IN THE UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

OWEN J. ROGAL, D.D.S., P.C., 

 Plaintiff, 

v. 

SKILSTAF, INC., 

 Defendant. 

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CIVIL ACTION NO. 

3:06-cv-00711-MHT

DEFENDANT’S ANSWER AND COUNTERCLAIM

In response to each separately numbered paragraph, Defendant 

Skilstaf, Inc. (“Skilstaf” or “Defendant”) hereby answers Plaintiff’s 

Complaint as follows: 

1. Defendant admits that the plaintiff in this matter is Owen J. 

Rogal, D.D.S., P.C., d/b/a The Pain Center. Defendant is without 

information sufficient to form a belief as to the remaining allegations 

contained in Paragraph 1, and therefore denies said allegations. 

2. Defendant admits that it is an Alabama corporation with its 

principal place of business at 860 Airport Drive, Alexander City, Alabama. 

Defendant further admits that it is an employee leasing company that 

provides its clients with employee benefits and human resources services. 

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Defendant further admits that, as an employee leasing company, it enters 

into co-employment agreements with its clients, under which the client 

leases its employees to Skilstaf and Skilstaf simultaneously assigns the 

employees back to the client. Defendant further admits that its clients retain 

direct control and supervision of their employees and that Skilstaf becomes 

the co-employer of its clients’ employees for specified purposes such as 

payroll, benefits, and workers’ compensation. Defendant further admits that 

one of its clients is Newspaper Processing, Inc., and that it provides group 

health coverage under the Skilstaf Group Health Plan (the “Plan”) to 

Newspaper Processing, Inc. employees. Defendant further admits that it is 

the sponsor of the Plan and that Risk Reduction, Inc. (“RRI”) is the Plan 

Administrator. Defendant denies each and every remaining allegation of 

Paragraph 2. 

3. Defendant admits that one of its clients is Newspaper 

Processing, Inc., and that Dennis Berry is an employee of Newspaper 

Processing, Inc. Defendant further admits that it provides group health 

coverage under the Plan, which is an ERISA-regulated employee welfare 

benefit plan, to Newspaper Processing, Inc. employees. Defendant further 

admits that, during the time relevant to the Complaint, it provided group 

health coverage under the Plan to Dennis Berry. Defendant further admits 

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that it is the sponsor of the Plan and that RRI is the Plan Administrator. 

Defendant denies each and every remaining allegation of Paragraph 3. 

4. Defendant admits that Dennis Berry was enrolled in the Plan as 

of August 2004. Defendant denies each and every remaining allegation of 

Paragraph 4. 

5. Defendant admits that Dennis Berry sought treatment by 

Plaintiff beginning on or around August 6, 2004. Defendant denies each and 

every remaining allegation of Paragraph 5. 

6. Defendant admits that Plaintiff has affixed a document to its 

Complaint that reports an outstanding balance of $369,390.00 in connection 

with its alleged treatment of Dennis Berry. Defendant further admits that, 

because Plaintiff’s alleged treatment of Dennis Berry was not covered under 

the terms of the Plan, Defendant does not owe Plaintiff any payment in 

connection with the alleged outstanding balance. Defendant denies each and 

every remaining allegation of Paragraph 6. 

7. Defendant denies each and every allegation of Paragraph 7. 

8. Defendant admits that Dennis Berry executed an “Assignment 

of Rights” to Plaintiff on or about August 6, 2004. 

9. Defendant denies each and every allegation of Paragraph 9. 

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10. Defendant denies each and every allegation of Paragraph 10, 

including subparagraphs (a) through (j). 

11. As phrased, Defendant denies each and every allegation of 

Paragraph 11. 

12. Defendant denies each and every allegation of Paragraph 12. 

13. Defendant admits that, because Plaintiff’s treatment of Dennis 

Berry was not covered under the terms of the Plan, Defendant did not pay 

the medical bills associated with Plaintiff’s treatment of Dennis Berry. 

Defendant further admits that Plaintiff has failed to exhaust the 

administrative remedies under the Plan as to its asserted claim. Defendant 

denies each and every remaining allegation of Paragraph 13. 

14. Defendant incorporates and adopts Paragraphs 1-13 above. 

15. Defendant denies each and every allegation of Paragraph 15. 

16. Defendant denies each and every allegation of Paragraph 16. 

For answer to Plaintiff’s prayer for relief, Defendant denies that 

Plaintiff is entitled to any judgment or award, damages or benefits 

whatsoever as alleged in its Complaint and further denies that Plaintiff is 

entitled to any interest, attorneys’ fees, costs or other relief. 

17. Defendant incorporates and adopts Paragraphs 1-16 above. 

18. Defendant denies each and every allegation of Paragraph 18. 

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For answer to Plaintiff’s prayer for relief, Defendant denies that 

Plaintiff is entitled to any judgment or award, damages or benefits 

whatsoever as alleged in its Complaint and further denies that Plaintiff is 

entitled to any interest, attorneys’ fees, costs or other relief. 

19. Defendant incorporates and adopts Paragraphs 1-18 above. 

20. Defendant denies each and every allegation of Paragraph 20. 

21. Defendant denies each and every allegation of Paragraph 21. 

For answer to Plaintiff’s prayer for relief, Defendant denies that 

Plaintiff is entitled to any judgment or award, damages or benefits 

whatsoever as alleged in its Complaint and further denies that Plaintiff is 

entitled to any interest, attorneys’ fees, costs or other relief. 

FIRST DEFENSE

 Under the terms and conditions of the Plan, Plaintiff is not entitled to 

payment for the medical bills it has submitted. 

SECOND DEFENSE

To the extent Plaintiff might be entitled to payment for the medical 

bills it has submitted, which Defendant denies, any such payment is subject 

to setoffs as defined under the terms of the Plan. 

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THIRD DEFENSE

Plaintiff’s claim is barred because Plaintiff has failed to exhaust its 

administrative remedies under the Plan. 

FOURTH DEFENSE

Under the Employment Retirement Income Security Act of 1974 

(“ERISA”), 29 U.S.C. §§ 1001 et seq., as amended, Plaintiff is not entitled 

to seek compensatory, punitive, or extra-contractual damages. 

FIFTH DEFENSE

Plaintiff’s state law claims are preempted by ERISA. 

SIXTH DEFENSE

Under ERISA, Plaintiff is not entitled to a jury trial. 

SEVENTH DEFENSE

Plaintiff’s claim is barred because the claim determination was not 

arbitrary, capricious, unreasonable, or made in bad faith. 

EIGHTH DEFENSE

To the extent Plaintiff’s claim is filed outside of the statute of 

limitations or outside of the limits established by the Plan, such claim is 

barred. 

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NINTH DEFENSE

 Plaintiff’s claim is barred as a result of its failure to comply with the 

conditions precedent of the Plan. 

COUNTERCLAIM

 For its Counterclaim, Defendant alleges as follows: 

1. Because Defendant was mistaken as to the nature of Plaintiff’s 

treatment of Dennis Berry or because Plaintiff and/or Dennis Berry 

misrepresented the nature of said treatment, Defendant was mistakenly or 

wrongfully caused to pay Plaintiff in connection with Plaintiff’s improper 

treatment of Defendant. 

2. Plaintiff now holds money and property that belong to 

Defendant and that was improperly transferred to Plaintiff because of 

mistake or fraud. Plaintiff, with knowledge of the benefit bestowed on it, 

has wrongfully retained the benefit. Plaintiff has, accordingly, been unjustly 

enriched at Defendant’s expense. 

WHEREFORE, premises considered, Defendant requests judgment in 

its favor, including fees and costs. 

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Respectfully Submitted, 

 s/Charles A. Stewart III 

Charles A. Stewart III (STE067) 

Bradley Arant Rose & White LLP

The Alabama Center for Commerce 

401 Adams Avenue, Suite 780 

Montgomery, AL 36104 

Telephone: (334) 956-7700 

Facsimile: (334) 956-7701 

cstewart@bradleyarant.com

 s/Amelia T. Driscoll 

Amelia T. Driscoll (DRI016) 

Bradley Arant Rose & White LLP

1819 Fifth Avenue North 

Birmingham, AL 35203-2104 

Telephone: (205) 521-8000 

Facsimile: (205) 521-8800 

adriscoll@bradleyarant.com

 Attorneys for Defendant 

 Skilstaf, Inc. 

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CERTIFICATE OF SERVICE

I hereby certify that on October 6, 2006, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system, which will 

send notification of such filing to the following: 

Robert E. Cole 

437 Chestnut Street, Suite 218 

Philadelphia, PA 19109 

Beth A. Friel 

Jeanne L. Bakker 

Mongtomery, McCracken, Walker & Rhoads 

123 South Broad Street 

Philadelphia, PA 19109 

and I hereby certify that I have mailed by U. S. Postal Service the document 

to the following non-CM/ECF participants: None. 

/s/ Amelia T. Driscoll 

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