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Filed 107212016 11:42:47 AM Pubic Stations U- ussr2, Patt Flores Dist Clerk \wreita County, Texas amie Young 78a CAUSE NO. 185,220-C SHARLA ARREDONDO, Individually IN THE DISTRICT COURT and as Personal Representative of the Estate of DANIEL ARREDONDO, Plaintiff, § § § 8 ; v § ‘89th JUDICIAL DISTRICT § CITY OF WICHITA FALLS and 8 ARCHER WESTERN § CONSTRUCTION, LLC, § § Defendants. § WICHITA COUNTY, TEXAS DEFENDANT ARCHER WESTERN CONSTRUCTION, LLC’S ORIGINAL ANSWER AND VERIFIED PLEA IN ENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, ARCHER WESTERN CONSTRUCTION, LLC, one of the Defendants named in the above entitled and numbered cause, and files this, its Original Answer and Plea in Abatement, and for same would respectfully show unto the Court as follows: L L Defendant denies each and every, all and singular, of the material allegations contained within Plaintiff's pleadings and demands strict proof thereof. I. CONTRIBUTORY NEGLIGENCE Pleading further, Defendant hereby pleads that decedent Daniel Arredondo engaged in acts, including acts of negligence, which caused the injuries complained of in the Original Petition, including but not limited to the failure to follow established and accepted safety protocols and procedures, the failure to utilize proper safety equipment to prevent inhalation of DEFENDANT ARCHER WESTERN CONSTRUCTION, LLC’ ‘ORIGINAL ANSWER AND VERIFIED PLEA IN ABATEMENT Page 1 Public Station: U- uesr2 dangerous gases or fumes. These actions or omissions include violations of the applicable safety regulations and industry standards, Therefore, Plaintiff is barred, in whole or in part, from a recovery of damages from Defendant pursuant to Chapter 33 of the Texas Civil Practice & Remedies Code. m1. Comput sony JOINDER OF PARTIES AND PLEA IN ABATEMENT Pleading further, Defendant would note that all parties required for the just adjudication of the claims in this case are not before the Court, as required by Texas Rule of Civil Procedure 39(a). On Defendant's information and belief, decedent Daniel Arredondo was survived not just by his wife (Plaintiff herein), but also by his son (Kolsen Arredondo), his daughter (Karlye Arredondo), his mother (Kathleen Birdwell), and his father (Daniel Arredondo). All of these individuals are wrongful death beneficiaries whose absence from this suit leaves the Defendant subject to a substantial risk of multiple liability and/or inconsistent obligations to the absent party. Any adjudication of the claims in this matter in its current posture would be wholly incomplete, leaving the Defendant subject to additional, duplicative claims or lawsuits that would be a waste of judicial resources, as well as the parties’ and counsels’ time and money. Texas Rule of Civil Procedure 39 provides for the joinder of persons whose absence creates the issues noted above and authorizes a trial court to order that such individuals be made parties to the suit. If such individuals refuse to participate in the suit, Rule 39 further authorizes the court to make them “involuntary plaintififs].” There is no reason why the joinder of the decedent's children and parents is not feasible. As such, Defendant hereby requests that Plaintiff file an Amended Petition that adds any and all wrongful death beneficiaries to the case as plaintiffs or, in the altemative, that the DEFENDANT ARCHER WESTERN CONSTRUCTION, LLC'S )RIGINAL ANSWER AND VERIFIED PLEA IN ABATEMENT. Page? Public Staton: U- uesr2 Plaintiff replead with the names of all wrongful death benefici ies and the reasons they are not joined to the suit, in compliance with Texas Rule of Civil Procedure 39(c). Defendant would further request that this Honorable Court order an abatement of this matter until all wrongful death beneficiaries are joined to same and, if necessary, the joinder of all wrongful death beneficiaries as plaintiffs, whether voluntary or involuntary. See American Motorists Ins. v. Fodge, 63 8.W.3d 801, 805 (Tex. 2011) (holding that abatement is proper where identified defect in case may be cured); Allison v. National Un. Fire ins., 703 8.W.2d 637 (Tex. 1986) (noting propriety of abatement where necessary party is missing). Vv. SPECIAL EXCEPTIONS Pleading further, Defendant specially excepts to Plaintiff's Original Petition, Section VI (Causes of Action”), paragraph 9, wherein Plaintiff claims that the “Defendants were negligent and grossly negligent in those acts and omissions described above, and additionally in the following ways: a. Improperly maintaining its equipment; b. Failing to adequately train workers; ¢. Failing to maintain a safe facility; 4. Failing to adequately advise of known risks; ¢. Failing to maintain a safe work environment; £. Failing to supply proper equipment; 2. Failing to give adequate warning; h, Failing to properly supervise; i, Failing to properly monitor chemicals in the area; DEFENDANT ARCHER WESTERN CONSTRUCTION, LLC'S ‘ORIGINAL ANSWER AND VERIFIED PLEA IN ABATEMENT. Page 3 Public Station: U- uEsr2 J. Failing to warn Plaintiffs of an unreasonably dangerous condition; k. Failing to eliminate known hazards; and 1. Others acts deemed negligent and grossly negligent.” Defendant hereby objects that these general allegations fail to meet the required level of specificity pursuant to the “fair notice” provision of pleadings as per Texas Rules of Civil Procedure 45 and 47. Asa result, Defendant is unable to ascertain the particular allegations made against it, which in turn fails to give Defendant fair notice of the allegations against it. To correct this defect, Plaintiff should be required to plead: a. The specific equipment Defendant allegedly failed to maintain; b. The identity or types of workers Defendant allegedly failed to train, including the general nature of such training; ¢. Which facility and which portions thereof Defendant allegedly failed to maintain, including the nature and source of Defendant’s alleged duty to maintain the City’s facility where the incident occurred; 4. Whom Defendant allegedly failed to advise of “known risks” and the nature of such “known risks; ¢. What work environment Defendant allegedly failed to maintain; What equipment Defendant allegedly failed to supply and to whom such equipment ‘was allegedly not supplied; 2. What warnings Defendant allegedly failed to provide and to whom such wamings were allegedly not given; h. Whom Defendant allegedly failed to properly supervise; i, The identity of the area in which Defendant allegedly failed to monitor, j. The unreasonably dangerous condition Defendant allegedly failed to warn Plaintiff; DEFENDANT ARCHER WESTERN CONSTRUCTION, LLC’ ORIGINAL ANSWER AND VERIFIED PLEA IN ABATEMENT. Page $ Pubic Station: U- uesr2 k. The specific known hazards Defendant allegedly failed to eliminate; and 1. The type and nature of any other acts allegedly committed by Defendant that Plaintiff contends were either negligent or grossly negligent. Further, Defendant specially excepts to the Plaintiff's Original Petition in that it fails to include a statement of the monetary relief sought, as required by Texas Rule of Civil Procedure 47(@). Defendant hereby requests that Plaintiff replead stating the sums of damages she is seeking in his lawsuit. Further, Defendant specially excepts to the Plaintiff's Original Petition in that it fails to state the residence of each party, as required by Texas Rule of Civil Procedure 79. Defendant hereby requests that Plaintiff replead stating the residence of each party. Further, Defendant specially excepts to the Plaintiff's Original Petition in that it fails to provide the information required by Texas Civil Practice and Remedies Code § 30.014. Defendant hereby requests that Plaintiff replead in accordance with same. v. Jury DEMAND In accordance with Rule 216 of the Texas Rules of Civil Procedure, Defendant demands a trial by jury. Simultaneously with the filing of this demand, a jury fee is being paid on behalf of this Defendant, WHEREFORE, PREMISES CONSIDERED, Defendant ARCHER WESTERN CONSTRUCTION, LLC prays that the Plaintiff take nothing by this suit, that Defendant go hence with its costs without delay, and for such other and further relief, both general and special, at law and in equity, to which Defendant may show itself justly entitled. DEFENDANT ARCHER WESTERN CONSTRUCTION, LLC'S Pages Publi Station: U- ‘GUEST? Respectfully submitted, Fee, SMITH, SHARP & VITULLO, L.L.P ‘sl Thomas W. Fee THOMAS W. FEE State Bar No. 06873160 CRAIG H. MYERS State Bar No. 24013222 ‘Three Galleria Tower 13155 Noel Road, Suite 1000 Dallas, Texas 75240 (972) 934-9100 (972) 934-9200 [FAX] tfee@feesmith com emyers@feesmith.com ATTORNEYS FOR DEFENDANT ARCHER WESTERN CONSTRUCTION, LLC VERIFICATION BEFORE ME, the undersigned Notary Public, personally appeared Thomas W. Fee, who, by me first duly swom upon his oath, deposed and stated that the statements made in the foregoing Original Answer and Verified Plea in Abatement are true and correct based upon his personal knowledge, information, and belief. ae \ Baneo ba. Fer THOMAS W. FEE SUBSCRIBED AND SWORN TO BEFORE ME on this l/5t_ day of October, 2016, to certify which witness my hand and seal of office, Nore Bon fell Nowy Pobite in and for the State of Texas (Notary Seal/Stamp - Commission) DEFENDANT ARCHER WESTERN CONSTRUCTION, LLC’ IGINAL ANSWER AND VERIFIED PLEA IN Page 6