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

Case 1:07-cv-00626-JJF

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Filed 09/05/2008

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MARK BEKIER AND RENEE BEKIER, Plaintiffs, v. COMMONWEALTH CONSTRUCTION COMPANY, INC., Defendant/Third-Party Plaintiff, v. KNZ CONSTRUCTION, INC. Third-Party Defendant. : : : : : : : : : : : : : : : :

C. A. 07-cv-00626-JJF DEMAND FOR JURY TRIAL OF TWELVE

THIRD-PARTY DEFENDANT KNZ CONSTRUCTION, INC.'S ANSWER TO AMENDED THIRD-PARTY COMPLAINT Now comes, Third-Party Defendant KNZ Construction, Inc. ("KNZ"), by and through its undersigned counsel and hereby answers Defendant / Third-Party Plaintiff Commonwealth Construction Company, Inc.'s Amended Third-Party Complaint as follows: 1. KNZ denies the allegations contained in paragraph 1 of the Amended Third-Party Complaint as it lacks sufficient knowledge to form a belief as to the truth of the allegations. 2. KNZ denies the allegations contained in paragraph 2 of the Amended Third-Party Complaint as it lacks sufficient knowledge to form a belief as to the truth of the allegations. 3. KNZ denies the allegations contained in paragraph 3 of the Amended Third-Party Complaint as it lacks sufficient knowledge to form a belief as to the truth of the allegations. 4. It is admitted that KNZ has a principal place of business at 125 N. Park Street, Dallastown, PA.

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5. It is only admitted that KNZ conducts business in the State of Delaware. KNZ denies the remaining allegations contained in paragraph 5 of the Amended Third-Party Complaint. COUNT ONE ­ CONTRACTUAL INDEMNIFICATION 6. For its answer to paragraph 6 of the Amended Third-Party Complaint, KNZ incorporates by reference its responses to the allegations set forth in paragraphs 1 through 5 of the AmendedThird Party Complaint as if fully rewritten herein. 7. KNZ denies the allegations contained in paragraph 7 of the Amended Third-Party Complaint. 8. It is admitted the defendant / third-party plaintiff Commonwealth Construction Company was the general contractor on the construction project relevant to this case. It is further admitted that Plaintiff Mark Bekier was an employee of KNZ at the time of the incident. KNZ was contracted to install a translucent wall system. The remaining averments in paragraph 8 are denied. 9. Admitted. 10. Denied as stated. 11. KNZ denies each and every allegation not specifically admitted herein. FIRST AFFIRMATIVE DEFENSE Third-Party Plaintiff's Amended Third-Party Compliant fails to state a claim upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE Plaintiff's claims may be barred by the Delaware Premises Guest Statute 25 Del. C. §1501. THIRD AFFIRMATIVE DEFENSE

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Third-Party Plaintiff's claim may be barred and/or reduced by Third-Party Plaintiff's own comparative fault/negligence. FOURTH AFFIRMATIVE DEFENSE Plaintiff's injuries, if any, were caused by a superseding/intervening cause. FIFTH AFFIRMATIVE DEFENSE Plaintiff primarily and secondarily assumed the risk of the injuries and damages alleged. SIXTH AFFIRMATIVE DEFENSE The Plaintiff's claims may be barred by the Workers Compensation Exclusivity Doctrine. SEVENTH AFFIRMATIVE DEFENSE KNZ's actions were not the proximate cause of the Plaintiff's injuries. EIGHTH AFFIRMATIVE DEFENSE Defendant / Third-Party Plaintiff had custody and control over the jobsite. COUNTER-CLAIM FOR CONTRIBUTION AND/OR INDEMNIFICATION 1. While KNZ denies any liability whatsoever, if found liable, KNZ is entitled to

contribution and/or indemnification from the Co-Defendant for any amount which the Answering Defendant may be required to pay the Plaintiff in accordance with Title 10, Chapter 63 of the Del. Code. 2. In the alternative, KNZ seeks full indemnification from defendant/third-party

plaintiff for negligent instruction and oversight. JURY DEMAND Pursuant to Federal Rule of Civil Procedure 38, Third-Party Defendant KNZ Construction, Inc. hereby demands a trial by jury of twelve.

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WHEREFORE, third-party defendant, KNZ Construction, Inc., demands that judgment be entered in its favor and against the defendant/third-party plaintiff Commonwealth Construction Company, plus costs and any other additional relief that this Court deems just and appropriate.

WHITE AND WILLIAMS LLP

BY:

/s/ Timothy S. Martin JOHN D. BALAGUER, I.D. #2537 TIMOTHY S. MARTIN, I.D. #4578 824 N. Market Street, Suite 902 P.O. Box 709 Wilmington, DE 19899-0709 Phone: (302) 467-4509 [email protected] Attorneys for Third-Party Defendant, KNZ Construction, Inc.

September 5, 2008

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