Free Answer to Amended Complaint - District Court of Delaware - Delaware

Case 1:04-cv-00339-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE FEDERAL INSURANCE COMPANY a/s/o EZIBA.COM, INC./AVACET, INC., EBIZA SECURITIES CORP. and MILLERS CAPITAL INSURANCE COMPANY a/s/o DEL-HOMES CATALOG GROUP, LLC, Plaintiffs, v. LIGHTHOUSE CONSTRUCTION, INC., BECKER MORGAN GROUP, INC., and O'DONNELL, NACCARATO & MACINTOSH, INC. and EAST COAST ERECTORS, INC. Defendants, and LIGHTHOUSE CONSTRUCTION, INC., Third-Party Plaintiff, v. EAST COAST ERECTORS, INC., Third-Party Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil Action No. 04-339/04-1322 JJF

CONSOLIDATED ACTION

JURY OF TWELVE DEMANDED

DEFENDANT EAST COAST ERECTORS, INC.'S ANSWER TO MILLERS CAPITAL INSURANCE COMPANY'S FIRST AMENDED COMPLAINT

1.

Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averment. 2. Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averment.

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3.

Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averment. 4. Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averment. 5. Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averment. 6. Denied as stated. Admitted only that defendant East Coast Erectors, Inc. is a

Delaware corporation engaged in the business of steel erection. JURISDICTION AND VENUE 7. Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averment. FACTS 8. Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averment. 9. building. 10. Answering defendant is without knowledge or information sufficient to form a Denied as stated. Admitted only that answering defendant erected the 1999

belief as to the truth of the averment. 11. Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averment. 12. Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averment. 13. Denied.

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14. 15. 16.

Denied. Denied. Denied as stated. Admitted only that a portion of the roof of the 1995 building

collapsed on or about February 17, 2003. The balance of the averment is denied. 17. Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averment. 18. Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averment. 19. Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averment. COUNT I ­ NEGLIGENCE PLAINTIFF v. ALL DEFENDANTS 20. The responses contained in paragraphs 1-19 are incorporated by reference as

though fully set forth herein. 21. Denied. (a) ­ (t) 22. Denied.

Answering defendant is without knowledge or information sufficient to form a

belief as to the truth of the averment. 23. Denied.

WHEREFORE, Defendant demands that Judgment be entered in its favor and against all parties.

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COUNT II ­ NEGLIGENT MISREPRESENTATION PLAINTIFF v. O'DONNELL, NACCARATO & MACINTOSH 24. The responses contained in paragraphs 1-23 are incorporated by reference as

though fully set forth herein. 25. This averment is not directed toward answering defendant thus no response is

required. To the extent a response is required, the averment is denied. 26. This averment is not directed toward answering defendant thus no response is

required. To the extent a response is required, the averment is denied. 27. This averment is not directed toward answering defendant thus no response is

required. To the extent a response is required, the averment is denied. 28. This averment is not directed toward answering defendant thus no response is

required. To the extent a response is required, the averment is denied. 29. This averment is not directed toward answering defendant thus no response is

required. To the extent a response is required, the averment is denied. 30. This averment is not directed toward answering defendant thus no response is

required. To the extent a response is required, the averment is denied. 31. This averment is not directed toward answering defendant thus no response is

required. To the extent a response is required, the averment is denied. 32. This averment is not directed toward answering defendant thus no response is

required. To the extent a response is required, the averment is denied. 33. This averment is not directed toward answering defendant thus no response is

required. To the extent a response is required, the averment is denied. 34. This averment is not directed toward answering defendant thus no response is

required. To the extent a response is required, the averment is denied.

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WHEREFORE, Defendant demands that Judgment be entered in its favor and against all parties. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 35. be granted. Plaintiff's First Amended Complaint fails to state a claim upon which relief can

SECOND AFFIRMATIVE DEFENSE 36. of limitations. THIRD AFFIRMATIVE DEFENSE 37. Plaintiff's claims set forth in its First Amended Complaint are barred by the Plaintiff's causes of action are barred in whole or in part by the applicable statute

Delaware Statute of Repose as to all claims including, without limitations, claims asserted with respect to the construction and erection of the 1995 building which is the subject of this action. FOURTH AFFIRMATIVE DEFENSE 38. Plaintiff's causes of action are barred in whole or in part by the assumption of a

known risk and/or contributory negligence. FIFTH AFFIRMATIVE DEFENSE 39. waiver. SIXTH AFFIRMATIVE DEFENSE 40. If plaintiff sustained the injuries and damages as alleged in their Complaint, said Plaintiff's causes of action are barred by the doctrine of laches, estoppel and

injuries and damages being herein strictly denied, then they were caused by the acts or omissions of entities/individuals over which/whom the answering Defendant had no control or duty to control.

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SEVENTH AFFIRMATIVE DEFENSE 41. Plaintiff's claims are barred by the economic loss doctrine. EIGHTH AFFIRMATIVE DEFENSE 42. The roof collapse was caused by an act of God or force majeure. NINTH AFFIRMATIVE DEFENSE 43. Answering Defendant did not design the structural systems that allegedly caused

the roof collapse. WHEREFORE, Defendant demands that Judgment be entered in its favor and against all parties. CROSS-CLAIM AGAINST DEFENDANTS LIGHTHOUSE CONSTRUCTION, INC., BECKER MORGAN GROUP, INC. AND O'DONNELL, NACCARATO & MACINTOSH, INC.

44.

The answering Defendant denies that it is liable to the Plaintiffs in any respect.

However, in the event that the answering Defendant is held liable to the Plaintiffs, then it crossclaims against Co-Defendants Lighthouse Construction, Inc., Becker Morgan Group, Inc. and O'Donnell, Naccarato & Macintosh, Inc., on the grounds that the conduct of Co-Defendants was the primary cause of the damage sustained by the Plaintiffs and that the answering Defendant, if liable at all, is only secondarily liable. The answering Defendant, East Coast Erectors, Inc., is therefore entitled to indemnification from Co-Defendants Lighthouse Construction, Inc., Becker Morgan Group, Inc. and O'Donnell, Naccarato & Macintosh, Inc. 45. In the event that the answering Defendant is held primarily liable to the Plaintiffs,

then the wrongful acts of Co-Defendants Lighthouse Construction, Inc., Becker Morgan Group, Inc. and O'Donnell, Naccarato & Macintosh, Inc. are contributing causes of the damages sustained by the Plaintiffs and the answering Defendant is entitled to contribution in any amount

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which he may be required to pay to the Plaintiffs as a result of the wrongful acts of CoDefendants Lighthouse Construction, Inc., Becker Morgan Group, Inc. and O'Donnell, Naccarato & Macintosh, Inc., based on the relative degrees of fault determined pursuant to the provisions of Delaware's Uniform Contribution Among Tortfeasor's Law, 10 Del. C. § 6308. WHEREFORE, the answering Defendant moves that the cause of action be dismissed against it, or in the alternative, that answering Defendant East Coast Erectors, Inc. be indemnified by Co-Defendants Lighthouse Construction, Inc., Becker Morgan Group, Inc. and O'Donnell, Naccarato & Macintosh, Inc., together with the costs of this action.

WETZEL & ASSOCIATES, P.A. /s/ Natalie M. Ippolito_________________ Benjamin C. Wetzel, III (I.D. No. 985) Natalie M. Ippolito (I.D. No. 3845) The Carriage House, Suite 201 1100 N. Grant Avenue Wilmington, DE 19805 (302) 652-1200 [email protected] Robert B. Hill, Admitted Pro Hac Vice MCLAIN & MERRITT, P.C. 3445 Peachtree Road N.E., Suite 500 Atlanta, GA 30326 Attorneys for Defendant East Coast Erectors, Inc.

Dated: June 30, 2005

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CERTIFICATE OF SERVICE I hereby certify that on June 30, 2005, I electronically filed Defendant East Coast Erectors, Inc.'s Answer to Plaintiff Millers Capital Insurance Company's First Amended Complaint with the Clerk of Court using CM/ECF which will send notification of such filing to the following: David J. Baumberger, Esquire Chrissinger & Baumberger Three Mill Road, Suite 301 Wilmington, DE 19806 James F. Bailey, Jr., Esquire Bailey & Associates Three Mill Road, Suite 306A Wilmington, DE 19806 Frank E. Noyes, II, Esquire White & Williams, LLP PO Box 709 Wilmington, DE 19899-0709 Sean J. Bellew, Esquire Cozen O'Connor Chase Manhattan Centre 1201 N. Market Street, Suite 1400 Wilmington, DE 19801

Robert K. Beste, Jr., Esquire Cohen, Seglias, Pallas, Greenhall & Furman, PC Nemours Building 1007 Orange Street, Suite 205 Wilmington, DE 19801 I hereby certify that on June 30, 2005 I mailed by United States Postal Service, the document to the following non-registered participants: Victoria K. Petrone, Esquire Tighe, Cottrell & Logan, PA PO Box 1031 Wilmington, DE 19899 Steven K. Gerber, Esquire Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Bruce W. McCullough, Esquire McCullough & McKenty 1225 N. King Street, Suite 1100 P.O. Box 397 Wilmington, DE 19899-0397 Ron L. Pingitore, Esquire White and Williams, LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 Dana Ostrovsky, Esquire Cohen, Seglias, Pallas, Greenhall & Furman, P.C. 11th Floor, 1515 Market Street Philadelphia, PA 19102 Geoffrey W. Veith, Esquire Rogut McCarthy Troy, LLC One First Avenue ­ Suite 410 Conshohocken, PA 19428

WETZEL & ASSOCIATES, P.A. /s/ Natalie M. Ippolito_________________ Natalie M. Ippolito (I.D. No. 3845) The Carriage House, Suite 201 1100 N. Grant Avenue Wilmington, DE 19805 (302) 652-1200 [email protected]

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