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Read Archer Western Construction, LLC's original answer and verified plea in abatement in regards to Sharla Arredondo v. City of Wichita Falls and Archer Western Construction, LLC.
Originaltitel
Archer Western Construction responds to Sharla Arredondo's lawsuit
Read Archer Western Construction, LLC's original answer and verified plea in abatement in regards to Sharla Arredondo v. City of Wichita Falls and Archer Western Construction, LLC.
Read Archer Western Construction, LLC's original answer and verified plea in abatement in regards to Sharla Arredondo v. City of Wichita Falls and Archer Western Construction, LLC.
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 1Public Station: U-
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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-
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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 3Public Station: U-
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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-
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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
PagesPubli 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