Preview
Filed: 5/15/2023 2:49 PM
Clerk
Allen County, Indiana
KS
STATE OF INDIANA ) IN THE ALLEN SUPERIOR COURT
) SS:
COUNTY OF ALLEN ) CAUSE NO. 02D03-2301-CT-000059
JULIO MONDRAGON and )
MARIA DEL CARMEN DE LA )
CRUZ GONZALEZ, As )
Co-Personal Representatives of )
The ESTATE OF REBECA )
GARCIA SALAZAR, )
)
Plaintiff, )
)
vs. )
)
RONGOS, INC., )
)
Defendant. )
ANSWER
I.
Defendant Rongos, Inc., by counsel, for its Answer to the “Complaint For
Wrongful Death”, states:
1. Insufficient information and denied.
2. Insufficient information and denied.
3. Admitted.
4. Insufficient information and denied.
Page 1 of 9
5. It is admitted only that one Alexander Delaney was involved in a
motor vehicle collision at Lima and Washington Center Roads that
killed Plaintiff’s Decedent. All remaining allegations (and inferences)
are “denied”.
6. All prior responses are incorporated.
7. Denied.
8. Denied.
9. Denied.
10. Denied.
11. Denied.
12. Denied.
13. Denied.
14. Denied.
WHEREFORE, Defendant prays for judgment in its favor and that Plaintiff
take nothing by way of the Complaint For Wrongful Death (and for costs and fees
and all other proper relief).
II.
Defendant Rongos, Inc., by counsel, for its Affirmative Defenses and Other
Matters Of Avoidance, states:
Page 2 of 9
1. The “Complaint For Wrongful Death” fails to state a claim upon
which relief can be granted. See Indiana Trial Rule 12(B)(6).
2. The Defendant denies “liability” (and further disputes and denies
every allegation of theoretical “fault” [or other purported wrongful conduct]).
3. All pleading allegations not otherwise addressed (including those in
the “Wherefore” clause/“prayer for relief”), now are hereby “denied”.
4. The Defendant relies upon the doctrine of “failure to mitigate”.
5. No act or omission of the Defendant “responsibly caused” the alleged
accident of which Plaintiff complains.
6. No act or omission of the Defendant “responsibly caused” the alleged
injuries/damages of which Plaintiff complains.
7. The Defendant relies upon the doctrines of “credit” and “set-off”.
8. The conduct of the Decedent (which includes her own negligence,
intentional actions and omissions, assumed/incurred risk, and failure to avoid
injury and/or failure to mitigate the alleged damages) was the “responsible cause”
of the alleged losses and, accordingly, the Plaintiff’s claims are barred (and/or
proportionately reduced).
9. The Decedent’s comparative fault (including contributory negligence,
incurred/assumed risk, and failure to mitigate) bars (or proportionately reduces)
any theoretical recovery.
Page 3 of 9
10. The Defendant gives notice of its intent to rely upon all defenses
permitted by the Indiana Comparative Fault Act (as well as those allowable under
corresponding Indiana common and statutory law).
11. No alleged “duty” on the part of the Defendant (and assuming
otherwise, no supposed “breach”).
12. The Defendant relies upon the “write-down” doctrine [as expressed in
Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009) and Patchett v. Lee, 60 N.E.3d 1025
(Ind. 2016)].
13. In light of Stanley and Patchett, there are issues concerning the
supposed “reasonableness” and “necessity” of certain alleged healthcare treatment
and costs.
14. Plaintiff’s Decedent had pre-existing healthcare and emotional
conditions.
15. Plaintiff received admissible “collateral source” benefits such as
private insurance, charitable payments/relief, governmental assistance and the like
(or such payments have been made on its behalf).
16. The Defendant is entitled to a “set-off” for any government benefits
paid to or on behalf of Plaintiff.
17. The Defendant is entitled to a “set-off” for any private medical/health
insurance benefits paid to or on behalf of Plaintiff.
Page 4 of 9
18. The Defendant asserts and incorporates all Trial Rule 8(C) affirmative
defenses and “other matters of avoidance”.
19. The City of Fort Wayne, 200 E. Berry Street, Suite 425, Fort Wayne, IN
46802, is hereby named as a “nonparty” (as that term is defined at I.C. § 34-6-2-
88).
20. Rebeca Garcia Salazar is hereby named as a “nonparty” (as that term
is defined at I.C. § 34-6-2-88).
21. General Motors Corporation, 40600 Ann Arbor Road East – Suite
201, Plymouth, MI 48170, is hereby named as a “nonparty” (as that term is defined
at I.C. § 34-6-2-88).
22. The Fort Wayne Police Department, 1 E. Main Street, Suite 108, Fort
Wayne, IN 46802, is hereby named as a “nonparty” (as that term is defined at I.C.
§ 34-6-2-88).
23. Alexander Delaney, Westville Correctional Facility, 5501 S 1100 W,
Westville, IN 46391, is hereby named as a “nonparty” (as that term is defined at
I.C. § 34-6-2-88).
24. David Gonzalez Delacruz, 1234 Scott Avenue, Fort Wayne, IN
46807, is hereby named as a “nonparty” (as that term is defined at I.C. § 34-6-2-
88).
Page 5 of 9
25. There were superseding, intervening and/or unanticipated acts by
Plaintiff and others which were not foreseeable to the Defendant (and which broke
any theoretical “causal chain”).
26. The Defendant relies upon the doctrine of “superseding/intervening
cause”.
27. Plaintiff cannot prove any of the requisite statutory or common law
elements against the Defendant.
28. The Defendant relies upon all statutory and common law defenses (to
the purported Dram Shop allegations).
29. Plaintiff cannot meet her burden as to the requisite elements to impose
“liability” under I.C. 7.1-5-10-15 et seq.
30. The Defendant lacked the requisite “actual knowledge” of supposed
“visible intoxication” to impose “liability” (under the allegedly applicable statutory
framework).
31. There was no actual knowledge that Alexander Delaney was “visibly
intoxicated” at the time he was allegedly furnished alcoholic beverage(s) such as to
impose “liability”. See I.C. § 7.1-5-10-15.5 (and the cases that interpret that
statute).
32. I.C. § 7.1-5-10-15.5(c) bars the alleged Dram Shop Act claims.
33. Absence of “foreseeability” (respecting the Defendant).
Page 6 of 9
34. The alleged incident and Plaintiff’s supposed “damages” were not
“foreseeable” (to the Defendant).
35. The Defendant possesses common law and statutory “immunity” (to
the alleged Dram Shop Act claim).
36. The “responsible cause” element is lacking against the Defendant.
37. No alleged “furnishing” (by the Defendant).
38. To the extent the Defendant has not responded to any allegations in
the First Amended Complaint, they now are specifically “denied” (including
requests made in the “Prayer For Relief”).
39. The Decedent had no driver’s license (thereby barring some or all
claims).
40. The Decedent had no automobile liability insurance (thereby barring
some or all claims).
41. The “no pay, no play” statute bars some or all claims. See I.C. § 27-7-
5.1-1, et seq. and 9-25-8-6 and 34-30-29.2-3.
42. Defendant relies upon all “caps” and “limiters” which restrict
recovery under any potentially applicable Wrongful Death Act.
43. Plaintiff and the Decedent are one for fault allocation purposes.
44. Any purported “dependency” and “kinship” cannot be established by
Plaintiff.
Page 7 of 9
45. The absence of “dependency” limits any recovery.
46. Statutes pertaining to estate administration may have been violated.
47. Defendant relies upon any statute of limitations or claim limitations
specified in the laws pertaining to estate administration.
48. The Complaint For Wrongful Death violates Indiana law and the
“American Rule” (respecting attorneys’ fees).
49. The Defendant reserves the right to seek leave to add further
affirmative defenses, including, but not limited to, naming other “nonparties” (as
they become known during the “discovery” phase of the lawsuit).
50. Each affirmative defense/other matter/matter of avoidance is pled in
the alternative (without prejudice to any other [including the Defendant’s position
of blamelessness]).
51. The Defendant has listed the above points to apprise Plaintiff of
certain potentially applicable defenses/matters of avoidance. In so doing, the
Defendant does not assume the burden of proving anything upon which Plaintiff
bears the “burden of proof” (under applicable Indiana law and procedure).
WHEREFORE, Defendant prays for judgment in its favor and that Plaintiff
take nothing by way of the Complaint For Wrongful Death (and for costs and fees
and all other proper relief).
Page 8 of 9
Respectfully submitted,
HUNT SUEDHOFF KEARNEY LLP
/s/ James J. Shea, Sr.
James J. Shea, Sr., Attorney No. 2177-02
Scott L. Bunnell, Attorney No. 4092-98
803 South Calhoun Street, Suite 900
P. O. Box 11489
Fort Wayne, Indiana 46858-1489
Telephone: (260) 423-1311
Facsimile: (260) 424-5396
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 15th day of May, 2023, a true and
correct copy of the foregoing Answer was served to all counsel of record, by the Indiana
E-Filing System, or other acceptable means of service, as follows:
Samuel L. Bolinger, Esq.
803 S. Calhoun Street – Suite 300
Fort Wayne, IN 46802
/s/ James J. Shea, Sr.
James J. Shea, Sr.
Page 9 of 9
Preview
Filed: 5/15/2023 2:49 PM Clerk Allen County, Indiana KS STATE OF INDIANA ) IN THE ALLEN SUPERIOR COURT ) SS: COUNTY OF ALLEN ) CAUSE NO. 02D03-2301-CT-000059 JULIO MONDRAGON and ) MARIA DEL CARMEN DE LA ) CRUZ GONZALEZ, As ) Co-Personal Representatives of ) The ESTATE OF REBECA ) GARCIA SALAZAR, ) ) Plaintiff, ) ) vs. ) ) RONGOS, INC., ) ) Defendant. ) ANSWER I. Defendant Rongos, Inc., by counsel, for its Answer to the “Complaint For Wrongful Death”, states: 1. Insufficient information and denied. 2. Insufficient information and denied. 3. Admitted. 4. Insufficient information and denied. Page 1 of 9 5. It is admitted only that one Alexander Delaney was involved in a motor vehicle collision at Lima and Washington Center Roads that killed Plaintiff’s Decedent. All remaining allegations (and inferences) are “denied”. 6. All prior responses are incorporated. 7. Denied. 8. Denied. 9. Denied. 10. Denied. 11. Denied. 12. Denied. 13. Denied. 14. Denied. WHEREFORE, Defendant prays for judgment in its favor and that Plaintiff take nothing by way of the Complaint For Wrongful Death (and for costs and fees and all other proper relief). II. Defendant Rongos, Inc., by counsel, for its Affirmative Defenses and Other Matters Of Avoidance, states: Page 2 of 9 1. The “Complaint For Wrongful Death” fails to state a claim upon which relief can be granted. See Indiana Trial Rule 12(B)(6). 2. The Defendant denies “liability” (and further disputes and denies every allegation of theoretical “fault” [or other purported wrongful conduct]). 3. All pleading allegations not otherwise addressed (including those in the “Wherefore” clause/“prayer for relief”), now are hereby “denied”. 4. The Defendant relies upon the doctrine of “failure to mitigate”. 5. No act or omission of the Defendant “responsibly caused” the alleged accident of which Plaintiff complains. 6. No act or omission of the Defendant “responsibly caused” the alleged injuries/damages of which Plaintiff complains. 7. The Defendant relies upon the doctrines of “credit” and “set-off”. 8. The conduct of the Decedent (which includes her own negligence, intentional actions and omissions, assumed/incurred risk, and failure to avoid injury and/or failure to mitigate the alleged damages) was the “responsible cause” of the alleged losses and, accordingly, the Plaintiff’s claims are barred (and/or proportionately reduced). 9. The Decedent’s comparative fault (including contributory negligence, incurred/assumed risk, and failure to mitigate) bars (or proportionately reduces) any theoretical recovery. Page 3 of 9 10. The Defendant gives notice of its intent to rely upon all defenses permitted by the Indiana Comparative Fault Act (as well as those allowable under corresponding Indiana common and statutory law). 11. No alleged “duty” on the part of the Defendant (and assuming otherwise, no supposed “breach”). 12. The Defendant relies upon the “write-down” doctrine [as expressed in Stanley v. Walker, 906 N.E.2d 852 (Ind. 2009) and Patchett v. Lee, 60 N.E.3d 1025 (Ind. 2016)]. 13. In light of Stanley and Patchett, there are issues concerning the supposed “reasonableness” and “necessity” of certain alleged healthcare treatment and costs. 14. Plaintiff’s Decedent had pre-existing healthcare and emotional conditions. 15. Plaintiff received admissible “collateral source” benefits such as private insurance, charitable payments/relief, governmental assistance and the like (or such payments have been made on its behalf). 16. The Defendant is entitled to a “set-off” for any government benefits paid to or on behalf of Plaintiff. 17. The Defendant is entitled to a “set-off” for any private medical/health insurance benefits paid to or on behalf of Plaintiff. Page 4 of 9 18. The Defendant asserts and incorporates all Trial Rule 8(C) affirmative defenses and “other matters of avoidance”. 19. The City of Fort Wayne, 200 E. Berry Street, Suite 425, Fort Wayne, IN 46802, is hereby named as a “nonparty” (as that term is defined at I.C. § 34-6-2- 88). 20. Rebeca Garcia Salazar is hereby named as a “nonparty” (as that term is defined at I.C. § 34-6-2-88). 21. General Motors Corporation, 40600 Ann Arbor Road East – Suite 201, Plymouth, MI 48170, is hereby named as a “nonparty” (as that term is defined at I.C. § 34-6-2-88). 22. The Fort Wayne Police Department, 1 E. Main Street, Suite 108, Fort Wayne, IN 46802, is hereby named as a “nonparty” (as that term is defined at I.C. § 34-6-2-88). 23. Alexander Delaney, Westville Correctional Facility, 5501 S 1100 W, Westville, IN 46391, is hereby named as a “nonparty” (as that term is defined at I.C. § 34-6-2-88). 24. David Gonzalez Delacruz, 1234 Scott Avenue, Fort Wayne, IN 46807, is hereby named as a “nonparty” (as that term is defined at I.C. § 34-6-2- 88). Page 5 of 9 25. There were superseding, intervening and/or unanticipated acts by Plaintiff and others which were not foreseeable to the Defendant (and which broke any theoretical “causal chain”). 26. The Defendant relies upon the doctrine of “superseding/intervening cause”. 27. Plaintiff cannot prove any of the requisite statutory or common law elements against the Defendant. 28. The Defendant relies upon all statutory and common law defenses (to the purported Dram Shop allegations). 29. Plaintiff cannot meet her burden as to the requisite elements to impose “liability” under I.C. 7.1-5-10-15 et seq. 30. The Defendant lacked the requisite “actual knowledge” of supposed “visible intoxication” to impose “liability” (under the allegedly applicable statutory framework). 31. There was no actual knowledge that Alexander Delaney was “visibly intoxicated” at the time he was allegedly furnished alcoholic beverage(s) such as to impose “liability”. See I.C. § 7.1-5-10-15.5 (and the cases that interpret that statute). 32. I.C. § 7.1-5-10-15.5(c) bars the alleged Dram Shop Act claims. 33. Absence of “foreseeability” (respecting the Defendant). Page 6 of 9 34. The alleged incident and Plaintiff’s supposed “damages” were not “foreseeable” (to the Defendant). 35. The Defendant possesses common law and statutory “immunity” (to the alleged Dram Shop Act claim). 36. The “responsible cause” element is lacking against the Defendant. 37. No alleged “furnishing” (by the Defendant). 38. To the extent the Defendant has not responded to any allegations in the First Amended Complaint, they now are specifically “denied” (including requests made in the “Prayer For Relief”). 39. The Decedent had no driver’s license (thereby barring some or all claims). 40. The Decedent had no automobile liability insurance (thereby barring some or all claims). 41. The “no pay, no play” statute bars some or all claims. See I.C. § 27-7- 5.1-1, et seq. and 9-25-8-6 and 34-30-29.2-3. 42. Defendant relies upon all “caps” and “limiters” which restrict recovery under any potentially applicable Wrongful Death Act. 43. Plaintiff and the Decedent are one for fault allocation purposes. 44. Any purported “dependency” and “kinship” cannot be established by Plaintiff. Page 7 of 9 45. The absence of “dependency” limits any recovery. 46. Statutes pertaining to estate administration may have been violated. 47. Defendant relies upon any statute of limitations or claim limitations specified in the laws pertaining to estate administration. 48. The Complaint For Wrongful Death violates Indiana law and the “American Rule” (respecting attorneys’ fees). 49. The Defendant reserves the right to seek leave to add further affirmative defenses, including, but not limited to, naming other “nonparties” (as they become known during the “discovery” phase of the lawsuit). 50. Each affirmative defense/other matter/matter of avoidance is pled in the alternative (without prejudice to any other [including the Defendant’s position of blamelessness]). 51. The Defendant has listed the above points to apprise Plaintiff of certain potentially applicable defenses/matters of avoidance. In so doing, the Defendant does not assume the burden of proving anything upon which Plaintiff bears the “burden of proof” (under applicable Indiana law and procedure). WHEREFORE, Defendant prays for judgment in its favor and that Plaintiff take nothing by way of the Complaint For Wrongful Death (and for costs and fees and all other proper relief). Page 8 of 9 Respectfully submitted, HUNT SUEDHOFF KEARNEY LLP /s/ James J. Shea, Sr. James J. Shea, Sr., Attorney No. 2177-02 Scott L. Bunnell, Attorney No. 4092-98 803 South Calhoun Street, Suite 900 P. O. Box 11489 Fort Wayne, Indiana 46858-1489 Telephone: (260) 423-1311 Facsimile: (260) 424-5396 ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE The undersigned hereby certifies that on the 15th day of May, 2023, a true and correct copy of the foregoing Answer was served to all counsel of record, by the Indiana E-Filing System, or other acceptable means of service, as follows: Samuel L. Bolinger, Esq. 803 S. Calhoun Street – Suite 300 Fort Wayne, IN 46802 /s/ James J. Shea, Sr. James J. Shea, Sr. Page 9 of 9