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IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

PATRICIA BURKETT, )

Administratrix of the )

Estate of JEREMY BURKETT, )

deceased, )

)

Plaintiff, )

)

vs. )Case No.: 1:06-CV-00775-DRB

)

TIMOTHY EUGENE McCRAY and )

S.E. LUMBER COMPANY, )

)

Defendants, )

)

vs. )

)

SOUTHERN GENERAL INSURANCE, )

and THE CENTRAL MUTUAL )

INSURANCE COMPANY, )

)

Third-Party Defendants. )

ANSWER TO THIRD-PARTY COMPLAINT

COMES NOW the Third-Party Defendant, designated as “The

Central Mutual Insurance Company”, and for Answer to the

Third-Party Complaint, and to each Count and paragraph

thereof, sets forth and assigns the following defenses,

separately and severally:

FIRST DEFENSE

Responding to the Third-Party Complaint, paragraph by

paragraph, this Defendant says as follows:

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1. This Third-Party Defendant does not dispute the

allegations of this paragraph, but in doing so, does not admit

that the Third-Party Plaintiff is entitled to any recovery

against this Third-Party Defendant, and does not admit that

the value of the Third-Party Plaintiff’s claim equals or

exceeds the amount referenced.

2. This Third-Party Defendant admits the allegations of

this paragraph.

3. This Third-Party Defendant lacks sufficient

information to admit the allegations of this paragraph at this

time, therefore, this Third-Party Defendant respectfully

denies the allegations of this paragraph and demands strict

proof thereof.

4. The proper legal designation of the Third-Party

Defendant is The Central Mutual Insurance Company. This

Third-Party Defendant admits that it is incorporated in and

has its principle place of business in a State other than

Alabama. This Third-Party Defendant denies that it is a

proper party to this action.

5. This Third-Party Defendant does not contest that this

Court has subject matter jurisdiction over this matter.

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6. This Third-Party Defendant admits that the subject

accident occurred on or about October 14, 2005, admits that

McCray was operating a 1995 Ford Pickup Truck and admits the

allegations with respect to where the accident occurred.

Otherwise, this Third-Party Defendant is not currently able to

admit the remaining allegations of this paragraph, therefore,

this Third-Party Defendant respectfully denies the same at

this time and demands strict proof thereof.

7. This Third-Party Defendant admits that Burkett was

operating a 1993 Dodge Stealth at the time of the subject

accident. Otherwise, this Third-Party Defendant is not

currently able to admit the remaining allegations of this

paragraph, therefore, this Third-Party Defendant respectfully

denies the same at this time and demands strict proof thereof.

8. This Third-Party Defendant lacks sufficient

information to admit the allegations of this paragraph at this

time, therefore, this Third-Party Defendant must respectfully

deny these allegations at this time and demands strict proof

thereof.

9. This Third-Party Defendant lacks sufficient

information to admit the allegations of this paragraph at this

time, therefore, this Third-Party Defendant must respectfully

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deny these allegations at this time and demands strict proof

thereof.

10. This Third-Party Defendant admits that McCray

suffered personal injuries as a result of the subject

accident, but the nature and extent of the injuries and

damages are disputed, and this Third-Party Defendant demands

strict proof thereof.

11. This Third-Party Defendant admits that McCray

suffered personal injuries as a result of the subject

accident, but the nature and extent of the injuries and

damages are disputed, and this Third-Party Defendant demands

strict proof thereof.

12. This Third-Party Defendant admits that McCray

suffered personal injuries as a result of the subject

accident, but the nature and extent of the injuries and

damages are disputed, and this Third-Party Defendant demands

strict proof thereof.

13. This Third-Party Defendant admits that McCray

suffered personal injuries as a result of the subject

accident, but the nature and extent of the injuries and

damages are disputed, and this Third-Party Defendant demands

strict proof thereof.

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14. This Third-Party Defendant admits that McCray

suffered personal injuries as a result of the subject

accident, but the nature and extent of the injuries and

damages are disputed, and this Third-Party Defendant demands

strict proof thereof.

15. This Third-Party Defendant respectfully denies the

allegations of this paragraph at this time and demands strict

proof thereof.

16. This Third-Party Defendant admits the allegations of

this paragraph.

17. This Third-Party Defendant admits the allegations of

this paragraph.

18. This Third-Party Defendant admits the allegations of

this paragraph.

19. This Third-Party Defendant admits the allegations of

this paragraph.

20. This Third-Party Defendant adopts and incorporates

its response to the previous paragraphs of the Complaint.

21. This Third-Party Defendant denies the allegations of

this paragraph at this time and demands strict proof thereof.

22. This Third-Party Defendant admits that McCray

suffered personal injuries as a result of the subject

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accident, but the nature and extent of the injuries and

damages are disputed, and this Third-Party Defendant demands

strict proof thereof.

23. This Third-Party Defendant denies the allegations of

this paragraph at this time and demands strict proof thereof.

24. This Third-Party Defendant denies the allegations of

this paragraph at this time and demands strict proof thereof.

25. This Third-Party Defendant denies the allegations of

this paragraph at this time and demands strict proof thereof.

26. This Third-Party Defendant denies the allegations of

this paragraph at this time and demands strict proof thereof.

SECOND DEFENSE

Except as otherwise expressly admitted herein, this

Third-Party Defendant denies each and every material averment

of Third-Party Complaint and demands strict proof thereof.

THIRD DEFENSE

Except as expressly admitted herein, this Third-Party

Defendant says that it is not guilty of the allegations of the

Third-Party Complaint and demands strict proof thereof.

FOURTH DEFENSE

This Third-Party Defendant says that the Policy of

insurance covering the vehicle driven by the Third-Party

Plaintiff at the time of the subject accident was issued by

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All America Insurance Company, not The Central Mutual

Insurance Company or The Central Mutual Insurance, and the

named insured under that Business Auto Policy is Southeast

Forest Industries Inc.

FIFTH DEFENSE

This Third-Party Defendant denies that the Third-Party

Complaint is a proper Third-Party Complaint pursuant to Rule

14 Federal Rules of Civil Procedure, as the Third-Party

Complaint does not seek recovery from “a party to the action

who is or may be liable to the Third-Party Plaintiff for all

or part of the Plaintiff’s claim against the Third-Party

Plaintiff.”

SIXTH DEFENSE

This Third-Party Defendant reserves the right to move to

strike or sever for a separate trial the claims made the basis

of the Third-Party Complaint.

SEVENTH DEFENSE

The Third-Party Plaintiff says that the joinder of the

claims made the basis of this Third-Party Complaint is

improper and prejudicial, as it has the effect of interjecting

insurance issues into the original case-in-chief.

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EIGHTH DEFENSE

The Third-Party Defendant reserves the right to “opt out”

of these proceedings based upon the applicable law.

NINTH DEFENSE

The Third-Party Defendant says that the Policy issued by

All America Insurance Company was issued in the State of

Georgia to a Georgia named insured, and as such, Georgia law

should be applied by the Court on issues pertaining to

interpretation of the Policy.

TENTH DEFENSE

The Third-Party Defendant says that the Third-Party

Plaintiff has failed to comply with conditions precedent to

recovery under the Policy, including terms and conditions of

the Policy itself.

ELEVENTH DEFENSE

The Third-Party Defendant pleads contributory negligence

as a defense.

TWELFTH DEFENSE

The Third-Party Defendant denies that the Third-Party

Plaintiff has been injured and/or damaged to the nature and

extent claimed and contests damages.

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THIRTEEN DEFENSE

The Third-Party Defendant says that the Third-Party

Plaintiff has failed to mitigate any alleged injuries and

damages.

FOURTEENTH DEFENSE

This Third-Party Defendant says that an award of punitive

damages to the Third-Party Plaintiff in this case will be

violative of the constitutional safeguards provided to this

Third-Party Defendant under the Constitution of the United

States.

FIFTEENTH DEFENSE

This Third-Party Defendant says that an award of punitive

damages to the Third-Party Plaintiff in this case will be

violative of the constitutional safeguards provided to ThirdParty Defendant under the Due Process Clause of the Fourteenth

Amendment to the Constitution of the United States in that

punitive damages are vague and are not rationally related to

legitimate government interests.

SIXTEENTH DEFENSE

This Third-Party Defendant says that an award of punitive

damages to the Third-Party Plaintiff in this case will be

violative of Article I, Section 6 of the Constitution of the

State of Alabama which provides that no person shall be

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deprived of life, liberty, or property except by due process

of law, in that punitive damages are vague and are not

rationally related to legitimate government interests.

SEVENTEENTH DEFENSE

This Third-Party Defendant says that an award of punitive

damages to the Third-Party Plaintiff in this case will be

violative of the procedural safeguards provided to this ThirdParty Defendant under the Sixth Amendment to the Constitution

of the United States in that punitive damages are penal in

nature and consequently, this Third-Party Defendant is

entitled to the same procedural safeguards accorded to

criminal defendants.

EIGHTEENTH DEFENSE

It is violative of the self-incrimination clause of the

Fifth Amendment to the Constitution of the United States of

America to impose against this Third-Party Defendant punitive

damages, which are penal in nature, yet compel the Third-Party

Defendant to disclose potentially incriminating documents and

evidence.

NINETEENTH DEFENSE

It is violative of the self-incrimination clause of

Article I, Section 6 of the Constitution of the State of

Alabama to impose against this Third-Party Defendant punitive

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damages, which are penal in nature, yet compel this ThirdParty Defendant to disclose potentially incriminating

documents and evidence.

TWENTIETH DEFENSE

It is violative of the rights guaranteed by the

Constitution of the United States of America and the

Constitution of the State of Alabama to impose punitive

damages against this Third-Party Defendant which are penal in

nature by requiring a burden of proof on the Third-Party

Plaintiff which is less than the "beyond a reasonable doubt"

burden of proof required in criminal cases.

TWENTY-FIRST DEFENSE

This Third-Party Defendant says that an award of punitive

damages to the Third-Party Plaintiff in this case will be

violative of the Eighth Amendment to the Constitution of the

United States in that said damages would be an excessive fine

in violation of the Excessive Fines Clause of the Eighth

Amendment to the United States Constitution.

TWENTY-SECOND DEFENSE

This Third-Party Defendant says that an award of punitive

damages to the Third-Party Plaintiff in this case will be

violative of the Due Process Clause of the Fourteenth

Amendment of the Constitution of the United States in that it

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would provide damages to the Third-Party Plaintiff in excess

of the amount determined to be appropriate under the formula

adopted by the Alabama Legislature in 1981 in Section 27-1-17,

Code of Alabama 1975, as amended.

TWENTY-THIRD DEFENSE

This Third-Party Defendant asserts any and all

applicable statutory caps or limitations to any claim for

punitive damages, including but not limited to Section 6-11-

21, Code of Alabama 1975, as amended.

TWENTY-FOURTH DEFENSE

This Third-Party Defendant says it is entitled to an offset and/or credit for any sums received by the Third-Party

Plaintiff by way of settlement or pro tanto settlement,

including but not limited to any sums received from the ThirdParty Plaintiff’s liability insurer and the Co-Third-Party

Defendant.

TWENTY-FIFTH DEFENSE

This Third-Party Defendant pleads release as a defense.

THIS THIRD-PARTY DEFENDANT DEMANDS TRIAL BY STRUCK JURY 

\s\ C. Peter Bolvig__________

C. Peter Bolvig, Esq. (BOL008)

Attorney for Third-Party

Defendant, designated as “The

Central Mutual Insurance

Company”

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OF COUNSEL:

HALL, CONERLY & BOLVIG, P.C.

1400 Financial Center

505 North 20th Street

Birmingham, AL 35203

(205) 251-8143 Telephone

(205) 326-3202 Facsimile

CERTIFICATE OF SERVICE

I hereby certify that I have on this 1st day of November,

2006, served a copy of the foregoing pleading on counsel for

all parties to this proceeding by mailing same in the U.S.

Mail, properly addressed and first-class postage prepaid to:

David J. Harrison, Esq.

P.O. Box 994

Geneva, AL 36340

Tommy Ray Scarborough, Esq.

119 South Foster Street, Suite 101

Dothan, AL 36303

William A. Mudd, Esq.

1200 Financial Center, 505 North 20th Street

Birmingham, AL 35203

David W. Rousseau, Esq.

211 W. Adams Street

Dothan, AL 36303

Johnnie Mae Graham, Esq.

P.O. Box 2303

Albany, GA 31702

\s\ C. Peter Bolvig, Esq.

OF COUNSEL

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