Free Answer to Complaint - District Court of California - California

Case 3:07-cv-02128-BEN-NLS

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KAREN P. HEWITT United States Attorney MELANIE A. ANDREWS Special Assistant U.S. Attorney Office of the U.S. Attorney Federal Office Building 880 Front Street, Room 6293 San Diego, CA 92101-8893 Telephone: (619) 557-7460 [email protected] Attorneys for Defendant United States of America

UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMES NOW Defendant, the United States of America, by and through its attorneys, Karen P. Hewitt, United States Attorney and Melanie A. Andrews, Special Assistant United States Attorney, and for its Answer to Plaintiff's Complaint sets forth the following: 1. Answering Paragraph 1 of the Complaint, Defendant states v. UNITED STATES OF AMERICA, Defendant. GRANITE STATE INSURANCE COMPANY, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) Case No. 07cv2128 BEN(NLS)

ANSWER TO COMPLAINT

that the allegations concerning jurisdiction contained therein are legal conclusions solely within the purview of the court and for its determination, and no answer is therefore required. To the

extent an answer is required, said allegations are denied. // //

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2.

Answering Paragraph 2 of the complaint, Defendant states

that the allegations contained therein are legal conclusions solely within the purview of the court and for its determination, and no answer is therefore required. said allegations are denied. 3. Answering Paragraph 3 of the complaint, Defendant states To the extent an answer is required,

that it is without knowledge or information sufficient to form a belief as to the truth of the allegations therein contained, and based thereon, denies generally and specifically each, all and every allegation contained therein. 4. Answering Paragraph 4 of the complaint, Defendant states

that the allegations contained therein are legal conclusions solely within the purview of the court and for its determination, and no answer is therefore required. said allegations are denied. 5. Answering the first sentence of Paragraph 5 of the To the extent an answer is required,

complaint, the Defendant admits that Marl Lemoge sustained injuries on or about April 17, 2004. Answering the second sentence in

Paragraph 5 of the complaint, the Defendant admits that on or about April 13, 2006, Plaintiff submitted an administrative claim to the Department of the Navy. Answering the third sentence of Paragraph

5 of the complaint, Defendant admits the substantial truth of the allegations contained therein. Except as specifically admitted,

Defendant denies, generally and specifically, each, all and every remaining allegation in said paragraph. // // // 2

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6.

Answering the first sentence of Paragraph 6 of the

complaint, Defendant admits the substantial truth of the allegations contained therein. Answering the second sentence of

Paragraph 6 of the complaint, Defendant states that the allegation concerning jurisdiction contained therein are legal conclusions solely within the purview of the court and for its determination, and no answer is therefore required. required, said allegations are denied. 7. Answering Paragraph 7 of the complaint, Defendant states To the extent an answer is

that it is without knowledge or information sufficient to form a belief as to the truth of the allegations therein contained, and based thereon, denies generally and specifically each, all and every allegation contained therein. 8. Answering Paragraph 8 of the complaint, Defendant denies,

generally and specifically, each, all and every allegation contained therein. 9. Answering Paragraph 9 of the complaint, Defendant denies,

generally and specifically, each, all and every allegation contained therein. 10. Answering Paragraph 10 of the complaint, Defendant states

that the allegations contained therein are legal conclusions solely within the purview of the court and for its determination, and no answer is therefore required. said allegations are denied. // // // // 3 To the extent an answer is required,

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11.

Answering Paragraph 11 of the complaint, Defendant states

that the allegations contained therein are legal conclusions solely within the purview of the court and for its determination, and no answer is therefore required. said allegations are denied. Defendant denies all other allegations of Plaintiff's complaint not specifically admitted. To the extent an answer is required,

AFFIRMATIVE AND OTHER DEFENSES 1. The Court lacks jurisdiction over the subject matter of

this action. 2. The Complaint fails to state a claim upon which relief

can be granted to the Plaintiff against the Defendant under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671-80, as averred in the Complaint or otherwise, for the reason that if said Defendant were a private person, it would not be liable to Plaintiff in accordance with the law of the State of California. 3. Plaintiff cannot recover for any injury or injuries

caused in whole or in part by and through its' or Mark Lemoge's own carelessness, negligence, or assumption of the risk. 4. To the extent the acts or omissions of others were the

sole proximate causes of any injury, damage, or loss to the Plaintiff, those acts and omissions have superseded any acts or omissions of Defendant. 5. Plaintiff cannot recover damages from Defendant for any

injuries that were not proximately caused by a negligent or wrongful act or omission on the part of Defendant or any employee or agent of Defendant. 4

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6.

There was no negligent act or omission on the part of any

federal employee. 7. Defendant asserts, as an affirmative defense, California

Civil Code, § 1431.2(a), which provides: In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount. 8. To the extent Plaintiff failed to exercise reasonable

care in mitigating its' or Mark Lemoge's damages, its' or Mark Lemoge's claims must be barred or diminished. 9. Plaintiff's recovery, if any, is limited to the amount of See 28 U.S.C.

the claim the Plaintiff presented administratively. § 2675(b). 10.

To the extent Plaintiff has alleged speculative future

damages, they do not constitute compensable damages. 11. value. 12. Income taxes must be deducted from Plaintiff's alleged All future damages, if any, must be reduced to present

past and future lost earnings, if any. 13. In the event Defendant is found liable, which Defendant

expressly denies, Defendant is entitled to an offset against damages, if any, for all amounts received by Plaintiff from the United States of America and its agencies, by reason of Plaintiff's alleged injuries. // // 5

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14.

The recreational use statute bars Plaintiff and Mark

Lemoge from recovering from Defendant for any injury, injuries or damages suffered by Plaintiff or Mark Lemoge. 15. Attorney fees in this action brought under the Federal

Tort Claims Act are limited to twenty-five percent of the amount awarded, if any, to the Plaintiff. 16. If any damages are awarded to Plaintiff, they are to be

apportioned according to the respective fault and legal responsibility of all parties, persons and entities or the agents and employees who contributed to and/or caused the incident. WHEREFORE, Defendant prays that Plaintiff take nothing by reason of its' suit herein, that judgment be rendered in favor of said Defendant, for costs of suit herein incurred, and for such other and further relief as this Court may deem proper. DATED: February 04, 2008 KAREN P. HEWITT United States Attorney

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/s/Melanie A. Andrews MELANIE A. ANDREWS Special Assistant U.S. Attorney Attorneys for the Defendant United States of America
Email: [email protected]

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