Document for Heather Kirchoff, Scott Kirchoff v. Jeff Burgess

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                                Filed: 9/12/2023 2:56 PM
                                                                                                           Knox Circuit Court
                                                                                                      Knox County, Indiana


 STATE OF INDIANA                                     IN THE KNOX CIRCUIT COURT
                                             )ss      VINCENNES, INDIANA
 COUNTY OF KNOX                              )        CAUSE NO: 42C01-2308-CC-000271

 SCOTT KIRCHOFF and HEATHER
 KIRCHOFF,
                   Plaintiffs,
             v.

JEFF BURGESS d/b/a BURGESS
CONSTRUCTION,
                   Defendant.

       ANSWER, AFFIRMATIVE DEFENSES, AND REQUEST FOR JURY TRIAL

        COMES NOW, Defendant JEFF BURGESS d/b/a BURGESS CONSTRUCTION, by

counsel, and for their Answer to Plaintiff's Complaint states the following:

                                          General Allegation:

        1         The Defendant lacks sufficient knowledge or information to form a belief as to the

truth of the allegations contained in rhetorical paragraph 1 of the Plaintiffs Complaint, and

therefore denies the same.

        2.        The Defendant admits the allegations contained in rhetorical paragraph 2 of the

Plaintiff's Complaint.

        3.        The Defendant admits the allegations contained in rhetorical paragraph 3 of the

Plaintiff's Complaint.

        4         The Defendant lacks sufficient knowledge or information to form a belief as to the

truth of the allegations contained in rhetorical paragraph 4 of the Plaintiffs Complaint, and

therefore denies the same.
        .
        5.        The Defendant lacks sufficient knowledge or information to form a belief as to the

truth of the allegations contained in rhetorical paragraph 5 of the Plaintiff's Complaint, and

therefore denies the same.

        6.        The Defendant admits the allegations contained in rhetorical paragraph 6 of the

Plaintiff's Complaint.
Count 1—Breach of Contract

        7.      The Defendant incorporates by reference its answer to paragraphs one through 7 of

the Plaintiff's Complaint as though set forth verbatim herein.

        8.      The Defendant lacks sufficient knowledge or information to form a belief as to the

truth of the allegations contained in rhetorical paragraph 8 of the Plaintiffs Complaint, and

therefore denies the same.

        9.      The Defendant lacks sufficient knowledge or information to form a belief as to the

truth of the allegations contained in rhetorical paragraph 9 of the Plaintiffs Complaint, and

therefore denies the same.

        10.     The Defendant denies the allegations contained in rhetorical paragraph 10 of the

Plaintiff's Complaint.

        11.     The Defendant denies the allegations contained in rhetorical paragraph 11 of the

Plaintiff's Complaint.

        12.     The Defendant denies the allegations contained in rhetorical paragraph 12 of the

Plaintiff's Complaint.

                                       Count II—Negligence

        13.     The Defendant incorporates by reference its answer to paragraphs one through 13 of

the Plaintiff's Complaint as though set forth verbatim herein.

        14,     The Defendant lacks sufficient knowledge or information to form a belief as to the

truth of the allegations contained in rhetorical paragraph 14 of the Plaintiffs Complaint, and

therefore denies the same.

        15.     The Defendant lacks sufficient knowledge or information to form a beliefas to the

truth of the allegations contained in rhetorical paragraph 15 of the Plaintiffs Complaint, and

therefore denies the same.
16.    The Defendant denies the allegations contained in rhetorical paragraph 16 of the

Plaintiff's Complaint.

           17.    The Defendant denies the allegations contained in rhetorical paragraph 17 of the

Plaintiff's Complaint.

           18.    The Defendant denies the allegations contained in rhetorical paragraph 18 of the

Plaintiff's Complaint.

                                            Count I1I—Fraud

           19.    The Defendant incorporates by reference its answer to paragraphs one through 19 of

the Plaintiff's Complaint as though set forth verbatim herein.

           20.    The Defendant moves to Dismiss Count III, paragraphs 20-25, as it fails to state a

claim upon which relief can be granted under Trial Rule 12(B)(6). The Motion to Dismiss is filed

contemporaneously with this Answer.

           Defendant denies any rhetorical paragraph not specifically admitted or denied.

                                     AFFIRMATIVE DEFENSES

           The Defendant JEFF BURGESS        d/b/a BURGESS       CONSTRUCTION,           by counsel, states

for their Affirmative Defenses to Plaintiff's Complaint:

           1      Plaintiff's claim should be reduced by Plaintiffs comparative fault.

           2.     Plaintiff's claim is barred because the comparative fault of Plaintiff may exceed fifty

percent.

           3.     The damages of which Plaintiff complains were the proximate result of the risk

voluntarily incurred and/or assumed by Plaintiff.

           4      Defendant    JEFF BURGESS d/b/a BURGESS CONSTRUCTION did not

proximately cause Plaintiffs alleged damages, if any.
           .
           5.     Plaintiff may have failed to mitigate his alleged damages.
6.      The damages claimed by Plaintiff were caused in full or in part by non-party, MMI

Door, 400 Circle Freeway, Cincinnati, OH 45246 and Bender Lumber Corp., 2051 West Fountain

Dr., Bloomington, IN 47404 and other persons and/or entities whose identity is unknown at this

time.

         7.      Plaintiffs may have failed to mitigate their damages.

         8.      Plaintiffs have failed to state a claim upon which relief may be granted.

         9.      Plaintiffs did not afford Defendant the opportunity to correct.

         10.     Defendant was not the manufacturer of the allegedly defective product.

         11.     Defendant reserves the right to add other affirmative defenses as they become

known.

         WHEREFORE,        Defendant prays that Plaintiffs take nothing by Plaintiffs’ Complaint, for

judgment in favor of the    Defendant    JEFF BURGESS       d/b/a BURGESS      CONSTRUCTION       and

against Plaintiffs, and for all other just and proper relief.


                                                         Respectfully Submitted,
                                                         LIBERTY MUTUAL GROUP
                                                         FIELD LEGAL OFFICES




                                                   By:

                                                         Anna Finnerty, #19325-82
                                                         Attorney for Defendant, JEFF BURGESS d/b/a
                                                         BURGESS CONSTRUCTION
URY TRIAL REQUEST

        Pursuant   to Trial Rule 38(B)   of the Indiana Rules   of Trial Procedure,   the Defendant

respectfully demands a trial by jury.




          erza
            C Aarecky
By:
      Anna Finnerty
CERTIFICATE        OF SERVICE

        I certified that a copy of the foregoing has been served upon all persons listed below, by
using the Indiana E-filing system, on this 12th day of September, 2023:

                        Cole L. Kirchoff
                         KKIRCHOFF &   JEWEL
                        517 Broadway P.O. 944
                        Vincennes, Indiana 47591




                                                           erza
                                                             C Aarecky
                                                      Anna Finnerty, #19325-82



LIBERTY MUTUAL GROUP
FIELD LEGAL OFFICES
PO Box 6835
Scranton, PA 18505
Phone: 317-582-0438
Fax: 866-200-5771
anna.finnerty@libertymutual.com