Attorneys for Defendant SAK CONSTRUCTION, LLC UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

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1 GARY V. ABBOTT, Oregon State Bar Number address: US Bancorp Tower, Suite Southwest Fifth Avenue Telephone: Facsimile : (503) Attorneys for Defendant SAK CONSTRUCTION, LLC UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON BV CENTERCAL, LLC, a Delaware limited liability company, v. Plaintiff, OPUS NORTHWEST, L.L.C., a Delaware limited liability company; and SAK CONSTRUCTION, LLC, a Washington limited liability company, No. 3:09-cv-925-KI ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF S COMPLAINT BY DEFENDANT SAK CONSTRUCTION, LLC DEMAND FOR JURY TRIAL Defendants. Defendant SAK Construction, LLC ( SAK ) answers plaintiff s complaint: 1. SAK is without knowledge or information sufficient to form a belief as to the allegations in paragraph Admits paragraph Admits paragraph SAK is without knowledge or information sufficient to form a belief as to the allegations Page 1 - ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF S

2 in paragraph SAK is without knowledge or information sufficient to form a belief as to allegations in in paragraphs 5 and 6 other than SAK admits Exhibits 1 and 2 to the Complaint are agreements that speak for themselves. 6. Admits defendant Opus Northwest entered into a design/build construction contract, including the four-level parking structure; that Opus Northwest entered into a subcontract with SAK and SAK in turn entered into sub-tier subcontracts; and that plaintiff alleges it is a thirdparty beneficiary entitled to enforce the obligations of both defendants under these contracts. Except as so admitted, denies paragraph Admits Exhibit 1 is a purchase agreement, the provisions of which speak for themselves, and that after December 29, 2004 defendant Opus Northwest was the general contractor and SAK was a subcontractor. Except as so admitted, denies paragraph Admits plaintiff claims there are deficiencies with the Bridgeport Village parking structure and that Exhibit 3 is a document that was sent to Opus Northwest by plaintiff. Except as so admitted, is without knowledge or information sufficient to form a belief as to the allegations in paragraph Denies paragraph To the extent paragraph 11 is addressed to Opus Northwest, SAK does not answer those allegations. Denies the remainder of paragraph Denies paragraph Paragraphs 13 through 15 are alleged only against Opus Northwest and no answer is required of SAK. To the extent any answer is required, SAK is without knowledge or Page 2 - ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF S

3 information sufficient to form a belief. 13. Admits and denies the paragraphs re-alleged in paragraph 16 as those re-alleged 14. To the extent paragraphs 17 through 20 are addressed to Opus Northwest, no answer is required of SAK. To the extent paragraphs are alleged against SAK, those paragraphs are denied. 15. SAK admits and denies the paragraphs that are re-alleged in paragraph 21 as those realleged 16. Paragraphs 22 and 23 are allegations addressed to Opus Northwest, and no answer is required of SAK. 17. Admits SAK, as a subcontractor, had a duty to provide labor, materials, supervision and supplies that complied with the applicable standard of care. Except as so admitted, denies paragraph Admits defendants had a duty to exercise reasonable care in constructing the Bridgeport Village parking structure. Except as so admitted, denies paragraph To the extent paragraph 26 is alleged against defendant Opus Northwest, SAK does not answer those allegations. SAK denies the allegations in paragraph 26 that are alleged against SAK. 20. Denies paragraphs 27 and Admits and denies the paragraphs re-alleged in paragraph 29 as those re-alleged 22. To the extent paragraph 30 is alleged against defendant Opus Northwest, SAK does not Page 3 - ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF S

4 respond to those allegations. SAK denies the allegations in paragraph 30 against SAK. 23. Denies paragraph Admits and denies the paragraphs re-alleged in paragraph 32 as those re-alleged 25. To the extent paragraphs 33 and 34 are allegations against Opus Northwest, SAK does not answer those allegations. To the extent paragraphs 33 and 34 are alleged SAK, SAK denies those allegations. 26. Denies paragraph Except as expressly admitted, denies plaintiff s allegations. FIRST AFFIRMATIVE DEFENSE (Failure To State A Claim) 27. Plaintiff s complaint fails to state claims upon which relief can be granted against SAK. SECOND AFFIRMATIVE DEFENSE (Contributory Negligence) 28. The contributory negligence/comparative fault of plaintiff and plaintiff s predecessor in interest are the substantial factor of some or all of plaintiff s alleged damages. THIRD AFFIRMATIVE DEFENSE (Statute Of Limitations) 29. One or more of plaintiff s claims for relief are barred by the applicable statute of limitations. Page 4 - ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF S

5 FOURTH AFFIRMATIVE DEFENSE (Waiver/Estoppel) 30. One of more of plaintiff s claims are barred by the doctrines of waiver and/or estoppel. FIFTH AFFIRMATIVE DEFENSE (Standard of Care) 31. SAK performed its obligations under the accepted standard of care for rendering similar services in the area at the time. Any alleged defects or resultant damages are within the industry standards and tolerances for the work performance by SAK. SIXTH AFFIRMATIVE DEFENSE (Economic Loss Doctrine) 32. Plaintiff s negligence claim does not allege a special relationship and that claim is barred by the economic loss rule. SEVENTH AFFIRMATIVE DEFENSE (Fault Of Others) 33. SAK denies it acts or omissions were a cause of damage to plaintiff. Plaintiff s damages, if any, were solely or substantially the result of the fault of parties over whom SAK had no control. EIGHTH AFFIRMATIVE DEFENSE (Betterment) 34. The damages claim of plaintiff, if allowed, would result in the betterment of the plaintiff. NINTH AFFIRMATIVE DEFENSE (Economic Waste) Page 5 - ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF S

6 35. Some of the damages claimed for repairs undertaken amount to economic waste. TENTH AFFIRMATIVE DEFENSE (Spoilation) 36. To the extent plaintiff has conducted repairs without affording SAK the opportunity to inspect and document the alleged damages, those actions constitute spoilation of evidence. ELEVENTH AFFIRMATIVE DEFENSE (Mitigation) 37. Plaintiff has failed to mitigate its alleged damages. TWELFTH AFFIRMATIVE DEFENSE (Additional Defenses) 38. SAK reserves the right to allege affirmative defenses based on discovery. WHEREFORE, SAK prays for judgment. DATED this 23 rd day of September, By /s/ Gary V. Abbott Gary V. Abbott Oregon State Bar No Page 6 - ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF S

7 Telephone: Facsimile : (503) Of Attorneys for Defendant SAK Construction, LLC SAK demands trial by jury. By /s/ Gary V. Abbott Gary V. Abbott Oregon State Bar No Page 7 - ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF S