Free Answer to Complaint - District Court of Delaware - Delaware

Case 1:08-cv-00228-JJF

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE HERSCHEL JAMES, Plaintiff, v. COLIN P. BOGGS and WERNER ENTERPRISES, INC., Defendants. : : : : : : : :

Civil Action No. 1:08-cv-228

DEFENDANTS' ANSWER WITH AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT Defendants, Colin P. Boggs and Werner Enterprises, Inc. (hereinafter "Defendants"), by and through their attorneys, Rawle & Henderson LLP, hereby submit their Answer with Affirmative defenses to plaintiff's Complaint and aver as follows: 1. Denied. Defendants are without sufficient information or knowledge to affirm the

truth of the averments contained in paragraph 1 of the Complaint. Therefore, said averments are denied and strict proof thereof is demanded at time of trial. 2. Admitted in part, denied in part. Defendants admit that Colin P. Boggs is an

individual residing at 311 S. Old Main, Lamont, OK 74643. The remaining averments contained in paragraph 2 are conclusions of law to which no response is necessary, therefore they are denied. 3. 4. Admitted. Denied. Defendants are without sufficient information or knowledge to affirm the

truth of the averments contained in paragraph 4 of the Complaint. Therefore, said averments are denied and strict proof thereof is demanded at time of trial.

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5.

Admitted in part, denied in part. Defendants only admit that on April 5, 2006,

Colin P. Boggs was traveling east on Route 273 in the left lane, in New Castle County, State of Delaware. The remaining averments in paragraph 5 are denied and strict proof thereof is demanded at time of trial. 6. (a)-(k). Denied. The allegations contained in paragraph 6 of the Complaint and its

subparts are conclusions of law to which no response is required. To the extent that a response is required, defendants deny any negligent conduct and strict proof thereof is demanded at time of trial. 7. Denied. The allegations contained in paragraph 7 of the Complaint are

conclusions of law to which no response is required. To the extent that a response is required, defendants deny that plaintiff sustained the alleged injuries and damages as a result of the accident on April 5, 2006. By way of further response, defendants are without sufficient

information or knowledge to affirm the truth of the averments contained in paragraph 7 of the Complaint. Therefore, said averments are denied and strict proof thereof is demanded at time of trial. 8. Admitted in part, denied in part. Defendants admit that Colin P. Boggs was

driving a motor vehicle in the scope and course of his employment with defendant Werner Enterprises, Inc. at all times pertinent hereto. The remaining averments contained in paragraph 8 are conclusions of law to which no response is necessary. To the extent a response is necessary, defendants deny any negligence and strict proof thereof is demanded at time of trial.

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9.

Admitted in part, denied in part. Defendants admit that at all times pertinent

hereto, the vehicle driven by defendant Colin P. Boggs was owned by defendant Werner Enterprises, Inc.. The averments contained in paragraph 9 are conclusions of law to which no response is necessary. Therefore, said averments are denied and strict proof thereof is demanded at time of trial. WHEREFORE, defendants, Colin P. Boggs and Werner Enterprises, Inc., demand judgment in their favor and against the plaintiff, dismissing plaintiff's Complaint together with an award of costs and disbursements incurred by answering defendants, including attorneys' fees together with such other relief in favor of answering defendants as this Honorable Court shall deem appropriate under the circumstances. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiff's Complaint fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE No conduct on the part of defendants contributed to plaintiff's alleged injuries and damages. THIRD AFFIRMATIVE DEFENSE The acts and conditions complained of by plaintiff, if in fact they occurred or existed, are the result of the conduct of third parties over whom defendants had no control, and therefore, defendants deny liability for same.

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FOURTH AFFIRMATIVE DEFENSE Defendants breached no duty of care to plaintiff. FIFTH AFFIRMATIVE DEFENSE Plaintiff's claims are either barred, or should be reduced, as a result of the plaintiff's own contributory or comparative negligence, and/or by plaintiff's assumption of the risk. SIXTH AFFIRMATIVE DEFENSE Plaintiff failed to mitigate his injuries and damages, if any. SEVENTH AFFIRMATIVE DEFENSE The injuries and damages complained of by plaintiff pre-existed, or were sustained after, the incident which is the subject matter of the Complaint. EIGHTH AFFIRMATIVE DEFENSE Plaintiff's injuries and damages, if any, were the result of an unavoidable accident, sudden emergency, or Act of God. NINTH AFFIRMATIVE DEFENSE Defendants claim any and all defenses available to them pursuant to Delaware's Motor Vehicle Financial Responsibility Law. TENTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred by the applicable statute of limitations.

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ELEVENTH AFFIRMATIVE DEFENSE If answering defendants were negligent in any respect as alleged in the Complaint, all such allegations being specifically denied, said defendants' negligence was passive, and the alleged damages sustained by the plaintiff were the result of an intervening negligent act of a third person or persons, which was a superseding cause of plaintiff's damages and, therefore, answering defendants are not liable. TWELFTH AFFIRMATIVE DEFENSE Plaintiff's alleged injuries, if proven true, were caused in whole or in part by instrumentalities which were beyond the control of answering defendants. THIRTEENTH AFFIRMATIVE DEFENSE Answering defendants, at all times material hereto, acted in a careful, reasonable, and prudent manner. FOURTEENTH AFFIRMATIVE DEFENSE If answering defendants were negligent, which is expressly denied, then the acts or omissions of answering defendants alleged to constitute negligence were not substantial factors or the cause of the action or incident of which plaintiffs complain and/or did not result in the injuries or damages alleged by the plaintiffs. FIFTEENTH AFFIRMATIVE DEFENSE Answering defendants' conduct was not negligent at any time material hereto. SIXTEENTH AFFIRMATIVE DEFENSE Answering defendants reserve the right to assert any and all other affirmative defenses, up to and at the time of trial, as may become available to answering defendants or as they are revealed through discovery or during the course of litigation.

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WHEREFORE, defendants demand that the Complaint be dismissed with prejudice, and that judgment be rendered in their favor and against plaintiff, together with costs, fees, and such other and further relief as may be appropriate.

RAWLE & HENDERSON LLP

By: __/s/Gary Seitz______________ Gary F. Seitz Rawle & Henderson LLP 300 Delaware Avenue, Suite 1015 P. O. Box 588 Wilmington, DE 19899-0588 302-778-1200 [email protected] Attorneys for Defendants, Colin P. Boggs and Werner Enterprises, Inc.

DATED: May 5, 2008

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Answer with Affirmative Defenses to Plaintiff's Complaint was served upon the below-listed counsel of record on this 5th day of May, 2008, by electronic mail and first class mail, postage prepaid:

Kenneth F. Carmine, Esquire Potter, Carmine & Associates, P.A. 840 North Union Street P.O. Box 30409 Wilmington, DE 19805-7409 Attorneys for Plaintiff

RAWLE & HENDERSON LLP

By: _/s/ Gary Seitz_________________ Gary F. Seitz Rawle & Henderson LLP 300 Delaware Avenue, Suite 1015 P. O. Box 588 Wilmington, DE 19899-0588 302-778-1200 [email protected] Attorneys for Defendants Colin P. Boggs and Werner Enterprises, Inc.

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