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Case 1:05-cv-00495-T-DLM Document 9 Filed 02/16/2006 U.S. DISTRICT COURT THE NETHERLANDS INSURANCE COMPANY Page 1 of 5 DISTRICT OF RHODE ISLAND
C. A. NO.: 05-495T 1 ) 1 v.
ATLANTIC GRILLE, INC., ET AL
1 1 ANSWER TO PLAINTIFF'S COMPLAINT BY DEFENDANT ROBERT SANCHES, AFFIRMATIVE DEFENSES, AND DEMAND FOR A JURY TRIAL AS TO ALL ISSUES Defendant ROBERT SANCHES ("SANCHES"), denying each and every allegation of the plaintiffs complaint unless specifically admitted, answers as follows:
THE PARTIES
As to paragraphs 1 and 2, SANCHES is WITHOUT SUFFICIENT INFORMATION to form a belief as to the truth of the allegations and calls upon plaintiff to prove the same. As to paragraph 3, SANCHES is not required to file a responsive pleading as such allegations are directed to another party. Any such allegations which may relate to Sanches are DENIED. As to paragraph 4, SANCHES NEITHER ADMITS NOR DENIES the allegations, and calls upon the plaintiff to prove the same.
JURISDICTION AND VENUE
As to paragraphs 5 and 6, SANCHES is not required to file a responsive pleading as such allegations seek a conclusion of law. To the extent that an answer is required, SANCHES DENIES the allegations.
FACTS
As to paragraphs 7,9,12,13 and 14, SANCHES NEITHER ADMITS NOR DENIES the allegations, and calls upon the plaintiff to prove the same.
As to paragraphs 8,11 and 15, SANCHES is WITHOUT SUFFICIENT INFORMATION to form a belief as to the truth of the allegations and calls upon plaintiff to prove the same. As to paragraph 9, SANCHES is not required to file a responsive pleading as such allegations are directed to another party. Any such allegations which may relate to SANCHES are DENIED. As to paragraph 16, SANCHES is not required to file a responsive pleading as such allegations seek a conclusion of law. To the extent that an answer is required, SANCHES DENIES the allegations.
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Case 1:05-cv-00495-T-DLM
Document 9
Filed 02/16/2006
Page 2 of 5
COUNT I
As to Count I, SANCHES is not required to file a responsive pleading as such allegations are directed to another party. Any such allegations which may relate to SANCHES are DENIED.
COUNT I1
As to paragraph 20, as the plaintiff has incorporated the allegations contained in the foregoing paragraphs as though each were set forth fully herein at length, the responses thereto are the same as previously set forth.
As to paragraphs 21 and 22, SANCHES DENIES the allegations.
WHEREFORE, SANCHES denies that the plaintiff is entitled to judgment in any amount and W h e r prays this Honorable Court to enter judgment for him plus costs, interest and attorney's fees.
AFFIRMATIVE DEFENSES
By way of affirmative defense, SANCHES says that the plaintiffs Complaint fails to state a claim upon which relief may be granted.
The injuries and/or damages of the plaintiff were caused, if at all, by the act or acts and/or omission or omissions of an independent third party or independent third parties for whose conduct SANCHES is not legally responsible.
Without assuming the burden of proof by doing so, SANCHES asserts that the plaintiff may have been guilty of conduct that caused andlor contributed to the injuries or damages complained of and SANCHES asserts all applicable defenses relating to comparative and contributory negligence.
Without assuming the burden of proof by doing so, SANCHES asserts the affirmative defense of "assumption of the risk" as against the plaintiffs complaint, and as such, the plaintiffs insured assumed the risk of sustaining the alleged injuries complained of in the plaintiffs complaint and under such circumstances, the plaintiff may not recover against SANCHES.
The plaintiffs injuries or damages, if any, were the result of its insured's own negligence or other causes unknown to SANCHES.
In the event that the plaintiff suffered injuries or damages as a result of the incident described in the complaint (which allegations are specifically denied), SANCHES avers that such injuries or damages were not caused directly or indirectly by any act or omission of SANCHES, but such injuries or damages, if any, were caused by the intervening acts or omissions of persons and/or entities other than SANCHES, for which acts or omissions SANCHES is not liable.
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Case 1:05-cv-00495-T-DLM Document 9 Filed 02/16/2006 Page 3 of 5
7. By way of affirmativedefense, SANCHES says that the negligence of the plaintiffs insured was the sole cause of the plaintiffs alleged injury, and therefore the plaintiff is barred from recovery.
8. By way of affirmative defense, SANCHES says that he asserts as an affirmative defense each and every such affirmative defense asserted by any other defendant.
9. By way of affirmative defense, SANCHES states that because discovery is just beginning, he reserves the right to assert additional affirmative defenses.
10. SANCHES reserves such fixther affirmative defenses which may exist, but of which he may not be aware, which may appear hereafter during discovery, trial, or otherwise.
CROSS CLAIM AS TO ATLANTIC GRILLE. INC.
COUNT I
1. The defendadcross claim plaintiff SANCHES says that if he is liable to the plaintiff as alleged in the plaintiffs Complaint, such liability which SANCHES specifically denies, the defendantlcross claim defendant Atlantic Grille, Inc., as a result of its negligence, directly or by an agent, caused plaintiffs Complaint to arise by causing tortious injury by an act or omission.
2. More specifically, cross claim defendant, or some one for whose acts it is liable, or some or all of the foregoing, negligently failed to inspect, maintain and repair the premises as alleged by the plaintiff, and failed to warn plaintiff of the alleged dangerous condition which it knew or in the exercise of reasonable care should have been aware of, causing the accident which is the subject of plaintiffs Complaint.
3. If SANCHES is liable to plaintiff, then cross claim defendant as a result of its negligence is a joint tortfeasor and therefore responsible for an applicable share of any damages awarded to plaintiff.
COUNT I1
1. Paragraphs 1-3 of Count I are incorporated herein and made a part of this Count.
2. At all relevant times, there was between SANCHES and defendantlcross claim defendant Atlantic Grille, Inc., a contract whereby the defendantkross claim defendant was obligated, and remains obligated, to defend, indemnify and hold harmless, and maintain insurance to protect SANCHES from and against any and all loss, cost, damage or expenses arising out of bodily injury or personal injury, such as alleged by plaintiff.
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Case 1:05-cv-00495-T-DLM
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Filed 02/16/2006
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WHEREFORE,SANCHES demands judgment against defendantkross claim defendant for any and all sums for which SANCHES may become liable to plaintiff, including interest and costs, by way of indemnity and/or contribution and/or contract. DEFENDANT SANCHES DEMANDS A JURY TRIAL AS TO ALL ISSUES.
Defendant, ROBERT SANCHES,
Benjamin A. Pusher RI Bar#: 5565 Law Office of Pamela Storm 10 Post Office Square, Suite 1 155 Boston, M A 02 1 09
(617) 556-0200
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Case 1:05-cv-00495-T-DLM Document 9 Filed 02/16/2006 Page 5 of 5 CERTIFICATE OF SERVICE Marco P. Uriati, Esq.
Roberts, Carroll, Feldstein & Peirce Ten Weybosset Street, 8" Floor Providence, RI 02903 Daniel J. Lucaro, Esq.
Cozen O'Connor 1900 Market Street Philadelphia, PA 19103 Ronald P. Langlois, Esq.
Smith & Brink, P.C.
One State Street, Suite 400 Providence, RI 02903 I hereby certify that I caused a true and accurate copy of the foregoing document to be sent via regular mail, postage pre-paid, to the above listed counse!, 4h Dated this day & ,2006.
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