Free Answer to Third Party Complaint - District Court of Delaware - Delaware

Case 1:04-cv-00163-GMS

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IN THE UNITED STATES DISTRICT COURT DELAWARE FOR THE DISTRICT OF DELAWARE DONALD M. DURKIN CONTRACTING, INC., Plaintiff, v. CITY OF NEWARK, HAROLD F. GODWIN, JOHN H. FARRELL, IV, JERRY CLIFTON, KARL G. KALBACHER, DAVID J. ATHEY, FRANK J. OSBORN, JR., and CHRISTIANA REWA, Defendants/ Third Party Plaintiffs v. FEDERAL INSURANCE COMPANY, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 04-0163 GMS JURY TRIAL DEMANDED

Third-Party Defendant. --------------------------------------------------------------CITY OF NEWARK, ) ) Third-Party Plaintiff, ) ) v. ) ) URS CORPORATION, ) ) Third-Party Defendant. )

URS CORPORATION'S ANSWER AND COUNTERCLAIM TO THIRD PARTY COMPLAINT OF DEFENDANT CITY OF NEWARK 1. Denied as stated. URS and Newark entered into a series of contracts, some of

which included design services and construction services. 2. Admitted.

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3.

The Complaint filed by Durkin against the City of Newark is a written document,

the terms of which speak for themselves. URS denies that the design of the reservoir contributed in any way to the termination of Durkin's contract with Newark or is the basis for any claims by Durkin. 4. 5. Admitted that Durkin has dismissed URS as a Defendant in its lawsuit. URS denies that it is liable to Newark in any way and denies that its design was

deficient. Further denied that URS is liable to Newark for contribution, or indemnification under any theory. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Newark's Third Party Complaint fails to state a cause of action upon which relief can be granted. SECOND AFFIRMATIVE DEFENSE Newark's Third Party Complaint is barred by the doctrines of waiver and/or estoppel. THIRD AFFIRMATIVE DEFENSE Newark's Third Party Complaint is barred by its own breaches of its contract with Durkin FOURTH AFFIRMATIVE DEFENSE Newark's Third Party Complaint is barred because its own tortious conduct as alleged by Durkin is a superceding, intervening cause of any harm to Durkin. FIFTH AFFIRMATIVE DEFENSE Newark's Third Party Complaint is barred by the doctrines of res judicata, collateral estoppel and/or law of the case.

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SIXTH AFFIRMATIVE DEFENSE Newark's Third Party Complaint is barred by the applicable statutes of limitations, and/or doctrine of laches. SEVENTH AFFIRMATIVE DEFENSE Newark's claims are barred by applicable provisions of the URS contracts with Newark capping the damages recoverable and barring claims for consequential damages.

EIGHTH AFFIRMATIVE DEFENSE Newark's claims are barred by the economic loss doctrine. NINTH AFFIRMATIVE DEFENSE To the extent Newark's claims rest on negligence, Newark's claims are barred by the failure to specify the manner in which URS was negligent. COUNTERCLAIM 1. URS entered into several separate contracts with Newark pursuant to which URS

was to provide design and supervision services to Newark for the design and construction of a reservoir for Newark. 2. URS provided the design and supervision services required by its contracts with

Newark, but Newark has failed and refused to pay URS for its services. 3. its services. 4. As a result of Newark's breach of contract, Newark is indebted to URS in the Newark has breached its contracts with URS by failing and refusing to pay URS for

following amounts for services rendered by URS to Newark: A. $239,156.16 for services performed to design and supervise the construction of the reservoir;

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B. $251,474.39 for litigation support services to assist Newark in its defense of Durkin's claims; C. D. $450.00 for payment to Brandywine Nurseries; and Such other amounts as proved at trial.

WHEREFORE, URS demands judgment against Newark in an amount not less than $490,630.55, together with pre and post judgment interest, the costs of this action, including reasonable attorneys' fees and such other and further relief as the Court deems just.

SEITZ, VAN OGTROP & GREEN, P.A

/s/ James S. Green, Sr. JAMES S. GREEN, SR., ESQ. (DE0481) 222 Delaware Avenue, Suite 1500 P. O. Box 68 Wilmington, DE 19899 (302) 888-0600 Attorneys for Third-Party Defendant URS Corporation

Dated: June 16, 2006

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CERTIFICATE OF SERVICE I, James S. Green, Esquire, hereby certify that on this 16th day of June, 2006, I electronically filed the following document with the Clerk of Court using CM/ECF which will send notification of such filing to counsel of record.

URS CORPORATION'S ANSWER AND COUNTERCLAIM TO THIRD PARTY COMPLAINT OF DEFENDANT CITY OF NEWARK

/s/ James S. Green _________________________________ James S. Green (ID No. 0481) [email protected]

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