IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN GREEN BAY DIVISION

JEREMY TURRUBIATES P.O. Box 123 Kimberly, WI 54136 Plaintiff, ACE AMERICAN INSURANCE CO. 426 Walnut Street P.O. Box 1000 Philadelphia, PA 19105 Involuntary Plaintiff,

Case No. 1-12-CV-25

RUSTGO CO. 48926 State Highway 12 Spencer, NE 68777-3567 and ABC INSURANCE COMPANY Defendants. COMPLAINT NOW COMES the plaintiff, Jeremy Turrubiates, by his attorneys, Menn Law Firm, Ltd., and as and for a claim for relief against the above-named defendants, allege and show to the Court as follows: JURISDICTION 1. That the plaintiff, Jeremy Turrubiates, is an adult residing in Kimberly,

Outagamie County, Wisconsin.

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2.

That the involuntary plaintiff, ACE American Insurance Company (hereinafter,

"ACE"), is, upon information and belief, a foreign insurance provider, authorized to do business in the State of Wisconsin, with its principal office located at 426 Walnut Street, P.O. Box 1000, Philadelphia, Pennsylvania 19105; upon information and belief, ACE, at all times referenced herein, was the workers' compensation insurance provider for the employer of the plaintiff, Jeremy Turrubiates; that upon information and belief ACE may have made payments for workers' compensation benefits, including medical expenses incurred by the plaintiff, Jeremy Turrubiates, as a result of injuries he sustained in an accident referred to herein; that by virtue of said payments, ACE may be subrogated to the extent of those payments and is, therefore, a necessary party to this action pursuant to Wis. Stats., 803.03(2)2. 3. That the defendant, Rustgo Co. (hereinafter "Rustgo"), is a foreign corporation

with its home office and principal place of business located at 48926 State Highway 12, Spencer, NE 68777-3567, and at all times material, was in the business of designing, manufacturing and selling scaffolding equipment, including scaffold wagons. The registered agent for Rustgo is Willard M. Rust, 48926 State Highway 12, Spencer, NE 68777. 4. That upon information and belief at all times material hereto, defendant, ABC

Insurance Company, was a corporation, the name, address, registered agent, and state of incorporation of which are presently unknown, and that in place of the actual name of the defendant insurance company, a fictitious name is being used for the defendant. Upon

information and belief, the defendant, ABC Insurance Company, at all times material herein, had in full force and effect a policy of liability insurance providing liability insurance coverage for the defendant, Rustgo, and that by reason of said policy of insurance and the liability of defendant, Rustgo, said ABC Insurance Company is a proper party hereto and is directly liable to

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the plaintiff for his injuries and damages. Upon discovery of the correct name of said insurer, said insurance company will be substituted in place of ABC Insurance Company and said pleading relates back to the date of this Complaint pursuant to Fed. R. Civ. P. 15(c). 5. The Court has jurisdiction pursuant to 28 U.S.C. 1332 based on diversity of

citizenship of the parties and the amount in controversy (exclusive of costs and interest) exceeding $75,000.00. 6. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391. FIRST CLAIM BASED ON STRICT LIABILITY 7. That prior to July 12, 2009, the defendant, Rustgo, designed and manufactured a

Rustgo manually propelled work platform, model 195, in a defective condition; that said work platform was ultimately distributed and sold to Consolidated Construction Company, Inc., located in Appleton, Wisconsin. That on July 12, 2009, the plaintiff, Jeremy Turrubiates, was climbing up the side ladder of the manually propelled work platform when the extension on the ladder became dislodged, causing him to fall to the ground. 8. That the manually propelled work platform designed and manufactured by the

defendant, Rustgo, was in a defective condition when it left the possession and control of Rustgo; that because of said defective condition, the work platform was unreasonably dangerous to the ultimate user and consumer, the plaintiff, Jeremy Turrubiates. 9. That the work platform was a product which the defendant, Rustgo, intended to,

and expected to, and which did, in fact, reach the ultimate user and consumer, Jeremy Turrubiates, without substantial change in the condition it was in when it was manufactured and subsequently sold.

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10.

That the defendant, Rustgo, was engaged in the business of designing,

manufacturing and selling the aforesaid manually propelled work platform, and the sale of said work platform was not an isolated nor infrequent transaction not related to the principal business of said defendant. 11. That the defective and unreasonably dangerous condition of the manually

propelled work platform was the direct and proximate cause of the accident referred to herein. 12. That as a direct and proximate result of the defective and unreasonably dangerous

condition of the manually propelled work platform, the plaintiff, Jeremy Turrubiates, sustained severe and permanent injuries which necessitated extensive treatment by health care providers, and which he is informed, will continue to require treatment in the future, and which have, and will permanently in the future, result in pain and suffering, loss of enjoyment of life, loss of earning capacity, and other damages. SECOND CLAIM BASED ON NEGLIGENCE 13. That as and for a claim for relief based upon negligence, the plaintiff realleges

and incorporates by reference as though fully set forth herein each and every allegation contained in Paragraphs 1-12, above. 14. That the defendant, Rustgo, was negligent in designing, manufacturing and selling

the manually propelled work platform in a defective condition, in failing to properly inspect and test the work platform, in failing to provide adequate warnings and instructions regarding the setup, assembly, inspection, servicing, maintenance and use of the manually propelled work platform, and in other respects. 15. That the negligence of the defendant, Rustgo, was a substantial factor in causing

the accident and the injuries and damages sustained by the plaintiff as alleged herein.

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WHEREFORE, the plaintiff demands judgment as follows: A. For the amount of damages found to be appropriate, together with costs and

disbursements of this action; B. For an adjudication of any subrogation claim which the involuntary plaintiff, ACE

American Insurance Company, may have; and, C. For such other relief as the Court may deem just.

PLEASE TAKE NOTICE THAT THE PLAINTIFF HEREBY DEMANDS TRIAL BY A 6- PERSON JURY. Dated this 9m day of January, 2012. MENN LAW FIRM, LTD. Attorneys for the Plaintiff BY: /S/MARK R. FELDMANN Mark R. Feldmann State Bar No. 1017847 P.O. ADDRESS: 2501 East Enterprise Avenue P.O. Box 785 Appleton, WI 54912-0785 PHONE: 920.731.6631 FAX: 920.734.0981 EMAIL: mark-feldmann(5)mennlaw.com

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