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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, )

)

v. ) CIVIL ACTION NO.:

) 1: 06-CV-775-DRB

TIMOTHY EUGENE MCCRAY and )

S.E.LUMBER COMPANY, )

)

Defendants, )

ANSWER

COME NOW, the defendants described as TIMOTHY EUGENE MCCRAY

and SOUTHEAST LUMBER COMPANY, INC., incorrectly described as

S.E.LUMBER COMPANY, in the above-styled cause, and in answer to the complaint

of the Plaintiff, and to each count and paragraph thereof, set forth and assign the

following separate and several defenses:

1. The averments and allegations of paragraph 1 of the plaintiff’s

complaint are legal and conclusory in nature, and therefore, do not

require a response by this defendant. To the extent that a response

may be required, however, this defendant denies said averments

and allegations and demands strict proof thereof.

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2. These defendants deny said averments and allegations and

demands strict proof thereof.

3. These defendants admit that Timothy Eugene McCray was an

employee of Southeastern Lumber Company, Inc., incorrectly

described in the complaint as S. E. Lumber Company, at the time

of the accident.

4. These defendants admit the allegations set forth in paragraph four

of the complaint. 

5. These defendants admit the allegations set forth in paragraph five

of the complaint, with the exception that Southeastern Lumber,

Company, Inc., is incorrectly described in the complaint as S. E.

Lumber Company .

DEFENSE NO. 1

These Defendants say that the plaintiff's complaint fails to state a claim

upon which relief can e granted as to these Defendants.

DEFENSE NO. 2

These Defendants deny each and every material allegation of the

plaintiff's complaint and thereby plead the general issue.

DEFENSE NO. 3

These Defendants plead "not guilty".

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DEFENSE NO. 4

These Defendants say that on the occasion(s) complained of the deceased

plaintiff was guilty of negligent or other wrongful conduct which

proximately caused and/or contributed to the injuries and damages

complained of.

DEFENSE NO. 5

These Defendants deny that the plaintiff was killed sue to wrongful

conduct on the part of these defendants. 

DEFENSE NO. 6

These Defendants say that an award of punitive damages to the plaintiff

in this case would be violative of the constitutional safeguards provided

to these Defendants under the Constitution of the State of Alabama.

DEFENSE NO. 7

These Defendants say that an award of punitive damages to the plaintiff

in this case would be violative of the constitutional safeguards provided

to these Defendants under the Constitution of the United State of

America.

DEFENSE NO. 8

These Defendants say that any award of punitive damages to the plaintiff

in this case would be violative of the constitutional safeguards provided

to these Defendants under the Due Process Clause of the Fourteenth

Amendment to the Constitution of the United State of America in that

punitive damages are vague and are not rationally related to legitimate

government interests.

DEFENSE NO. 9

These Defendants say that any award of punitive damages to the plaintiff

in this cause would be violative of Article I, Section 6 of the Constitution

of the State of Alabama, which provides that no person should be

deprived of life, liberty, or property except by due process of law, in that

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punitive damages are vague and are not rationally related to legitimate

government interests.

DEFENSE NO. 10

These Defendants say that any award of punitive damages to the plaintiff

in this case would be violative of the procedural safeguards provided to

these Defendants under the Sixth Amendment tot he Constitution of the

United States of American in that punitive damages are penal in nature

and, consequently, these Defendants are entitled to the same procedural

safeguards accorded to criminal Defendants.

DEFENSE NO. 11

It is violative of the Self-Incrimination Clause of the Fifth Amendment

to the Constitution of the United States of America to impose against

these Defendanta punitive damages, which are penal in nature, yet

compel these Defendants to disclose potentially incriminating documents

and evidence.

DEFENSE NO. 12

It is violative of the Self-Incrimination Clause of Article I, Section 6 of

the Constitution of the State of Alabama, to impose against these

Defendants punitive damages, which are penal in nature, yet compel

these Defendants to disclose potentially incriminating documents and

evidence.

DEFENSE NO. 13

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 these Defendants, which are penal in

nature, by requiring a burden of proof on the plaintiff which is less than

the "beyond a reasonable doubt" burden of proof required in criminal

cases.

DEFENSE NO. 14

These Defendants say that any award of punitive damages to the plaintiff

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in this case would be violative of the Eighth Amendment to the

Constitution of the United States of America in that said damages would

be an excessive fine in violation of the Excessive Fines Clause of the

Eighth Amendment of the United States Constitution.

DEFENSE NO. 15

These Defendants say that any award of punitive damages to the plaintiff

in this case would be violative of the Due Process Clause of the

Fourteenth Amendment of the Constitution of the United States of

America in that it would provide damages to the plaintiff in excess of the

amount determined to be appropriated under the formula adopted by the

Alabama Legislature in 1981 in §27-1-17, Code of Alabama (1975), as

amended.

DEFENSE NO. 16

These Defendants say that the punitive damage cap set forth in Section

6-11-21, Code of Alabama (1975) as amended, applies to the claims of

the plaintiffs in this case and this Defendant pleads the provisions of said

Statute as a defense on their behalf.

DEFENSE NO. 17

These Defendants say that any award of punitive damages to the plaintiff

is limited by the holding of the United States Supreme Court in State

farm Automobile Insurance Company v. Campbell, 2003 WL 1791206

(United States Supreme Court, April 7, 2003). 

DEFENSE NO. 18

These Defendants plead the punitive damages protections afforded to

them pursuant to the following: Ala. Code Section 7-2-715; Ala. Code

Section 6-11-20; Ala. Code Section 6-11-21; Ala. Code Section 6-11-

27; Lloyd Wood Coal Co. vs. Clark Equipment Co., 543 So. 2d 671

(Ala. 1989), Ford Motor Co. V. Rice, 726 So. 2d 626 (Ala. 1998); Ex

Parte Grand Manor, 2000 WL 337528 (Ala. 3/31/2000); White

Consolidated Industries, Inc. V. Wilkerson, 737 So. 2d 447 (Ala. 1999),

and Henderson v. Alabama Power Co., 627 So. 2d 878 (Ala. 1993).

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DEFENSE NO. 19

These Defendants say that the Plaintiff is guilty of contributory

negligence which proximately caused or contributed to his alleged

injuries and damages.

THESE DEFENDANTS DEMAND A TRIAL BY STRUCK JURY

 AS TO ALL ISSUES IN THIS CAUSE.

s:/ William A. Mudd 

William A. Mudd (ASB-4274-U79W)

Attorney for Defendants, Timothy Eugene

McCray and Southeast Lumber Company,

Inc.

OF COUNSEL:

Miller, Hamilton, Snider & Odom, L.L.C.

505 North 20th Street

Financial Center—Suite 1200

Birmingham, AL 35203

Phone: 205-226-5200

Fax: 205-225-5226

billmudd@mhsolaw.com

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 CERTIFICATE OF SERVICE

I hereby certify that on the 6th day of September, 2006, I electronically filed

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

notification of such filing to the following:

Attorneys for Plaintiff:

Mr. Tommy R. Scarborough

P. O. Box 994

Geneva, Alabama 36340

(334) 684-8729

Mr. David L. Harrison

P. O. Box 994

Geneva, Alabama 36340

(334) 684-8729

s:/ William A. Mudd 

OF COUNSEL

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