Republic of the Philippines

REGIONAL TRIAL COURT

11th Judicial Region
Branch 34
Davao City

DAVAO RABBIT BUS LINE,

INC.
Plaintiff,

Civil Case No. 14344-03-CV

-versus-
FOR: Damages and Attorney’s
Fees
AMADOR BULAN,
ROLANDO SUIZO and FIRST
INTEGRATED BONDING
AND INSURANCE
COMPANY, INC.,
Defendants.
x---------------------------------------x

ANSWER WITH COUNTERCLAIM

COMES NOW, the defendant AMADOR BULAN, through the

undersigned counsel, and in answer to plaintiff's complaint,
respectfully file his answer and interpose his counterclaim against the
latter, to wit:

1. I am one of the defendants in the instant case for damages and

attorney’s fees in a Complaint dated 27 January 2018 filed by
the plaintiff;

1.1 I can be served with court processes through

my retained counsel at Confesor & Associates
Law Firm, #123 Lunar St., Doña Vicenta,
Bajada, Davao City;

2. On 28 January 2018, I received a copy of the summons from

this Honorable Court requiring me to file my corresponding
Answer;

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 ADMISSIONS AND DENIALS

3. The following are the admissions and denials of the

allegations in the complaint, to wit:

A. Defendant ADMITS paragraphs 1, 2, 3,4, 5, 6, 7, and 8 of

the Complaint;

B. Defendant SPECIFICALLY DENIES paragraph 9 as he

cannot possibly comment as to the veracity of the
plaintiff’s statement therein, not having been in the place
and time mentioned in said paragraph;

C. Defendant SPECIFICALLY DENIES each and every

material allegation made in paragraphs 10 and 12 for
being unsubstantiated, the truth being that defendant
never received any of the purported official demand
letters as will be reiterated in the special and affirmative
defenses;

D. Defendant SPECIFICALLY DENIES paragraph 11 as

there was no such written statement or letter reply made
by the defendant as shown in their Annex “F”, in fact
there was no demand letter received at the latter’s
address in Bangkal, Davao City;

E. Defendant SPECIFICALLY DENIES liability under

paragraphs 13 and 14 for lack of basis to form a belief as
to their truth and veracity there being no proof shown to
substantiate them;

F. Defendant SPECIFICALLY DENIES liability under

paragraphs 15 and 16 for lack of legal basis as there no
was no negligence on the part of the defendant to justify
the award of damages.

COUNTER STATEMENT OF FACTS

4. That contrary to the facts alleged in the complaint, the

following events transpired at the time of the incident:

A. On or about 6 o’clock in the morning of October 26, 2013,

two of defendant’s employees namely Rolando Suizo and
Perlito Canada used the defendant’s KB Hino Cargo

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 Truck without his knowledge and permission. It was not
taken in furtherance of his trucking business, but for their
personal leisure;

B. On the same day, at about 6:40 in the morning, a collision

between the said KB Hino Cargo Truck and Passenger
Bus No. 1357 owned by Davao Rabbit Bus Line occurred
at the intersection of Sandawa Road and McArthur
Highway, Matina, Davao City;

C. Just before the impact, KB Hino Cargo Truck made a left

turn from Sandawa Road going to Matina, being the last
vehicle to have passed before the signal light turned red;

D. The truck driver made warning signs before turning left

such as turning his signal lights on while blowing his
horn to alert the other vehicles;

E. Despite such alert signals, the truck driver was surprised

that the bus hurried to move before the traffic lights
turned green for its lane;

F. The said illegal act of the bus driver of crossing in the

restricted area was in violation of the traffic rules, caused
the collision of the two moving vehicles;

G. The collision brought by the negligence of the bus driver

resulted to the instantaneous death of the truck helper,
Perlito Canada, who was thrown off board while some of
the passengers of the bus were injured;

H. Contrary to plaintiff’s allegations, no prior demand letter

was received by the defendant at its office address in
Bangkal, Davao City, nor was there a letter-reply ever
made by the defendant in response to the alleged
demand letters.

SPECIAL AND AFFIRMATIVE DEFENSES

5. As special and affirmative defenses, the defendant alleges:

A. THE COMPLAINT IS ALREADY BARRED BY

STATUTE OF LIMITATIONS HAVING BEEN FILED
BEYOND THE PRESCRIPTIVE PERIOD.

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 Under the Civil Code, the following provisions govern the
prescriptive period within which a party may file an
action.

Art. 1146. The following actions must be instituted within four

years:

(1) Upon an injury to the rights of the plaintiff;

(2) Upon a quasi-delict;

Art. 1150. The time for prescription for all kinds of actions, when
there is no special provision which ordains otherwise, shall be
counted from the day they may be brought. (1969)

Art. 1155. The prescription of actions is interrupted when they

are filed before the court, when there is a written
extrajudicial demand by the creditors, and when there is any
written acknowledgment of the debt by the debtor. (1973a)

In view of the above-cited provisions, it is apparent that

the present action is already barred by the four-year
statutory period within which to file an action based on
quasi-delict . Reckoned from the date of the incident or on
October 26, 2013, the four-year statutory period was never
interrupted by any written extrajudicial demand properly
addressed to the defendant until October 26, 2017, thus
allowing said period to lapse.

B. LACK OF CAUSE OF ACTION AS PLAINTIFF COMES

TO COURT WITH UNCLEAN HANDS, THEREFORE
NOT ENTITLED TO DAMAGES.

The sworn statements of the witnesses, namely,

Rolando Suizo, the driver of the KB Hino Cargo Truck
(herein referred to as Annex “1”), ______________, the
Traffic Management Center (TMC) officer-in-charge of the
area (herein referred to as Annex “2”) and
__________________, a bystander (herein referred to as
Annex “3”) would show that the driver of the bus,

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 Benjamin Bigat failed to exercise extraordinary diligence at
the time the incident occurred.

Furthermore, the CCTV clip footage of the incident,

herein referred to as Annex “4” and Annex “4-A”,
respectively, as well as the Vehicular Collision Incident
Sketch of the Police Accident Investigation Report of SPO2
Liam Payne, herein referred to as Annex “5” would
likewise show the negligence on the part of the
abovementioned bus driver.

In view of these, it is apparent that the negligence on

the part of the plaintiff as employer and its bus driver as
an employee bar its possible recovery of damages, being
the proximate cause of the accident, under the following
provisions of the New Civil Code, to wit:

Article 2179. When the plaintiff's own negligence was

the immediate and proximate cause of his injury, he
cannot recover damages. But if his negligence was only
contributory, the immediate and proximate cause of the
injury being the defendant's lack of due care, the
plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded.

Article 2185. Unless there is proof to the contrary, it is

presumed that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating
any traffic regulation.

C. NOT WITHIN THE SCOPE OF AUTHORITY

Under Article 2180 of the Civil Code, an employer

may be held liable for the acts of the employee done within
the scope of his authority.

Article 2180. xxx Employers shall be liable for the

damages caused by their employees and household
helpers acting within the scope of their assigned tasks,
even though the former are not engaged in any business
or industry.

xxx

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 The responsibility treated of in this article shall cease
when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to
prevent damage.

In order for the defendant to be held vicariously liable

under this provision, it must be established that the
injurious and tortuous act was committed by the employee
on the occasion or by reason of the functions entrusted to
him. In this case, the defendant has neither supervision nor
power of control over the employees who at that time were
off-duty and the vehicle was merely taken without the
company’s permission.

It has long been held that the mere fact that an

employee was using a service vehicle at the time of the
injurious incident is not of itself sufficient to charge the
employer with liability for its negligent operation unless it
appears that he was operating the vehicle within the
course or scope of his employment.

D. DILIGENCE IN SELECTION AND SUPERVISION

In the selection of prospective employees, the

defendant as an employer would examine the
qualification, experience, and service record of its
applicants.

Before hiring Rolando Suizo, his unblemished

driving record over the years has been noted and was
maintained during the time he has been driving for the
trucking company until this incident. Attached as proof
are the following documents:

1. Suizo’s Proficiency and Physical Examination

Reports herein referred to as Annex “6” and
Annex “6-1”;

2. Suizo’s NBI Clearance herein referred to as Annex

“7”;

3. The testimony of a Human Resource Division

employee herein referred to as Annex “8”,
testifying that Suizo is under supervision and was

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 given daily operational briefings and that the
company handbook is duly observed;

With respect to supervision, the defendant also

ascertains that his employees would see to it that the vital
parts of the vehicle, like oil, brakes, gasoline, and horn are
checked before leaving for delivery.

Moreover, standard operating procedures, constant

monitoring for its implementation and imposition of
disciplinary measures for its breaches are provided for in
their company handbook, herein referred to as Annex “9”.

E. NO BASIS FOR LIABILITY

The following claims are unsubstantiated and are

therefore baseless:

1. Cost and Expenses for the Repair of the Bus

(P200,000): The direct and proximate cause of the
vehicular mishap being that of the plaintiff’s
driver, the defendant cannot be held liable;

2. Lost Income (P100, 000): There are no supporting

documents presented;

3. Medical Assistance to Injured Passengers

(P250,000): There is no supporting document
presented showing receipts of costs;

4. Moral & Exemplary damages (P50,000): The

actual damages being improperly claimed based
on the circumstances, claims for moral &
exemplary damages are left without basis.

COUNTERCLAIMS

6. As compulsory counterclaims against the plaintiff, the

defendant alleges that:

A. Defendant suffered ACTUAL DAMAGES for expenses

incurred to pay for the repair of the damaged truck as
well as the medical and funeral expenses extended to its
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 employees in the amount of TWO HUNDRED FIFTEEN
THOUSAND PESOS (P215,000.00), as evidenced by
receipts herein referred to as Annex “10”; “10-1” and “10-
2”, respectively;

B. Defendant likewise suffered LOSS OF UNEARNED

INCOME while the truck was under repair for one (1)
week in the amount of EIGHTY THOUSAND PESOS
(P80,000) as evidenced by the Company Service Logbook
herein referred to as Annex “11”, showing the services
that the company failed to perform during the duration
of the truck repair;

C. By way of example and correction for the public good the

defendant likewise seeks for EXEMPLARY DAMAGES
in the amount of TWO THOUSAND PESOS (P2,000.00),
to set an example for the negligent and reckless acts of the
plaintiff; and

D. Defendant was compelled to bring suit in response to the

case filed against him and was obliged to pay for
LITIGATION EXPENSES in the amount of TWENTY
THOUSAN pesos (P20,000.00) and for ATTORNEY’S
FEES in the amount of FIFTY THOUSAND PESOS
(P50,000.00).

TIMELINESS

That this Answer is submitted seasonably, or within 15 days

from the date of receipt on January 27, 2018, today being February 6,
2018.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed that

this Honorable Court render judgment as follows:

1. DISMISS the complaint for lack of cause of action;

2. DISMISS the complaint for utter lack of merit and for being
baseless;

3. ORDER the plaintiff to pay defendant the following:

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 A. ACTUAL DAMAGES in the amount of Two Hundred
Fifteen Thousand Pesos (P215,000.00);

B. LOSS OF UNEARNED INCOME in the amount of Eighty

Thousand Pesos (P80,000.00);

C. EXEMPLARY DAMAGES in the amount of Two

Thousand Pesos (P2,000.00);

D. LITIGATION EXPENSES in the amount of Twenty

Thousand Pesos (P20,000.00); and

E. ATTORNEY’S FEES in the amount of Fifty Thousand

Pesos (P50,000.00).

4. GRANT such other relief consistent with law and equity, and
for costs.

RESPECTFULLY SUBMITTED.

February 6, 2018, Davao City, Philippines

CONFESOR & ASSOCIATES LAW FIRM

#123 Lunar St., Dona Vicenta, Davao City
Tel. No. 221-1234; Phone No. +(63)9 -23-4005-019
E-mail: kgconfesor@gmail.com

By:

ATTY. KRISTINE CONFESOR

Counsel for Defendant
Roll No. 10865
PTR No. 10999105-J/01-04-2018
IBP No. 1017158/01-04-2018
MCLE Compliance No. V-0020347
dated December 11, 2018

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Copy furnished:

Atty. Lance Kerwin Duco

Counsel for Plaintiff
DUCO RESURRECCION TAGTAGAN
TANJILI & TITO LAW FIRM
The White House Building
143 Gov. Generoso St., Matina,
Davao City, 8000, Philippines
Tel. No. 463-8763/ Fax No. (876)987-6453

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