that it received no notice of any dangerous, hazardous or defective
condition or any breach of warranty, either expressed or implied.

SEVENTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that Plaintiffs’ claim against Defendant TODD is barred by the holdings
of Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, Privette v. Superior Court (1993) 5
Cal.4th 689, Toland v. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253 and Camargo v. Tjaarda
Dairy (2001) 25 Cal.4th 1235.

EIGHTEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that Decedent’s exposure to any asbestos-containing product or products
allegedly used or installed at Defendant TODD's premises was minimal and insufficient to establish
the probability that said product or products were a legal cause of Decedent’s alleged injuries.

NINETEENTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that this action is barred by the applicable state and/or federal industrial
insurance and/or Workers' Compensation laws, including, but not limited to, California Labor Code
section 3601 and 3602, and 33 U.S.C. section 905.

TWENTIETH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that at the time of the injuries alleged in Plaintiffs’ First Amended
Complaint, Decedent was employed by persons other than Defendant TODD; was entitled to 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’ First
Amended Complaint. Defendant TODD is, therefore, entitled to set-off any such benefits received

by Plaintiffs against any judgment rendered in Plaintiffs’ favor herein and said employer(s) are barred

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from any recovery by lien or otherwise against Defendant TODD in connection with this matter.

TWENTY-FIRST AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that Decedent voluntarily and knowingly assumed the alleged risks and
hazards incident to the alleged operations, acts and conduct at the times and places alleged in the First
Amended Complaint and that said acts proximately caused and contributed to the alleged damages,
if any there were.

TWENTY-SECOND AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that at all times relevant to the matters alleged in Plaintiffs’ First Amended
Complaint, his employers were sophisticated users of asbestos-containing products and said
employers’ negligence in providing said products to its employees was a superseding and/or
intervening cause of Decedent’s death.

TWENTY-THIRD AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that there was no concert of action among TODD and other Defendants to
this action and that any alleged liability or responsibility of Defendant TODD, which is denied, is
minimal in proportion to the alleged liability and responsibility of other persons and entities including
the other Defendants herein. Plaintiffs should therefore be limited to seeking recovery from
Defendant TODD for the proportion of alleged injuries and damages for which Defendant TODD is
allegedly liable or responsible, all such alleged liability and responsibility being denied.

TWENTY-FOURTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION, to
the extent the First Amended Complaint alleges that Defendant TODD has "market-share liability"
or "enterprise liability," the First Amended Complaint fails to state facts sufficient to constitute a
cause of action against Defendant TODD.

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TWENTY-FIFTH AFFIRMATIVE DEFENSE
AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD 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 herein.

TWENTY-SIXTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges, in accordance with section 1431.2 of the Civil Code, known as the Fair
Responsibility Act of 1986, that if Plaintiffs’ First Amended 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, ifany. Defendant TODD requests a judicial
determination of the amount of non-economic damages, if any. Defendant TODD also requests a
judicial determination of the amount ofnon-economic damages, ifany, allocated to Defendant TODD
in direct proportion to Defendant TODD'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 TODD 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 TODD, for which Defendant TODD is not responsible.

TWENTY-EIGHTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that neither the First Amended Complaint nor any purported causes of
action alleged therein state facts sufficient to entitle Plaintiffs to an award of punitive damages against
Defendant TODD.

TWENTY-NINTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,

Defendant TODD alleges that Plaintiffs are not entitled to recover punitive or exemplary damages

from Defendant TODD and that such damages are violative of the Constitutions of the United States

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and of the State of California.
THIRTIETH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that Plaintiffs’ instant action is barred or, alternatively, merged into a prior
cause of action for which Plaintiffs have previously sued upon, recovered, and dismissed with
prejudice, thereby requiring a complete extinguishment of the instant action due to the doctrines of
Res Judicata and Collateral Estoppel.

THIRTY-FIRST AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,
Defendant TODD alleges that Plaintiffs’ instant action is barred and discharged, pursuant to Title 11
U.S.C. section 1141(d), and that Plaintiffs’ action violates the pending injunction against such claims
that exists, by operation of law, pursuant to Title 11 U.S.C. section 524(a)(2).

THIRTY-SECOND AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION to
Plaintiffs’ First Amended Complaint, Defendant alleges that its products were manufactured,
produced, supplied, sold and distributed pursuant to contract with the United States government, and
that any recovery by Plaintiffs on the First Amended Complaint filed herein is barred by consequence
of the judicially recognized doctrine of immunity conferred upon that contractual relationship, and
any occurrences arising therefrom.

THIRTY-THIRD AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION to
Plaintiffs’ First Amended Complaint, Defendant TODD alleges that the duty imposed by the state
upon TODD significantly conflicts with an identifiable federal interest or policy and, therefore, is
displaced under the holding of Boyle v. United Technologies, 487 U.S. 500 (1988).

THIRTY-FOURTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,

Defendant TODD alleges that Plaintiffs named TODD in this litigation without reasonable product

identification and without reasonable investigation. Accordingly, TODD, pursuant to California Code

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of Civil Procedure § 128.5, requests reasonable expenses, including attomey's fees incurred by TODD

as a result of the maintenance of this bad faith litigation.

THIRTY-FIFTH AFFIRMATIVE DEFENSE

AS A SEPARATE AND AFFIRMATIVE DEFENSE TO EACH CAUSE OF ACTION,

Defendant TODD alleges that Plaintiffs and/or Decedent did not reasonably rely on any

representation, disclaimer, warranty or other act or omission of TODD.

WHEREFORE, Defendant TODD prays for judgment as follows:

i.

ii.

iii.

iv.

That Plaintiffs take nothing by reason of their First Amended Complaint herein;
That judgment be entered in favor of Defendant TODD;

For costs of suit incurred herein;

For appropriate credits and set-offs arising out of any payment of Workers’

Compensation benefits as alleged above;

v. For a judicial determination of the amount of non-economic damages, if any,
allocated to Defendant TODD in direct proportion to TODD’s percentage of fault,
if any, and a separate judgment in conformance therewith; and

vi. For such other and further relief as the Court may deem just and proper.

DATED: April Lb, 2003 YARON & ASSOCIATES

By:

. DAVID STEELE
TRACE O. MAIORINO
Attorneys for Defendant
TODD SHIPYARDS CORPORATION

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PROOF OF SERVICE

Jam over 18 years of age and not a party to the within action. 1 am employed in the County
of San Francisco; my business address is Yaron & Associates, 111 Pine Street, Suite 1200, San
Francisco, California 94111-5614.

On April 17, 2003, I served the within:

TODD SHIPYARDS CORPORATION’S ANSWER TO PLAINTIFFS’
FIRST AMENDED COMPLAINT FOR SURVIVAL/WRONGFUL
DEATH AND LOSS OF CONSORTIUM - ASBESTOS

in a sealed envelope with postage thereon fully prepaid, addressed to:

Dean A. Hanley, Esq.
Paul, Hanley & Harley LLP
1608 Fourth Street, Suite 300
Berkeley, CA 94710
T: (510) 559-9980
F: (510) 559-9970
(Attorneys for Plaintiff Mary Williams, et al.)

yy VIA U.S. MAIL: Iam “readily familiar” with the firms practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with the
USS. Postal service on that same day with postage thereon fully prepaid in the
ordinary course of business. I am aware that on motion of the party served,
service is presumed invalid if postal cancellation date or postage meter date is
more than one day after date of deposit for mailing in affidavit.

Q VIA HAND-DELIVERY: I caused such envelope, to be hand delivered to the stated parties.

Q VIA FAX: I caused such documents to be transmitted via fax to the stated parties at their respective
facsimile numbers.

Q VIA EXPRESS CARRIER: I caused such documents to be collected by an agent for

to be delivered to the offices of the stated parties.

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 17, 2003, at San Francisco,

OG BUSCH