Free Memorandum in Opposition - District Court of Delaware - Delaware

Case 1:05-cv-00022-MPT Document 10-15 Filed O3/17/2005 Page 1 of 3

Case 1 :05-cv—00022-IVIPT Document 10-15 Filed 03/17/2005 Page 2 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ST. PAUL MERCURY INSURANCE :
COMPANY :
and :
PACK. AND PROCESS, INC. :
Plaintiffs, :
v. :
: Case No. 05-0022 (KAJ)
MALY YAN :
Defendant. 1
AFFIDAVIT QN]; STEVEN g AMES
On this 15m day of`I\/Iarch 2005, Steven A. Arnes deposes and says:
1. I am the President of Pack and Process, Inc. (hereinafter “P&P"), a Delaware
Corporation organized and existing under the laws ot"` the State of Delaware
2. I am authorized to take this affidavit on behalf of P&l’.
3. P&P is a contract packager with its sole place of business in New Castle County,
Delaware. P&P is engaged in the business of packaging consumer goods such as food, health, beauty
aid, and household cleaning products.
4. All of P&P’s business facilities, including its corporate office and warehouse, are
located in New Castle County, Delaware, and all of P&P’s business records relevant to the insurance
policy issued by St. Paul Mercury Insurance Cornpany and to the issue of Maly Yan’s employment with
P&P are located in the State of Delaware.
5.. On and before June iS, 2001, P&P had a contract with Lam Staff, Inc. ("Larn”), acting
as an independent contractor, to provide a labor force to work at P&P’s warehouse in New Castle
County, Delaware, for which Lam was paid a set l’ee by P&P..
6. The agreement with Lam was negotiated, executed, and performed in all respects in
New Castle County, Delaware.
7. P&P has not consented to jurisdiction in the state or federal courts of Pennsylvania.
8. P&P has not carried on a continuous and systematic part of its contract packaging
business within Pennsylvania.
9. On behalf of P&P, I have reviewed the complaint filed in this action by St. Paul
Mercury Insurance Company ("St. Paul"). l have also read the Motion to Disrniss tiled by l\/Ialy Yan in
this action, and I submit this affidavit in opposition to that Motion.
l0. P&P fully agrees with the factual and legal assertions contained in St. Paul’s complaint.
l l. ln particular, P&P agrees with St. Paul's position that (a) the vehicle being driven by
Maly Yan at the time ofthe accident was not a "covered auto" as deiirred in the Policy, (b) Maly Yan
was not a "pennitted user " or a "protected person" under the Policy, and (c) Maly Yan is not an insured,
additional insured, or otherwise entitled to any benefits under the Policy.

Case 1 :05-cv—OOO22-IVIPT Document 10-15 Filed O3/17/2005 Page 3 of 3
t2. P&P further agrees with St. Paul that the Policy affords no coverage under the
circumstances presented here — where Maly Yan was not hired by l’&P to drive a vehicle; was never
paid by P&P to drive a vehicle; was never authorized to drive a vehicle nor to transport other workers on
P&P’s behalf; was never expected to drive a vehicle as part other employment with P&P and was never
requested by P&P to drive a vehicle or to transport workers on its behalf.
l3. P&l° further agrees with St Paul that Maly Yan was not acting in the course or scope of
her employment with P&P while driving the van which was involved inthe accident on June 18, 2.00lt
14. The policy of insurance issued to P&P by St. Paul and which is r levaut to this action
was issued to P&P in Delaware.
i declare, under penalty of perjury, that the forego nd correc r
F #-*29 1c°·*»/ii
STEVEN Ai AM S, PRESEDENT
Pack and Process, Inc, - A Delaware
Corporation