Free Third Party Complaint - District Court of Delaware - Delaware

Case 1:07-cv-00196-GMS

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105.013 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

KEYSTONE INSURANCE COMPANY AS SUBROGEE OF BRENDA BOYD Plaintiffs vs. NATIONAL RAILROAD PASSENGER CORPORATION A/K/A AMTRAK, AND KEVIN CONNORS Defendants/Third Party Plaintiffs vs. LYNN REDMOND AND LESLIE BOYD, JR. Third Party Defendants

CIVIL ACTION NO. 1:07-cv-00196 GMS

JURY TRIAL DEMANDED 12 JURORS REQUESTED

DEFENDANTS/THIRD PARTY PLAINTIFFS, NATIONAL RAILROAD PASSENGER CORPORATION A/K/A AMTRAK AND KEVIN CONNORS COMPLAINT AGAINST THIRD PARTY DEFENDANTS LYNN REDMOND AND LESLIE BOYD, JR. And now comes Defendant/Third Party Plaintiffs National Railroad Passenger Corporation a/k/a Amtrak and Kevin Connors, by and through its attorneys, and hereby files this Third Party Complaint against Lynn Redmond and Leslie Boyd, Jr. and avers as follows: 1. The Plaintiff, Keystone Insurance Company as subrogee of Brenda Boyd filed this lawsuit in the Court of Common Pleas in the County of New Castle, Delaware, upon the filing of a Praecipe for Summons and Complaint on or about February 26, 2007. 2. This suit was filed against Defendants to recover monetary damages allegedly

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sustained by Keystone Insurance Company in connection with its alleged payment of medical and funeral expenses on behalf of Brenda Boyd as per her No Fault Automobile Insurance Coverage. 3. These damages were paid by Keystone in connection with an accident that allegedly occurred between Brenda Boyd and Kevin Connors while Mr. Connors was operating an Amtrak vehicle in New Castle County, Delaware on or about November 14, 2003. 4. After National Railroad Passenger Corporation (hereinafter "Amtrak") removed the case to this Honorable Court on April 5, 2007, Defendants/Third Party Plaintiffs filed an Answer to Plaintiff's Complaint on April 11, 2007. 5. Amtrak's Removal and this Courts Jurisdiction is based upon the fact Defendant/Third Party Plaintiff Amtrak is a corporation created by an Act of Congress codified at 49 U.S.C. § 24301, et seq, and the Federal Government owns and owned during all relevant times hereto more than one-half of the capital stock of Amtrak, and therefore, this Honorable Court has federal question jurisdiction under 28 U.S.C. §1331, given that Defendant Amtrak was created by an Act of Congress, wherein the United States is the owner of more than one-half of its capital stock. Eichelberg v. National Railroad

Passenger Corp., 57 F.3d 1179 (2nd Cir. 1995). 6. Upon information and belief, the third-party defendants Lynn Redmond and Leslie Boyd, Jr. are competent adults. Lynn Redmond had an address for service of process at 15 S. Broom Street, Wilmington, DE 19805 and Leslie Boyd, Jr. an

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address for service of process at 610 W. Diamond Street, Hazelton, PA 18201. 7. A settlement was reached between Third Party Plaintiffs and Third Party Defendants Lynn Redmond and Leslie Boyd, Jr. in their individual capacities and in their capacities as the personal representatives of the Estate of Brenda Boyd. 8. A Release was executed by Third Party Defendants in their individual capacities and in their capacities as the personal representatives of the Estate of Brenda Boyd which confirmed the terms of the settlement. 9. Third Party Defendants Lynn Redmond and Leslie Boyd, Jr. executed a General Release in favor of National Railroad Passenger Corporation and Kevin Connors on or about September 17, 2004. See Exhibit A, General Release of September 17, 2004. 10. Third Party Defendants Lynn Redmond and Leslie Boyd, Jr. executed and consented to this release in their individual capacities and in their capacity as the personal representative of the Estate of Brenda Boyd. Exhibit A. 11. The above referenced General Release was knowingly and voluntarily entered into by Lynn Redmond and Leslie Boyd, Jr. following counseling and advice of their attorney John Aivazoglou, Esquire. 12. In this release Lynn Redmond and Leslie Boyd, Jr. agreed to "indemnify, and hold harmless the National Railroad Passenger Corporation, its predecessors, affiliated and subsidiary companies, successors in interest and assigns, its former, present and future trustees, officers, directors, agents, servants, employees, volunteers, contractors, subcontractors, attorneys, and

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representatives, and Kevin Connors and his heirs, assigns, and personal representatives, and any and all other related persons and/or corporations, directors, officers, attorneys, medical personnel, employees, agents, servants, successors, assigns, and any and all other parties, associations and corporations, any and all claims, charges, obligations, promises,

controversies, rights, demands, actions, causes of action, suits, judgments, verdicts, awards, damages (including compensatory and consequential damages and attorneys fees), costs, fees, expenses, of and from any and all liability arising from or in any way related to any direct claims, subrogation claims, claims for any PIP benefits, first party benefits, work loss benefits and/or medical benefits or claims against doctors and medical providers for medical malpractice as a result of services rendered in the accident, or liens for any compensation or medical/health care payments, disability benefits, funeral expenses, public welfare benefits, public or private insurance benefits, or other sums due or claimed to be due or paid under any law (state or federal), regulation or contract, arising out of or in any way related to the events underlying this Release or any of the injuries, damages and losses alleged to have been sustained". Exhibit A, emphasis added. 13. Third Party Defendants Lynn Redmond and Leslie Boyd, Jr. owe Defendants/Third Party Plaintiffs indemnification.

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COUNT I NATIONAL RAILROAD PASSENGER CORPORATION AND KEVIN CONNORS vs. LYNN REDMOND AND LESLIE BOYD, JR. INDEMNIFICATION

14.

Third Party Plaintiffs incorporates by reference paragraphs 1 through 13 as if set forth herein.

15.

On September 17, 2004, Third Party Defendants Lynn Redmond and Leslie Boyd, Jr. executed a General Release in favor of Third Party Plaintiff National Railroad Passenger Corporation and Kevin Connors and all other parties, associations and corporations jointly or severally liable, from all claims, specifically including any and all liability arising from or in any way related to any direct claims, subrogation claims, claims for any PIP benefits, first party benefits, work loss benefits and/or medical benefits. Exhibit A.

16.

The Release of September 17, 2004, requires that Third Party Defendants Release, Indemnify, and hold harmless Releasees, National Railroad Passenger Corporation and Kevin Connors.

17.

This Release was entered in favor of Defendant/Third Party Plaintiffs National Railroad Passenger Corporation a/k/a Amtrak and Kevin Connors.

18.

Third Party Defendants are required pursuant to the General Release of September 17, 2004 to indemnify Third Party Plaintiffs, National Railroad Passenger Corporation and Kevin Connors.

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19.

As per the General Release, Third Party Defendants are required to indemnify Third Party Plaintiffs, National Railroad Passenger Corporation and Kevin Connors against any and all damages which may be awarded to the plaintiff for subrogation claims, claims for any PIP benefits, first party benefits and/or medical benefits.

20.

As per the General Release, to the extent that judgment is entered in favor of the plaintiff and against Defendants/Third Party Plaintiffs, Third Party Defendants Lynn Redmond and Leslie Boyd, Jr. are liable to Defendants/Third Party Plaintiffs for any and all damages awarded to the plaintiff Keystone.

W HEREFORE, Defendant/Third Party Plaintiffs National Railroad Passenger Corporation a/k/a Amtrak and Kevin Connors request that this Honorable Court enter judgment in their favor and against Third-Party Defendants, Lynn Redmond and Leslie Boyd, Jr. individually, or, in the alternative, should judgment be entered in favor of the plaintiff and against Defendant/Third Party Plaintiffs, Defendant/Third Party Plaintiffs request that this Honorable Court hold Lynn Redmond and Leslie Boyd, Jr. individually liable or jointly or severally liable, or liable over to Defendant/Third Party Plaintiffs by way of contribution or indemnity for all damages, fees and costs, associated with such judgment, along with any other relief which this Court deems just and appropriate under the circumstances.

GALLAGHER, ROW AN & EGBERT P.C.

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BY:

/s/ Jessica E.GenslerLippy JESSICA E. GENSLER LIPPY, ESQUIRE Attorney I.D. No. 4426 Silverside Carr Executive Center 501 Silverside Road, Suite 94 W ilmington, DE 19809 (302) 798-2779 Attorney for Defendants National Railroad Passenger Corporation a/k/a Amtrak, Ronald F. Annone, and Norfolk Southern Corporation

Date: April 13, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

KEYSTONE INSURANCE COMPANY AS SUBROGEE OF BRENDA BOYD Plaintiffs vs. NATIONAL RAILROAD PASSENGER CORPORATION A/K/A AMTRAK, AND KEVIN CONNORS Defendants/Third Party Plaintiffs vs. LYNN REDMOND AND LESLIE BOYD, JR. Third Party Defendants

CIVIL ACTION NO. 1:07-cv-00196 GMS

JURY TRIAL DEMANDED 12 JURORS REQUESTED

CERTIFICATE OF SERVICE I, Jessica E. Gensler Lippy, Esquire, attorney for Defendants, National Railroad Passenger Corporation a/k/a Amtrak and Kevin Connors, hereby certify that a true and correct copy of the foregoing Third Party Complaint against Third Party Defendants Lynn Redmond and Leslie Boyd, Jr., was served via first class mail, postage prepaid to counsel for Plaintiffs as follows: W illiam J. Cattie, III Rawle & Henderson, LLP 300 Delaware Avenue Suite 1015 PO Box 588 W ilmington, DE 19899-0588 GALLAGHER & ROW AN, P.C. BY: /s/Jessica E.Gensler Lippy JESSICA E. GENSLER LIPPY, ESQUIRE Attorney I.D. No. 4426 Silverside Carr Executive Center 501 Silverside Road, Suite 94

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W ilmington, DE 19809 (302) 798-2779 Attorney for Defendants National Railroad Passenger Corporation a/k/a Amtrak and Kevin Connors Date: April 13, 2007

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