Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-00339-JJF

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE FEDERAL INSURANCE COMPANY a/s/o EZIBA.COM, INC./AVACET, INC., EZIBA SECURITIES CORP. Plaintiff, v. LIGHTHOUSE CONSTRUCTION, INC., BECKER MORGAN GROUP, INC., and O'DONNELL, NACCARATO & MACINTOSH, INC., Defendants. and LIGHTHOUSE CONSTRUCTION, INC., Defendant and Third-Party Plaintiff, v. EAST COAST ERECTORS, INC., Third-Party Defendant. : : : : : : : : : : : : : : : : : : : : CIVIL ACTION NO. 04-339

JURY TRIAL DEMANDED

MILLERS CAPITAL INSURANCE COMPANY: a/s/o DEL-HOMES CATALOG GROUP, LLC, : : Plaintiff, : v. : : LIGHTHOUSE CONSTRUCTION, INC., : BECKER MORGAN GROUP, INC., and : O'DONNELL, NACCARATO & MACINTOSH,: INC., : Defendants. : and : : LIGHTHOUSE CONSTRUCTION, INC., : Defendant and Third-Party : Plaintiff, : v. : : EAST COAST ERECTORS, INC., : Third-Party Defendant. :

CIVIL ACTION NO. 04-1322-JJF

JURY TRIAL DEMANDED

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DEFENDANT/THIRD PARTY PLAINTIFF LIGHTHOUSE CONSTRUCTION INC.'S REPLY TO EAST COAST ERECTORS, INC.'S RESPONSE TO LIGHTHOUSE CONSTRUCTION, INC.'S MOTION FOR LEAVE TO FILE THIRD-PARTY COMPLAINT COMES NOW, Lighthouse Construction Inc. (hereinafter "Lighthouse") by and through its undersigned counsel and hereby responds to East Coast Erectors Inc.'s (hereinafter "ECE") Response to Lighthouse's Motion for Leave to File Third-Party Complaint (hereinafter "Motion for Leave"). In support of its Motion, Lighthouse asserts the following: 1. Lighthouse filed its Motion for Leave against ECE pursuant to Rule 15 of the

Federal Rules of Civil Procedure. ECE filed its response to Lighthouse's Motion for Leave on May 11, 2005. 2. Lighthouse alleges that it is entitled to indemnification and/or contribution from

ECE pursuant to the Standard Form of Agreement Between Contractor and Subcontractor (hereinafter "Agreement") signed by Lighthouse and ECE on March 15, 1999. In its response to the Motion for Leave, ECE argues that the Agreement was not signed by the parties and as there is no other signed contract between the parties, there is no basis for a claim of contractual indemnification against ECE. 3. A contract does not necessarily need to be signed by the parties to be enforceable.

For example, "if the party sought to be charged intended to close a contract prior to the formal signing of a written draft, and such written draft is viewed by the parties as a convenient method of their previous contract, he will be bound by the contract actually made though the signing of the written draft be omitted." Hamilton Foundry & Machine Co. v. International Molders & Foundry Workers Union of North America, 193 F.2d 209, 214 (6th Cir. 1951). It is a question of intention. Id. The terms of the Agreement between ECE and Lighthouse are unambiguous and

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clearly demonstrate the parties intent to form a contract. In addition, ECE and Lighthouse performed under the terms contained in the Agreement. 4. Further, a party should not be entitled to affirm a contract by retaining its benefits

and at the same time question its validity. Kelly v. International Insurance Re-Insurance Corporation, 174 A. 267 (Del. Ch. 1934). Here, ECE received payments pursuant to the Agreement between it and Lighthouse. Therefore, ECE obtained a benefit under the contract. Therefore, it should not be permitted to turn around and question whether the Agreement existed. 5. Furthermore, even though a signed writing is typically required to satisfy the

statue of frauds, there is an exception for part performance. Therefore, a contract may be enforceable, even though it is not signed, when there has been partial performance of the contractual obligation. "Part performance by a party is regarded as substantial evidence that a contract was in fact made, thereby rendering the policy underlying the Statue of Frauds inapplicable." Taylor v. Jones, 2002 WL 31926612, *4 (Del. Ch. 2002). 6. In addition, the concerns raised in ECE's Response are premature as the parties

have not conducted discovery with respect to Lighthouse's Third Party Complaint. To date, Lighthouse has not had the opportunity to obtain information from ECE's personnel with respect to the contract and their understanding of its enforceability and terms. As the allegations in Lighthouse's Third Party Complaint should be treated as true at this stage and an Agreement exists between Lighthouse and ECE, Lighthouse's Motion for Leave should not be denied.

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CHRISSINGER & BAUMBERGER

/s/David L. Baumberger DAVID L. BAUMBERGER (#2420) Three Mill Road, Suite 301 Wilmington, DE 19806 (302) 777-0100 Attorney for Defendant/Third-Party Plaintiff Lighthouse Construction, Inc.

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CERTIFICATE OF SERVICE I, DAVID L. BAUMBERGER, ESQUIRE, hereby certify that on May 18, 2005, I have had deposited in the mailbox at Three Mill Road, Suite 301, in Wilmington, Delaware, two true and correct copies of the attached Answer to East Coast Erector's Response to Defendant's Motion to File Third Party Complaint to the following: Steven K. Gerber, Esquire Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Sean J. Bellew, Esquire James Bailey, Esquire Cozen O'Connor Three Mill Road, Suite 306 Chase Manhattan Centre Wilmington, DE 19806 1201 N. Market Street, Suite 1400 Wilmington, DE 19801 Benjamin Wetzel, III, Esquire Wetzel & Associates, P.A. The Carriage House Suite 201 1100 N. Grant Avenue Wilmington, De 19805 Victoria K. Petrone, Esquire Tighe, Cottrell & Logan, First Federal Plaza, Suite 500 P.O. Box 1031 Wilmington, DE 19899

Dana Ostrovski, Esquire Cohen, Seglias, Pallas, P.A. Greenhall & Furman PC 1515 Market Street, Eleventh Floor Philadelphia, PA 19102 Paul Cottrell, Esquire Tighe, Cottrell & Logan, P.A. First Federal Plaza, Suite 500 P.O. Box 1031 Wilmington, DE 19899

Robert K. Beste, Jr., Esquire Robert B. Hill, Esquire Cohen, Seglias, Pallas, Greenhall & 3445 Peachtree Road NE, Furman, P.C. Suite 500 1007 Orange Street, Suite 205 Atlanta, GA 30326 Nemours Building Wilmington, DE 19801

Frank E. Noyes, II, Esquire White & Williams, LLP 824 N. Market Street, Suite 902 Wilmington, DE 19899 CHRISSINGER & BAUMBERGER /s/David L. Baumberger David L. Baumberger, Esquire Attorney I.D. No. 2420 Three Mill Road, Suite 301 Wilmington, DE 19806 (302)777-0100 Attorney for Defendant/Third-Party Plaintiff Lighthouse Construction, Inc

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