Vous êtes sur la page 1sur 6

Case 3:09-cv-00650-HTW-LRA Document 13 Filed 04/01/10 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

NATIONWIDE MUTUAL INSURANCE COMPANY PLAINTIFF

VS NO. 3:09CV650-HTW-LRA

SUSAN T. RIDGWAY AND HENRY G. FOX,


BETTY RUTH FOX, INDIVIDUALLY AND AS
CONSERVATOR OF HENRY G. FOX DEFENDANTS

______________________________________________________________________________

ANSWER AND AFFIRMATIVE DEFENSES OF HENRY G. FOX,


BETTY RUTH FOX, INDIVIDUALLY AND AS CONSERVATOR OF
HENRY G. FOX TO THE SECOND AMENDED COMPLAINT
FOR DECLARATORY JUDGMENT
______________________________________________________________________________

(JURY TRIAL DEMANDED)

COME NOW, Defendants Henry G. Fox and Betty Ruth Fox, Individually and as

Conservator of Henry G. Fox (“Fox Defendants”), by and through counsel and file this their

Answer and Affirmative Defenses to the Second Amended Complaint for Declaratory Judgment

as follows:

I. AFFIRMATIVE DEFENSE

The Second Amended Complaint for Declaratory Judgment fails to state a claim against

these Defendants upon which relief can be granted.

II. SECOND AFFIRMATIVE DEFENSE

Attached hereto as Exhibit “A” is a Complaint (“Fox Complaint”) which has been filed

against Susan T. Ridgway and others. Looking to the allegations in the underlying Fox

Complaint, the claims are clearly within the scope of coverage provided in the policy at issue.
Case 3:09-cv-00650-HTW-LRA Document 13 Filed 04/01/10 Page 2 of 6

Therefore, Nationwide has a duty to defend and indemnify. American Guarantee and Liab. Ins.

Co. v. The 1960 Co., 273 F.3d 605, 610 (5th Cir. 2001). Considering the claims filed in the Fox

Complaint, Nationwide’s Second Amended Complaint for Declaratory Judgment should be

dismissed.

III. THIRD AFFIRMATIVE DEFENSE

Plaintiff may have failed to join all proper parties needed for a just adjudication.

IV. FOURTH AFFIRMATIVE DEFENSE

To the extent that the same are found to be applicable, the Fox Defendants assert those

Affirmative Defenses set forth in Rules 8(c) and 57 of the Federal Rules of Civil Procedure.

V. ANSWER

AND NOW, the Fox Defendants respond to the allegations contained in the Plaintiff’s

Second Amended Complaint paragraph by paragraph:

Parties

1. Admitted on information and belief.

2. Admitted on information and belief.

3. Admitted.

Jurisdiction

4. Admitted.

Venue

5. It is admitted that venue is proper for the purpose of this action. The remaining

allegations of this paragraph are denied as stated.

Page -2-
Case 3:09-cv-00650-HTW-LRA Document 13 Filed 04/01/10 Page 3 of 6

Request for Declaratory Relief

6. Denied.

7. It is admitted that this is an action for declaratory judgment. However, the Fox

Defendants deny that there are questions of actual dispute in controversy regarding contract of

insurance at issue in this case.

Facts Giving Rise to Controversy

8. Admitted.

9. Admitted.

10. Denied as stated. However, the Fox Defendants admit that just prior to and at the

time of the underlying collision with the Fox vehicle, Ridgway was negligent in that she was

engaging in conduct that interfered with the driver of the vehicle which struck the Fox vehicle.

11. It is admitted that as of the filing of the Second Amended Complaint for

Declaratory Judgment, a Complaint had not been filed, and that as of the filing of this Answer,

suit has been filed. The remaining portions of this paragraph are denied.

Policy at Issue

12. Admitted.

13. Admitted.

14. Admitted.

15. Admitted.

16. The contents of the subject policy are admitted. However, the Fox Defendants

deny that any of the exclusions are applicable in this instance.

17. Admitted.

Page -3-
Case 3:09-cv-00650-HTW-LRA Document 13 Filed 04/01/10 Page 4 of 6

The Controversies

18. It is admitted that at the time the Second Amended Complaint was filed, a suit had

not been filed against Ridgway. However, as of the filing of this Answer, suit has been filed

against Ridgway. The Fox Defendants deny that a determination by this Court is necessary with

regard to the Plaintiff’s duty to defendant and/or indemnify Defendant Ridgway.

19. Denied.

20. Denied.

21. Denied.

22. Denied.

23. Denied.

24. Denied.

25. Denied.

26. Denied.

27. Denied.

28. The Fox Defendants deny that a determination by this Court is necessary for the

reasons set forth in this paragraph.

The Fox Defendants deny that Plaintiff is entitled to any of the relief requested in the last

unnumbered paragraph beginning “WHEREFORE, PREMISES CONSIDERED,” and any of the

subparagraphs therein.

VI. RESERVATION OF DEFENSES

The Fox Defendants are without present knowledge or information sufficient to form a

belief as to whether other affirmative defenses apply in this matter. However, contingent on the

Page -4-
Case 3:09-cv-00650-HTW-LRA Document 13 Filed 04/01/10 Page 5 of 6

facts revealed by investigation and discovery, the Fox Defendants expressly reserve their right to

raise any additional affirmative defenses which may be applicable.

AND NOW, having fully responded to the Second Amended Complaint for Declaratory

Judgment filed against them, Defendants Henry G. Fox and Betty Ruth Fox, Individually and as

Conservator of Henry G. Fox, request that it be dismissed with costs to be assessed against the

Plaintiff.

Respectfully submitted,

HENRY G. FOX, BETTY RUTH FOX,


INDIVIDUALLY AND AS CONSERVATOR
OF HENRY G. FOX

BY: /s/ Crymes M. Pittman


CRYMES M. PITTMAN

OF COUNSEL

CRYMES G. PITTMAN, MSB #4391


cgp@pgrwlaw.com
ROBERT G. GERMANY, MSB #4800
rgg@pgrwlaw.com
C. VICTOR WELSH, III, MSB#7107
cvw@pgrwlaw.com
CRYMES M. PITTMAN, MSB# 99225
cmp@pgrwlaw.com
PITTMAN, GERMANY, ROBERTS & WELSH, L.L.P.
410 South President Street (39201)
Post Office Box 22985
Jackson, MS 39225-2985
Telephone: 601-948-6200
Facsimile: 601-948-6187

Page -5-
Case 3:09-cv-00650-HTW-LRA Document 13 Filed 04/01/10 Page 6 of 6

CERTIFICATE OF SERVICE

I. Crymes M. Pittman, one of the attorneys for Henry G. Fox, Betty Ruth Fox,
Individually and as Conservator for Henry G. Fox do hereby certify that I have this day filed a
true and correct copy of the above and foregoing document with the Clerk of the Court using the
ECF Filing System which sent notification to the following:

John D. Brady, Esquire


jbrady@mitchellmcnutt.com
MITCHELL, McNUTT & SAMS
Post Office Box 1366
Columbus, MS 39703-1366
Attorney for Plaintiff

G. Todd Burwell, Esquire


tburwell@gtbpa.com
William W. Cunningham, Esquire
wcunningham@gtbpa.com
G. TODD BURWELL, P.A.
Post Office Box 3086
Ridgeland, MS 39158
Attorneys for Defendant Susan T. Ridgway

THIS the 1st day of April, 2010.

/s/ Crymes M. Pittman


CRYMES M. PITTMAN

Page -6-