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The Collaborative Clearinghouse for Lawsuits and Other Claims Against ACE Group Insurance Companies

WESTCHESTER FIRE INSURANCE COMPANY v. MID-CONTINENT CASUALTY COMPANY

ATTENTION: It is possible that this information may no longer be current and therefore may be inaccurate. The index contains both open and closed cases and is not a complete list of cases in which an ACE Insurance Group company is involved. This information is provided to give interested persons an idea of the issues disputed in the indexed cases. For a full understanding of a case, one should read the rest of the court file, including the response. For the most up-to-date and complete information on a case, visit www.pacer.gov or contact the clerk of the relevant court.

Case Number: 
1:12-cv-21758 Search Pacer
ACE Group party(s): 
Opposing Party: 
Mid-Continent Casualty Company
Court Type: 
Federal
US District Court: 
Southern District of Florida
Date Filed: 
May 9 2012

"COUNT I
NEGLIGENCE CLAIM AGAINST COUNTER-DEFENDANT, CONTINENTAI, MANUFACTURING CO.. INC.

Plaintiff hereby reaffirms and realleges all of the allegations set forth in Paragraphs 1 through 8 of this Complaint, and further alleges as follows..

9. At all times material to Counter-Defendant, CONTINENTAL, was responsible for, and did in fact, manufacture and/or assemble and/or design and/or construct and/or distribute and/or sell/retail the subject concrete mixer truck, vehicle identification number 1HTXHAHT33J066023.

10. At all times material to Counter-Defendant, CONTINENTAL, owed a duty to the Plaintiff to manufacture and/or assemble and/or design and/or construct and/or distribute and/or sell/retail the above referenced concrete mixer truck in a reasonably safe condition, and to retrain from manufacturing, designing, constructing, assembling, .distributing and/or selling a concrete mixer truck that posed an unreasonable risk of harm to the user and other persons likely to be in the vicinity of its use.

11. Notwithstanding the existence of this duty, the Counter-Defendant, CONTINENTAL, did fail to. do one or more of the following acts and/or omissions, any of which would constitute negligence:
a. Negligent, careless and improper failure to properly and with reasonable care, manufacture, assemble and construct the above specified concrete mixer truck by improperly placing the hopper in such a position that it was not able to move unobstructed both up and down;
b. Negligent, careless and improper failure to properly test and inspect the subject concrete mixer truck to discover the defects which were the proximate cause of the Counter-Plaintiff JESUS PILLADO'S injuries;
c. Negligent, careless and improper failure to properly train and instruct its employees, assemblers and/or manufacturers, and instruct them to implement the appropriate manufacturing, assembling and design techniques which would lessen the likelihood of the injuries sustained by the Counter-Plaintiff, JESUS PILLADO;
d. Negligent, careless and improper failure to manufacture, construct, assemble, distribute and/or sell said concrete mixer truck in accordance with reasonably safe engineering, design, manufacturing and assemblage practices;
e. Negligent, careless and improper failure to properly weld the hopper and chute assembly in the correct position to allow for unobstructed raising and lowering of the hopper during its operation, subsequently causing hopper to become wedged in the raised position;
f. Negligent, careless and improper failure to perform reasonable tests and inspections of the subject concrete mixer truck's hopper and chute assembly prior to distribution for use so as to ascertain whether or not the aforementioned concrete mixer truck was reasonably safe and/or fit for its intended use. Said reasonable tests and/or inspections would have revealed that this concrete mixer truck's hopper and chute assembly were improperly attached and not reasonably safe and/or fit for their intended use because the hopper could not be raised and lowered without striking the guard;
g. Negligent, careless and improper failure to provide the appropriate instructions for the proper use and handling of the concrete mixer truck's hopper and chute assembly;
h. Negligent, careless and improper failure to warn the Counter- Plaintiff, JESUS PILLADO, of the dangerous condition existing in the manufacture and assembly of the subject concrete mixer truck, in that the hopper could not be properly raised and lowered without striking the guard, causing an unreasonably dangerous condition during use and operation of the concrete mixer truck.

12. At all times material, the Defendant, CONTINENTAL, by and through its agents, representatives, and/or employees, knew or should have known through the exercise of reasonable care, that the subject concrete mixer truck was negligently manufactured and/or assembled and/or designed and/or constructed and/or distributed and/or sold, and was therefore unsafe.

13. As a direct and proximate result of the aforementioned negligence of the Counter-Defendant, CONTINENTAL, the Counter-Plaintiff, JESUS PILLADO, was injured in and about his body and extremities, suffered pain therefrom, suffered physical handicap, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, lost wages, loss of the ability to earn money, medical expenses, and has incurred significant expenses, said injuries being permanent or continuing in their nature and the Plaintiff will suffer such losses and impairments in the future.

WHEREFORE, the Counter-Plaintiff JESUS PILLADO, demands judgment for damages and costs against the Counter-Defendant, CONTINENTAL, and any additional relief this Court deems just and proper, and further requests a trial by jury on all issues triable.

COUNT II
STRICT LIABILITY CLAIM

The Counter-Plaintiff hereby reaffirms and realleges all of the allegations set forth in Paragraphs 1-13 of this Complaint, and further alleges as follows:

14. The accident which gives rise to this cause of action occurred in Miami- Dade County on May 19,2003.

15. At all times material, the Coutner-Defendant, CONTINENTAL, manufactured and/or assembled and/or designed and/or constructed and/or distributed and/or sold/retailed, and placed into the stream of commerce the subject concrete mixe truck, vehicle identification 1HTXHAHT33J066023, with an improperly maliunctioning hopper.

16. At this time the concrete mixer was placed in the marketplace it had defects which constitute an unreasonable risk of harm to those likely to use the subject truck, with said defects as follows:
a. Negligent, careless and improper failure to properly weld the hopper and chute assembly in the correct position to allow for unobstructed raising and lowering of the hopper during its operation, creating an unreasonable dangerous condition wherein the hopper could become wedged in one position;
b. Negligent, careless and improper failure to perform reasonable tests and inspections of the concrete mixer truck, hopper and chute assembly prior to distribution for use so as to ascertain whether or not the aforementioned concrete mixer truck was reasonably safe and/or fit for its intended use, including but not limited to ensuring that the hopper could be properly raised and lowered without striking the guard;
c. Counter-Defendant, CONTINENTAL, knew or should have known of proper, adequate and safe means to manufacture and/or assemble and/or design and/or distribute and/or sell/retail the concrete mixer truck in question, so as to avoid the propensity of the hopper on the subject concrete mixer truck for striking the guard and/or becoming wedged in one position, or to substantially reduce the risk for same;
d. Negligent, careless and improper distribution of the subject product when the Counter-Defendant, CONTINENTAL, knew or should have known of the subject concrete mixer truck hopper's propensity to strike the guard and/or become wedged in one position;
e. Negligent, careless and improper failure to take proper precautions to make sure that the subject concrete mixer truck's hopper was not prone to striking the guard or becoming wedged in one position and to rectify these circumstances;
f. Negligent, careless and improper failure to warn the Counter-Plaintiff, JESUS PILLADO, of the dangerous condition existing in the manufacture and assembly of the subject concrete mixer truck, in that the hopper could not be properly raised and lowered without striking the guard, causing an unreasonably dangerous condition during use and operation of the concrete mixer truck;

17. The concrete mixer truck was not altered in any material manner from the time it left control of the Counter-Defendant, CONTINENTAL, until the time of the accident.

18. Counter-Plaintiff, JESUS PILLADO, was a foreseeable user, or person likely to be in the vicinity of, the subject concrete mixer truck during its use and operation, and in fact, did come into contact with the malfunctioning hopper on the subject concrete mixer truck.

19. Counter-Defendant, CONTINENTAL, by virtue of the manufacture and/or assembly and/or design and/or construction and/or sale and/or distribution of the aforementioned concrete mixer truck in a defective condition that was unreasonably dangerous to persons such as the Counter-Plaintiff, JESUS PILLADO, is subject to strict liability for the injuries and damages sustained by the Counter-Plaintiff.

20. As a direct and proximate result of the negligent manufacture and assembly which necessitates strict liability to the Counter-Defendant, CONTINENTAL, as referenced above, the Counter-Plaintiff, JESUS PILLADO, was injured in and about his body and extremities, suffered pain therefrom, suffered physical handicap, disability, disfigurement, mental anguish, loss of capacity for enjoyment of life, loss wages, loss of the ability to earn money, medical expenses, and has incurred significant expenses in the future, with said injuries being permanent or continuing in their nature and the Plaintiff will suffer such losses and impairments in the future.

COUNTIII
FAILURE TO WARN

The Counter-Plaintiff hereby reaffirms and realleges all of the allegations set forth in Paragraphs 1-20 of this Complaint, and further alleges as follows:

21. At all times material, the Defendant, CONTINENTAL, owed a duty of reasonable care to warn the purchasers and users of its concrete mixer trucks, and the Plaintiff in particular, concerning the manufacture and/or assembly and/or design and/or sale and/or distribution of the concrete mixer truck with vehicle identification number IHTXHAHT33J066023, of the dangerous conditions existing in this concrete mixer truck, in particular the improperly welded and malfunctioning hopper having been manufactured and assembled in such a negligent and incorrect manner that the hopper was unable to freely move up and down, as required for concrete mixer trucks, without striking the guard on the collector chute when raised and lowered, when the Defendant,

CONTINENTAL, knew or in the exercise of reasonable care, should have known, that the Plaintiff was unaware of, and unlikely to discovery the existence of such negligent manufacture and/or assembly and/or design and/or construction and/or sale and/or
distribution of the subject concrete mixer truck, and failed to warn the Plaintiff of any inherently dangerous conditions and/or dangers, which include the hopper's propensity to strike the guard when raised and lowered during operation and use, with the potential to become wedged in one position.

23. As a direct and proximate result of the Defendant, CONTINENTAL'S, failure to warn of an inherently dangerous condition, as referenced above, the Plaintiff, was injured in and about his body and extremities, suffered pain therefrom, suffered physical handicap, disability, disfigurement, mental anguish, loss of capacity for enjoyment of life, loss wages, loss of the ability to earn money, medical expenses, and has incurred significant expenses in the future, with said injuries being permanent or continuing in their nature and the Plaintiff will suffer such losses and impairments in the future,

WHEREFORE, the Counter-Plaintiff, JESUS PILLADO, demands judgment for damages and costs against the Counter-Defendant, CONTINENTAL, and any additional relief that this Court deems just and proper, and further requests a trial by jury on all issues so triable."

The provided text is an excerpt from a document filed in this case. For a full understanding of the case, one should read the complete court file, including the response.

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