Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-00339-JJF

Document 107

Filed 05/11/2005

Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE FEDERAL INSURANCE COMPANY a/s/o EZIBA.COM, INC./AVACET, INC., EBIZA SECURITIES CORP. : Civil Action No. 04-339 JJF : : : JURY OF TWELVE DEMANDED Plaintiff, : : v. : : LIGHTHOUSE CONSTRUCTION, INC., : BECKER MORGAN GROUP, INC., : and O'DONNELL, NACCARATO & : MACINTOSH, INC. : : Defendants. : ______________________________________________________________________________ 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 OF TWELVE DEMANDED

Case 1:04-cv-00339-JJF

Document 107

Filed 05/11/2005

Page 2 of 6

THIRD-PARTY DEFENDANT EAST COAST ERECTORS, INC.'S RESPONSE TO LIGHTHOUSE CONSTRUCTION, INC.'S MOTION FOR LEAVE TO FILE THIRD-PARTY COMPLAINT LIMITED TO FEDERAL INSURANCE v. LIGHTHOUSE, ET AL. COMES NOW East Coast Erectors, Inc., the Third-Party Defendant in the above-styled action (hereinafter called "ECE") and responds to Lighthouse Construction, Inc.'s (hereinafter called "Lighthouse") Motion for Leave to File Third-Party Complaint Limited to Federal Insurance v. Lighthouse, et al. (the "Motion to Amend") respectfully showing the Court as follows: 1. Lighthouse seeks to file a Third-Party Complaint against ECE in the Federal

Insurance matter, pursuant to Rule 15 of the Federal Rules of Civil Procedure. Specifically, Lighthouse seeks to assert a claim for contractual indemnification based on a contract dated March 15, 1999 between Lighthouse and ECE. 2. ECE is opposed to Lighthouse's assertion of a contractual indemnification claim

against it because no executed contract exists between Lighthouse and ECE. Discovery in this case is underway. Robert MacLeish, a Lighthouse principal, has already been deposed.

MacLeish testified as follows regarding the contract between Lighthouse and ECE: Q: MacLeish Exhibit Number 56 is Bates numbered LH 2703. It is a Standard Form of Agreement Between Contractor and Subcontractor. It has a date of the 15th day of March in the year 1999 between contractor Lighthouse Construction, Inc., and East Coast Erectors, Inc. Did I read that correctly? A: Yes, sir. Q: Okay. Now, if I flip over to the page that's numbered LH2712, which is the signature line for this document, it's not signed, is it? A: No, sir. Q: Now, do you know of any signed agreement between East Coast Erectors, Inc., and Lighthouse Construction, Inc., other than Mr. Williams' proposal that we've already identified? A: The only other ­ no, there was no signed agreement. There was just a Letter of Intent that was sent to them.

Case 1:04-cv-00339-JJF

Document 107

Filed 05/11/2005

Page 3 of 6

MacLeish at 353-54 (emphasis added). An excerpt from the deposition transcript of Robert MacLeish is attached hereto as Exhibit "A." A copy of the unsigned contract is attached hereto as Exhibit "B." No signed contract exists between Lighthouse and ECE providing for an express contract of indemnification; therefore, Lighthouse's motion for leave to assert a claim of contractual indemnification against ECE must be denied. 3. Lighthouse also seeks to assert claims of common law contribution and

indemnification. While not consenting to the assertion of these common law claims, ECE makes no objection to them, having been joined in this action by Lighthouse Construction, Inc. as a Third-Party Defendant in the Millers Capital matter; provided, that pursuant to applicable rules, ECE shall have not less than twenty (20) days following service of the Third-Party Complaint in order to answer or otherwise respond. WETZEL & ASSOCIATES, P.A. /s/ Natalie M. Ippolito_________________ Benjamin C. Wetzel, III (I.D. No. 985) Natalie M. Ippolito (I.D. No. 3845) The Carriage House, Suite 201 1100 N. Grant Avenue Wilmington, DE 19805 (302) 652-1200 [email protected] Robert B. Hill, Admitted Pro Hac Vice MCLAIN & MERRITT, P.C. 3445 Peachtree Road N.E., Suite 500 Atlanta, GA 30326 Attorneys for Third-Party Defendant East Coast Erectors, Inc. Dated: May 11, 2005

Case 1:04-cv-00339-JJF

Document 107

Filed 05/11/2005

Page 4 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE FEDERAL INSURANCE COMPANY a/s/o EZIBA.COM, INC./AVACET, INC., EBIZA SECURITIES CORP. : Civil Action No. 04-339 JJF : : : JURY OF TWELVE DEMANDED Plaintiff, : : v. : : LIGHTHOUSE CONSTRUCTION, INC., : BECKER MORGAN GROUP, INC., : and O'DONNELL, NACCARATO & : MACINTOSH, INC. : : Defendants. : ______________________________________________________________________________ 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 OF TWELVE DEMANDED

Case 1:04-cv-00339-JJF

Document 107

Filed 05/11/2005

Page 5 of 6

ORDER AND NOW, this ________ day of _____________, 2005, upon consideration of Lighthouse Construction Inc.'s Motion for Leave to file a Third-Party Complaint Limited to Federal Insurance v. Lighthouse, et al., and East Coast Erectors, Inc.'s response thereto, IT IS HEREBY ORDERED that Lighthouse Construction Inc.'s motion for leave to assert a claim of contractual indemnification against East Coast Erectors, Inc. is DENIED. Lighthouse Construction Inc.'s motion for leave to assert claims of common law contribution and indemnification against East Coast Erectors, Inc. is GRANTED without prejudice to East Coast Erectors, Inc. to raise subsequent defenses to those claims.

____________________________________ United States District Judge

Case 1:04-cv-00339-JJF

Document 107

Filed 05/11/2005

Page 6 of 6

CERTIFICATE OF SERVICE I hereby certify that on May 11, 2005, I electronically filed the within Third-Party Defendant East Coast Erectors, Inc.'s Response to Lighthouse Construction, Inc.'s Motion for Leave to File Third-Party Complaint Limited to Federal Insurance v. Lighthouse, et al. with the Clerk of Court using CM/ECF which will send notification of such filing to the following: David J. Baumberger, Esquire Chrissinger & Baumberger Three Mill Road, Suite 301 Wilmington, DE 19806 James F. Bailey, Jr., Esquire Bailey & Associates Three Mill Road, Suite 306A Wilmington, DE 19806 Frank E. Noyes, II, Esquire White & Williams, LLP PO Box 709 Wilmington, DE 19899-0709 Sean J. Bellew, Esquire Cozen O'Connor Chase Manhattan Centre 1201 N. Market Street, Suite 1400 Wilmington, DE 19801

Robert K. Beste, Jr., Esquire Cohen, Seglias, Pallas, Greenhall & Furman, PC Nemours Building 1007 Orange Street, Suite 205 Wilmington, DE 19801 I hereby certify that on May 11, 2005, I have mailed by United States Postal Service, the document to the following non-registered participants: Victoria K. Petrone, Esquire Tighe, Cottrell & Logan, PA PO Box 1031 Wilmington, DE 19899 Steven K. Gerber, Esquire Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Bruce W. McCullough, Esquire McCullough & McKenty 1225 N. King Street, Suite 1100 P.O. Box 397 Wilmington, DE 19899-0397 Ron L. Pingitore, Esquire White and Williams, LLP 1800 One Liberty Place Philadelphia, PA 19103-7395 Dana Ostrovsky, Esquire Cohen, Seglias, Pallas, Greenhall & Furman, P.C. 11th Floor, 1515 Market Street Philadelphia, PA 19102 Geoffrey W. Veith, Esquire Hecker Brown Sherry & Johnson LLP 1700 Two Logan Square, 17th Floor 18th and Arch Streets Philadelphia, PA 19103 WETZEL & ASSOCIATES, P.A. /s/ Natalie M. Ippolito_________________ Natalie M. Ippolito (I.D. No. 3845) The Carriage House, Suite 201 1100 N. Grant Avenue Wilmington, DE 19805 (302) 652-1200 [email protected]