FILED: NEW YORK COUNTY CLERK 08/11/2016 11:39 AM INDEX NO. 190219/2016 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 08/11/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK NEW YORK CITY ASBESTOS LITIGATION X X THOMAS MCGLYNN, Index No. 190219/2016 COMPLAINT FILED: Plaintiff, DEFENDANT VIAD CORP'S VERIFIED ANSWER TO - against - PLAINTIFF'S VERIFIED COMPLAINT AERCO INTERNATIONAL, INC.; AIR & LIQUID SYSTEMS CORPORATION, BUFFALO PUMPS DIVISION; AMERICAN EXPORT LINES, FARRELL LINES INCORPORATED f/k/a & s/h/a AMERICAN EXPORT LINES; ANCHOR-DARLING VALVE COMPANY: ARMSTRONG INTERNATIONAL, INC.; AURORA PUMP COMPANY; AWT AIR COMPANY, INC., f/k/a RESEARCH- COTTRELL, INC.; BARNES & JONES, INC.; BMCE, INC., in itself and as successor to UNITED CENTRIFUGAL PUMP CO.; BRADY MARINE REPAIR CO., INC.; BRAND INSULATIONS, INC.; BURNHAM LLC; BW/IP INC.; CAMERON INTERNATIONAL CORPORATION f/k/a COOPER CAMERON CORPORATION; CARNIVAL CRUISE LINES Individually and as Successor in interest to HOLLAND AMERICA, INC.; CBS CORPORATION, a Delaware Corporation, f/k/a VIACOM INC., successor by merger to CBS CORPORATION, a Pennsylvania Corporation, f/k/a WESTINGHOUSE ELECTRIC CORPORATION; CEMEX CONCRETE CORP., f/k/a CEMEX, INC., Individually and as Successor by Merger to SOUTHDOWN, INC., SOUTHWESTERN PORTLAND CEMENT and MOORE MCCORMACK 1 of 14
RESOURCES, INC.; CEMEX, INC., Individually and as Successor by Merger to SOUTHDOWN INC., SOUTHWESTERN PORTLAND CEMENT and MOORE MCCORMACK RESOURCES INC.; CERTAIN-TEED CORPORATION; CLEAVER-BROOKS, INC.; CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.; COPES-VULCAN, INC.; CRANE CO.; CROWN CORK & SEAL COMPANY, INC.; CUMMINS, INC.; DANA COMPANIES LLC; DEZURIK, INC.; DOVER ENERGY, INC.; DRAVO CORPORATION; ELLIOTT COMPANY; FAIRBANKS COMPANY: FLOWSERVE CORPORATION as successor to DURIRON INC. and DURCO INTERNATIONAL INC.; FLOWSERVE US INC., solely as successor to EDWARD VALVES INC., ROCKWELL MANUFACTURING COMPANY, NORDSTROM VALVES INC. and MCCANNA CORPORATION; FMC CORPORATION; FOSTER WHEELER ENERGY CORPORATION; GARDNER DENVER, INC.; GENERAL ELECTRIC COMPANY; GEORGIA-PACIFIC LLC; GLOBAL CONTAINER CORP.; GOODYEAR TIRE & RUBBER COMPANY; GOULDS PUMPS, INCORPORATED; GRAYBAR ELECTRIC COMPANY, INC.; GREENE TWEED & CO. INC.; HOLLAND AMERICA LINE USA INC.; HONEYWELL INTERNATIONAL INC.; HOPEMAN BROTHERS, INC.; HORIZON LINES, LLC, individually and as successor in interest to SEA-LAND SERVICES, INC.; IMO INDUSTRIES, INC.; INDUSTRIAL HOLDINGS CORPORATION filda. THE CARBORUNDUM COMPANY; INGERSOLL-RAND COMPANY; ITT CORPORATION; - 2-2 of 14
J-M MANUFACTURING COMPANY, INC.; KAISER GYPSUM COMPANY, INC.; KELLY MOORE PAINT COMPANY, INC.; KINDER MORGAN INC.; MAERSK INC., Individually and as Successor In Interest to SEA-LAND SERVICE, INC.; METROPOLITAN LIFE INSURANCE COMPANY; RESIDUAL ENTERPRISES CORPORATION Individually and as Successor In Interest to SL SERVICE INC. f/k/a SEA-LAND SERVICE INC.; RHEEM MANUFACTURING COMPANY; RILEY POWER INC. f/k/a RILEY STOKER CORPORATION; SPECIAL ELECTRIC COMPANY INC.; SPIRAX SARCO, INC.; STERLING FLUID SYSTEMS (USA), LLC; TRANE US. INC. f/k/a AMERICAN STANDARD INC.; TRANSMONTAIGNE SERVICES LLC; UNION CARBIDE CORPORATION; UNION PUMP CO.; VELAN VALVE CORPORATION: VIAD CORP.; VIKING PUMP, INC.; WARREN PUMPS LLC; WEIL-MCLAIN INC.; WEIR VALVES & CONTROLS USA, INC., d/b/a ATWOOD & MORRILL; WILLIAM E. WILLIAMS VALVE CORP.; WILLIAM POWELL COMPANY; YUBA HEAT TRANSFER LLC; ZURN INDUSTRIES, LLC; JOHN DOE I through JOHN DOE 75 (fictitious), Defendants X Defendant, Viad Corp ("Viad"), by its attorneys, Mound Cotton Wollan & Greengrass, LLP as and for its Verified Answer to Plaintiff s Verified Complaint (the "Complaint") states, upon information and belief: - 3-3 of 14
l. As to the allegations of the Complaint relating to the identity, residence, work history, legal or marital status, physical condition and other characteristics of the plaintiff, this answering defendant is without sufficient information to admit or deny such allegations and leaves plaintiff to his proof. 2. As to the allegations related to the identity, location, and residence of this answering defendant, such allegations are denied. 3. As to: (a) allegations with respect to this answering defendant's conduct, knowledge, and actions as they relate in any way to plaintiff, (b) allegations with respect to answering defendant's claimed liability to plaintiff; and (c) allegations of any relationship between such conduct, alleged liability and plaintiff s illness, all such allegations are denied. 4. Except as previously set forth above, all allegations of the Complaint are denied. Insofar as the allegations pertain to other defendants, this answering defendant is without sufifcient information to admit or deny such allegations. AFFIRMATIVE DEFENSES FOR A FIRST AFFIRMATIVE DEFENSE 5. This Court lacks jurisdiction over Viad as a result of improper, and lack of service of process. FOR A SECOND AFFIRMATIVE DEFENSE 6. All claims are time-barred by the applicable Statute of Limitations. FOR A THIRD AFFIRMATIVE DEFENSE 7. The causes of action pleaded in the Complaint have not been asserted in a timely fashion and Plaintiff has neglected the same and should be barred by the doctrine of laches. FOR A FOURTH AFFIRMATIVE DEFENSE - 4-4 of 14
8. Plaintiff has failed to exhaust all administrative remedies. FOR A FIFTH AFFIRMATIVE DEFENSE 9. The Complaint and each and every allegation considered separately fail to state any cause of action against Viad upon which relief can be granted. FOR A SIXTH AFFIRMATIVE DEFENSE 10. Viad denies that it breached any duty, whether contractual or otherwise, due or owing to Plaintiff at the time and place set forth in the Complaint. FOR A SEVENTH AFFIRMATIVE DEFENSE 11. Upon information and belief, the injuries and damages alleged to have been sustained by plaintiff were not reasonably foreseeable. FOR AN EIGHTH AFFIRMATIVE DEFENSE 12. Plaintiff knowingly and intentionally assumed any and all risks associated with the use of the asbestos products that are the subject of this lawsuit. FOR A NINTH AFFIRMATIVE DEFENSE 13. Insofar as the Complaint, and each cause of action considered separately, alleges a cause of action accruing on or after September 1, 1975 to recover damages for personal injuries, the amount of damages recoverable thereon is reduced by the culpable conduct attributable to the Plaintiff including contributory negligence and assumption of risk, in the proportion which the culpable conduct attributable to the Plaintiff bears to the culpable conduct which caused the damages. FOR A TENTH AFFIRMATIVE DEFENSE 14. Insofar as the Complaint and each cause of action considered separately, alleges a cause of action accruing before September 1, 1975, each such cause of action is barred by reason - 5-5 of 14
of the culpable conduct attributable to the Plaintiff including contributory negligence and assumption of the risk. FOR AN ELEVENTH AFFIRMATIVE DEFENSE 15. If the Plaintiff should prove the injuries and damages as alleged, such injuries and damages resulted from the acts or omissions on the part of the third-parties over whom this defendant had no control or right of control. FOR A TWELFTH AFFIRMATIVE DEFENSE 16. While Viad denies Plaintiff s allegations of negligence, statutory liability and/or strict liability, any injury and damages (to the extent that Plaintiff may be able to prove such), were the result of intervening and/or interceding acts of superseding negligence on the part of parties over whom Viad had no control nor had the right of control. FOR A THIRTEENTH AFFIRMATIVE DEFENSE 17. At all times during the conduct of its corporate operations, the agents, servants and/or employees of Viad used proper methods in handling the products complained of in conformity with the available knowledge, state of the art, and research of the scientific industrial communities. FOR A FOURTEENTH AFFIRMATIVE DEFENSE 18. Plaintiff, his co-workers and employers misused, abused, mistreated and misapplied the product designated as asbestos material as alleged in the Complaint. 19. If the Court fmds that any misuse, abuse, mistreatment and/or misapplication of the product caused and/or contributed to the alleged damages or injuries to the Plaintiff, then Viad requests that the amount of damages which might be recoverable shall be diminished by the proportion which the same misuse, abuse, mistreatment and/or misapplication, attributed to the - 6-6 of 14
plaintiff, his co-workers and/or employers bear to the conduct which caused the alleged damages or injuries. FOR A FIFTEENTH AFFIRMATIVE DEFENSE 20. Any oral warranties upon which Plaintiff relied are inadmissible and unavailable because of the provisions of the applicable Statute of Frauds. FOR A SIXTEENTH AFFIRMATIVE DEFENSE 21. As to all causes of action pleaded in the complaint which are based upon expressed or implied warranties and/or representations, the alleged breaches thereof as against Viad are legally insufficient by reason of their failure to allege privity of contract between the Plaintiff and Viad. FOR A SEVENTEENTH AFFIRMATIVE DEFENSE 22. Plaintiff neither received nor relied on any representation or warranty allegedly made by Viad. FOR AN EIGHTEENTH AFFIRMATIVE DEFENSE 23. In the event that any breach of warranty is proven, Plaintiff failed to give proper and prompt notice of any such breach of warranty to Viad. FOR A NINETEENTH AFFIRMATIVE DEFENSE 24. To the extent that the causes of action pleaded by plaintiff fail to accord with the Uniform Commercial Code, including but not limited to Section 2-725, the Complaint is timebarred. FOR A TWENTIETH AFFIRMATIVE DEFENSE 25. Upon information and belief, Plaintiff failed to mitigate or otherwise act to lessen or reduce the injuries and disabilities alleged in the Complaint. - 7-7 of 14
FOR A TWENTY-FIRST AFFIRMATIVE DEFENSE 26. The cause of action for exemplary or punitive damages is barred because such damages are not recoverable or warranted in this action. FOR A TWENTY-SECOND AFFIRMATIVE DEFENSE 27. Plaintiff is estopped from asserting the causes of action alleged in the Complaint. FOR A TWENTY-THIRD AFFIRMATIVE DEFENSE 28. Plaintiff has waived the causes of action and recovery alleged in the Complaint. FOR A TWENTY-FOURTH AFFIRMATIVE DEFENSE 29. Plaintiff has failed to name and join essential and necessary parties. FOR A TWENTY-FIFTH AFFIRMATIVE DEFENSE 30. Plaintiff lacks the requisite capacity, standing, and authority to bring the within action as he is not a real party in interest. FOR A TWENTY-SIXTH AFFIRMATIVE DEFENSE 31. Viad denies specifically that, during the periods of exposure alleged in the Complaint by the Plaintiff it either processed, manufactured, designed, supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce any substantial and/or any percentage of the asbestos products to which Plaintiff allegedly was caused to come into contact and which Plaintiff allegedly was caused to breathe inhale and/or digest and which thereby caused the Plaintiff's injuries and resulting damages alleged in the Complaint herein. 32. In the event it should be proven at the time of trial that all the defendants are subject to market share liability, then Viad's share of such liability would be of such a de - 8-8 of 14
minimus amount as to make its contribution for damages negligible, and Viad would be entitled to contribution, either in whole or in patr, from the other defendants herein. FOR A TWENTY-SEVENTH AFFIRMATIVE DEFENSE 33. Viad denies that Plaintiff had any exposure to any asbestos product supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce (if any) by it, and more particularly denies upon information and belief that it supplied, developed, tested, fashioned, packaged, distributed, delivered, sold and/or otherwise placed in the stream of commerce any asbestos product at the times and upon the dates alleged in the Complaint herein. FOR A TWENTY-EIGHTH AFFIRMATIVE DEFENSE 34. Plaintiff contributed to his illnesses by the use, either in whole or in part, of other substances, products, medications and drugs. FOR A TWENTY-NINTH AFFIRMATIVE DEFENSE 35. The injuries allegedly suffered by the Plaintiff, if any, which injuries are specifically denied by Viad, were the result of culpable conduct or fault of third persons for whose conduct Viad is not legally responsible, and the damages recovered by the Plaintiff, if any, should be diminished or reduced in the proportion to which said culpable conduct bears upon the culpable conduct which caused the damages. Any liability on the part of Viad (which liability is vigorously and specifically denied) is fifty percent or less of the liability of all persons who are the cause of the alleged injuries, if any, and the liability of Viad for non-economic loss does not exceed Viad's equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability for non-economic loss pursuant to CPLR Sections 1601 through 1603. - 9-9 of 14
FOR A THIRTIETH AFFIRMATIVE DEFENSE 36. Upon information and belief, some or all of causes of action may not be maintained because of collateral estoppel. FOR A THIRTY-FIRST AFFIRMATIVE DEFENSE 37. Upon information and belief, some or all of causes of action may not be maintained because of discharge in bankruptcy. FOR A THIRTY-SECOND AFFIRMATIVE DEFENSE 38. Upon information and belief, some or all of causes of action may not be maintained because of res judicata. FOR A THIRTY-THIRD AFFIRMATIVE DEFENSE 39. Viad denies any and all liability to the extent that Plaintiff asserts Viad's alleged liability as a successor, successor in business, successor in product line or a potrion thereof, assign, predecessor, predecessor in business, predecessor in product line or a portion thereof, parent, alter ego, subsidiary, wholly or partially owned by, or the whole or partial owner or of a member in an entity researching, studying, manufacturing, fabricating, designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting for installation, repairing, marketing, warranting, re-branding, manufacturing for others, packaging and advertising a certain substance, the generic name of which is asbestos. FOR A THIRTY-FOURTH AFFIRMATIVE DEFENSE 40. Plaintiff s action, and each alleged cause of action, is barred by the government contractor defense. Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988). - 10-10 of 14
FOR A THIRTY-FIFTH AFFIRMATIVE DEFENSE 41. Plaintiff s claims are barred, in whole or in patr, because Viad did not manufacture, supply, affix or install any asbestos containing insulation or part in its product (commonly referred to as the "bare metal defense"). FOR A THIRTY-SIXTH AFFIRMATIVE DEFENSE 42. The imposition of punitive/exemplary damages against Viad for acts of a former and/or predecessor corporate entity would be in violation of due process of law, and against public policy, under the law and Constitution of the State of New York and the United States. FOR A THIRTY-SEVENTH AFFIRMATIVE DEFENSE 43. Viad incorporates by reference, as if more fully set forth at length herein, all defenses, both affirmative and otherwise, raised, pleaded or asserted by all other answering defendants. AS AND FOR A CROSS-CLAIM AGAINST CO-DEFENDANTS 44. If Plaintiff sustained damages at the time and place set forth in the Plaintiff s Complaint through any carelessness, recklessness, andjor negligence other than that of Plaintiff, including, but not limited to, the manufacture and distribution of the asbestos product, breach of warranty or misrepresentations, either express or implied, and in strict liability in totr, these damages will have been caused and brought about by reason of the carelessness, recklessness, and/or negligence of the co-defendants not represented by the answerer. 45. If the plaintiff recovers a judgment against Viad by operation of law or otherwise, Viad will be entitled to judgment, contribution and/or indemnity over and against its co- defendants, their agents, servants and/or employees, by reason of their carelessness, recklessness, and/or negligence for the amount of any such recovery, or a portion thereof, in accordance with - 11-11 of 14
principles of law regarding apportionment of fault and damages, along with costs, disbursements and reasonable expenses of the investigation and defense of this action, including reasonable attorneys' fees. WHEREFORE, Viad demands judgment dismissing Plaintiff s Complaint, with prejudice, and awarding Viad costs and disbursements, and in the event of any judgment over and against Viad, Viad demands judgment, contribution and/or indemnity against all co- defendants, including reasonable attorneys' fees. Dated: New York, New York August 11, 2016 Respectfully Submitted, MOUND COTTON WOLLAN & GREENGRASS, LLP By TO: Daniel P. Blouin, Esq. Simmons Hanly Conroy 112 Madison Avenue New York, New York 10016 Attonreys for Plaintiff Greengrass, LLP One New York Plaza New York, New York 10004 (212) 804-4200 Attonreys for Viad Corp - 12-12 of 14
STATE OF NEW YORK ) ) ss. : COUNTY OF NEW YORK ) ATTORNEY'S VERIFICATION states: The undersigned, an attorney admitted to practice in the courts of the State of New York, Deponent is a member of the fiim of Mound Cotton Wollan & Greengrass, LLP, the attorneys of record for defendant Viad Corp in the within asbestos litigation; deponent has read the foregoing Veriifed Answer to the Verified Complaint and knows the contents thereof; the same is true to deponent's own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters deponent believes them to be true. This verification is made by deponent and not by defendant pursuant to CPLR 3020 (d) (3). The undersigned states that the foregoing statements are true, under the penalties of perjury. 7iztach ' Sworn to before me this llth day of August, 2016 Noilary Pubiic ')//7N-_. HARVEY S. PAPSH Notary Public, State of New York No. 01PA4924872 Qualified in New York County Commission Expires April 14, 2018-13 - 13 of 14
AFFIDAVIT OF SERVICE STATE OF NEW YORK ) COUNTY OF NEW YORK ) ss. Marian Kelly, being duly sworn, deposes and says: Deponent is not a party to this action, is over the age of 18 years and resides in Maywood, New Jersey. On the 1 lth day of August, 2016 deponent served the within DEFENDANT VIAD CORP'S VERIFIED ANSWER TO VERIFIED COMPLAINT upon: Daniel P. Blouin, Esq. Simmons Hanly Conroy 112 Madison Avenue New York, New York 10016 Attorneys for Plaintiff See Attached Defendants' Rider by sending same via the Supreme Court, New York County's ECF Filing System. Sworn to before me this 1 ith day of August, 2016. \ CULCO'--/ Marian Kelly Notai Pu lic HARVEY PAPITS Notary Public Moto of Now York No, 01PA4924072 Q ualified ln New York Count y Co -7-1,sion E res April 14? 1113 14 of 14