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UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MAY’S DISTRIBUTING CO. INC., )

ET AL., )

)

Plaintiffs, )

)

Vs. ) Case No: 2:06-CV-702

)

TOTAL CONTAINMENT, INC., et al )

 )

Defendants. )

DEFENDANTS, DAYCO PRODUCTS, LLC, AND MARK IV 

INDUSTRIES, LTD’S., ANSWER AND DEFENSES TO PLAINTIFFS’ 

FOURTH AMENDED COMPLAINT AND CLASS DEFINITION 

NOW INTO COURT, through undersigned counsel, come defendants, Dayco

Products, LLC, and Mark IV Industries, Ltd. (collectively “Dayco”), who respond to the

plaintiffs’, May’s Distributing Company, Inc. and all others similarly situated

(“plaintiffs”), Fourth Amended Complaint and Class Definition as follows:

Parties

1. The allegations of paragraph 1 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied for lack of sufficient information to justify a belief

therein. Dayco specifically denies that May’s has standing to bring this action on behalf

of “similarly situated motor fuel dispensing facility owners.”

2. The allegations of paragraph 2 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied for lack of information to justify a belief therein. 

3. The allegations of paragraph 3 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied.

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4. The allegations of paragraph 4 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied.

5. The allegations of paragraph 5 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied for lack of information to justify a belief therein.

6. The allegations of paragraph 6 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied for lack of sufficient information to justify a belief

therein. 

7. The allegations of paragraph 7 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied for lack of sufficient information to justify a belief

therein. 

Jurisdiction and Venue

8. The allegations of paragraph 8 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. 

9. The allegations of paragraph 9 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. 

10. The allegations of paragraph 10 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. 

Statement of Facts

11. The allegations of paragraph 11 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. 

12. The allegations of paragraph 12 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. Dayco specifically denies that the hoses were at all

similar and specifically denies that they were in any way defective.

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13. The allegations of paragraph 13 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. 

14. The allegations of paragraph 14 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied for lack of sufficient information to justify a belief

therein. 

15. The allegations of paragraph 15 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied for lack of sufficient information to justify a belief

therein. 

16. The allegations of paragraph 16 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied for lack of sufficient information to justify a belief

therein. 

17. The allegations of paragraph 17 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied for lack of sufficient information to justify a belief

therein. 

18. The allegations of paragraph 18 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied, except to admit that Cleveland Tubing was an

independent manufacturer. Cleveland Tubing was solely responsible for the quality of

the hose it provided to Dayco, including quality control, supervision and care for the

hose. TCI, through Homer Holden, was responsible for the manufacturing of the hose.

19. The allegations of paragraph 19 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. 

20. The allegations of paragraph 20 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. 

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21. The allegations of paragraph 21 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. 

22. The allegations of paragraph 22 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied, except to admit that TCI did voluntarily replace some

hoses where the cover had degraded due to misuse of the hose.

23. The allegations of paragraph 23 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied.

24. The allegations of paragraph 24 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. 

25. The allegations of paragraph 25 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied for lack of sufficient information to justify a belief

therein.

26. The allegations of paragraph 26 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied for lack of sufficient information to justify a belief

therein. 

27. The allegations of paragraph 27 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied for lack of sufficient information to justify a belief

therein.

28. The allegations of paragraph 28 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied for lack of sufficient information to justify a belief

therein.

29. The allegations of paragraph 29 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. 

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Class Action Allegations

30. The allegations of paragraph 30 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied and Dayco specifically denies that plaintiff May’s has

standing to bring this action on behalf of a class of similarly situated persons and/or

entities.

31. The allegations of paragraph 31 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied.

32. The allegations of paragraph 32 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied.

33. The allegations of paragraph 33 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied.

34. The allegations of paragraph 34 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied.

35. The allegations of paragraph 35 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. 

36. The allegations of paragraph 36 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. Dayco specifically denies that a class action is the

superior method for adjudication of this controversy.

37. The allegations of paragraph 37 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. 

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Class Definition

38. The allegations of paragraph 38 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. Dayco specifically denies that a class action is the

superior method for adjudication of this controversy.

Negligence

39. Dayco adopts and re-alleges its responses to paragraphs 1-38.

40. The allegations of paragraph 40 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. 

41. The allegations of paragraph 41 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied. 

42. The allegations of paragraph 42 of plaintiffs’ Fourth Amended Complaint

and Class Definition are denied for lack of sufficient information to justify a belief

therein.

The Prayer for Relief is denied. 

FIRST DEFENSE

Dayco, in specific response to the allegations of plaintiffs’ Fourth

Amended Complaint and Class Definition, avers as follows:

SECOND DEFENSE

The Amended Complaint fails to state a cause of action against Dayco upon

which relief can be granted. 

THIRD DEFENSE

Plaintiffs’ injuries and damages, if any, were caused, in whole or in part, by

plaintiffs’ own fault. 

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FOURTH DEFENSE

Dayco is not, at this time, aware of any acts of omissions on the part of any

defendant in this action which caused or contributed to plaintiffs’ alleged injuries and

damages. To the extent any acts or omissions caused or contributed to the plaintiffs’

alleged injuries and damages, such acts or omissions were those of plaintiffs, other

defendants, and/or non-parties for whom Dayco is not responsible.

FIFTH DEFENSE

Plaintiffs’ claims against Dayco are barred by superseding and/or intervening

causes and/or an unavoidable accident.

SIXTH DEFENSE

Plaintiffs’ claims against Dayco are barred by the applicable statue of limitations

and/or statute of repose.

SEVENTH DEFENSE

Plaintiffs’ claims are barred because there is no causal connection or relationship

between the alleged actions or inactions of Dayco and plaintiffs’ alleged damages or

injuries.

EIGHT DEFENSE

Plaintiffs’ claims are barred, in whole or in part, because there was and is no

privity of contract between plaintiffs and Dayco.

NINTH DEFENSE

Plaintiffs’ claims are barred, in whole or in part, from recovery to the extent it has

previously released or compromised said claims.

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TENTH DEFENSE

Dayco denies that plaintiffs reasonably or justifiably relied upon any alleged

misrepresentation or omission by Dayco.

ELEVENTH DEFENSE

Dayco denies that plaintiffs were injured or harmed by any alleged act or

omission of Dayco.

TWELFTH DEFENSE

Plaintiffs failed to mitigate their damages or to protect themselves from avoidable

consequence, which failure bars or reduces any recovery by plaintiff herein.

THIRTEENTH DEFENSE

If some or all of the defendants are found to be jointly responsible for the injuries

alleged, the liability of such defendants must be limited in accordance with applicable

law governing contribution and/or indemnity. Furthermore, Dayco specifically denies

that it is jointly liable with any other defendant. 

FOURTEENTH DEFENSE

Dayco is entitled to a set-off, should any damages be awarded against it, in the

amount of damages or settlement amounts recovered by or on behalf of plaintiffs from

other parties or non-parties to this action, with respect to the alleged injuries

contemplated by the Amended Complaint. Dayco is also entitled to have any damages

that may be awarded to plaintiffs reduced by the value of any benefit or payment to

plaintiffs, or to any entity acting on plaintiffs’ behalf, from any collateral sources. 

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FIFTEENTH DEFENSE

If the product allegedly involved in this action was defective or unreasonably

dangerous (which Dayco denies), then plaintiffs were aware thereof and unreasonably

proceeded to make use of the produce in that condition.

SIXTEENTH DEFENSE

Plaintiffs have failed to join all necessary and/or indispensable parties. 

SEVENTEENTH DEFENSE

Dayco specifically avers that its product possessed no characteristic which

rendered it unreasonably dangerous in a reasonably anticipated use. 

EIGHTEENTH DEFENSE 

Plaintiffs’ claims are barred by failure and want of consideration. 

NINETEENTH DEFENSE

Dayco made no warranties of any kind, express or implied, or any representations

of any nature whatsoever to plaintiffs. If any such warranties were made, whether

express or implied, which Dayco specifically denies, then plaintiffs failed to give timely

notice of any breach thereof and failed to plead notice. 

TWENTIETH DEFENSE

Plaintiffs did not directly or indirectly purchase any product or material from

Dayco, and plaintiffs never received or relied upon any representation allegedly made by

this Defendant.

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TWENTY-FIRST DEFENSE

The State of the Art Defense bars, in whole or in part, plaintiffs’ cause of action

based upon defective design because any and all Dayco components, parts or materials

allegedly used by the plaintiffs conformed with the state of the art of scientific and

technical knowledge and other circumstances that existed at the time they were

manufactured. 

TWENTY-SECOND DEFENSE

To the extent that plaintiffs failed to maintain or preserve the subject pipe referred

to in plaintiff’s Amended Complaint and its immediate post-incident condition, plaintiffs

are guilty of the spoliation of evidence and may not maintain any action against Dayco.

TWENTY-THIRD DEFENSE

Plaintiffs’ claims, in whole or in part, are barred as the plaintiffs altered,

modified, abused, and/or misused the TCI system and/or the product or products at issue.

TWENTY-FOURTH DEFENSE

Plaintiffs’ claims, in whole or in part, are barred by the equitable doctrines of

laches, waiver and/or estoppel.

TWENTY-FIFTH DEFENSE

Plaintiffs’ claims are preempted by federal law and/or regulations.

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TWENTY-SIXTH DEFENSE

Any allegedly defective and unreasonably dangerous conditions in the products

described by plaintiffs were open and obvious to plaintiffs, and therefore, any recovery

by plaintiffs is barred.

TWENTY-SEVENTH DEFENSE

The assumption of the risk by plaintiffs caused or contributed to plaintiffs’

alleged damages, and therefore, any recovery by plaintiffs is barred.

TWENTY-EIGHTH DEFENSE

The products described by plaintiffs were not in the same condition at the time of

the events, injuries, and damages alleged, as when they left the custody and possession of

the manufacturer, and therefore, any recovery by plaintiffs is barred.

TWENTY-NINTH DEFENSE

All alleged acts of Dayco at the time of manufacture, sale, or distribution of the

products described by plaintiffs were in compliance with applicable statutes and

regulations relating to design or performance, and therefore, any recovery by plaintiffs is

barred.

THIRTIETH DEFENSE

Plaintiffs’ claims are barred in whole or in part by the economic loss doctrine.

THIRTY-FIRST DEFENSE

Dayco denies that it designed, manufactured, and/or sold the products of which

plaintiffs complain. 

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THIRTY-SECOND DEFENSE

Plaintiffs cannot recover against Dayco, in whole or in part, because these

defendants are entitled to a setoff for the benefit or value of the plaintiffs’ use of the

products at issue.

THIRTY-THIRD DEFENSE

Plaintiffs cannot recover against Dayco for the reasons that the products at issue

were reasonably safe when they left the custody and control of the manufacturer, no

practical or feasible alternative product was in existence, and any harmful component of

the product was an inherent characteristic of the product that could not be eliminated

without substantially compromising the products’ usefulness and effectiveness.

THIRTY-FOURTH DEFENSE

The plaintiffs were and are sophisticated users of the flex pipe. They have years

of experience using the product and yet failed to properly maintain it.

THIRTY-FIFTH DEFENSE

The plaintiffs breached the warranty for the flex pipe. They failed to follow the

instructions for proper installation and use of the product.

THIRTY-SIXTH DEFENSE

Dayco was merely component part manufacturers. Dayco did not design the TCI

system.

THIRTY-SEVENTH DEFENSE

Dayco adopts and incorporates herein by reference any affirmative defense

asserted by any other Defendant to this action, to the extent such affirmative defense

applies to Dayco.

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AMENDMENTS

Dayco reserves the right to amend its answer by adding defenses, counterclaims,

cross-claims or by instituting third-party demands as additional facts are obtained

through investigation and discovery. Dayco preserves, and does not waive, any of the

affirmative defenses under Alabama law or any other matter constituting an avoidance or

affirmative defense as discovery may reveal to be applicable. 

WHEREFORE, defendants, Dayco Products, LLC, and Mark IV Industries, Ltd.

respectfully request that their answer and defenses to Plaintiffs’ Fourth Amended

Complaint and Class Definition be deemed sufficient, and that after due proceedings are

had herein, there be judgment in their favor, dismissing the Fourth Amended Complaint

and Class Definition with prejudice and all at the sole cost of plaintiffs, including all

expert fees and court costs.

Respectfully submitted, 

/s/ Brian Mosholder

BRIAN MOSHOLDER (MOS-018)

Carpenter, Ingram & Mosholder, LLP

4121 Carmichael Road – Suite 303

Montgomery, AL 36106

Telephone (334) 213-5600

/s/ Myron Penn

MYRON PENN 

Penn & Seaborn, Llc

P.O. Box 688

Clayton, AL 36106

Attorneys for Defendants, 

Dayco Products, LLC, and 

Mark IV Industries, Ltd

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C E R T I F I C A T E

I hereby certify that a copy of the above and foregoing Notice of Removal has

been served upon all counsel of record and the Circuit Court of Bullock County,

Alabama by placing same in the United States mail, postage prepaid and properly

addressed, this 11th day of August 2006.

ATTORNEYS FOR PLAINTIFF:

Lynn Jinks

Christy Crow

JINKS, DANIEL & CROW, LLC

P.O. Box 350

Union Springs, AL 36089

Russell Jackson Drake

Nicola Thompson Drake

WHATLEY DRAKE & KALLAS, LLC

P.O. Box 10647

Birmingham, AL 35202-0647

Wesley L. Laird

LAIRD, BAKER & BLACKSTOCK

501 North Main Street

Opp, AL 36467

L. Cooper Rutland, Jr.

RUTLAND AND BRASWELL, LLC

208 North Prairie Street

Union Springs, AL 36089

ATTORNEYS FOR TICONA 

POLYMERS, INC.

Alan T. Rogers

Balch & Bingham, LLP

P.O. Box 306

Birmingham, AL 35201-0306

Paul A. Clark

Balch & Bingham, LLP

P.O. Box 78

Montgomery, AL 36101

Paul M. O’Conner, III

Seth A. Moskowitz

Jon Avins

KASOWITZ, BENSON, TORRES

& FRIEDMAN

1633 Broadway

New York, NY 10019-6799

Walter B. Calton

P.O. Box 696

Eufaula, AL 36072-0696

ATTORNEYS FOR CLEVELAND 

TUBING, INC.

James H. McLemore

Capell & Howard

P.O. Box 2069

Montgomery, AL 36102

T. Harold Pinkley

MILLER & MARTIN, LLP

1200 First Union Tower

150 Fourth Avenue North

Nashville, TN 37219

Lynda M. Hill

James Williams

MILLER & MARTIN, PLLC

Suite 1000, Volunteer Bldg.

832 Chattanooga, TN 37402

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ATTORNEYS FOR DAYCO 

PRODUCTS, INC. AND MARK 

IV INDUSTRIES, LTD.

Kimberly W. Sayoc

LIPPES, SILVERSTEIN, MATHIAS 

& WEXLER

665 Main Street #300

Buffalo, NY 14203

Jim Blazek

Adams and Reese, LLP

One Shell Square

701 Poydras Str., Ste. 4500

New Orleans, LA 70139

ATTORNEYS FOR 

UNDERWRITERS LABORATORIES,

INC.

Walter E. McGowen

GRAY, LANGFORD, SAPP, 

MCGOWAN, GRAY & NATHANSON

P.O. Box 830239

Tuskegee, AL 36083-0239

Charles Donald Marshall, III

John Olinde

Brent Arnold Talbot

Robert S. Rooth

CHAFFE, McCALL, PHILLIPS, TOLER

& SARPY 

2300 Energy Centre

1100 Poydras Street

New Orleans, LA 70163

/s/ Brian Mosholder

Attorney for Defendants

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