Free Answer to to CounterClaim - District Court of California - California

Case 4:07-cv-04408-CW

Document 48

Filed 03/10/2008

Page 1 of 6

1 John H. Stephens, SBN 082971 [email protected] 2 Julie A. Lewin, SBN 225150 [email protected] 3 WERTZ McDADE WALLACE MOOT & BROWER A Professional Corporation 4 945 Fourth Avenue San Diego, California 92101 5 (619) 233-1888 / Fax: (619) 696-9476 6 Attorneys for Defendant CALIFIA DEVELOPMENT CORPORATION 7 dba CDC INSURANCE SERVICES 8 9 10 11 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CASE NO. C 07-4408 (CW) ANSWER OF CALIFIA DEVELOPMENT CORPORATION, dba CDC INSURANCE SERVICES TO COUNTER CROSSCLAIM OF FCE BENEFIT ADMINSITRATORS, INC.

12 MIDWEST TRANSPORT, INC. a Delaware Corporation, 13 Plaintiff, v. 14 15 FCE BENEFIT ADMINISTRATORS, INC., a California Corporation; and CALIFIA 16 DEVELOPMENT CORP., d/b/a CDC Insurance Services, a California Corporation, 17 Defendants. 18 _____________________________________ 19 CALIFIA DEVELOPMENT CORPORATION, d/b/a CDC Insurance 20 Services, a California Corporation, 21 v. 22 FCE BENEFIT ADMINISTRATORS, INC., a 23 California Corporation, 24 25 26 Cross-Defendant. Cross-Claimant,

Judge: The Honorable Claudia Wilkin Courtroom: 2

Defendant/Cross-Claimant/Cross-Defendant Califia Development Corporation dba CDC

27 Insurance Services ("Califia"), hereby answers the Counter Cross-Claim filed by 28 / / /
[193978v1/5814-002]

1
Answer To Counter Cross-Claim

C 07-4408 (CW)

Case 4:07-cv-04408-CW

Document 48

Filed 03/10/2008

Page 2 of 6

1 Defendant/Cross-Defendant/Counter Cross-Claimant FCE Benefit Administrators, Inc. ("FCE"), 2 and asserts its affirmative defenses as follows: 3 1. Responding to paragraph 1 of the Counter Cross-Claim, Califia denies the

4 allegations. 5 2. Paragraph 2 of the Counter Cross-Claim contains legal conclusions and not factual

6 allegations that may be admitted or denied. To the extent that a response is required, Califia lacks 7 sufficient knowledge to either admit or deny the allegations, and on that basis denies the 8 allegations. 9
WERTZ MCDADE WALLACE MOOT & BROWER

3.

Responding to paragraph 3 of the Counter Cross-Claim, Califia denies the

10 allegations. 11 4. Responding to paragraph 4 of the Counter Cross-Claim, Califia admits that as to

A Professional Corporation 945 Fourth Avenue San Diego, California 92101 Tel (619) 233-1888 · Fax (619) 696-9476

12 Plaintiff Midwest Transport, Inc. ("Midwest") and FCE, any damages suffered by Midwest should 13 be apportioned between them. As the allegations pertain to Califia, it denies the allegations. 14 5. Responding to paragraph 5 of the Counter Cross-Claim, Califia denies the

15 allegations. 16 6. Responding to paragraph 6 of the Counter Cross-Claim, Califia denies the

17 allegations. 18 7. Responding to paragraph 7 of the Counter Cross-Claim, Califia admits that it held

19 itself out as an insurance broker that endeavors to locate Third Party Administrators ("TPAs") for 20 medical benefits plans on behalf of clients such as Midwest, and denies the remaining allegations. 21 8. Responding to paragraph 8 of the Counter Cross-Claim, Califia admits that it

22 communicated certain information to FCE that was provided by Midwest concerning the 23 anticipated number of participants in the plan, the contributions that might be made to the plan, 24 and the status of certain employees expected to be enrolled in the plan. Califia denies the 25 remaining allegations in paragraph 8 and affirmatively alleges that Midwest provided the actual 26 information referred to in the paragraph for FCE. 27 / / / 28 / / /
[193978v1/5814-002]

2
Answer To Counter Cross-Claim

C 07-4408 (CW)

Case 4:07-cv-04408-CW

Document 48

Filed 03/10/2008

Page 3 of 6

1

9.

Responding to paragraph 9 of the Counter Cross-Claim, Califia denies the

2 allegations and affirmatively alleges that it made no such representations and instead transmitted 3 certain information provided by the other parties. 4 10. Responding to paragraph 10 of the Counter Cross-Claim, Califia lacks sufficient

5 knowledge to either admit or deny the allegations, and on that basis denies the allegations. 6 11. Responding to paragraph 11 of the Counter Cross-Claim, Califia lacks sufficient

7 knowledge to either admit or deny the allegations, and on that basis denies the allegations. 8 12. Responding to paragraph 12 of the Counter Cross-Claim, Califia denies the

9 allegations. 10
WERTZ MCDADE WALLACE MOOT & BROWER

13.

Responding to paragraph 13 of the Counter Cross-Claim, Califia denies the

11 allegations, specifically denies that it made the representation alleged in the paragraph. 12 14. Responding to paragraph 14 of the Counter Cross-Claim, Califia lacks sufficient

A Professional Corporation 945 Fourth Avenue San Diego, California 92101 Tel (619) 233-1888 · Fax (619) 696-9476

13 knowledge to either admit or deny the allegations, and on that basis denies the allegations. 14 15. Responding to paragraph 15 of the Counter Cross-Claim, Califia denies the

15 allegations. 16 16. Paragraph 16 of the Counter Cross-Claim contains legal conclusions and not factual

17 allegations that may be admitted or denied. To the extent that a response is required, Califia 18 denies the allegations. 19 20 21 FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) The Counter Cross-Claim, and each and every purported claim therein, fails to state facts

22 constituting a claim for relief. 23 24 25 SECOND AFFIRMATIVE DEFENSE (Statute of Limitations) FCE's recovery should be barred or diminished because the Counter Cross-Claim, and

26 each and every purported claim for relief, are barred by the applicable statute of limitations, 27 including but not limited to those set forth in California Code of Civil Procedure Sections 337, 28 338, 339, 339(1), 340, 340(c), 343, and all subsections and/or divisions of said sections.
[193978v1/5814-002]

3
Answer To Counter Cross-Claim

C 07-4408 (CW)

Case 4:07-cv-04408-CW

Document 48

Filed 03/10/2008

Page 4 of 6

1 2 3

THIRD AFFIRMATIVE DEFENSE (Waiver) FCE has voluntarily relinquished and waived any rights it may have to institute the present

4 action against Califia and any other matter whatsoever related thereto. 5 6 7 8 9 10
WERTZ MCDADE WALLACE MOOT & BROWER

FOURTH AFFIRMATIVE DEFENSE (Laches) FCE's conduct constitutes laches and, therefore, bars the granting of relief. FIFTH AFFIRMATIVE DEFENSE (Estoppel) The claims for relief that FCE seeks to assert are barred, in whole or in part, by the

11 doctrine of estoppel. 12 13 14 SIXTH AFFIRMATIVE DEFENSE (Unclean Hands) The claims for relief that FCE seeks to assert are barred, in whole or in part, by the

A Professional Corporation 945 Fourth Avenue San Diego, California 92101 Tel (619) 233-1888 · Fax (619) 696-9476

15 doctrine of unclean hands. 16 17 18 SEVENTH AFFIRMATIVE DEFENSE (Consent) FCE consented to each and every alleged act and/or omission giving rise to FCE's

19 allegations and, therefore, FCE is not entitled to any relief. 20 21 22 EIGHTH AFFIRMATIVE DEFENSE (Preemption) FCE's claims are barred pursuant to the Employee Retirement and Income Security Act

23 (ERISA), 29 USC § 1001 et seq. 24 25 26 NINTH AFFIRMATIVE DEFENSE (Setoff and/or Recoupment) Califia is entitled to setoff and/or recoup any funds, damages, claims, losses, or other

27 liabilities sustained by Califia against any damages, if any, alleged to have been sustained by FCE. 28 / / /
[193978v1/5814-002]

4
Answer To Counter Cross-Claim

C 07-4408 (CW)

Case 4:07-cv-04408-CW

Document 48

Filed 03/10/2008

Page 5 of 6

1 2 3

TENTH AFFIRMATIVE DEFENSE (Comparative Fault) The alleged injuries of which the FCE complains were a consequence of FCE's and/or

4 others' failure to use ordinary and reasonable care and caution appropriate in the circumstances, so 5 that FCE's recoveries, if any, should be barred or diminished accordingly. 6 7 8 ELEVENTH AFFIRMATIVE DEFENSE (Apportionment of Fault) Califia denies it is liable in any fashion with respect to the damages, injuries or losses of

9 which FCE complains. However, if Califia is found to be liable, then Califia alleges that its 10 alleged acts and/or omissions were not the sole or only legal cause of FCE's injuries or damages
WERTZ MCDADE WALLACE MOOT & BROWER

11 as alleged, but that any damages assessed should be apportioned according to the respective fault 12 of all the parties, persons, entities, agents, servants, employees and others who caused or 13 contributed to the injuries and damages alleged herein, including but not limited to FCE. 14 15 16 TWELFTH AFFIRMATIVE DEFENSE (Intervening and Superseding Acts) FCE's recovery, if any, should be barred or diminished because of the existence of one or

A Professional Corporation 945 Fourth Avenue San Diego, California 92101 Tel (619) 233-1888 · Fax (619) 696-9476

17 more unforeseeable events or acts occurred which supersedes any alleged acts and/or omissions of 18 Califia. 19 20 21 THIRTEENTH AFFIRMATIVE DEFENSE (Assumption of Risk) FCE's alleged recovery should be barred or diminished because FCE knowingly assumed

22 all risks attendant to the activity at the time of injuries. 23 24 25 FOURTEENTH AFFIRMATIVE DEFENSE (Failure to Mitigate) FCE is barred from recovering any alleged damages as a result of FCE's failure to mitigate

26 its alleged damages and/or injuries. 27 / / / 28 / / /
[193978v1/5814-002]

5
Answer To Counter Cross-Claim

C 07-4408 (CW)

Case 4:07-cv-04408-CW

Document 48

Filed 03/10/2008

Page 6 of 6

1 2 3

FIFTEENTH AFFIRMATIVE DEFENSE (Reservation of Rights) Califia is unaware of any additional affirmative defenses that it might have at this time.

4 Accordingly, Califia expressly reserves the right to plead additional affirmative defenses which 5 further legal analysis, investigation or discovery may reveal. 6 7 8 9 10
WERTZ MCDADE WALLACE MOOT & BROWER

WHEREFORE, Califia prays that: 1. Judgment be entered in favor of Califia, and FCE take nothing by reason of its Counter Cross-Claim; 2. 3. 4. 5. FCE's Counter Cross-Claim be dismissed with prejudice; Califia recover its attorney fees; Califia recover its costs of suit; and Califia be awarded such further relief as the Court deems just and proper.

11 12 13

A Professional Corporation 945 Fourth Avenue San Diego, California 92101 Tel (619) 233-1888 · Fax (619) 696-9476

14 Dated: March 10, 2008 15 16 17 18 19 20 21 22 23 24 25 26 27 28
[193978v1/5814-002]

WERTZ McDADE WALLACE MOOT & BROWER A Professional Corporation ¶

By:

/s/ John H. Stephens John H. Stephens Attorneys for Defendant CALIFIA DEVELOPMENT CORPORATION, dba CDC INSURANCE SERVICES

6
Answer To Counter Cross-Claim

C 07-4408 (CW)