Free Response to Motion - District Court of Delaware - Delaware

Case 1:05-cv-00063-SLR

Document 8-3

Filed 05/31/2005

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EXHIBIT B

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P.uui

UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

AMERICAN EMPLOYERS' INSURANCE COMPANY, as subrogee of College Book Stores of America j Plaintiff,

Civil Action No. 04-178

v.
UNITED DOMINION INDUSTRIES, INC., THE MARLEY CORPORATION and MARLEY ENGINEERED PRODUCTS, SPX CORPORATION AND MARLEY CORPORATION Defendants/Third Party Plaintiffs,
v.

TRIAL BY JURY OF TWELVE DEMANDED

T.A. RIETDORF & SONS, INC., Third Party Defendant.

THIRD PARTY COMPLAINT OF DEFENDANTS/THIRD PARTY PLAINTIFFS, SPX CORPORATION, UNITED DOMINION INDUSTRIES, INC., THE MARLEY COMPANY LLC AND MARLEY ENGINEERED PRODUCTS, SPX CORPORATION AND MARLEY CORPORATION 1. Plaintiff, American Employers' Insurance Company, Inc. filed an Amended

Complaint in United States District Court for the District of Delaware naming United Dominion Industries, Inc., The Marley Company LLC and Marley Engineered Products, SPX Corporation and Marley Corporation, LLC, as defendants in a property damage action. Attached hereto as Exhibit "A" is a true and correct copy of plaintiff s Amended Complaint.

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2.

Defendants/third party plaintiffs have filed a Second Amended Answer to

plaintiffs Amended Complaint. Attached hereto as Exhibit "B" is a true and correct copy of defendants'/third party plaintiffs' Second Amended Answer. 3. Plaintiffs Amended Complaint alleges among other things that, on March 29,

2002, a fire occurred in the bookstore at Widener University located at 4601 Concord Pike in Wilmington, Delaware. 4. Plaintiff alleges that the fire originated from an electric baseboard heater and that

the fire was caused by a defective and unreasonably dangerous condition existing within the heater. 5. Plaintiff further alleges that defendants/third party plaintiffs designed,

manufactured, distributed, sold and supplied the heater at issue which was allegedly installed in the bookstore on February 6,2002. 6. Third party defendant, T. A. Rietdorf & Sons, Inc., is a corporation organized and

existing under the laws of the State of Delaware with abusiness address of P.O. Box 1528, Wilmington, Delaware 19899. 7Third party defendant, T.A. Rietdorf & Sons, Inc., is subject to service of process

by serving its registered agent at Delaware Corporate Services, Inc., located at 222 Delaware Avenue, Wilmington, Delaware 19SOL 8. Third party defendant, T.A. Rietdorf & Sons, Inc., installed the heater at issue in

plaintiffs bookstore on or about February 5 and 6,2002. 9. During its work, third party defendant, T.A. Rietdorf & Sons, Inc., installed the

heater at issue whose electrical system was inappropriate for the building's electrical system. 10. Because the heater was inappropriate for the application, a fire took place.

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11.

Without admission of any averments contained in plaintiffs Amended Complaint,

defendants/third party plaintiffs incorporate by reference all the factual averments in said Amended Complaint. 12. Without admission of any averments contained in plaintiffs Amended Complaint,

defendants/third party plaintiffs allege that, if the damages alleged are proven to be true in whole or part, said damages resulted from acts and/or omissions from third party defendant, T.A. Rietdorf & Sons, Inc. COUNT I ~ NEGLIGENCE 13. Defendants/third party plaintiffs incorporate by reference herein the allegations

contained in paragraphs 1 through 12 of this Third Party Complaint as though fully set forth herein. 14. At all relevant times hereto, third party defendant, T.A. Rietdorf & Sons, Inc.,

acted through its respective employees, agents, servants and/or workmen, each of whom was acting within the course and scope of his employment, and within the scope of his authority, subject to the control and direction and for the benefit of his principal and employer, third party defendant, T.A. Rietdorf & Sons, Inc. 15. Third party defendant, T.A. Rietdorf & Sons, Inc., owed a duty to exercise

reasonable care and skill in purchasing and/or installing the subject heater so as to avoid an unreasonable risk of property damage or economic loss. 16. If the heater at issue was responsible for the fire alleged in plaintiffs Amended

Complaint, which defendants/third party plaintiffs specifically deny, any resulting damages sustained by plaintiff were due to the negligence and/or carelessness and/or recklessness of third

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party defendant, TA. Rietdorf & Sons, Inc., who directly and by and through its employees, agents, servants and/or contractors breached its duty in the following ways: a. Failing to properly and safely inspect the building where the heater was being

installed to ensure that the heater was appropriate for the area; b. Failing to properly and safely inspect the heater to ensure that the heater was in an

appropriate location; c. d. compatible; e. f. g. h. Failing to adequately, properly and safely install the heater; Failing to hire competent employees or agents or contractors; Failing to properly supervise and train its employees or agents or contractors; Purchasing and installing the heater in a building where the electrical system was Failing to follow directions regarding application of the heater; Failing to ensure that the electrical systems of the building and the heater were

not compatible with the heater; i. 17. Otherwise failing to use reasonable care under the circumstances. If the allegations in plaintiffs Amended Complaint are proven to be true, the

aforesaid negligence was the direct and proximate cause of plaintiff s alleged damages. 18. If the allegations in plaintiffs Amended Complaint are proven to be true,

defendants/third party plaintiffs aver that third party defendant, T.A. Rietdorf & Sons, Inc., is solely liable to plaintiff, or is jointly and severally liable with defendants/third party plaintiffs and/or liable over to defendants/third party plaintiffs for indemnification and/or contribution on plaintiffs cause of action, the existence of any liability on the part of defendants/third, party plaintiffs being expressly denied.

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WHEREFORE, third party defendant, T.A. Rietdorf & Sons, Inc., is solely liable to plaintiff, or third party defendant is jointly and severally liable with defendants/third party plaintiffs and/or liable over to defendants/third party plaintiffs for indemnification and/or contribution on the cause of action set forth in plaintiffs Amended Complaint, and defendants/third party plaintiffs demand judgment against third party defendant with attorneys fees and costs. COUNT II -BREACH OF EXPRESS AND IMPLIED WARRANTY 18. Defendants/third party plaintiffs incorporate by reference herein the allegations

contained in paragraphs 1 through 12 of this Third Party Complaint as though fully set forth herein. 19. Third party defendant purchased the heater at issue in this matter and installed it

at the location where the fire giving rise to the present case occurred, 20. 21. Third party defendant did not properly install the heater. In purchasing, supplying and/or installing the heater in question, third party

defendant expressly and/or impliedly warranted that its workmanship was of good quality. 22. The fire giving rise to the present case and any damages allegedly sustained by

plaintiff were caused by third party defendant's breach of such express and/or implied warranties. 23. If the allegations in plaintiffs Amended Complaint are proven to be true,

defendants/third party plaintiffs aver that third party defendant is solely liable to plaintiff, or is jointly and severally liable with defendants/third party plaintiffs and/or liable over to defendants/third party plaintiffs for indemnification and/or contribution on plaintiffs cause of action, the existence of any liability on the part of defendants/third party plaintiffs being expressly denied.

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WHEREFORE, third party defendant, T.A. Rietdorf & Sons, Inc., is solely liable to plaintiff, or third party defendant is jointly and severally liable with defendants/third party plaintiffs and/or liable over to defendants/third party plaintiffs for indemnification and/or contribution on the cause of action set forth in plaintiffs Amended Complaint, and defendants/third party plaintiffs demand judgment against third party defendant with attorneys fees and costs.

COUNT III - BREACH OF CONTRACT
25. Defendants/third party plaintiffs incorporate by reference herein the allegations

contained in paragraphs 1 through 12 of this Third Party Complaint as though fully set forth herein. 26. Third party defendant purchased and installed the heater at issue based on a

contract with Widener University. 27. Third party defendant breached its contract with Widener University by

negligently purchasing and/or installing the heater in question. 28. At all material times hereto, defendants/third party plaintiffs were direct and/or

third party beneficiaries of third party defendant's work, and defendants/third party plaintiffs relied upon the expertise and experience of the third party defendant to purchase and install the heater in a proper and workmanlike manner. 29. Third party defendant's breach of contract to install said heater resulted in the fire

referred to in plaintiffs Amended Complaint and caused any damages alleged by plaintiff. 30. As a direct or proximate result of the breach of contract alleged above, third party

defendant is solely liable to plaintiff or jointly and severally liable with defendants/third party plaintiffs and/or liable over to defendants/third party plaintiffs for indernnificatic-n and/or

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contribution on the cause of action set forth in plaintiffs Amended Complaint, the existence of any liability on the part of defendants/third party plaintiffs being expressly denied. WHEREFORE, third party defendant, T.A. Rietdorf & Sons, Inc., is solely liable to plaintiff, or third party defendant is jointly and severally liable with defendants/third party plaintiffs and/or liable over to defendants/third party plaintiffs for indemnification and/or contribution for the cause of action set forth in plaintiffs Amended Complaint, and defendants/third party plaintiffs demand judgment against third party defendant with attorneys' fees and costs. MARSHALL, DENNEHEY, WARNER COLEMAN AND GOGGIN

BY:
, ESQTJJJRE - #2135 1220 Market Street, 5*Hoor P.O. Box 8888 Wilmington, DE 19801-8888 (302) 552-4302 Attorneys for Defendants/Third Party Plaintiffs
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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

AMERICAN EMPLOYERS' INSURANCE COMPANY, as subrogee of College Book Stores of America Plaintiff, Civil Action No. 04-178 TRIAL BY JURY OF TWELVE DEMANDED en
5 is-1

v.
UNITED DOMINION INDUSTRIES, INC., THE MARLEY CORPORATION and MARLEY ENGINEERED PRODUCTS, SPX CORPORATION and MARLEY CORPORATION, LLC Defendants SECOND AMENDED_ANSWER OF DEFENDANTS TO PLAINTIFF'S AMENDED COMPLAINT Defendants, by and through their Attorneys, Marshall, Dermehey, Warner, Coleman & Goggin, file this Second Amended Answer to Plaintiffs Amended Complaint: 1. It is admitted that Plaintiff, American Employers' Insurance Company, is a

corporation. Defendants are without sufficient knowledge or information to form a belief as to the truth of the remaining allegations of Paragraph 1 of Plaintiff s Amended Complaint. 2. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the allegations contained in Paragraph 2 of Plaintiffs Amended Complaint. 3. Defendants are without sufficient knowledge or information to form a belief as to

the truth of the allegations contained in Paragraph 3 of Plaintiffs Amended Complaint. 4. Admitted.

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5.

Denied as stated. It is admitted only generally that, at certain periods of time,

certain subsidiaries/divisions/businesses of SPX Corporation produced, in part, certain products which included heating and cooling products, including various electric baseboard heaters. 6. 7. Denied. Denied as stated. It is admitted only generally that certain

subsidiaries/divisions/businesses of U.D.I, produced, in part, certain products which included heating and cooling products, including various electric baseboard heaters. 8. 9. Admitted. Denied as stated. It is admitted only generally that, at certain periods of time, The

Marley Company, IXC produced, in part, certain products which included heating and cooling products, including various electric baseboard heaters. 10. 11. 12. Denied. Denied. Denied as stated. It is admitted only generally that, at certain periods of time, The

Marley Company produced, in part, certain products, which included heating and cooling products, including various electric baseboard heaters. It is also denied that The Marley Company was known as the Marley Corporation.

13.
14. 15.

Admitted.
Denied. Denied as stated. It is admitted only generally that Marley Engineered Products

produced, in part, certain products which included heating products, including various electric baseboard heaters. It is denied that Marley Engineered Products produced cooling products.

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16.

Admitted in part. Denied in part. It is admitted only that Plaintiff alleges that the

individual named Defendants will, in its Amended Complaint, be referred to collectively as Defendants. It is denied that each of the named Defendants is at this time or was a legal entity, and it is denied that each of the entities named as Defendants is or was the same legal entity. Further, it is averred that reference to each of the named Defendants collectively as Defendants in Paragraphs 17-40 inclusive of Plaintiffs Amended Complaint is legally incorrect, misleading, confusing and fails to provide proper notice as required by the Federal Rules of Civil Procedure. JURISDICTION AND VENUE 17. Admitted in part. Denied in part. It is admitted only that Plaintiff alleges a basis

for jurisdiction. The truth of the allegations of Paragraph 17 relating to diversity of citizenship and amount in controversy are denied. 18Admitted. FACTUAL ALLEGATIONS 19. 20. 21. 22. 23. 24. Paragraph 24. 25. Denied. Denied. Denied. Admitted. Denied. Denied. Defendants are without knowledge as to the truth or falsity of the allegations of

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COUNT I 26. Defendants incorporate by reference herein, as though fully set forth at length, their

answers to Paragraphs 1 through 25 inclusive of Plaintiffs Amended Complaint. 27. (a) - (i) inclusive. 28. Denied. Denied.

WHEREFORE, Defendants demand judgment be entered in their favor on the cause of action alleged in Count /, COUNT II 29. Defendants incorporate by reference herein, as though fully set forth at length, their

answers to Paragraphs 1 through 28 inclusive of Plaintiffs Amended Complaint, 30. 31. 32. 33. 34. 35. 36. Denied. Denied. Denied. Denied. Denied. Denied, Denied.

WHEREFORE, Defendants demand judgment be entered in their favor on the cause of action alleged in Count If.
COUNT HI 37. Defendants incorporate by reference herein, as though fully set forth at length, their

answers to Paragraphs 1 through 26 inclusive of Plaintiffs Amended Complaint. 38. Denied.

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39. 40.

Denied. Denied.

WHEREFORE, Defendants demand judgment be entered in their favor on the cause of action alleged in Count IJL Affirmative Defenses FIRST AFFIRMATIVE DEFENSE Plaintiffs Amended Complaint fails to state a cause of action upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE The applicable Statute of Limitations may have expired prior to institution of this action. THIRD AFFIRMATIVE DEFENSE Defendants did not extend any warranties, express or implied, to Plaintiff. FOURTH AFFIRMATIVE DEFENSE Defendants did not breach any warranty or warranties that they may have extended. FIFTH AFFIRMATIVE DEFENSE Plaintiff has failed to provide Defendants with timely notice of any alleged defect or breach of warranty as required by law. SIXTH AFFIRMATIVE DEFENSE Any written warranty which may have been extended by Defendants, may have limited Plaintiffs remedies, barred certain or all of Plaintiff s remedies and/or claims for alleged damages and/or disclaimed implied warranties.

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SEVENTH AFFIRMATIVE DEFENSE Plaintiff may have failed to properly preserve evidence and/or spoiliated evidence. EIGHTH AFFIRMATIVE DEFENSE The product referred to in Plaintiffs Amended Complaint may not have been produced and/or sold by Defendants.

NINTH AFFIRMATIVE DEFENSE The product referred to in Plaintiffs Amended Complaint may have been misused. TENTH AFFIRMATIVE DEFENSE If the product referred to in Plaintiffs Amended Complaint was a defective product, said product was not in defective condition unreasonably dangerous for its intended use when it left the possession of Defendants, and the condition of said product at that time was not a proximate cause of the alleged damages. ELEVENTH AFFIRMATIVE DEFENSE Defendants were not negligent. TWELFTH AFFIRMATIVE DEFENSE Plaintiffs claims may be limited or barred by comparative negligence. THIRTEENTH AFFIRMATIVE DEFENSE Plaintiffs claims may be barred by its assumption of the risk. FOURTEENTH AFFIRMATIVE DEFENSE Any damages or losses to Plaintiff may have been caused by parties or conditions not under the control of Defendants and for whom Defendants were not responsible.

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FIFTEENTH AFFIRMATIVE DEFENSE Delaware law is the applicable Jaw for this case, and Plaintiffs claim based on strict liability is not permitted under Delaware law. WHEREFORE, Defendants demand judgment in their favor. MARSHALL, DENNEHEY, WARNER COLEMAN AMD GOGGIN

BY:_
KEVIN J. CONNX Attorney I.D. No. 1220 Market Street - 5th Floor Wilmington, DE 19801 Telephone: 302-552-4302 Fax: 302-651-7905 Attorney for Defendants, .United Dominion Industries, Inc., The Marley Corporation, Marley Engineered Products, !. Corporation and Marlev Company. LLC DATED: June 9,2004
\I5

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CERTIFICATE OF SERVICE 1, .K.KVJN J. CONNORS, hereby certify that on June 9,2004, I caused two copies of the foregoing

SECOND AJMENDED ANSWER OF DEFENDANTS TO PLAINTIFF'S AMENDED COMPLAINT, to
be served by First Class U.S. Mail, postage pre-paid, on counsel for the parties at the following address: Sean Bel]e%v., Esquire Cozen & O'Connor Chase Manhattan Centre 1201 North Market Street, Suite 1400 Wilmington, DE 19801

MARSHALL, DENNEHEY, WARNER COLEMAN AND GOGGIN

BY:

/ ^ KEVW1. CONNC Attorney I.D. No. 1220 Market Street - 5th Floor Wilmington, DE 19801 Telephone: 302-552-4302 Fax: 302-651-7905 Attorney for Defendants, United Dominion Industries, Inc., The Marley Corporation, Marley Engineered Products, SPX Corporation and Marlev Company. LLC

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CERTIFICATE OF SERVICE
i p"

I, KEVIN J. CONNORS, hereby certify that on June j 0

,2004,1 caused two copies

of the foregoing THIRD PARTY COMPLAINT OF DEFENDANTS/THIRD PARTY PLAINTIFFS, SPX CORPORATION, UNITED DOMINION INDUSTRIES, INC., THE MARLEY COMPANY, LLC AND MARLEY ENGINEERED PRODUCTS, SPS CORPORATION AND MARLEY CORPORATION to be served by First Class U.S. Mail, postage pre-paid, on counsel for the parties at the following address: Sean Bellew, Esquire Cozen & O'Connor Chase Manhattan Centre 1201 North Market Street, Suite 1400 Wilmington, DE 19801

MARSHALL, DENNEHEY, WARNER COLEMAN AND GOGGIN

BY:
KEVIN J. CONNORSAESQUIRE Attorney I.D. No. 2ls5/ 1220 Market Street - 5th Floor Wilmington, DE 19801 Telephone: 302-552-4302 Fax: 302-651-7905 Attorney for Defendants/Third Party Plaintiffs, United Dominion Industries, Inc., The Marley Corporation, Marley Engineered Products, SPX Corporation and Marley Company, LLC

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