Free Opening Brief in Support - District Court of Delaware - Delaware

Case 1:04-cv-01275-KAJ Document 45-3 Filed 06/08/2005 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DON'S HYDRAULICS, INC ., Plaintiff, v. ) ) ) C .A . No . 04-1275

COLONY INSURANCE COMPANY, ) TRUCK TECH INDUSTRIES, INC ., ) and TIPCO TECHNOLOGIES, INC ., ) Defendants . )

RESPONSE OF THE PLAINTIFF, DON'S HYDRAULICS, INC ., TO DEFENDANT, COLONY INSURANCE COMPANY'S, INTERROGATORIES 1. Please set forth the name, address, job classification,

and full title of the person answering these interrogatories. ANSWER : Donald Lee Cathall 25027 Dupont Highway Georgetown, DE 19947 Title : Owner & President of Don's Hydraulics detailed description of all

2.

Provide by date,

communications between you and your company and Truck Tech Industries, Inc ., and Tipco Technologies, Inc . regarding the suction hoses at issue in this case. ANSWER : On or about August 7, 2003 I placed an order with Sean Swain of Truck Tech Industries for 20 hoses to be used as pump suction hoses on a hydraulic power unit . Mr . Swain arrived on location with two hose ends and we measured each hose length, numbering each one through ten . At a later date (exact unknown) Mr . Swainarrived with the hoses. We started installing the hoses and discovered that the internal stems would turn inside the hoses using only our hands . I gave the hoses back to Mr . Swain and he left with them in his possession . Mr . Swain returned at a later date with the hoses and they would still turn so once 1

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again I refused them . Sean returned with the hoses on August 24, 2003 and I could not turn the stems by hand . The power unit was due to be shipped on August 25, 2003 the hoses appeared suitable. On August 25, 2003, I drafted a letter and sent it to Truck Tech Industries owners and management expressing my concern about the hoses . At this time Idid not_know who their supplier was . At a later date (date unknown) I received a copy of a hand written letter from Sean Swain of Truck Tech Industries to Tipco Technologies expressing his concern about the hoses . On Monday September 15, 2003, I called Mr . Swain and told him I was getting a lot of air in the system and feared it may be due to the hoses . As I recall, Mr . Swain advised me to do what I deemed necessary. On Tuesday September 16, 2003, we found some elastic tape and taped all the suction hose ends as an effort to keep the plant in production . On Friday September 19, 2003, I purchased twenty new suction hoses from J .G .B . through Rob's Hydraulics Inc . with instructions to fly them to me by next day air. On September 30, 2003, Mr . Swain picked up the twenty defective hoses from my location at Georgetown, DE . Sometime after September 11, 2003, I received a copy of a letter sent to Sean Swainat TruckTechIndustries, signed by Mr . Rob Lyons of - Tipco Technologies . Prior to November 6, 2003, I called Mr . Jim Biggs of Truck Tech Industries and requested four hoses to be returned for me to test . I received the hoses and performed the testing . I sent a letter with the results on November 6,2003 . Actual dates may be acquired from Truck Tech Industries. Explain the reason your company chose to purchase the

3.

suctions hoses at issue in this case from Truck Tech Industries, Inc ., and Tipco Technologies, Inc. ANSWER : I purchased the hoses from Truck Tech Industries (with no knowledge of Tipco Technologies).

2

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4.

Identify the individual(s) responsible for setting the

specification and selecting the suction hoses at issue in this case that were purchased from Truck Tech Industries, Inc ., and Tipco Technologies, Inc. ANSWER : 5. See answer to Interrogatory No . 2 above.

Describe any change, modification and/or customization

made by you or your company to the suction hoses at issue in this case that were purchased from Truck Tech Industries, Inc . and Tipco Technologies, ANSWER :

Inc.

No changes, modifications and/or customizations were made by Don's Hydraulics Inc . or any employee.

6.

Identify by date each time you or your company returned Specific dates are currently unknown.

suctions hoses at issue in this case to the manufacturer. ANSWER : 7.

For each occasion you or your company returned suction The identity of the individual and entity to whom the hoses-were returned to; The reason the hoses were returned; The individual who initially noticed the problem or raised a concern that warranted the return of the hoses; Whether you or your company was provided with new replacement suction hoses; Whether the new replacement suction hoses were of the same type and specifications as the hoses returned. a. Sean Swain. b. Please refer to answer to Interrogatory No . 2 above; c. Keith Johnson, Self-e .ployed farmer . d. I did not receive any new replacement hoses from Truck Tech Industries or Tipco Technologies either time the hoses were returned.

hoses at issue in this case to the manufacturer, provide;

b. c. d. e. ANSWER :

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e.

Same specifications with the hose ends manufactured by a different manufacturer.

8.

For the hoses used to complete the Fieldale Farms job, a. c. d. The identity of the company or companies the suction hoses were purchased from; The specification of the suction-hoses-used; The identity of the individual(s) who provided the specification of the suction hoses used; Any changes in the specification in the suction hoses purchased from the company identified in (a) from the suction hoses purchased from Truck Tech Industries, Inc ., and Tipco Technologies, Inc .; Description of any previous experience with the company identified in (a). a. J .G .B. Box 209 Liverpool, NY 13088-0209 Sales Rep : Gene Rivers b. Two and one half inch Inside Diameter One wire spiral Crimped on ends of male pipe and female jic c. Donald Cathell d. None. e. None. o-f the

provide:

e. ANSWER :

---I-dentifv-the-m-anufa-cturerT-=s-eler-di-s-trb-upumps used in the Fieldale Farms job. ANSWER : Pump Manufacturer : Rextroth Corp. Distributor : L&H Technologies Inc. P .O . Box 890218 Charlotte, NC 28289-0218 Sold to : Rob's Hydraulics Inc. P .O . Box 636 Grimesland, NC 27837 Delivered to : Don's Hydraulics Inc. 25029 Dupont Highway Georgetown, DE 19947

10 . Were the pumps referred to in 9 above, modified, 4

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changed, customized in any way? If you answered in the affirmative ; then: a. b. c. ANSWER : 11. Describe how the pumps were modified, changed, customized; Describe the purpose of the modification, change or customization; Identify the individual or entity who was responsible for the modification, change or customization. No.

Identify all companies you have in the past or are The plaintiff objects to the extent this interrogatory is overly broad, unduly burdensome and unlimited in time and scope . Notwithstanding and without waving, the plaintiff states ; in addition to the entities listed elsewhere in these interrogatories ; Metro Hose 318 Horsepen Road Farmville, VA 23901

currently purchasing suction hoses from. ANSWER :

12.

Identify any problems encountered with suction hoses No problems have been encountered with Metro Hose.

purchased from companies identified in 11 above.

13.

Describe in detail the nature and extent of the damage

to the pumps that resulted from the use of the suction hoses purchased from Truck Tech Industries, Inc . and Tipco Technologies, Inc. ANSWER : Valve plates scarred Pistons scarred and/or broken Barrels scarred Bearings damaged and/or broken Shoes damaged Compensators damaged End result : Twenty pumps beyond repair. TIGHE, COTTRELL & LOGAN, P .A .

Case 1:04-cv-01275-KAJ

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BY :

`C-v Michael K . Tighe rDE 29) Abigail E . Rodgers (DE 4500) First Federal Plaza P .O . Box 1031 Wilmington, DE 19801 Attorneys for Plaintiff

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3020561074 12,A@6/2004 Case 1:04-cv-01275-KAJ 13 :31 DEC-06-2004 11 : 2e

Document 45-3

DON'S HYDRAULICS INC

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P,OE

nULISAMU I, Donald Lee Cathall, being duly sworn acoording to law, hereby depose and say that the answers in the foregoing Response of the Plaintiff, Don's Hydraulics, Inc ., to Defendant, Colony Insurance Company's, Interrogatories to the best cf my knowledge,

information and belief.

SWORN TO AND SnSCRIBED before me this 2004 .

ToTPL P .08



Case 1:04-cv-01275-KAJ

Document 45-3

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DON'S HYDRAULICS, INC ., Plaintiff, v. COLONY INSURANCE COMPANY, TRUCK TECH INDUSTRIES, INC ., and TIPCO TECHNOLOGIES, INC ., Defendants . NOTICE OF SERVICE I, ABIGAIL E . RODGERS, hereby certify that a true and correct copy of the foregoing Response of the Plaintiff, Don's Hydraulics, Inc ., to Defendant, Colony Insurance Company's, Interrogatories were served, via First Class U .S . mail, on this day of December, 2004 upon the following: Gary H . Kaplan, Esquire Goldfein & Hosmer 222 Delaware Avenue, Suite 1110 P .O . Box 2206 Wilmington, DE 19899-2206 Joseph M . Toddy, Esquire Zarwin Baum DeVito Kaplan Schaer Toddy P .C. Suite 1200 1515 Market Street Philadelphia, PA 19102-1981 Anthony (Tony) Figliola, Jr. Figliola & Facciolo 1813 Marsh Road, Suite A Wilmington, DE 19810 Gilbert Shelsby, Jr ., Esquire Morgan, Shelsby & Leoni 131 Continental Drive, Suite 206 Newark, DE 19713 ) C .A . No . 04-1275

ABIGAIL E . RODGER