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HomeMy WebLinkAbout08-283201-08-34 LAW OFFICE OF STEWART C BY: Leslie Britt, Esquire ATTORNEY I.D. # 86591 CRAWFORD & ASSOCIATES 223 North Monroe Street P.O. Box E Media, PA 19061 Telephone: (610) 565-7050 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW ALLSTATE INSURANCE COMPANY NO. 68 - 483a CiV)I `e, 309 Lakeside Drive, Suite 100 Horsham, PA 19044 v WERNER ENTERPRISES 14507 Frontier Road Omaha, NE 68138 and ELIJAH CHILDRESS 558 Plank Road Farmville, VA 23901 IN CIVIL ACTION NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are Served, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are further warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYEROR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Le ban demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dins de plaza a] partir de la fecha de la demands y la notification. Hace faita asentar una comparencia escrita o en persona o con un abogado y entregar a ]a corte en forma sus defenses o sus objectiones a las demandas en contra de su persona. Ses avisado que si usted no se defiende la corte tomara modidas ypuede continuar ila demands en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandame y requiera que usted cumpia ton todas las provisions de esta demanda. Usted puede perder dinero o sus propiedaces u otros derechos importantes parr usted. USTED DEBE LLEVAR ESTA AVISO A UN ABOGADO ENESEQUIDA. SI USTED NO TIENE UN ABOGADO Y NO PUEDEPAGAR LOS SERVICIOS DF UN ABOGADO, DEBE COMUNICARSE CON LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE OBTENER AYUDA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE PA 17013 1-800-990-9108 717-249-3166 01-08-34 LAW OFFICE OF STEWART C. CRAWFORD & ASSOCIATES BY: Leslie Britt, Esquire ATTORNEY I.D. # 86591 223 North Monroe Street P.O. Box E Media, PA 19061 Telephone: (610) 565-7050 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW ALLSTATE INSURANCE COMPANY NO. o P .Z F 3.4 cti?l 309 Lakeside Drive, Suite 100 Horsham, PA 19044 v IN CIVIL ACTION WERNER ENTERPRISES 14507 Frontier Road Omaha, NE 68138 and ELIJAH CHILDRESS 558 Plank Road Farmville, VA 23901 COMPLAINT 1. Plaintiff is an insurance company licensed and authorized to do business in the Commonwealth of Pennsylvania with one of its principle places of business at the above-captioned address. 2. Defendant, Werner Enterprises, is the owner of a trailer and is authorized to do business in Pennsylvania and was involved in this motor vehicle accident and, at all times pertinent hereto, had as a principle place of business the above-captioned address. 3. Defendant, Elijah Childress, is an adult individual and, at all times pertinent hereto resided at the above-captioned address and was the operator and owner of a cab pulling a trailer for Defendant owner's trailer involved in this motor vehicle accident and did so as an agent, servant, workman or employee of the business and on the behalf of the Defendant owner. 4. On September 10, 2007 a motor vehicle insured by Plaintiff was involved in an incident with Defendants Werner Enterprises and Childress. 5. On the aforesaid date, Plaintiff provided liability insurance, insuring against the risk of loss to Sean Jones, hereinafter referred to as the named insured. 6. On the aforesaid date, the insured vehicle was traveling westbound on Wertzville Road at or near the intersection with Cindy Circle in Enola, Pennsylvania. The Defendant was traveling eastbound on Wertzville Road. The Defendant carelessly attempted to make a left turn into the parking lot at 927 Wertzville Road and caused a collision and damages to the insured vehicle. 7. Defendant driver was negligent and careless and the sole cause of this incident in that Defendant driver: a. failed to back their vehicle in a safe manner or in a manner that avoided interfering with the operation of other vehicles in violation of 75 Pa.C.S. § 3702(a); b. disregarded the hazard created by oncoming traffic and failed to yield the right of way before making a left turn in violation of 75 Pa.C.S. § 3322; c. operated their vehicle in reckless, willful, or wanton disregard for the safety of persons or property in violation of 75 Pa.C.S. § 3736; d. in addition to traditional negligence, defendant is negligent per se for violating the above referenced statutes; e. was otherwise negligent and/or violated local laws and the laws of the Commonwealth of Pennsylvania, including, but not limited to: 75 Pa.C.S. § 3702(a), 3322, and 3736. 8. Plaintiff became liable for damages that arose out of this incident. 9. Due to this incident, expenses were incurred for, damage to the Plaintiff's vehicle, towing and storage. 10. Pursuant to the principles of equity, the statutory and the common law, Plaintiff is subrogated for all money paid and seeks recovery of these sums totaling $11,137.32. COUNTI PLAINTIFF v. ELIJAH CHILDRESS 11. Plaintiff incorporates paragraphs 1 through 10 inclusive as if fully set forth at length herein. 12. Defendant is liable as the negligent driver. WHEREFORE, Plaintiff demands judgment for $11,137.32 plus interest and costs of suit. COUNT II PLAINTIFF v. WERNER ENTERPRISES 13. Plaintiff incorporates paragraphs 1 through 12 inclusive as is fully set forth at length herein. 14. Defendant owner is liable under the Doctrine of Respondeat Superior for the negligence of the Defendant driver. 15. Defendant owner was negligent in entrusting this motor vehicle to someone who Defendant knew or could have known was a dangerous, unlicensed, inexperienced or careless motor vehicle operator. WHEREFORE, Plaintiff demands judgment for $11,137.32 plus interest and costs of suit. Leslie Britt, Esquire 3? Attorney for Plaintiff Date: VERIFICATION The undersigned hereby states that she is an authorized agent of Plaintiff insurance company in this action and verifies that the statements contained in the foregoing Complaint are true and correct. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unworn falsification to authorities. eslie Britt, Esquire Attorney for Plaintiff Date: VEQO?A-30? LA 77, 94 .. N) oo 1 d File No.: 01-08-34 LAW OFFICES OF STEWART C. CRAWFORD BY: Stewart C. Crawford, Esquire ATTORNEY I.D. #09827 223 NORTH MONROE STREET P.O. BOX E MEDIA, PA 19063 TELEPHONE: (610) 565-7050 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW ALLSTATE INSURANCE COMPANY IN CIVIL ACTION VS. WERNER ENTERPIRESES and ELIJAH CHILDRESS NO.: 08-2832 CIVIL TERM PRAECIPE FOR WITHDRAWAL/ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly withdraw my appearance on behalf of the Plaintiff. Leslie Britt, Esquire Kindly enter my appearance on behalf of the PlaintiffALLSTATE INSURANCE COMPANY 141 Stewart C. Crawford, Esquire - /'0'0 Zo DATE: 8 FILE #01-08-34 THE LAW OFFICES OF STEWART C. CRAWFORD & ASSOCIATES BY: Stewart C. Crawford ATTORNEY I.D. #09827 223 NORTH MONROE STREET MEDIA, PA 19063 TELEPHONE: (610) 565-7050 ATTORNEY FOR PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW ALLSTATE INSURANCE COMPANY IN CIVIL ACTION VS. WERNER ENTERPIRESES and ELIJAH CHILDRESS NO.: 08-2832 CIVIL TERM CERTIFICATE OF SERVICE I, Stewart C. Crawford, Esquire, Attorney for Plaintiff, hereby certify that a true and correct copy of Praecipe for WithdrawallEntry of Appearance in the above-entitled action was served upon the following on June 11, 2008, via U.S Prepaid First Class Mail: Werner Enterprises 14507 Frontier Road Omaha, NE 68138 Stewart . Crawford, Esquire Attorney for Plaintiff Date: ?/ ?l O? rrl ' _ ' rn ,w? FILE #01-08-34 LAW OFFICES OF STEWART C. CRAWFORD & ASSOCIATES BY: Stewart C. Crawford, Esquire ATTORNEY I.D. #09827 ATTORNEY FOR PLAINTIFF 223 North Monroe Street Media, PA 19063 Telephone: (610) 565- 7050 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN CIVIL ACTION ALLSTATE INSURANCE COMPANY VS. WERNER ENTERPRISES and ELIJAH CHILDRESS IN CIVIL ACTION NO.: 08-2832 CIVIL TERM CERTIFICATE OF SERVICE I, Stewart C. Crawford, Attorney for Plaintiff, hereby certify that a true and correct copy of the Civil Action Complaint filed in the above-entitled action was served upon defendant Werner Enterprieses at the address set forth below by certified mail, return receipt requested. The return receipt was signed upon delivery on May 22, 2008. A copy of the return receipt card is attached hereto. Werner Enterprises 14507 Frontier Road Omaha, NE 68138 A& J!ffir Ste art C. -Crawford Attorney for Plaintiff DATE: r 1bat?r ?? A? / r? ( j USE U in n r Ln U C3 C3 CI a ra i dF_£ ? r V` RE ,.rn iE -Pt Ft:e I f tn.tod f ?i ery Fee Ei?or;.•re- R;;uesad} F,tai Fos_ar?e&Feces $ 4Ay ?SPS cef i?NVERNERENTERPRISES O t f o •(14507 FRONTIER RD Ci4ATAA, NE 68138-3808 13 a _ • ru I'll a p Ill ,`. I RECEIPT Coverage Ir 2(j Provided) O U1 ((? a f.r?; n 1 '.i,¦iII,1 r?i?.?'ae,. - .? X11 4i?5?v , ±`J,i?asr r?3"afire ` LLn AL USE ca ca Er CD 117 CD .?.??. O Q 0 C3 Postmark e'.nl F E -E, -tae . ..r Heft E3 C3 ? - t Eirsi>men ? r3 Er O 117 r t -C! - Fasts; " & r s ?• 3 l a rl wEF \1+:;>z Er1TI.1<1 RISES 1 o,F;14r50 -' F I:ON T1:}aZ. l r 17 --------- ?'? i)ME?H.?,_ NE r5813:-3808 ¦ Complete items 1, 2, and 3. Also complete. Item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiec: or on the front if space permits. - 1. Article Addressed to: WERNER ENTERPRISES 14507 FRONTIER RD OMAHA NE 68138-3808 A. Signature x ? Agent _ -----.-• ? Addresse 8. Received by (FS nted Name) C. Date of Deliver D. Is delir feYy adc *e ? s different from Item 1? ? Yes If YES, enter c'e I eery address below: ? No 3. Servic-3 Type - 01-Certified Mal ? Express Mail ? Recistereed ? Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Deli,n: l? (Extra Fee) ? Yes 2. Article Number (rransfer from service label _ 7 0 07 ..es,;.-14-10 0000 58:8 5302 PS Form 3811, February 2004 C,omc Return Receipt - sso2 nn tsa ¦ Complete Rom 1, 2, and S. Also complete Rem 4 If Resrrialled Deliery is desired. ¦ Print your neme and address on the reverse so that we can netum the card to you. • Attach this card to the back of the maiipiece, or on the frroqV apace permits. I . Article to: WE"RNER ENTERPRISES 14507 FRONTIER RD AI.AHA NE -68138-3808 A. Signature X ( 12 Agent --? r'l s. PI, I P .' ? I C. Dane of De unary D. Is delivery address different imm Rem 1,)_n Yes If YES, enter delivery address be N 63 ``'`? J p IF 3. Service Type fired Mall ? Registered ? Insured Mail Zb,\,?_.,,/? ? Express y; , ? Ratum Receipt fxcha ? C.O.D. 4. Restricted Delivery? _ Pft Fee) ? Yes 2. Article Number (rmnsferfmm/arvkobbq 7007 1490 0000 5898 5302 '3 Form 3811, February 2004 Domestic Retum Receipt d2gs5 p2.pt tyw C? cz, 17z H1 s" ` ` _ r ? rn e _ v 41L r RAWLE & HENDERSON LLP By: Gary N. Stewart Identification No.: 67353 By: Andrew D. Zeiter Identification No.: 93601 Payne Shoemaker Building 240 North Third Street, 9t' Floor Attorneys for Defendants, Harrisburg, Pennsylvania 17101, Werner Enterprises, Inc. (717) 234-7700 ALLSTATE INSURANCE COMPANY COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff, : CIVIL DIVISION V. NO.: 08-2832 CIVIL TERM WERNER ENTERPRISES and ELIJAH CHILDRESS, Defendants. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance on behalf of defendant, Werner Enterprises, Inc., in the above-referenced matter. Date: 7 f f () / v RAWLE & HENDERSON LLP By: N. Stewart, Esquir Andrew D. Zeiter, E Attorneys for Defendant, Werner Enterprises, Inc. 2430833-1 1. 41+ or CERTIFICATE OF SERVICE I hereby certify that on today's date, a true and correct copy of the foregoing answer to plaintiff's complaint with new matter was served by first-class mail, postage prepaid, upon all attorneys of record, addressed as follows: Leslie Britt, Esquire Law Office of Stewart C. Crawford & Associates 223 North Monroe Street P.O. Box E Media, PA 19061 Counsel for Plaintiff RAWLE & HENDERSON LLP ? A By: Gary N. Stewart, Esqui Andrew D. Zeiter, Esqu' e Attorneys for Defendan s, Werner Enterprises, Inc. Dated: 7//0/02( 2430833-1 n N A.) ??17 RAWLE & HENDERSON LLr By: Gary N. Stewart Identification No.: 67353 By: Andrew D. Zeiter Identification No.: 93601 Payne Shoemaker Building 240 North Third Street, 9th Floor Harrisburg, Pennsylvania 17101 (717) 234-7700 To Plaintiff: You are hereby notified to plead to the enclosed ANSWER WITH NEW MATTER, within twenty (20) days from the date of service hereof or default judgment will be entered against you. RAWLE & HENDERSON LLP d few D. Zeiter Attorney for Defendant Attorneys for Defendants, Werner Enterprises, Inc. ALLSTATE INSURANCE COMPANY Plaintiff, V. WERNER ENTERPRISES and ELIJAH CHILDRESS, Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL DIVISION NO.: 08-2832 CIVIL TERM DEFENDANT, WERNER ENTERPRISES, INC.'S, ANSWER TO COMPLAINT WITH NEW MATTER Defendant, Werner Enterprises, Inc., by and through its attorneys, RAWLE & HENDERSON LLP, hereby answers plaintiff's complaint and in support thereof avers as follows: 1. Admitted in part, denied in part. It is admitted only that plaintiff is an insurance company. Defendant has insufficient information or knowledge upon which to form a belief as to the truth of the remaining averments contained in paragraph 1 and, therefore, they are denied. 2. Admitted in part, denied in part. It is admitted only that Werner was the owner or lessee of the trailer involved in the accident. The remaining averments are denied as stated. 3. Upon information and belief, Defendant Childress has not yet been served with 2430833-1 Plaintiff's Complaint. If and when proper service of process is effected upon Defendant Childress, a more responsive pleading will be filed. By way of further response, Defendant has insufficient information or knowledge upon which to form a belief as to the truth of the remaining averments contained in paragraph 3 and, therefore, they are denied. By way of further response, it is admitted that Werner was the owner or lessee of the trailer involved in the accident and that the driver was operating the tractor-trailer while performing duties as an employee or agent of Werner Enterprises, Inc. with instructions to operate the tractor-trailer while using reasonable and due care and in compliance with all other applicable laws. 4. Admitted in part, denied in part. It is admitted only that on September 10, 2007, Defendant Werner Enterprises, Inc. was involved in an incident with plaintiff. By way of further response, Defendant has insufficient information or knowledge upon which to form a belief as to the truth of the remaining averments contained in paragraph 4 and, therefore, they are denied. 5. Denied. Defendant has insufficient information or knowledge upon which to form a belief as to the truth of the remaining averments contained in paragraph 5 and, therefore, they are denied. 6. Denied. Defendant has insufficient information or knowledge upon which to form a belief as to the truth of the remaining averments contained in paragraph 6 and, therefore, they are denied. By way of further answer, paragraph 6 contains conclusions of law to which no responsive pleading is required and to the extent they are deemed otherwise, they are denied and strict proof thereof is demanded at time of trial. 7. (a-e). Denied. Upon information and belief, Defendant Childress has not been served with the Plaintiff's Complaint. If and when proper service of process is effected upon Defendant Childress, a more responsive pleading will be filed. By way of further answer, defendant has insufficient information or knowledge upon which to form a belief as to the truth 2430833-1 of the remaining averments contained in paragraph 7 and, therefore, they are denied. By way of further response, paragraph 7 and its subparts of Plaintiff's Complaint contain conclusions of law to which no responsive pleading is required and to the extent they are deemed otherwise, they are denied and strict proof thereof is demanded at the time of trial. 8. Denied. Paragraph 8 contains conclusions of law to which no responsive pleading is required and to the extent they are deemed otherwise, they are denied and strict proof thereof is demanded at time of trial. 9. Denied. Defendant has insufficient information or knowledge upon which to form a belief as to the truth of the remaining averments contained in paragraph 9 and, therefore, they are denied. 10. Denied. Defendant has insufficient information or knowledge upon which to form a belief as to the truth of the averments contained in paragraph 10 and, therefore, they are denied. By way of further answer, paragraph 10 contains conclusions of law to which no responsive pleading is required and to the extent they are deemed otherwise, they are denied and strict proof thereof is demanded at the time of trial. COUNTI Plaintiff v. EWA Childress 11. Defendant incorporates its responses to paragraphs 1 through 10 as though fully set forth at length herein. 12. Denied. Upon information and belief, Defendant Childress has not been served with the Plaintiffs Complaint. If and when proper service of process is effected upon Defendant Childress, a more responsive pleading will be filed. By way of further response, defendant has insufficient information or knowledge upon which to form a belief as to the truth of the averments contained in paragraph 12 and, therefore, they are denied. By way of further answer, 2430833-1 paragraph 12 contains conclusions of law to which no responsive pleading is required and to the extent they are deemed otherwise, they are denied and strict proof thereof is demanded at time of trial. WHEREFORE, answering defendant, Werner Enterprises, Inc. respectfully requests that this Honorable Court dismiss plaintiff's complaint with prejudice, deny the relief requested therein, grant judgment in favor of defendant and against the plaintiff, and grant such other and further relief as this Honorable Court deems just and proper. COUNT II Plaintiff v. Werner Enterprises 13. Defendant incorporates its responses paragraphs 1 through 12 as though fully set forth at length herein. 14. Denied. Defendant has insufficient information or knowledge upon which to form a belief as to the truth of the averments contained in paragraph 14 and, therefore, they are denied. By way of further answer, paragraph 14 contains conclusions of law to which no responsive pleading is required and to the extent they are deemed otherwise, they are denied and strict proof thereof is demanded at time of trial. 15. Denied. Defendant has insufficient information or knowledge upon which to form a belief as to the truth of the averments contained in paragraph 15 and, therefore, they are denied. By way of further answer, paragraph 15 contains conclusions of law to which no responsive pleading is required and to the extent they are deemed otherwise, they are denied and strict proof thereof is demanded at the time of trial. WHEREFORE, answering defendant, Werner Enterprises, Inc. respectfully requests that this Honorable Court dismiss plaintiff's complaint with prejudice, deny the relief requested 2430833-1 therein, grant judgment in favor of defendant and against the plaintiff, and grant such other and further relief as this Honorable Court deems just and proper. NEW MATTER 16. Plaintiff's complaint fails to state a claim upon which relief can be granted. 17. Answering defendant avers that by the actions of plaintiff, through its subrogor, at the date, time, and place stated in plaintiffs complaint, plaintiff did assume the risk of all injuries and/or damages which it alleged to have suffered. 18. These claims are barred by the applicable statute of limitations. 19. The service of process upon answering defendant was improper or insufficient. 20. Alleged causes of action contained in plaintiff's complaint are barred by the applicable doctrines of estoppel and laches. 21. Plaintiffs claims are barred or limited by its subrogor's violations of the rules, regulations, and statutes of the Commonwealth of Pennsylvania and of all local authorities relevant hereto governing the operation and parking of motor vehicles on the streets and highways. Plaintiff, through its subrogor, failed to comply with applicable state laws, including, but not limited to, the motor vehicle code. 22. It is averred that if plaintiff suffered any injuries and/or damages as alleged in plaintiff's complaint, any injuries and/or damages were caused solely and primarily by plaintiff, through its subrogor's, own carelessness, recklessness, or negligence. 23. Answering defendant claims all defenses available to it under the provisions of the Pennsylvania Motor Vehicle and Financial Responsibility Act set forth in 75 Pa.C.S.A. § 1701 et. seq. 2430833-1 24. Answering defendant believes and therefore avers that plaintiff, through its subrogor, failed to exercise reasonable care under the circumstances, and therefore recovery, if any, should be eliminated or reduced pursuant to the Pennsylvania Comparative Negligence Act. 25. No omissions or conduct on the part of answering defendant contributed to plaintiff s alleged damages, if any. 26. Any property damage suffered by plaintiff was as a result of the acts of independent, intervening agencies over which answering defendant had no power of control. 27. Plaintiff failed to mitigate its alleged damages. 28. The damages complained of by plaintiff preexisted, or are unrelated to the accident which is the subject matter of this complaint. 29. Plaintiff's alleged damages, if any, were proximately caused, in whole or in part, by the fault of third parties for whom answering defendant is not legally responsible. 30. Answering defendant performed each and every duty which was owed to any party in this litigation. 31. Answering defendant acted at all times with due and proper care and in a non- negligent fashion. 32. Any act and/or omission of answering defendant's agents, servants, workman and/or employees alleged to constitute negligence, said acts being specifically denied, were not the substantial causes or factors of the subject incident and/or did not result in any property damage alleged by plaintiff, said property damage being denied. 33. Any negligence and/or careless and/or reckless acts and/or omissions of other individuals and/or entities, constitutes intervening, superseding causes of the damages alleged to have been sustained by plaintiff, said damages being denied. 2430833-1 34. The incident and/or damages alleged to have been sustained by plaintiff, said damages being specifically denied, were not proximately caused by the answering defendant. 35. The answering defendant at all times acted in a reasonable, prudent, and otherwise non-negligent manner, with due and proper care under the circumstances, and in good faith. 36. Plaintiff did not suffer any damages as alleged. 37. Venue is improper/inconvenient. WHEREFORE, defendant, Werner Enterprises, Inc., demands judgment in its favor and against the plaintiff, dismissing plaintiff's complaint together with an award of costs and disbursements incurred by defendant, including attorneys' fees, together with such other relief in favor of defendant as this Honorable Court shall deem appropriate under the circumstances. RAWLE & HENDERSON LLP Date: 7115106 By: Gary N. Stewart, Es Andrew D. Zeiter, disqdire Attorneys for Defendants, Werner Enterprises, Inc. 2430833-1 CERTIFICATE OF SERVICE I hereby certify that on today's date, a true and correct copy of the foregoing answer to plaintiff's complaint with new matter was served by first-class mail, postage prepaid, upon all attorneys of record, addressed as follows: Leslie Britt, Esquire Law Office of Stewart C. Crawford & Associates 223 North Monroe Street P.O. Box E Media, PA 19061 Counsel for Plaintiff RAWLE & HENDERSON LLP By: Gary N. Stewart, Esgw Andrew D. Zeiter, Es Attorneys for Defendants, Werner Enterprises, Inc. Dated: 7/1.5/ V 2430833-1 VERIFICATION ANDREW D. MITER, ESQUIRE, hereby states that he is a member of the law firm of Rawle & Henderson LLP, attorneys for defendant, Werner Enterprises, Inc., that he is authorized to take this verification on behalf of said defendant. The undersigned verifies that he has read the within answer with new matter and that the same is true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements set forth in said pleading are made subject to the penalties of 18 Pa. Cons. Stat. Ann. §4904 relating to unworn falsification to authorities. DATED7//5>lo9 W D. ZEITER, h9DTOPRE 2430833-1 n ? O -zr ? ? r;w ?- ,, - C... ? --t ? te r " -_ '?7 rn ? (_?!j' c" > ...tr. ? ? 4 .3 L C... ?.. . .c.. (.? t`t"S ?' ? ?7 '? File #01-08-34 LAW OFFICES OF STEWART C. CRAWFORD BY: Stewart C. Crawford, Esquire ATTORNEY I.D. # 09827 223 North Monroe Street P.O. Box E Media, PA 19063 Telephone: (610) 565-7050 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW ALLSTATE INSURANCE COMPANY VS. WERNER ENTERPRISES and ELIJAH CHILDRESS IN CIVIL LAW NO.: 08-2832-CIVIL TERM PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate this complaint an additional thirty (30) days. Dated: /V /0 OV /Z el Stewart C. Crawford, ESQUIRE Attorney for Plaintiff 01-08-34 [? LAW OFFICE OF ST, W . & ORD & ASSOCIATES BY: Leslie Britt, Esquire ATTORNEY I.D. # 86591 223 North Monroe Street P.O. Box E Media, PA 19061 Telephone: (610) 565-7050 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW ALLSTATE INSURANCE COMPANY NO. d8 - a832 0,io ter', 309 Lakeside Drive, Suite 100 Horsham, PA 19044 v r? n - c-J IN CIVIL ACTION _ly WERNER ENTERPRISES 14507 Frontier Road Omaha, NE 68138 > r; and `'; ELIJAH CHILDRESS 558 Plank Road Farmville, VA 23901 NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by an attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are further warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYEROR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Le ban demandano a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene veinte (20) dias de plaza al partir de la fecha de la demanda y la notificacion. Hace faita asentar una comparencia escrita o en persona o con un abogado y entregar a la corte en forma sus defensas o sus objections a las demandas en contra de su persona. Ses avisado que si usted no se defiende la corte tomara modidas ypuede continuar ila demanda en contra suya sin previo aviso o notificacion. Ademas, la corte puede decidir a favor del demandante y requiera que usted cumpia con todas las provisions de esta demands. Usted puede perder dinero o sus propiedaces u otros derechos importantes para usted. USTED DEBE LLEVAR ESTA AVISO A UN ABOGADO ENESEQUIDA. SI USTED NO TIENE UN ABOGADO Y NO PUEDEPAGAR LOS SERVICIOS DE UN ABOGADO, DEBE COMUNICARSE CON LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE OBTENER AYUDA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE PA 17013 1-800-990-9108 717-249-3166 01-08-34 -- ?/ R' & ASSOCIATES LAW OFFICE OF STEW TrZ1. BY: Leslie Britt, Esquire ATTORNEY I.D. # 86591 223 North Monroe Street P.O. Box E Media, PA 19061 Telephone: (610) 565-7050 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW ALLSTATE INSURANCE COMPANY NO. 309 Lakeside Drive, Suite 100 Horsham, PA 19044 v IN CIVIL ACTION WERNER ENTERPRISES 14507 Frontier Road Omaha, NE 68138 and ELIJAH CHILDRESS 558 Plank Road Farmville, VA 23901 COMPLAINT 1. Plaintiff is an insurance company licensed and authorized to do business in the Commonwealth of Pennsylvania with one of its principle places of business at the above-captioned address. 2. Defendant, Werner Enterprises, is the owner of a trailer and is authorized to do business in Pennsylvania and was involved in this motor vehicle accident and, at all times pertinent hereto, had as a principle place of business the above-captioned address. I Defendant, Elijah Childress, is an adult individual and, at all times pertinent hereto resided at the above-captioned address and was the operator and owner of a cab pulling a trailer for Defendant owner's trailer involved in this motor vehicle accident and did so as an agent, servant, workman or employee of the business and on the behalf of the Defendant owner. 4. On September 10, 2007 a motor vehicle insured by Plaintiff was involved in an incident with Defendants Werner Enterprises and Childress. 5. On the aforesaid date, Plaintiff provided liability insurance, insuring against the risk of loss to Sean Jones, hereinafter referred to as the named insured. 6. On the aforesaid date, the insured vehicle was traveling westbound on Wertzville Road at or near the intersection with Cindy Circle in Enola, Pennsylvania. The Defendant was traveling eastbound on Wertzville Road. The Defendant carelessly attempted to make a left turn into the parking lot at 927 Wertzville Road and caused a collision and damages to the insured vehicle. 7. Defendant driver was negligent and careless and the sole cause of this incident in that Defendant driver: a. failed to back their vehicle in a safe manner or in a manner that avoided interfering with the operation of other vehicles in violation of 75 Pa.C.S. § 3702(a); b. disregarded the hazard created by oncoming traffic and failed to yield the right of way before making a left turn in violation of 75 Pa.C.S. § 3322; c. operated their vehicle in reckless, willful, or wanton disregard for the safety of persons or property in violation of 75 Pa.C.S. § 3736; d. in addition to traditional negligence, defendant is negligent per se for violating the above referenced statutes; e. was otherwise negligent and/or violated local laws and the laws of the Commonwealth of Pennsylvania, including, but not limited to: 75 Pa.C.S. § 3702(a), 3322, and 3736. 8. Plaintiff became liable for damages that arose out of this incident. 9. Due to this incident, expenses were incurred for, damage to the Plaintiff's vehicle, towing and storage. 10. Pursuant to the principles of equity, the statutory and the common law, Plaintiff is subrogated for all money paid and seeks recovery of these sums totaling $11,137.32. COUNTI PLAINTIFF v. ELIJAH CHILDRESS 11. Plaintiff incorporates paragraphs 1 through 10 inclusive as if fully set forth at length herein. 12. Defendant is liable as the negligent driver. WHEREFORE, Plaintiff demands judgment for $11,137.32 plus interest and costs of suit. COUNT II PLAINTIFF v. WERNER ENTERPRISES 13. Plaintiff incorporates paragraphs 1 through 12 inclusive as is fully set forth at length herein. 14. Defendant owner is liable under the Doctrine of Respondeat Superior for the negligence of the Defendant driver. 15. Defendant owner was negligent in entrusting this motor vehicle to someone who Defendant knew or could have known was a dangerous, unlicensed, inexperienced or careless motor vehicle operator. WHEREFORE, Plaintiff demands judgment for $11,137.32 plus interest and costs of suit. Leslie Britt, Esquire u Date: J?? Attorney for Plaintiff VERIFICATION The undersigned hereby states that she is an authorized agent of Plaintiff insurance company in this action and verifies that the statements contained in the foregoing Complaint are true and correct. The undersigned understands that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. eslie Britt, Esquire Attorney for Plaintiff q )a?CS U c Date: 0 N t'-? co Q1 ` FILE #01-08-34 LAW OFFICES OF STEWART C. CRAWFORD &. ASSOCIATES BY: Stewart C. Crawford, Esquire ATTORNEY I.D. #09827 ATTORNEY FOR PLAINTIFF 223 North Monroe Street Media, PA 19063 Telephone: (610) 565- 7050 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN CIVIL ACTION ALLSTATE INSURANCE COMPANY IN CIVIL ACTION NO.: 08-2832-CIVIL TERM vs. WERNER ENTERPRISES and ELIJAH CHILDRESS CERTIFICATE OF SERVICE I, Stewart C. Crawford, Attorney for Plaintiff, hereby certify that a true and correct copy of the Civil Action Complaint filed in the above-entitled action was served upon defendant Elijah Childress at the address set forth below by certified mail, return receipt requested. The return receipt was signed upon delivery on September 2, 2008. A copy of the return receipt card is attached hereto. Elijah Childress c/o Werner Enterprises 14507 Frontier Road Omaha, NE 68183-3808 Stewart C. Crawford Attorney for Plaintiff ow,E 9/n/oP USPS - Track & Confirm Page 1 of 1 N MIF)WO am Home l ift Trek & Confirm Search Results Label/Receipt Number: 7006 0810 0003 3994 9867 . Status: Delivered Tack & CoW Your item was delivered at 12:08 PM on September 2, 2008 in OMAHA, Enter Label/Receipt Number. NE 68137. Ad f Cttttaft> i A to MUM How > r Nofificiffi{on 10 ons Track & Confine by email Get current event information or updates for your item sent to you or others by email. Site Mao Contact Us Forms Gov't Services kin Privacy Policy Terms of Use National & Premier Accounts E Copyright©1999-2007 LISPS. All Rights Reserved. No FEAR Act EEO Data FOIA R I M , ; f http://trkenfrml .smi.usps.com/PTSIntemetWeb/InterLabelInquiry.do 9/17/2008 lo.?---puovuop"w sane U00:1 sd T90 TqpD?. Z9Qb _?, .„ T VOOZ '? ? ?z ngg4 9867 :Mole as ? , uo ?rr-^^---?- A o00 i yoy? • p N O?`3?N crm??W 0- C ale 0003 3994 9867 7QQ6 pQp3 3994 9861 7QOb Cale oq g?y, p S O fl row ??.tTs w ? N 0 N ? N 0 m 0 .d r ? + r Z',a r1 i N f? 23 ? ;. r) RAWLE & HENDERSON LLP By: Gary N. Stewart Identification No.: 67353 By: Andrew D. Zeiter Identification No.: 93601 Payne Shoemaker Building 240 North Third Street, 9`h Floor Harrisburg, Pennsylvania 17101 (717) 234-7700 Attorneys for Defendants, Werner Enterprises, Inc. ALLSTATE INSURANCE COMPANY COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA Plaintiff, V. CIVIL DIVISION NO.: 08-2832 CIVIL TERM WERNER ENTERPRISES and ELIJAH CHILDRESS, Defendants. PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Andrew D. Zeiter, counsel for the defendant, Werner Enterprises, Inc., in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the plaintiff in the action is $11,137.32. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: None. WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. rew D. Zeiter, Es , RAWLE & HENDER , LLP 240 North Third Street, Ninth Floor Harrisburg, PA 17101 (717) 234-7700 ORDER OF COURT 2618421-1 C k t? ?c Vi cl n-, J r v a ? . r . J-A Tz .' r RAWLE & HENDERSON LLP By: Gary N. Stewart Identification No.: 67353 By: Andrew D. Zeiter Identification No.: 93601 Payne Shoemaker Building 240 North Third Street, 9t' Floor Harrisburg, Pennsylvania 17101 (717) 234-7700 Attorneys for Defendants, Werner Enterprises, Inc. ALLSTATE INSURANCE COMPANY Plaintiff, V. WERNER ENTERPRISES and ELIJAH CHILDRESS, Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL DIVISION NO.: 08-2832 CIVIL TERM PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: Andrew D. Zeiter, counsel for the defendant, Werner Enterprises, Inc., in the above action, respectfully represents that: 1. The above-captioned action is at issue. 2. The claim of the plaintiff in the action is $11,137.32. The following attorneys are interested in the case as counsel or are otherwise disqualified to sit as arbitrators: None. WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the case shall be submitted. _A&d"ew D. Zeiter, Es RAWLE & HENDER , LLP 240 North Third Street, Ninth Floor Harrisburg, PA 17101 (717) 234-7700 ORDER OF COURT 2618421-1 C: rv C= Ca f .. ---t rrt F - I T "[7 NJ 8 ,?'vN ORDER OF COURT AND NOW, this of 2008, in consideration of the foregoing petition, W Ala4n A. 4my*sq,, Esq., and Esq., are appointed arbitrators in ie above-captioned action as prayed for. Note: See Pa.R.C.P. 1312 for form of oath, award, and notice of entry of award. Adopted May 15, 1981, effective May 15, 1981. 2618421-1 ko tti Q "' U Q !,O 40 RAWLE & HENDERSON LLP By: Gary N. Stewart Identification No.: 67353 By: Andrew D. Zeiter Identification No.: 93601 Payne Shoemaker Bldg, 9th Floor 240 North Third Street Harrisburg, Pennsylvania 17101 (717) 234-7700 Attorneys for Defendant, Werner Enterprises, Inc. ALLSTATE INSURANCE COMPANY Plaintiff, V. WERNER ENTERPRISES and ELIJAH CHILDRESS, Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 08-2832 CIVIL TERM DEFENDANT, WERNER ENTERPRISES, INC.'S, OBJECTION TO PLAINTIFF'S NOTICE OF DEFAULT JUDGMENT OR IN THE ALTERNATIVE. MOTION TO STRIKE PLAINTIFF'S PRAECIPE_ FOR DEFAULT JUDGMENT/ASSESSMENT OF DAMAGES AND NOW, comes the Defendant, Werner Enterprises, Inc., by and through its attorneys, RAWLE & HENDERSON LLP, and in support thereof avers as follows: 1. This case arises from a motor vehicle accident which occurred on Route 934 in Cumberland County, Pennsylvania on or about September 10, 2007. 2. On that date, the plaintiff's insured, Sean Jones, was operating a 2004 Saturn Ion when it struck a tractor-trailer owned by defendant Werner Enterprises, Inc. (hereinafter "Werner") and operated by defendant Elijah Childress. 3. As a result of the accident, the vehicle being operated by Mr. Jones was declared a total loss and pursuant to a policy of insurance issued to Mr. Jones, plaintiff Allstate Insurance Company made a payout to Mr. Jones in the amount of $11,137.32. On or about May 2, 2008, 2694285-1 plaintiff filed a complaint against defendants to recover in subrogation for the amount paid to its insured. 4. Werner was served with original process at its headquarters in Omaha, NE. 5. Accordingly, an answer with new matter was filed on behalf of Werner in the Court of Common Pleas of Cumberland County, Pennsylvania on July 16, 2008. 6. The plaintiff has attempted several times to serve original process upon defendant Elijah Childress via certified mail by sending it to the headquarters of Werner. 7. Mr. Childress' last known address is 558 Plank Road, Farmville, Virginia 23901. 8. Defense counsel for Werner advised opposing counsel that representation of defendant Childress was forthcoming upon receipt of proof of proper service of process. 9. However, plaintiff then served Werner and defense counsel with a notice of default judgment under Pa.R.C.P. 1037(b)(2), related to repairman's affidavit. A true and correct copy of the notice and proposed praecipe to enter default judgment is attached hereto as Exhibit «A„ 10. Under Pa.R.C.P. 404, original process shall be served outside the Commonwealth of Pennsylvania within 90 days of the issuance of the writ or the filing of the complaint or the reissuance or the restatement thereof by mail in the manner provided by Rule 403. 11. Under Pa.R.C.P. 403, if a rule of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of mail requiring a receipt signed by the defendant or his authorized agent. Service is complete upon delivery of the mail. 12. In this case, a copy of the process was sent via certified mail to Mr. Childress at the headquarters of Werner in Nebraska. 2694285-1 13. The plaintiff has no proof of a signed receipt by Mr. Childress showing receipt of the complaint. 14. Werner was not the authorized agent of Mr. Childress because in an employment relationship, the employer is the principal and the employee is the agent, and not the reverse.' Further, Mr. Childress was no longer employed by Werner at the time process was sought to be served and opposing counsel was verbally advised of this fact by the undersigned. 15. As such, attempting to enter default judgment against Mr. Childress without proper proof of service of process is inappropriate. 16. Assuming arguendo that service upon Mr. Childress was proper, the plaintiff has failed to comply with the requirements of Rule 1037(b)(2) regarding the affidavit of repairman concerning the costs of repairs made to the plaintiff's insured vehicle. 17. Rule 1037(b)(2) requires that the affidavit accompanying the praecipe for entry of default judgment be made by the person making the repairs. 18. However, the plaintiff's affidavit is made by opposing counsel and not the person making the repairs. See Exhibit "A". 19. As such, the plaintiff's praecipe to enter default judgment should be stricken. 20. Defense counsel hereby certifies that concurrence to this motion was sought from plaintiff's counsel but no response was received. 1 See Scheibler v. Americo Financial Life and Annuity Ins Co., 2006 Pa. Dist. & Cnty. Dec. LEXIS 227 (2006). 2694285-1 WHEREFORE, defendant, Werner Enterprises, Inc., respectfully requests that this Honorable Court sustain its objection to plaintiffs notice of default judgment or in the alternative, strike plaintiff's praecipe to enter default judgment against defendant Elijah Childress. Dated:/,?-// //64 RAWLE & HENDERSON LLP By: N. Stewart, Es Andrew D. Zeiter, quir Attorneys for Defen ant, Werner Enterprises, Inc. Our File No. 250227 2694285-1 EXHIBIT "A" THE LAW OFFICES OF STEWART C. CRAWFORD & ASSOCIATES 223 NORTH MONROE STREET P.O. BOX E MEDIA. PA 19063 Tel: (610) 365-7050 Fav (610) 565.5348 Toll Free: (877) 992-6311 www.subrolaw.us Stewart C. Crawford, Esquire Direct E•-Mail: stwfor fii-subrolaw.us Direct Phone: 610-565-7050. Est. 14 November 24, 2008 VIA CERTIFIED MAIL ELIJAH CHILDRESS c/o Werner Enterprises 14507 FRONTIER ROAD OMAHA, NE 68183-3808 Re: Allstate Insurance Company v. Werner Enterprises & Elijah Childress C.C.P. - Cumberland County - No.: 08-2832-Civil Term Our rile: 01-08-34 Dear Sir or Madam: Please be advised that I represent Allstate Insurance Company concerning property damage to their insured's vehicle that occurred on September 10, 2007. I enclose herewith a copy of the Affidavit of Repairman, together with the appraisal indicating that the cost to repair the insured's property totals $11,137.32. I intend on filing a Praecipe for Assessment of Damages under Pennsylvania Rules of Civil Procedure No. 1037 and have the Prothonotary assess damages in that amount on December 5, 2008, unless prior to that date, by written Praecipe, you file with the Prothonotary a request for trial on the issue of damages. Very truly yours, Stewart C. Crawford SCC/cp Enclosures Cc: Gary N. Stewart File 901-08-34 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW ALLSTATE INSURANCE COMPANY NO. 08-2832-CIVIL TERM V. WERNER ENTERPRISES ELIJAH CHiLDRESS IN CIVIL ACTION AFFIDAVIT OF VALUE OF REPAIRMAN Under PRCP # 1037 (b) (2) (ii) THE REPAIRMAN'S AFFIDAVIT Stewart C. Crawford, duly being sworn according to law, deposes and says that he/she is a representative for Allstate Insurance Comgany and has for many years, reviewed appraisals and estimates and damage documents on property and that the repairs itemized on the attached estimate were necessary to restore the property of the owner to the condition which existed immediately preceding the damage and that the prices set forth on the estimate for parts and labor were fair and reasonable and customarily charged at the time the attached repair estimate was prepared; or that the property was a total loss and the attached sheets correctly state the value of the property at the time of loss, less any salvage value. That the attached repair estimate was prepared by a qualified and licensed estimator or field claim representative. Sworn to & subscribed Before me this I ray Of fVc 0i., [; p .2008. NOTARY CC1'4MDry? WE1i OFPENNSVLVANIA HOLLY RAEOTAYLOR, SEAL I Notary Public s. Coun j My COty Of Expves Janluary 72,12 010 CERTIFICATE OF SERVICE I hereby certify that on today's date I served a true and correct copy of the foregoing document, by first-class mail, postage prepaid, upon the attorney of record, addressed as follows: Leslie Britt, Esquire Law Office of Stewart C. Crawford & Associates 223 North Monroe Street P.O. Box E Media, PA 19061 Counsel for Plaintiff Dated: lal r1 /og RAWLE & HENDERSON LLP By: ary N. Stewart, Esquire 4 Andrew D. Zeiter, Esqu' Attorney for Defendant, Allstate Insurance Company Our File No. 250227 2694285-1 tom? , :a ??? ?rt? .ice, _.4 ,i ?,?,? ? 1 Y? ,+.. ? ?•Y 4 ..f "-? _ f /" r? ..... ?.. 01-08-34 LAW OFFICE OF STEWART C. CRAWFORD & ASSOCIATES BY: Stewart C. Crawford, Sr., Esquire ATTORNEY I.D. # 09827 223 North Monroe Street Media, PA 19061 Telephone: (610) 565-7050 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW ALLSTATE INSURANCE COMPANY NO.: 08-2832-Civil Term 309 Lakeside Drive, Suite 100 Horsham, PA 19044 v IN CIVIL ACTION WERNER ENTERPRISES and ELIJAH CHILDRESS ORDER TO SETTLE DISCONTINUEAND END TO THE PROTHONOTARY: Please mark the record in the above-captioned matter as "Settled, Discontinued and Ended' upon payment of costs. DATE: C 1-1 Stewart C. Crawford, Sr., Esqui Attorney for Plaintiff b - t D , - , , 9y 17