Free Answer to Complaint - District Court of Delaware - Delaware

Case 1:08-cv-00026-GMS

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE EDWARD WISNIEWSKI and MARY WISNIEWSKI, Co-Administrators of the Estate of Eric E. Wisniewski, Deceased, Plaintiffs, v. OCEAN PETROLEUM, L.L.C., and BRUCE PREDEOUX, Defendants. : : : : : : : : : : : :

Case No.: 1:08-cv-00026-GMS Jury Trial Demanded

ANSWER WITH AFFIRMATIVE DEFENSES OF DEFENDANTS OCEAN PETROLEUM, L.L.C., AND BRUCE PREDEOUX Defendants, Ocean Petroleum, L.L.C., and Bruce Predeoux, by and through their attorneys, Kent & McBride, P.C. hereby submit their Answer and Affirmative Defenses to Plaintiffs' Complaint, and aver as follows: 1. Denied. Answering Defendant is without sufficient information or knowledge to

form a belief as to the truth of this paragraph. 2. 3. 4. 5. Admitted. Admitted. Admitted. Denied. Answering Defendant is without sufficient information or knowledge to

form a belief as to the truth of this paragraph. 6. Denied. Answering Defendant is without sufficient information or knowledge to

form a belief as to the truth of this paragraph.

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7.

Denied. Answering Defendant is without sufficient information or knowledge to

form a belief as to the truth of this paragraph. 8. 9. Admitted. Denied in full by Defendants. COUNT I 10. reference. 11. 12. Admitted. Admitted that Defendant Ocean Petroleum was the owner of the vehicle. Denied Defendants' answers to paragraphs 1 through 9 are herein incorporated by

as to the remainder of the allegations contained in this paragraph. 13. 14. 15. (t). COUNT II 16. reference. 17. 18. 19. (t). Admitted. Admitted. Denied in full by Defendants. Denied in full as to each sub-paragraph (a) through Defendants' answers to paragraphs 1 through 15 are herein incorporated by Admitted. Denied in full by Defendants. Denied in full by Defendants. Denied in full as to each sub-paragraph (a) through

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COUNT III 20. reference. 21. 22. No response required. Denied. Answering Defendant is without sufficient information or knowledge to Defendants' answers to paragraphs 1 through 19 are herein incorporated by

form a belief as to the truth of this paragraph. 23. Denied. Answering Defendant is without sufficient information or knowledge to

form a belief as to the truth of this paragraph. 24. Denied. Answering Defendant is without sufficient information or knowledge to

form a belief as to the truth of this paragraph. 25. Denied. Answering Defendant is without sufficient information or knowledge to

form a belief as to the truth of this paragraph. 26. Denied. Answering Defendant is without sufficient information or knowledge to

form a belief as to the truth of this paragraph. COUNT IV 27. reference. 28. 29. 30. (f). Denied in full by Defendants. No response required. Denied in full by Defendants. Denied in full as to each sub-paragraph (a) through Defendants' answers to paragraphs 1 through 26 are herein incorporated by

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FIRST AFFIRMATIVE DEFENSE Plaintiffs claims are barred by the applicable statute of limitations. SECOND AFFIRMATIVE DEFENSE The Complaint fails to state a claim upon which relief can be granted. THIRD AFFIRMATIVE DEFENSE Defendants, at all relevant times hereto, complied with all applicable federal, state, and other regulations. FOURTH AFFIRMATIVE DEFENSE Decedent Eric E. Wisniewski was reckless and/or negligent in that he: a) failed to walk facing towards oncoming traffic while walking along a highway, in violation of 21 Del. C. § 4146(b); b) failed to walk as far as practicable from the edge of the roadway, in violation of 21 Del. C. § 4146(b); c) failed to yield the right-of-way to all vehicles upon the highway, in violation of 21 Del. C. § 4146(d); d) failed to carry a lighted lantern, lighted flashlight or other similar light or reflector type device while walking upon the roadway or shoulder, in violation of 21 Del. C. § 4148(a); e) operated a vehicle on the highway that failed to have the sufficient lamps, as required by 21 Del. C. § 4344(a); f) parked a vehicle on the highway during a time when there was insufficient light to reveal any person or object within a distance of 500 feet upon the highway, and failed to place the required lamps under 21 Del. C. § 4344(a), in violation of 21 Del. C. § 4344(b); g) knowingly operated a vehicle on the highway that was in an unsafe condition as a result of inoperative equipment, in violation of 21 Del. C. § 4355(a); 4

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h)

failed to operate his vehicle with due regard for safety of all persons using the highway, in violation of 21 Del. C. § 4176(b);

i)

operated his vehicle in a careless or imprudent manner without due regard for road, weather and traffic conditions then existing, in violation of 21 Del. C. § 4176 (a)(b);

j)

failed to park his vehicle as far off the highway as possible, in violation of his common law duty to do so;

k)

as other discovery may reveal. FIFTH AFFIRMATIVE DEFENSE

Decedent Eric E. Wisniewski's reckless conduct bars any recovery. SIXTH AFFIRMATIVE DEFENSE The claims asserted by the Plaintiffs were proximately caused by an intervening, superseding cause. SEVENTH AFFIRMATIVE DEFENSE To the extent the negligence of Decedent Eric E. Wisniewski exceeds the negligence, if any, of Defendants, recovery by the Plaintiffs is barred. To the extent the negligence of Decedent Eric E. Wisniewski is not greater than the negligence, if any, of Defendants, any damages sustained by the Plaintiffs must be reduced in proportion to the relative fault, pursuant to 10 Del.C. §8132. EIGHTH AFFIRMATIVE DEFENSE Some or all of the damages claimed by Plaintiffs are not recoverable under applicable law. NINTH AFFIRMATIVE DEFENSE If it is proven that Defendants were negligent, which allegations are hereby expressly 5

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denied, then Plaintiffs' claims are barred, controlled, or limited, by Decedent Eric E. Wisniewski's assumption of the risk. TENTH AFFIRMATIVE DEFENSE This Court lacks jurisdiction over the person of Defendant Bruce Predeoux due to insufficiency of process and insufficiency of service of process. ELEVENTH AFFIRMATIVE DEFENSE Process and service of process are insufficient: statutory and rule requirements have not been met. TWELFTH AFFIRMATIVE DEFENSE Defendants hereby reserve the right to interpose such other defenses as discovery may disclose. WHEREFORE, Defendants demand judgment against the Plaintiffs for costs, attorneys fees, and any other relief the Court deems appropriate.

KENT & McBRIDE, P.C. By: /s/ David C. Malatesta, Jr. David C. Malatesta, Jr., Esquire Delaware I.D. No. 3755 1105 Market Street Suite 500, 5th Floor Wilmington, DE 19801 (302) 777-5477 Attorney for Defendants

Dated: January 25, 2008

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE EDWARD WISNIEWSKI and MARY WISNIEWSKI, Co-Administrators of the Estate of Eric E. Wisniewski, Deceased, Plaintiffs, v. OCEAN PETROLEUM, L.L.C., and BRUCE PREDEOUX, Defendants. : : : : : : : : : : : :

Case No.: 1:08-cv-00026-GMS Jury Trial Demanded

CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that on January 25, 2008, a true and correct copy of Defendants' Answer to Complaint with Affirmative Defenses, was served on all counsel of record, via electronic filing, as well as by U.S. Mail, first-class, postage prepaid.

KENT & McBRIDE, P.C. By: /s/ David C. Malatesta, Jr. David C. Malatesta, Jr., Esquire Delaware I.D. No. 3755 1105 Market Street Suite 500, 5th Floor Wilmington, DE 19801 (302) 777-5477 Attorney for Defendants

Dated: January 25, 2008