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

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LATHAM & WATKINS LLP Joel E. Krischer (California SBN 066489) (admitted pro hac vice) [email protected] Joanna R. Wolfe (California SBN 217409) (admitted pro hac vice) [email protected] 633 West Fifth Street, Suite 4000 Los Angeles, California 90071-2007 Telephone: (213) 485-1234 Facsimile: (213) 891-8763 SEYFARTH SHAW LLP Andrew M. Paley (California SBN 149699) (admitted pro hac vice) [email protected] 2029 Century Park East, Suite 3300 Los Angeles, California 90067-3063 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Defendant Allstate Insurance Company and Allstate New Jersey Insurance Company.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA IN RE ALLSTATE INSURANCE CO. FAIR LABOR STANDARDS ACT LITIGATION MDL NO. 1541

RANDAL WUNDER and TERRY REED, individually and on behalf of all others similarly situated, Plaintiff, vs. ALLSTATE INSURANCE COMPANY and ALLSTATE NEW JERSEY INSURANCE COMPANY, Defendants.

No. CIV-04-1028-PHX-PGR DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO FIRST AMENDED COMPLAINT Assigned to the Hon. Paul G. Rosenblatt

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Defendants Allstate Insurance Company and Allstate New Jersey Insurance Company ("Allstate" or "Defendants"), for their answer to the First Amended Complaint (the "Complaint"), filed herein by Plaintiffs Randall Wunder and Terry Reed (collectively "Plaintiffs") on behalf of themselves and alleged similarly situated employees, in In re Allstate Insurance Co. Fair Labor Standards Litigation, MDL No. 1541, respond and allege as follows: I. PARTIES 1. Allstate lacks sufficient knowledge and information to form a belief

as to the truth or falsity of the allegations in Paragraph 1 and therefore denies the same. 2. Allstate lacks sufficient knowledge and information to form a belief

as to the truth or falsity of the allegations in Paragraph 2 and therefore denies the same. 3. Allstate admits that Randall Wunder is employed by Allstate

Insurance Company and that Terry Reed is employed by Allstate Insurance Company. To the extent that Paragraph 3 purports to contain any additional allegations of fact, Allstate denies those allegations. 4. Allstate Insurance Company admits that it is a foreign corporation

doing business in the state of Oklahoma. Allstate Insurance Company admits that it has a registered agent in the State of California. Allstate New Jersey Insurance Company admits it is a corporation whose principal place of business is in the state of New Jersey. For purposes of this litigation, both Allstate Insurance Company and Allstate New Jersey Insurance Company may be served via their counsel, Latham & Watkins LLP. The remainder of Paragraph 4 contains conclusions of law as opposed to allegations of fact, and as such, no answer is required. 5. Allstate admits that Plaintiffs were employed by Allstate. The

remainder of Paragraph 5 contains conclusions of law as opposed to allegations of fact, and as such, no answer is required. II. 6. JURISDICTION AND VENUE

Paragraph 6 contains conclusions of law as opposed to allegations of
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fact, and as such, no answer is required. To the extent that Paragraph 6 purports to contain any allegations of fact, Allstate denies those allegations. 7. Paragraph 7 contains conclusions of law as opposed to allegations of

fact, and as such, no answer is required. To the extent that Paragraph 7 purports to contain any allegations of fact, Allstate denies those allegations. III. 8. CLASS ACTION ALLEGATIONS

Paragraph 8 contains conclusions of law as opposed to allegations of

fact, and as such, no answer is required. To the extent that Paragraph 8 purports to contain any allegations of fact, Allstate denies those allegations. 9. Paragraph 9 contains conclusions of law as opposed to allegations of

fact, and as such, no answer is required. To the extent that Paragraph 9 purports to contain any allegations of fact, Allstate denies those allegations. 10. Allstate admits that Randall Wunder had the job title Staff Claims

Service Adjuster and that Terry Reed had the job title Staff Claims Service Adjuster. Allstate admits that it employs other individuals as various different types of insurance claims adjusters with various job titles and duties. The remainder of Paragraph 10 contains conclusions of law as opposed to allegations of fact, and as such, no answer is required. To the extent that Paragraph 10 purports to contain any additional allegations of fact, Allstate denies those allegations. IV. 11. FACTUAL BACKGROUND

Paragraph 11 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 11 purports to contain any allegations of fact, Allstate denies those allegations. 12. Paragraph 12 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 12 purports to contain any allegations of fact, Allstate denies those allegations. 13. Allstate admits that Randall Wunder was employed by Allstate from

approximately December 1987 until September 2005, and was primarily an outside
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property adjuster, and that Terry Reed was employed by Allstate from approximately January 1992 until October 2004, and was also primarily an outside property adjuster. Allstate admits that it employs other individuals as various different types of insurance claims adjusters. To the extent that Paragraph 13 purports to contain any additional allegations of fact, Allstate denies those allegations. 14. Paragraph 14 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 14 purports to contain any allegations of fact, Allstate denies those allegations. 15. Allstate admits that Plaintiffs are classified as exempt employees and

are not paid overtime compensation. To the extent that Paragraph 15 purports to contain any additional allegations of fact, Allstate denies those allegations. 16. Paragraph 16 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 16 purports to contain any allegations of fact, Allstate denies those allegations. V. CAUSE OF ACTION

Fair Labor Standards Act (FLSA) 17. Allstate incorporates its answers to Paragraphs 1 through 16 as and

for its answer to Paragraph 17. 18. Paragraph 18 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 18 purports to contain any allegations of fact, Allstate denies those allegations. 19. Paragraph 19 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 19 purports to contain any allegations of fact, Allstate denies those allegations. 20. Paragraph 20 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. To the extent that Paragraph 20 purports to contain any allegations of fact, Allstate denies those allegations. 21. Paragraph 21 contains conclusions of law as opposed to allegations
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of fact, and as such, no answer is required. To the extent that Paragraph 21 purports to contain any allegations of fact, Allstate denies those allegations. VI. 22. JURY DEMAND

Paragraph 22 contains conclusions of law as opposed to allegations

of fact, and as such, no answer is required. VII. DENIAL OF PRAYER

Allstate expressly denies that Plaintiffs are entitled to any relief, including, but not limited to, the relief sought by Plaintiffs in their Complaint. Allstate generally denies any allegations of Plaintiff's Complaint not specifically admitted herein.

AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim for Relief) Plaintiffs' Complaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE (Statue of Limitations) Plaintiffs' alleged claims are barred, in whole or in part, by the applicable statute of limitations under the FLSA. THIRD AFFIRMATIVE DEFENSE (Exempt Employees) Plaintiffs' alleged claims are barred, in whole or in part, because Allstate's insurance claims adjusters are salaried exempt employees and are not entitled to overtime under the FLSA. See 29 U.S.C. §§ 201 et seq.; 29 C.F.R. Part 541; Palacio v. Progressive Ins. Co., 244 F. Supp. 2d 1040 (C.D. Cal. 2002); Jastremski v. Safeco Ins. Cos., 243 F. Supp. 2d 743 (N.D. Ohio 2003). FOURTH AFFIRMATIVE DEFENSE (Good Faith) Plaintiffs' alleged claims are barred, in whole or in part, because Allstate
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has at all times acted in good faith in conformity with and in reliance on the applicable administrative regulations, orders, rulings, approvals, and interpretations and on the applicable administrative practices and enforcement policies. FIFTH AFFIRMATIVE DEFENSE (Estoppel) Plaintiffs' alleged claims are barred, in whole or in part, by the doctrine of estoppel.

RESPECTFULLY SUBMITTED this 30th day of May, 2006.

By: s/Joel E. Krischer Joel E. Krischer LATHAM & WATKINS LLP 633 West Fifth Street, Suite 4000 Los Angeles, California 90071-2007 Telephone: (213) 891-7939 Facsimile: (213) 891-8763 By: s/Andrew M. Paley______________________ SEYFARTH SHAW LLP 2029 Century Park East, Suite 3300 Los Angeles, California 90067-3063 Telephone: (310) 277-7200 Facsimile: (310) 201-5219 Attorneys for Defendant Allstate Insurance Company and Allstate New Jersey Insurance Company

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CERTIFICATE OF SERVICE I hereby certify that on May 30, 2006, I electronically transmitted the attached document described as DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO FIRST AMENDED COMPLAINT to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Clerk, United States District Court Sandra Day O'Connor U.S. Courthouse 401 West Washington Street, Suite 130, SPC 1 Phoenix, AZ 85003-2118 Kelly McInerney, Esq. McInerney & Jones 18124 Wedge Parkway, Suite 503 Reno, NV 89511 [email protected] Attorneys for Plaintiffs George Sintsirmas, Esq. George Sintsirmas, LLC 6212 Coldstream Road Highland Heights, OH 44143 [email protected] Attorneys for Plaintiffs Mark Wintering, Esq. Robert E. Sweeney Co., LPA 55 Public Square, Suite 1500 Cleveland, OH 44113 [email protected] Attorneys for Plaintiffs Steven M. Weiss, Esq. Law Offices of Steven M. Weiss 1250 Illuminating Building 55 Public Square, Suite 1009 Cleveland, OH 44113 [email protected] Attorneys for Plaintiffs James A. Jones, Esq. Karla S. Jackson, Esq. Gillespie, Rozen & Watsky 3402 Oak Grove Avenue, #200 Dallas, TX 75204 [email protected] [email protected] Attorneys for Plaintiffs

Andrea Elisabeth Watters, Esq. Watters Law Office, PC 2807 East Broadway Boulevard Tucson, AZ 85716 [email protected] Attorneys for Plaintiffs

By: s/Joel R. Shields

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