Free Answer to Crossclaim - District Court of Delaware - Delaware

Case 1:07-cv-00218-JJF

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE STEPHEN HALCHUK, Plaintiff, Civil Action No. 07-218
VS.

ROBERT L. WILLIAMS d/b/a ROBERT L. WILLIAMS TRUCKING, Defendants/Third-Party Plaintiffs,
VS.

JURY TRIAL DEMANDED

ROBERT D. NEVIN, JR., and THE NATIONAL CASH REGISTER COMPANY, Third-Party Defendants/Fourth Party Plaintiffs,
VS.

TIPTON TRUCKING CO., INC., and WAYNE SHELALIS, Fourth-Party Defendants.

THE NATIONAL CASH REGISTER COMPANY AND ROBERT D. NEVIN, JR.'S ANSWER AND AFFIRMATIVE DEFENSES TO THE THIRD-PARTY COMPLAINT AND FOURTH PARTY COMPLAINT COMES NOW, the Third-Party Defendants/Fourth Party Plaintiffs, The National Cash Register Company and Robert D. Nevin Jr., by and through their undersigned attorneys, hereby file their Answer and Affirmative Defenses to the Third Party complaint filed by Defendant/Third-Party Defendants, Robert L. Williams d/b/a

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Robert L. Williams Trucking. In addition, The National Cash Register Company and Robert D. Nevin Jr. file their Fourth Party Complaint. ANSWER TO THIRD PARTY COMPLAINT 1. Upon present information and belief, the Third-Party Defendants deny the

allegations of the paragraph. 2. Upon present information and belief, the Third-Party Defendants admit

the allegations of the paragraph. 3. Upon present information and belief, the Third-Party Defendants admit

the allegations of the paragraph. 4. Upon present information and belief, the Third-Party Defendants admit

the allegations of the paragraph. 5. Upon present information and belief, the Third-Party Defendants admit

the allegations of the paragraph. 6. Upon present information and belief, the Third-Party Defendants deny the

allegations of the paragraph. 7. Upon present information and belief, the Third-Party Defendants admit

the allegations of the paragraph. 8. Upon present information and belief, the Third-Party Defendants deny the

allegations of the paragraph. 9. Upon present information and belief, the Third-Party Defendants lack

knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph.

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10. Upon present information and belief, the Third-Party Defendants lack knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph. 11. Upon present information and belief, the Third-Party Defendants lack knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph. 12. Upon present information and belief, the Third-Party Defendants lack knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph. 13. Upon present information and belief, the Third-Party Defendants lack knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph. 14. Upon present information and belief, the Third-Party Defendant, The National Cash Register Company, specifically denies every allegation of negligence, causation and/or damages alleged in the paragraph. The National Cash Register Company admits that at all times relevant hereto, the Third-Party Defendant, Robert D. Nevin, Jr., was acting in the scope and course of his employment. 15. Upon present information and belief, the Third-Party Defendants specifically deny every allegation of negligence, causation and/or damages alleged in the paragraph. The Third-Party Defendants specifically deny every allegation of contribution and/or indemnification.

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AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 16. The Third-Party Plaintiff's complaint fails to state a claim upon which relief may be granted. SECOND AFFIRMATIVE DEFENSE 17. The Third-Party Defendants affirmatively assert that the injuries allegedly sustained by the Plaintiff were caused solely or entirely by the negligence of the Plaintiff and/or Defendant/Third Party Plaintiff. THIRD AFFIRMATIVE DEFENSE 18. The Third-Party Defendants' actions are not the proximate cause of the accident occurring between the Plaintiff and Defendant/Third-Party Plaintiff. FOURTH AFFIRMATIVE DEFENSE 19. The Third Party Defendants' actions are not the proximate cause of the accident occurring between the Plaintiff and Defendant/Third-Party Plaintiff as each independently had the last clear chance to avoid the accident, and through their own negligence, failed to do so. FIFTH AFFIRMATIVE DEFENSE 20. The Third Party Complaint fails to join a party in whose absence complete relief cannot be accorded among those already named as parties.

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SIXTH AFFIRMATIVE DEFENSE 21. The Plaintiffs' injuries and damages, which the Third-Party Defendants

deny, were proximately caused by the intervening and superseding of other, act(s) unrelated entities. SEVENTH AFFIRMATIVE DEFENSE 22. The claims alleged by the Plaintiff and Third-Party Plaintiff are barred by applicable statute of limitations. EIGHTH AFFIRMATIVE DEFENSE 23. The Third-Party Defendants' negligence, which is otherwise denied, is less that the negligence of the Third-Party Plaintiff or the combined negligence of all parties against whom recovery is sought. Accordingly, the Third-Party Plaintiff's claims are barred by its own comparative negligence. NINTH AFFIRMATIVE DEFENSE 24. In the event that the Third-Party Plaintiff is determined to be responsible for the Plaintiff's damages, then such damages shall be diminished in proportion to the amount of negligence attributed to the Third-Party Plaintiff. TENTH AFFIRMATIVE DEFENSE 25. The Third-Party Plaintiff's negligence, when compared to the alleged

negligence of the Third-Party Defendants, bars the Third-Party Plaintiffs' claims because that comparative negligence exceeds that of the Third Party Defendants. ELEVENTH AFFIRMATIVE DEFENSE 26. In the event that the Third-Party Plaintiff is determined to be responsible

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for the Plaintiff's damages, then the Third-Party Defendants seek full contribution and indemnification from each and every defendant.

FOURTH PARTY COMPLAINT FOR CONTRIBUTION AND INDEMNIFICATION AGAINST TIPTON TRUCKING CO., INC.r AND WAYNE SHELALIS 1. The Third-Party Defendant/Fourth-Party Plaintiff denies that it is liable to

Defendant/Third-Party Plaintiff in any respect. However, in the event that the ThirdParty Defendant/Fourth-Party Plaintiff is held liable to Defendant/Third-Party Plaintiff, then the Third-Party Defendant/Fourth-Party Plaintiff asserts cross-claims against Tipton Trucking Co., Inc., and Wayne Shelalis on the grounds that the conduct of Tipton Trucking Co., Inc., and Wayne Shelalis was the primary cause of the alleged damages. Third-Party Defendant/Fourth-Party Plaintiff, if liable at all, is only secondarily liable. 2. In the event that Third-Party Defendant/Fourth-Party Plaintiff is held

liable to Third-Party Defendant/Fourth-Party Plaintiff, then the alleged wrongful acts of Tipton Trucking Co., Inc., and Wayne Shelalis and Third-Party Defendant/FourthParty Plaintiff are contributing causes of the damages sustained by Plaintiff. Therefore, the Third-Party Defendant/Fourth-Party Plaintiff is entitled to contribution and/or indemnification from Tipton Trucking Co., Inc., and Wayne Shelalis for any amount which the Third-Party Defendant/Fourth-Party Plaintiff may be required to pay as a result of the Fourth-Party Defendants' wrongful acts, based on the relative degrees of fault determined pursuant to Delaware's Uniform Contribution Among Tortfeasor's Law, 10 DEL. C. § 6301 through § 6308.

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THE PARTIES 3. At all relevant times the Fourth-Party Plaintiff, Robert D. Nevin ("Mr.

Nevin"), was a resident of the New Castle County in the State of Delaware. 4. At all relevant times the Fourth-Party Plaintiff, The National Cash Register

Company ("National Cash Register") was a Maryland corporation registered to do business in Delaware. 5. Fourth-Party Defendant, Wayne Shelalis (hereinafter referred to as "Mr.

Shelalis") is a resident of the New Castle County in the State of Delaware. 6. Shelalis may be served at 56 Arden Avenue, Castle Hills, New Castle,

Delaware 19720. 7. At all relevant times the Fourth Party Defendant, Tipton Trucking

(hereinafter referred to as "Tipton Trucking") was a Delaware Corporation. 8. Tipton Trucking Co., Inc. may be served through its resisted agent, Frank

L. Tipton, at 1872 Pulaski Highway, Unit A, Bear, DE 19701. BACKGROUND FACTS 9. On or about November 10, 2005, at approximately 11:28 a.m., Mr. Nevin

was operating a motor vehicle driving North on 1-495 in New Castle County, State of Delaware. 10. Approximately .55 miles North of the Terminal Avenue exit, Mr. Nevin pulled over to the shoulder of 1-495 to recover a part of his car that had fallen onto the roadway. 11. At the aforesaid time and place, Mr. Shelalis was driving a 2002 Sterling-

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STLG tractor trailer [hereinafter referred to as the "Truck"] northbound on 1-495 in New Castle County, State of Delaware. 12. At all relevant times Mr. Shelalis was an employee of Tipton Trucking. 13. At all relevant times Mr. Shelalis was acting within the scope of his employment with Tipton Trucking. 14. At all relevant times, Tipton Trucking was the owner of the Truck. 15. At all relevant times, Mr. Shelalis was the servant, agent or employee of Tipton Trucking. 16. At all relevant times, Tipton Trucking was vicariously liable for the acts or omissions of Mr. Shelalis. 17. While Mr. Nevin was stopped on the shoulder, the truck driven by Mr. Shelalis sideswiped Mr. Nevin's vehicle [hereinafter referred to as the "First Accident"]. 18. Shortly thereafter, at a location just ahead of Mr. Nevin's vehicle, a subsequent collision occurred between the motor vehicles driven by Plaintiff Stephen Halchuk and Defendant/Third-Party Plaintiff Robert L. Williams d/b/a Robert L. Williams Trucking [hereinafter referred to as the "Second Collision"]. 19. On or about April 24, 2007, the Plaintiff, Stephen Halchuk, filed suit in the United States District Court for the District of Delaware naming the Defendant/ThirdParty Plaintiff, Robert L. Williams d/b/a Robert L. Williams Trucking, and alleging personal injuries and damages resulting from the Second Accident. 20. On or about November 13, 2007, the Defendant/Third-Party Plaintiff, Robert L. Williams d/b/a Robert L. Williams Trucking, filed a cross-claim against Mr.
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Nevin and The National Cash Register Company seeking contribution and indemnification. COUNT 1 - CONTRIBUTION OR INDEMNIFICATION 21. All of the allegations of the prior paragraphs are incorporated by reference

as if fully reprinted here. 22. At the aforesaid time and place of the First Accident, Mr. Shelalis was negligent is that he: i. Operated his motor vehicle in a careless or imprudent manner in

violation of 21 DEL. C. § 4176(a); ii. Operated his motor vehicle without due regard for the road,

weather, and traffic conditions then existing in violation of 21 DEL. C. § 4176(a); iii. Operated his motor vehicle without giving full time and attention

to the operation of the vehicle in violation of 21 DEL. C. § 4176(b); iv. Operated his motor vehicle and failed to maintain a proper lookout

while operating the vehicle in violation of 21 DEL. C. § 4176(b); v. Failed to yield the right-of-way to any vehicle approaching from

the opposite direction which is so close as to constitute an immediate hazard in violation of 21 DEL. C. § 4132; vi. Operated his motor vehicle at a speed greater than is reasonable

and prudent under the conditions and without having regard to the actual and potential hazards then existing in violation of 21 DEL. C. § 4168(a); vii. Failed to operate his motor vehicle at an appropriate speed when

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approaching a special traffic hazard in violation of 21 DEL. C. § 4168(a); viii. Failed to operate his motor vehicle as a reasonable and prudent

person under the circumstances in violation of his common law duty and during the aforesaid act set forth above; ix. Failed to have the motor vehicle under reasonable control and

failed to maintain a proper lookout in connection with her common law duty to do so; x. Was otherwise negligent.

23. Any damages for which the Defendant/Third-Party Plaintiff may be held liable and for which it seeks contribution or indemnity from either Mr. Nevin or The National Cash Register Company, then Mr. Nevin and The National Cash Register Company are entitled, for the reasons set forth herein, for contribution and or indemnification from Mr. Shelalis and Tipton Trucking.

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WHEREFORE, Mr. Nevin and National Cash Register Company respectfully request that this Honorable Court enter judgment as follows: a. Denying each and every claim and every manner of relief requested by the

Third-Party Plaintiff, Robert L. Williams d/b/a Robert L. Williams Trucking; b. To the extent Fourth-Party Plaintiffs are found liable to Stephen Halchuk

for any amount, Fourth-Party Plaintiffs request full indemnification or, in the alternative, contribution from the Fourth-Party Defendants; and c. Award to Mr. Nevin and National Cash Register Company attorneys' fees,

costs and such other relief as this Court deems just and proper.

FOX ROTHSCHILD LLP /s/Bernard G. Conaway Bernard George Conaway, Esquire (#2856) 919 N. Market Street, Suite 1300 P.O. Box 2323 Wilmington, DE 19899-2323 (302) 654-7444 Attorney for Defendants, The National Cash Register Company and Robert D. Nevin, Jr.

Dated: March 27, 2008

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