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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

DAWN SHEPHERD and )

BRIAN GARVER, Individually and as )

Natural Parents and Guardians of Minor, )

EG, )

)

Plaintiffs, )

)

v. ) Case No. 2:15 CV 167

)

LAKE COUNTY, INDIANA NECA )

IBEW HEALTH and BENEFIT PLAN, )

)

Defendants. )

*********************************** )

LAKE COUNTY, INDIANA NECA )

IBEW HEALTH and BENEFIT PLAN, )

)

Counter-Plaintiff, )

)

v. )

)

DAWN SHEPHERD and )

BRIAN GARVER, Individually and as )

Natural Parents and Guardians of Minor, )

EG, )

)

Counter-Defendants. )

ANSWER TO COMPLAINT FOR DECLARATORY JUDGMENT, 

AFFIRMATIVE DEFENSES AND COUNTERCLAIM

COMES NOW Defendant, Lake County, Indiana NECA IBEW Health and Benefit Plan, by 

counsel, Harold G. Hagberg, and in answer to Plaintiffs’ Complaint, states as follows:

1. Defendant is without knowledge and information sufficient to form a belief as to the 

truth of the allegations contained in paragraph 1 of Plaintiffs’ Complaint.
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2. Defendant is without knowledge and information sufficient to form a belief as to the 

truth of the allegations contained in paragraph 2 of Plaintiffs’ Complaint.

3. Defendant is without knowledge and information sufficient to form a belief as to the 

truth of the allegations contained in paragraph 3 of Plaintiffs’ Complaint.

4. Defendant admits the allegations contained in paragraph 4 of Plaintiffs’ Complaint.

5. Defendant admits the allegations contained in paragraph 5 of Plaintiffs’ Complaint.

6. Defendant is without knowledge and information sufficient to form a belief as to the 

truth of the allegations contained in paragraph 6 of Plaintiffs’ Complaint.

7. Defendant is without knowledge and information sufficient to form a belief as to the 

truth of the allegations contained in paragraph 7 of Plaintiffs’ Complaint.

8. Defendant denies the allegations contained in paragraph 8 of Plaintiffs’ Complaint.

9. Defendant denies the allegations contained in paragraph 9 of Plaintiffs’ Complaint. 

10. Defendant is without knowledge and information sufficient to form a belief as to the 

truth of the allegations contained in paragraph 10 of Plaintiffs’ Complaint.

WHEREFORE, Defendant prays that Plaintiffs take nothing by way of their Complaint, and 

for all further just and proper relief in the premises.

Respectfully submitted,

HAGBERG & ASSOCIATES, P.C.

Attorney for Defendant 

/s/ Harold G. Hagberg

Harold G. Hagberg, #7361-45

11045 Broadway, Suite D

Crown Point, IN 46307

219-864-9055

FAX: 219-864-9062
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AFFIRMATIVE DEFENSES

First Affirmative Defense

COMES NOW Defendant, by counsel, Harold G. Hagberg, and for Answer to Plaintiffs’

Complaint, states as follows:

1. That Federal Law preempts any state law claims and/or right that the Plaintiff may 

claim under Indiana State Law.

WHEREFORE, the Defendant prays that the Plaintiffs take nothing by way of their

Complaint, and for all further just and proper relief in the premises.

/s/ Harold G. Hagberg

Harold G. Hagberg, #7361-45

Second Affirmative Defense

COMES NOW Defendant, and for Answer to Plaintiffs’ Complaint, states as follows:

1. The Plaintiffs have failed to exhaust administrative remedies under the Lake County, 

Indiana NECA IBEW Health and Benefit Plan.

WHEREFORE, the Defendant prays that the Plaintiffs take nothing by way of their

Complaint, and for all further just and proper relief in the premises.

/s/ Harold G. Hagberg

Harold G. Hagberg, #7361-45
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Third Affirmative Defense

COMES NOW Defendant, and for Answer to Plaintiffs’ Complaint, states as follows:

1. That the Plaintiffs are estopped from enforcing any equitable right they may assert as 

it applies to the Lake County, Indiana NECA IBEW Health and Benefit Plan; that they are not bound 

by the terms of said Plan given the fact that they have accepted benefits under said Plan. 

WHEREFORE, the Defendant prays that the Plaintiffs take nothing by way of their

Complaint, and for all further just and proper relief in the premises.

/s/ Harold G. Hagberg

Harold G. Hagberg, #7361-45

Fourth Affirmative Defense

COMES NOW Defendant, and for Answer to Plaintiffs’ Complaint, states as follows:

1. That any allegations not specifically admitted, denied or controverted contained in 

Plaintiff’s Complaint are now specifically denied.

WHEREFORE, the Defendant prays that the Plaintiffs take nothing by way of their

Complaint, and for all further just and proper relief in the premises.

/s/ Harold G. Hagberg

Harold G. Hagberg, #7361-45

Fifth Affirmative Defense

COMES NOW Defendant, and for Answer to Plaintiffs’ Complaint, states as follows:

1. That Plaintiffs’ Complaint fails to state a cause of action upon which relief can be 

granted.
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WHEREFORE, the Defendant prays that the Plaintiffs take nothing by way of their

Complaint, and for all further just and proper relief in the premises.

/s/ Harold G. Hagberg

Harold G. Hagberg, #7361-45

COUNTERCLAIM

Lake County, Indiana NECA IBEW Health and Benefit Plan (the “Benefit Plan”), by and 

through its undersigned counsel, files this Counterclaim against Dawn Shepherd, Brian Garver, 

Individually and as Natural Parents and Guardians of minor EG, and EG, (“Garver”) and alleges on 

personal knowledge as to its information and belief as to all other matters as follows:

1. That Benefit Plan is a full time employer health and benefit plan.

2. A true and accurate copy of the pertinent portion of said Benefit Plan is attached 

hereto and made a part hereof, as Exhibit 1. 

3. That the Counter-Defendant, Garver, was involved in an accident on October 23, 

2011, and as a result of said accident, the Benefit Plan paid benefits to Garver in the amount of 

$391,000.00.

4. That under the Benefit Plan, there exists a subrogation interest in the event a 

participant or defendant recovers from a third party.

5. That Garver recovered sums against a third party, to wit: Colin Colvin. 

6. That the recovery of Garver against Colin Colvin was in the amount of or exceeded 

$250,000.00.
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7. That the Plan Document of the Benefit Plan specifically rejects the make-whole 

doctrine and the common fund doctrine.

8. That under the Benefit Plan, Garver isresponsible to fully reimburse the Benefit Plan 

for all medical expenses and bills paid by the Benefit Plan on behalf of Garver, to the extent of his 

recovery, or to the extent of the Benefit Plan payouts, whichever is lesser. 

WHEREFORE, the Counter-Plaintiff, Lake County, Indiana NECA IBEW Health and 

Benefit Plan prays for judgment against the Counter-Defendants, Dawn Shepherd, Brian Garver, 

Individually and as Natural Parents and Guardians of minor EG, and EG, in the amount of 

$391,000.00, plus reasonable attorneys fees, costs and all other just and proper relief in the premises. 

Respectfully submitted,

HAGBERG & ASSOCIATES

Attorneys for Defendant / Counter-Plaintiff

 

/s/ Harold G. Hagberg

Harold G. Hagberg, #7361-45

11045 Broadway, Suite D

Crown Point, IN 46307

219-864-9055

FAX: 219-864-9062

CERTIFICATE OF SERVICE

I certify that on July 15, 2015, I electronically filed the foregoing with the Clerk of the 

United States District Court, using the CM/ECF System, which electronically sent notification of 

such filing to the following CM/ECF participants:

Mark A. Thiros

/s/ Harold G. Hagberg