SUPREME COURT OF THE STATE OF NEW YORK SEVENTH JUDICIAL DISTRICT In Re Seventh Judicial District Asbestos Litigation This Document Applies to: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF MONROE JENNIFER SHEPPARD, Administratrix of the Estate of ALLEN GREGORY PEASE, Deceased, Plaintiff, vs. BORGWARNER MORSE TEC LLC as successor-by-merger to BORG-WARNER CORPORATION, ELMER W. DAVIS, INC., GENERAL ELECTRIC COMPANY, GEORGIA-PACIFIC LLC f/k/a GEORGIA-PACIFIC CORPORATION GOULDS PUMPS, INCORPORATED f/k/a GOULDS PUMPS MERGER CORPORATION, GRINNELL LLC, HONEYWELL INTERNATIONAL INC. f/k/a ALLIEDSIGNAL, INC. an as successor in interest to THE BENDIX CORPORATION, INGERSOLL-RAND COMPANY, INSULATION DISTRIBUTORS, INC., NATIONAL AUTOMOTIVE PARTS ASSOCIATION Individually and as successor to COLUMBIA AUTO PARTS CORPORATION, ROCHESTER INDUSTRIAL INSULATION, INC., TRANE U.S. INC. f/k/a AMERICAN STANDARD INC., UNION CARBIDE CORPORATION, VELAN VALVE CORP., WESTERN AUTO SUPPLY COMPANY, WM. SUMMERHAYS SONS CORPORATION'S VERIFIED ANSWER WITH CROSS CLAIMS TO THE COMPLAINT AND AMENDED COMPLAINT Index No.: E2017000103 1 of 15
WILLIAM SUMMERHAYS' SONS CORPORATION, GENUINE PARTS COMPANY Defendants. Defendant, Wm. Summerhays Sons Corporation, by its attorneys, Leclair Korona Vahey Cole LLP, for its Answer to the Complaint dated February 2, 2017 and Amended Complaint dated February 21, 2017 herein alleges as follows: 1. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 1, 2, 4 through 18, 27, 51, and 56 through 62 of the Complaint dated February 2, 2017. 2. Denies the allegations contained in paragraphs 3, 20 through 25, 28 through 42, 44 through 48, 50, 52 through 54, 63, and 64 of the Complaint dated February 2, 2017. 3. Admits the allegations contained in the first sentence of paragraph 19, but denies the allegations contained in the second sentence of paragraph 19 of the Complaint dated February 2, 2017. 4. Repeats and realleges its answers to the allegations repeated and realleged in paragraphs 26, 43, 49, and 55 of the Complaint dated February 2, 2017. 5. Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraphs 1, 2, 4 through 18, 20, 28, 52, and 57 through 63 of the Amended Complaint dated February 21, 2017. 2 of 15
6. Denies the allegations contained in paragraphs 3, 21 through 26, 29 through 43, 45 through 49, 51, 53 through 55, 64, and 65 of the Amended Complaint dated February 21, 2017. 7. Admits the allegations contained in the first sentence of paragraph 19, but denies the allegations contained in the second sentence of paragraph 19 of the Amended Complaint dated February 21, 2017. 8. Repeats and realleges its answers to the allegations repeated and realleged in paragraphs 27, 44, 50, and 56 of the Amended Complaint dated February 21,2017. 9. Denies any other allegations not heretofore specifically addressed. FIRST AFFIRMATIVE DEFENSE 10. The action was not commenced within the time limited therefore and is barred by the statute of limitations. SECOND AFFIRMATIVE DEFENSE 11. The plaintiff is barred by plaintiff's laches in commencing this action. THIRD AFFIRMATIVE DEFENSE 12. The injury and damage alleged in the Complaint and Amended Complaint resulted from or was proximately caused by the conduct of persons other than the defendant, Wm. Summerhays Sons Corporation, or by superseding or intervening causes. 3 of 15
FOURTH AFFIRMATIVE DEFENSE 13. The injury and damage alleged in the Complaint and Amended Complaint was caused in whole or in part by culpable conduct on the part of the plaintiff and plaintiff's decedents, including contributory negligence and assumption of the risk and, accordingly, any verdict or judgment in favor of the plaintiff must be reduced by that percentage of all of the culpable conduct which caused the plaintiffs' damages which the trier of fact apportions to the plaintiff and plaintiff's decedents. FIFTH AFFIRMATIVE DEFENSE 14. The injury and damage alleged in the Complaint and Amended Complaint was caused or contributed to in whole or in part by culpable conduct attributable to persons other than this answering defendant, the relative culpability of which persons equals or exceeds fifty percent of the total culpability of all persons contributing to such damage. SIXTH AFFIRMATIVE DEFENSE 15. Insofar as the Complaint and Amended Complaint alleges causes of action accruing before September 1, 1975, each such cause of action is barred by reason of the culpable conduct attributable to plaintiff, including contributory negligence and assumption of the risk. SEVENTH AFFIRMATIVE DEFENSE 16. Insofar as the Complaint and Amended Complaint allege causes of action accruing on or after September 1, 1975 to recover damages for personal injuries and wrongful death, the amount of damages recoverable thereon must be diminished by 4 of 15
reason of the culpable conduct attributable to plaintiff and/or their decedents, including contributory negligence and assumption of the risk, in the proportion in which the culpable conduct attributable to plaintiff and/or plaintiff's decedents bears to the culpable conduct which caused the damages. EIGHTH AFFIRMATIVE DEFENSE 17. The Complaint and Amended Complaint fail to state a claim upon which punitive damages can be granted. NINTH AFFIRMATIVE DEFENSE 18. The imposition of punitive damages on the facts alleged in the Complaint and Amended Complaint would violate the excessive fines and due process clauses of the Constitution of the United States and of the State of New York. TENTH AFFIRMATIVE DEFENSE 19. Plaintiff's claim for exemplary or punitive damages is barred because such damages are not recoverable or warranted in this action. ELEVENTH AFFIRMATIVE DEFENSE 20. Each item of economic loss alleged in the Complaint and Amended Complaint was, or with reasonable certainty will be, replaced or indemnified in whole or in part from collateral sources. TWELFTH AFFIRMATIVE DEFENSE 21. The plaintiff's Complaint and Amended Complaint fail to state a cause of action upon which relief may be granted as against this answering defendant. 5 of 15
THIRTEENTH AFFIRMATIVE DEFENSE 22. Whatever damages, if any, the plaintiff sustained as alleged in his Complaint and Amended Complaint, if they were not caused in whole or part or contributed to by reason of plaintiff and/or plaintiff's decedents' culpable conduct, were caused by reason of culpable conduct on the part of others to whom the plaintiff has given a release, and accordingly, this answering defendant is entitled to have the claim of the plaintiff herein, if any reduced in accordance with Section 15-108 of the General Obligations Law. FOURTEENTH AFFIRMATIVE DEFENSE 23. The defendant denies that the plaintiff or plaintiff's decedents were ever exposed to a product sold or manufactured by this answering defendant which contained asbestos. However, should the plaintiff submit evidence to the contrary, then this answering defendant alleges that any asbestos fibers in such product were entirely encapsulated, and, therefore, such products did not omit respirable asbestos fibers into the air, therefore, such exposure could not have contributed to plaintiff's and plaintiffs decedents' alleged injuries. FIFTEENTH AFFIRMATIVE DEFENSE 24. If it should be proven at the time of trial that any of this answering defendant's products were furnished to employers of plaintiff or his decedents and that plaintiff or decedents came into contact with these products, which is specifically denied, that any such products were misused, modified and altered by plaintiff and plaintiffs decedents, their co-workers and their employees. 6 of 15
SIXTEENTH AFFIRMATIVE DEFENDANT 25. If it should be proven at the time of trial that any of this defendant's products were furnished to employers of the plaintiff or his decedents and that plaintiff or decedents came into contact with these products which is specifically denied, that any such product was furnished in strict conformity to the conditions specified or furnished by the employers of the plaintiff or decedents, who were sophisticated users of the product. SEVENTEENTH AFFIRMATIVE DEFENSE 26. If it should be proven at the time of trial that any of this defendant's products were furnished to employers of the plaintiffs or their decedents and that plaintiffs or decedents came into contact with these products which is specifically denied, that any such products were accompanied by adequate warnings in conformity with the existing state of the art in regard to the foreseeable use of said products or materials. EIGHTEENTH AFFIRMATIVE DEFENSE 27. If plaintiff used any products distributed by Wm. Summerhays Sons Corporation, Wm. Summerhays Sons Corporation alleges upon information and belief that said products were produced pursuant to government specifications and as such, Wm. Summerhays Sons Corporation is relieved of any responsibility for the injuries which plaintiff claims. 7 of 15
NINETEENTH AFFIRMATIVE DEFENSE 28. Any oral warranties upon which plaintiff and plaintiff's decedents relied are barred by the statute of frauds. TWENTIETH AFFIRMATIVE DEFENSE 29. Plaintiff failed to give timely notice to this answering defendant of any breach of warranty claim. TWENTY-FIRST AFFIRMATIVE DEFENSE 30. This answering defendant never made any warranties to the plaintiff or plaintiff's decedents upon which the plaintiff or plaintiff's decedents relied. TWENTY-SECOND AFFIRMATIVE DEFENSE 31. Any alleged warranties were properly disclaimed by labels, notice and warnings. TWENTY-THIRD AFFIRMATIVE DEFENSE 32. The plaintiff failed to timely assert any claim under UCC Section 2-725, and accordingly, any such claim is now time-barred. TWENTY-FOURTH AFFIRMATIVE DEFENSE 33. Upon information and belief, the plaintiff and plaintiff's decedents contributed to their illness by use of drugs, medication and tobacco products. TWENTY-FIFTH AFFIRMATIVE DEFENSE 34. Upon information and belief, plaintiff and plaintiff's decedents failed to mitigate or otherwise act to lessen or reduce the injuries and disabilities alleged in the Complaint and Amended Complaint. 8 of 15
TWENTY-SIXTH AFFIRMATIVE DEFENSE 35. That the injuries and/or illnesses to plaintiff, and plaintiff's decedents, if any, are governed by the applicable Worker's Compensation statutes and shall have constituted an industrial disability and plaintiff's exclusive remedy, if any, shall lie within the terms and ambit of said statute. TWENTY-SEVENTH AFFIRMATIVE DEFENSE 36. Upon information and belief, that insofar as the plaintiff alleges, as against Wm. Summerhays Sons Corporation, any willful and wanton misconduct, and that it knowingly and intentionally sold a product or products that it knew to be unreasonably dangerous, all of which Wm. Summerhays Sons Corporation denies, any such cause of action or causes of action accrued more than one year prior to the commencement of this lawsuit and are time-barred by the one-year statute of limitations. TWENTY-EIGHTH AFFIRMATIVE DEFENSE 37. At all times material hereto, the state of the medical and industrial art was such that there was no generally accepted or recognized knowledge of any unavoidable unsafe, inherently dangerous or hazardous character or nature of thermal insulation products containing asbestos when used in the manner and purpose described by pl_aintiff, therefore, there was no duty for Wm. Summerhays Sons Corporation to know of such character or nature or to warn plaintiff or others similarly situated. TWENTY-NINTH AFFIRMATIVE DEFENSE 38. At all times during the conduct of its operations, all agents, servants and employees of Wm. Summerhays Sons Corporation used proper methods of handling 9 9 of 15
the products complained of in conformity with the available knowledge, state of the art, and research of the scientific and industrial communities. THIRTETH AFFIRMATIVE DEFENSE 39. This answering defendant specifically denies that the asbestos products alleged in plaintiff's Complaint and Amended Complaint are products within the meaning and scope of the Restatement of Torts 402A, and as such the Complaint and Amended Complaint fail to state a cause of action in strict liability. THIRTY-FIRST AFFIRMATIVE DEFENSE 40. To the extent that plaintiff relies on the New York Law L. 1986, c.682, Section 4 as grounds for reviving or maintaining the action, said statute is unconstitutional and deprives Wm. Summerhays Sons Corporation of its constitutional rights and is wholly void and unenforceable. THIRTY-SECOND AFFIRMATIVE DEFENSE 41. The action cannot proceed in the absence of all parties who should be named in accordance with CPLR 1001. THIRTY-THIRD AFFIRMATIVE DEFENSE 42. To the extent that plaintiff was exposed to any products containing asbestos as a result of conduct by Wm. Summerhays Sons Corporation, which is specifically denied, said exposure was de minimis and not a substantial contributing factor to any asbestos-related disease which plaintiffs may have developed, thus requiring dismissal of the Complaint and Amended Complaint as against Wm. Summerhays Sons Corporation. 10 10 of 15
THIRTY-FOURTH AFFIRMATIVE DEFENSE 43. If this answering defendant's products in question were unsafe, which this answering defendant specifically denies, the dangers to plaintiff and plaintiff's decedents, if any, were not foreseeable at the time of the manufacture and alleged exposure to said products. THIRTY-FIFTH AFFIRMATIVE DEFENSE 44. This answering defendant denies that its products were unsafe, but states that should such products be found to be unsafe, they were incapable, given the then present state of scientific knowledge, of being made safe since there was no available substitute for the asbestos-containing products. THIRTY-SIXTH AFFIRMATIVE DEFENSE 45. If it is determined that the plaintiff and plaintiff's decedents were exposed to any alleged product of this answering defendant which product or component was acquired from or sold by or used on behalf of the United States of America or the State of New York, then this answering defendant is entitled to absolute immunity as a government contractor via sovereign or governmental immunity available to the United States or the State of New York. THIRTY-SEVENTH AFFIRMATIVE DEFENSE 46. Plaintiff's choice of venue is improper and violates applicable law. FIRST CROSS-CLAIM 47. Upon information and belief, if any plaintiff sustained injuries and damages as alleged in the Complaint and Amended Complaint by reason of fault other than that 11 of 15
of plaintiff and a judgment is obtained against defendant Wm. Summerhays Sons Corporation, then said liability of said answering defendant has been brought by reason of the primary carelessness, culpable conduct, negligence, breach of contract and statutory violations of the co-defendants, without any such carelessness, culpable conduct, negligence or statutory violations on the part of defendant Wm. Summerhays Sons Corporation. 48. By reason of the foregoing, defendant Wm. Summerhays Sons Corporation is entitled to full indemnification from the co-defendants, without any such carelessness, culpable conduct, negligence or statutory violations on the part of defendant Wm. Summerhays Sons Corporation. SECOND CROSS-CLAIM 49. Upon information and belief, by reason of the carelessness, culpable conduct, negligence, breach of contract and statutory violation of the co-defendants, Wm. Summerhays Sons Corporation is entitled to judgment, contribution and/or indemnity pursuant to Article 14 of the New York Civil Practice Law and Rules, from the co-defendants for all or a part of any judgment obtained against Wm. Summerhays Sons Corporation and in such amount as shall be determined ultimately at the trial of this action according to the proportionate responsibility of each defendant, along with costs, disbursements and reasonable attorneys' fees. WHEREFORE, defendant Wm. Summerhays Sons Corporation demands judgment as follows: 12 of 15
A. Dismissing plaintiff's Complaint and Amended Complaint, together with the costs and disbursements of this action; B. In the alternative, if plaintiffs should recover from Wm. Summerhays Sons Corporation, determining the relevant degrees of culpability among the parties in reducing any verdict, judgment or recovery in favor of plaintiffs in the proportion which the culpable conduct attributable to the plaintiff bears to the culpable conduct which caused the accident and injuries; C. In the alternative, if plaintiff should recover against Wm. Summerhays Sons Corporation, judgment in favor of Wm. Summerhays Sons Corporation over and against co-defendants for the full amount of any judgment against Wm. Summerhays Sons Corporation or in an amount and proportion which the culpable conduct attributable to co-defendants bears to the culpable conduct which caused the accident and damages; and D. For such other, further relief as the Court deems just and proper. Dated: May 22, 2017 Paul eclair, Esq. Attorneys for Defendant, Wm. Summerhays Sons Corporation 28 East Main Street Suite 1500 Rochester, New York 14614 Telephone: (585) 327-4100 13 13 of 15
LIPSITZ & PONTERIO, LLC Joseph T. Kremer, Esq. Attorneys for Plaintiffs Office and Post Office Address 135 Delaware Avenue - 5th Floor Buffalo, New York 14202-2415 Telephone: (716) 849-0701 All Defense Counsel of Record 14 14 of 15
STATE OF NEW YORK) COUNTY OF MONROE) SS: VERIFICATION PAULL. LECLAIR, ESQ., being duly sworn, deposes and says that: He is a partner in the law firm of Leclair Korona Vahey Cole LLP, attorneys for defendant William Summerhays Sons Corporation in the within action, that he has read the foregoing Answer with Cross Claims to the Complaint and Amended Complaint and know the contents thereof, and that the same is true to deponent's own knowledge, except as to matters therein stated to be alleged upon information and belief, and as to those matters deponent believes it to be true. This verification is not made by defendant because defendant is not within the County of Monroe, which is the County where your deponent maintains an office for the practice of law. Paul L. Leclair Sworn to before me this 22nd day of May, 2017 Jessica M. Ventimiglia otary Public, State of New York Monroe County Reg# 01VE606945!L My Commission Expires Feb. 4, 20.llS" 15 of 15