Answer: LOREN BISHOP VS. A P GREEN et al

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San Francisco Superior Courts
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Jan-17-2002 3:05 pm

Case Number: CGC-01-402180
Filing Date: Jan-17-2002 3:02
Juke Box: 001 Image: 00345483
ANSWER

LOREN BISHOP VS. A P GREEN et al

001000345483

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RICHARD J. KILMARTIN (State Bar No. 23115)San Francisco County Superior Court
SAMUEL G. WARE (State Bar No. 105005)

KNIGHT, BOLAND & RIORDAN JAN 1 7 2002
1390 Market Street
Fox Plaza, Suite 310 GORDON, FL, Clerk

San Francisco CA, 94102 bY:
Telephone: (415) 522-8600
Facsimile: (415) 701-7801

SHEILA L. BIRNBAUM

PETER J. MCKENNA

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
Four Times Square

New York, NY 10036-6522

Telephone: (212) 735-3000

Attorneys for Defendant
METROPOLITAN LIFE INSURANCE COMPANY

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED CIVIL JURISDICTION
LOREN W. BISHOP Case No. 402180
AND DOROTHY L. BISHOP
ANSWER OF METROPOLITAN
LIFE INSURANCE COMPANY TO
PLAINTIFFS' COMPLAINT

Plaintiffs,

vs.

A.P. GREEN INDUSTRIES, INC.,
et al.,

Nr eee ee SE eS LL

19
20 Defendants.
21
ee

Defendant METROPOLITAN LIFE INSURANCE COMPANY
("Metropolitan Life"), for itself alone, answers Plaintiffs!
unverified Complaint ("Complaint") and each and every Cross-Claim

filed hereafter by any other Defendant or Third-Party Defendant as

follows:wv wv

1. Pursuant to California Code of Civil Procedure
section 431.30(d), Metropolitan Life generally denies each and
every allegation of the Complaint, except that Metropolitan Life
admits that it is a life insurance company of the State of New
York licensed to do business in the State of California.

Metropolitan Life asserts the following affirmative
defenses based upon information and belief:

FIRST AFFIRMATIVE DEFENSE

2. The Complaint and each cause of action thereof fail
to state facts sufficient to constitute a cause of action against
Metropolitan Life.

SECOND _AFFTI. TI DEFENS:

3. The causes of action in the Complaint are and each
of them is barred by the provisions of California Code of Civil
Procedure section 337, subdivision 1; section 338, subdivision
(d); section 339, subdivision 1; section 340, subdivision 3;
section 340.2, subdivision (a); and section 343.

HIRD AFF T. DEFENSE

4. Plaintiff Loren Bishop (hereinafter, references to
Plaintiff are to Loren Bishop) was contributorily and/or
comparatively negligent.

FOURTH AFFIRMATIVE DEFENSE

5. Plaintiffs' claims are barred by the operation of
the doctrine of laches.

FIFTH AFF IRMATIVE DEFENSE

6. Plaintiffs' claims are barred by the operation of
the doctrine of estoppel.
////7

METROPOLITAN LIFE INSURANCELY Vv
SIXTH AFFI TI EFENSE
7. Plaintiffs' claims are barred by the operation of
the doctrine of waiver.
SEVENTH AFFI IV) EFENSE
8. Plaintiffs assumed the risk of any injuries
allegedly sustained asa result of exposure to asbestos-containing
products used by or near Plaintiff.
EIGHTH AFFI DEFENSE
9. Whatever damages were incurred by Plaintiffs were
the result of intervening and/or superseding acts or omissions of
parties over whom this Defendant had no control.
NINTH AFFIRMATIVE DEFENSE
10. At all times relevant hereto, the knowledge of
Plaintiff's employer(s) was superior to that of Metropolitan Life
with respect to possible health hazards associated with
Plaintiff's employment, and, therefore, if there was any duty to
warn Plaintiff or provide protection to him, it was the duty of
said employer(s), not of Metropolitan Life, and breach of that
duty was an intervening and/or superseding cause of the injuries
allegedly sustained by Plaintiffs.
TENT! F. T. FENSE
11. In the event that it be shown that Plaintiff used
any product or material, as alleged in the Complaint, which gave
rise to the injuries as set forth therein, the same was misused,
abused, modified, altered or subjected to abnormal use.
Li iN’ FFI. TI DEFEN:
12. Plaintiff and his employer(s) were sophisticated

users of products containing asbestos and had adequate knowledge

3

METROPOLITAN LIFE INSURANCE COMPANY'S AVY wv
of the dangers and risks associated with using or working around
asbestos.

TWELFTH AFFIRMATIVE DEFENSE

13. The claims in the Complaint and each cause of
action thereof that seek an award of exemplary or punitive damages
fail to state facts sufficient to constitute a cause of action
against Metropolitan Life.

THIRTE: F TIVE DEFENSE

14. The claims in the Complaint and each cause of
action thereof that seek exemplary or punitive damages violate
Metropolitan Life's right to procedural due process as provided in
the Fifth and Fourteenth Amendments of the United States
Constitution and Article I, Sections 1 and 7, and all other
applicable provisions, of the Constitution of the State of
California and any other state's law which may be applicable.

FOURTEENTI FF T. DEFENS.

15. The claims in the Complaint and each cause of
action thereof that seek exemplary or punitive damages violate
Metropolitan Life's right to substantive due Process as provided
in the Fifth and Fourteenth Amendments of the United States
Constitution and Article I, Sections 1 and 7, and all other
applicable provisions, of the Constitution of the State of
California and any other state's law which may be applicable.

FIFTEENTH AFFIRMATIVE DEFENSE

16. The claims in the Complaint and each cause of
action thereof that seek exemplary or punitive damages violate
Metropolitan Life's right to equal protection under the law and

are otherwise unconstitutional under the Fourteenth Amendment of

4

METROPOLITAN LIFE INSURANCE COMPANY’ SALv

the United States Constitution and Article I, Section 7, and all

other applicable provisions, of the Constitution of the State of

California and any other state's law which may be applicable.
SIXTEEN’ AFFI. TIVE DEFENSE

17. The claims in the Complaint and each cause of
action thereof that seek exemplary or punitive damages violate
Metropolitan Life's right to protection from "excessive fines" as
provided in Article I, Section 17 of the Constitution of the State
of California and any other state's law which may be applicable.

SEVENTEENTH AFF. TI EFENS.

18. The actions of Metropolitan Life were within its
rights under the First Amendment to the United States Constitution
and Article I, Section 2 of the Constitution of the State of
California and any other state's law which may be applicable, and
are fully protected thereby.

IGHTEEN' F TI EFENSE

19. Plaintiff should have taken action to minimize or
eliminate damages, and therefore Plaintiffs are precluded from
recovering damages, or damages should be reduced, by operation of
the doctrine of avoidable consequences.

NINETEENTH AFFIRMATIVE DEFENSE

20. Metropolitan Life did not authorize, approve, or

ratify the acts or omissions attributed to it in the Complaint.
TWENTIETH AFFIRMATIVE DEFENSE

21. Metropolitan Life states that it cannot be held
liable as a matter of law for injuries or damages allegedly
sustained as a result of exposure to asbestos-containing products
allegedly used by or near the Plaintiff, to the extent such

"S ANSWER TO PLAINTIFFS’ COMPLAINT.exposure was to asbestos-containing products manufactured and
distributed by others pursuant to and in strict conformity with
specific regulations and specifications set forth by the United
States Government. Metropolitan Life avers further that at all
times relevant to the allegations contained in the Complaint, the
products allegedly containing asbestos substantially conformed to
those specifications set forth and approved by the United States
Government, and the United States Government had actual knowledge
of the hazards, if any, associated with exposure to asbestos.
TWENTY-FIRST AFFIRMATIVE DEFENSE

22. Metropolitan Life is entitled to a set-off or
credit in the amount of any settlement or compromise heretofore or
hereafter reached by Plaintiffs with any other person for any of
Plaintiffs' alleged damages.

TWENTY - SEC FF. TIVE DEFEN:

23. The Complaint should be dismissed for failure of
Plaintiffs to comply with provisions of the California Code of
Civil Procedure, Section 430.10, subdivision (f£).

NTY-THIRD AFFI rT DEFENSE

24. Plaintiffs' alleged injuries and damages, if any,
were proximately caused by or contributed to by exposure or
inhalation of noxious and deleterious fumes and residues from
industrial products or by-products prevalent on his job sites, by
the cumulative effects of exposure to all types of environmental
and industrial pollutants of air and water, or by substances,

products, or other causes not attributable to or connected with

Metropolitan Life.
J// 7/7YS SY

TWENTY -FOURTH AFFIRMATIVE DEFENSE
25. Metropolitan Life would show unto the Court that
multiple awards of punitive damages against it would violate
Article I, Section 7 of the Constitution of the State of
California; the prohibition against being twice placed in jeopardy
for the same offense embodied in the Fifth and Fourteenth
Amendments to the United States Constitution and the common law of
the State of California and any other state's law which may be
applicable.
WENTY-FIFTH F I DEFENSE
26. The Complaint fails to name both necessary and
indispensable parties in whose absence complete relief cannot be
accorded among those already parties. Therefore, this action must
be dismissed, or, alternatively, the action should be stayed
pending other appropriate relief by the Court.
ENTY-SIXTH AFFI TIVE DEFENSE
27. Plaintiffs' claims are barred in whole or in part
by the exclusivity principles embodied in California's Workers'
Compensation Act.
TWENTY - SEVENTH AFFIRMATIVE DEFENSE
28. Plaintiffs' losses, if any, were proximately caused
by the negligence and fault of Plaintiff, or other parties hereto,
and of third parties, not by any act or omission of Metropolitan
Life.
TY - EIGH' FI TIVE DEFENSE
29. Metropolitan Life owed no duty to Plaintiffs with

respect to the actions for which disability is alleged in the

Complaint.Y YY
TWENTY-NINTH AFFIRMATIVE DEFENSE

30. The claims of Plaintiff's spouse are barred by

Plaintiff's contributory and/or comparative negligence and/or
assumption of risk and/or all other affirmative defenses asserted
herein.

THIRTIE' AFFI. TI DEFENSE

31. If all or most of the witnesses to the alleged
asbestos exposure of Plaintiff reside outside California, travel
to and from this forum by witnesses and counsel for necessary
discovery and trial would place an undue burden upon Defendants.
Furthermore, this Court may be required under principles of
conflicts of laws to apply foreign law, with which this Court and
California counsel are unfamiliar. Therefore, the Complaint
should be dismissed under the doctrine of forum non conveniens.

ANSWER TO CROSS- IM.

32. Metropolitan Life denies every allegation of each
and every Cross-Claim insofar as said allegations apply to
Metropolitan Life.

33. Metropolitan Life denies any liability with respect
to each and every count of each and every Cross-Claim insofar as
said counts apply to Metropolitan Life.

34. Metropolitan Life denies that it is liable to
indemnify any other Defendant or Third-Party Defendant in this
action.

35. Metropolitan Life denies that any Defendant or

Third-Party Defendant is entitled to contribution from

Metropolitan Life in this action.

J/1/1/77~

36. In response to each and every Cross-Claim,
Metropolitan Life adopts by reference all denials in paragraph 1
above, as though fully set forth herein.

37. In response to each and every Cross-Claim,
Metropolitan Life adopts by reference all Affirmative Defenses set
forth in paragraphs 2 through 31 above, as though fully set forth
herein, as Affirmative Defenses to each and every Cross-Claim.

WHEREFORE, Metropolitan Life demands that:

1. The Complaint be dismissed with prejudice as to
Metropolitan Life;

2. Plaintiffs' demand for relief be denied in every
respect;

3. Metropolitan Life be awarded costs in connection
with this litigation, including reasonable attorneys' fees; and

4. The Court grant such other and further relief as
may be just, proper, and equitable.

DATED: January 17, 2002 Richard J. Kilmartin
Samuel G. Ware
KNIGHT, BOLAND & RIORDAN
and
Sheila L. Birnbaum
Peter J. McKenna

SKADDEN, ARPS, SLATE,
MEAGHER & FLOM LLP

B
Sane

a4
Atbdrneys for Défendant
YETROPOLITAN LIFE INSURANCE COMPANY

F:\WP51\ASBESTOS\CASES 2000\Bishop, Loren\PreinjAns.Pun.Multi-Plaint (Spouse) .wpd

9PROOF OF SERVICE
[C.C.P. §§1012, 1013(a)3, 1013(c), 1013(e) and C.R.C. §§2006(d)]

I, Jeffrey Washington, certify and declare as follows:

Tam over the age of 18 years, not a party to this action; employed in the
County of San Francisco, by a member of the Bar of this Court at whose direction the
service was made. My business address is 1390 Market Street, Suite 310, San Francisco,
CA 94102. Iam readily familiar with the business practices of Knight, Boland &
Riordan for collection, processing and service of correspondence with the United States
Postal Service, Express Service Providers (same day messenger and overnight) and
facsimile transmission.

On the date set forth below, I served the foregoing documents described
as: ANSWER OF METROPOLITAN LIFE INSURANCE COMPANY TO
PLAINTIFFS’ COMPLAINT to the person(s) in this action by placing a true and correct

copy thereof, as follows:
Dean Hanley, Esq. Berry & Berry
Paul & Hanley P.O. Box 16070
4905 Central Avenue, Suite 200, Oakland, CA 94610
Richmond, CA 94804

X_: BY FIRSTCLASS MAIL [C.C_P. §§1012, 1013(a)] - Sealed correspondence,
postage fully prepaid, so collected and processed is deposited with the United States
Postal Service this same day in the ordinary course of business,

I declare under penalty of perjury under the laws of the State of California
and the United States of America that the foregoing statements are true and correct.

Executed January 17, 2002 at San Francisco, California.

Wf Ldhsugl
“Vofiey Washington