Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 163

Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Doc. 163

1 Douglas L. Christian, State Bar No. 004178 [e-mail] 2 Gena L. Sluga, State Bar No. 018633 [e-mail] 3 HARPER, CHRISTIAN, DICHTER & GRAIF, P.C. 2700 N. Central Avenue, Suite 1200 4 Phoenix, AZ 85004 [phone] 5 [phone] (fax) Attorneys for OneBeacon 6 7 8 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA No. CV07-1049 PHX JAT ANSWER

9 Tri-Star Theme Builders, Inc./PCL Construction Services, Inc., a Joint Venture, 10 11 12 13 vs. Plaintiff,

Hawkeye-Security Insurance Company, an 14 Iowa corporation, 15 16 17 OneBeacon Insurance Company ("OneBeacon"), on behalf of the entity formerly known OneBeacon.

18 as Hawkeye-Security Insurance Company, answers Plaintiff's complaint as follows: 19 PARTIES 20 1. Answering paragraphs 1-3 of Plaintiff's Complaint, OneBeacon is without 21 knowledge and information sufficient to form a belief as to the truth of the allegations contained 22 in these paragraphs and therefore denies same. 23 2. Answering paragraph 4 of Plaintiff's Complaint, OneBeacon admits that 24 Hawkeye-Security was an Iowa corporation. OneBeacon affirmatively asserts that the liabilities 25 26

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1 of that corporation have been transferred to OneBeacon, which answers Plaintiff's Complaint on 2 behalf of the entity formerly known as Hawkeye-Security Insurance Company. 3 4 3. JURISDICTION AND VENUE Answering paragraphs 5 and 6 of Plaintiff's Complaint, OneBeacon asserts that it

5 has removed this litigation to federal court, and that the United States District Court for the 6 District of Arizona has proper jurisdiction over this case pursuant to 28 U.S.C. §§1332, 1441 7 and 1446. OneBeacon denies the remaining allegations in paragraphs 5 and 6. 8 9 A. 10 4. BACKGROUND AND NATURE OF THIS ACTION The Creation Of The Joint Venture Tri Star/PCL Answering paragraphs 7-9 of Plaintiff's Complaint, OneBeacon is without

11 knowledge and information sufficient to form a belief as to the truth of the allegations contained 12 in these paragraphs and therefore denies same. 13 B. 14 The Blue Water Resort And Casino Project 5. Answering paragraphs 10-11 of Plaintiff's Complaint, OneBeacon is without

15 knowledge and information sufficient to form a belief as to the truth of the allegations contained 16 in these paragraphs and therefore denies same. 17 C. 18 The Underlying Claim 6. Answering paragraph 12 of Plaintiff's Complaint, OneBeacon admits that a matter

19 known as Maricopa County Superior Court Cause No. CV 2003-022115, Colorado River Indian 20 Tribes v. Tri Star Theme Builders, Inc./PCL Construction Services, Inc. was filed in November 21 2003. OneBeacon is without knowledge and information sufficient to form a belief as to the 22 truth of the remaining allegations contained in paragraph 12 and therefore denies same. 23 D. 24 The Hawkeye Insurance Policies 7. Answering paragraph 13 of Plaintiff's Complaint, OneBeacon is without

25 knowledge and information sufficient to form a belief as to the truth of the allegations contained 26 in this paragraph and therefore denies same. 2

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8.

Answering paragraph 14 of Plaintiff's Complaint, OneBeacon admits that it issued OneBeacon denies the

2 commercial general liability policies to Golden West Mechanical. 3 remaining allegations contained in paragraph 14. 4 6 E. 7 9.

OneBeacon denies the allegations set forth in Paragraphs 15 and 16 of Plaintiff's

5 Complaint. Damages 10. Answering paragraphs 17-28 of Plaintiff's Complaint, OneBeacon is without

8 knowledge and information sufficient to form a belief as to the truth of the allegations contained 9 in these paragraphs and therefore denies same. 10 G. 11 Hawkeye Failed To Provide Coverage For The Underlying Action 11. OneBeacon admits the allegations set forth in Paragraph 29 of Plaintiff's

12 Complaint. 13 12. OneBeacon denies the allegations set forth in Paragraph 30 of Plaintiff's 14 Complaint. 15 13. OneBeacon admits the allegations set forth in Paragraph 31 of Plaintiff's 16 Complaint. 17 18 19 14. COUNT ONE Breach Of Contract ­ Duty To Defend Answering paragraph 32 of Plaintiff's Complaint, OneBeacon incorporates all

20 admissions, denials, defenses and affirmative defenses set forth in paragraphs 1 through 13 of 21 OneBeacon's Answer. 22 15. OneBeacon denies the allegations contained in paragraph 33 of Plaintiff's 23 Complaint. 24 16. Answering paragraphs 34-35 of Plaintiff's Complaint, OneBeacon is without 25 knowledge and information sufficient to form a belief as to the truth of the allegations contained 26 in these paragraphs and therefore denies same. 3

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17.

OneBeacon denies the allegations contained in paragraphs 36-40 of Plaintiff's

2 Complaint. 3 18. Answering paragraphs 41-44 of Plaintiff's Complaint, OneBeacon is without 4 knowledge and information sufficient to form a belief as to the truth of the allegations contained 5 in these paragraphs and therefore denies same. 6 19. OneBeacon denies the allegations contained in paragraph 45 of Plaintiff's 7 Complaint. 8 9 10 20. COUNT TWO Breach Of Contract ­ Duty To Indemnify Answering paragraph 46 of Plaintiff's Complaint, OneBeacon incorporates all

11 admissions, denials, defenses and affirmative defenses set forth in paragraphs 1 through 19 of 12 OneBeacon's Answer. 13 21. OneBeacon denies the allegations contained in paragraph 47 of Plaintiff's 14 Complaint. 15 22. Answering paragraph 48-50 of Plaintiff's Complaint, OneBeacon is without 16 knowledge and information sufficient to form a belief as to the truth of the allegations contained 17 in these paragraphs and therefore denies same. 18 23. OneBeacon denies the allegations contained in paragraphs 51-53 of Plaintiff's 19 Complaint. 20 24. Answering paragraph 54-59 of Plaintiff's Complaint, OneBeacon is without 21 knowledge and information sufficient to form a belief as to the truth of the allegations contained 22 in these paragraphs and therefore denies same. 23 25. OneBeacon denies the allegations contained in paragraph 60 of Plaintiff's 24 Complaint. 25 26 4

1 2 26. 3 admitted herein. 4 27.

AFFIRMATIVE DEFENSES OneBeacon denies each material allegation of Plaintiff's complaint not expressly

Plaintiff fails to state a claim against OneBeacon upon which relief may be

5 granted, and fails to demonstrate its capacity or standing to bring this claim. It is not a party to 6 the insurance contracts upon which it sues, and it fails to allege with sufficient particularity its 7 status as a beneficiary of the rights conferred by those contracts. 8 9 10 28. 29. 30. OneBeacon denies that it breached any express or implied duty owed to Plaintiff. OneBeacon denies that it breached any contractual duty owed to Plaintiff. OneBeacon affirmatively alleges that Plaintiff's claims may be barred, in whole or

11 in part, by its contributory or comparative fault. 12 31. OneBeacon affirmatively alleges that Plaintiff may have failed to mitigate its 13 damages. 14 32. OneBeacon affirmatively alleges that the acts or omissions of third parties may 15 have caused or contributed to Plaintiff's alleged losses and damages. 16 33. OneBeacon affirmatively alleges that if it is determined to be liable to Plaintiff, 17 OneBeacon may be entitled to contribution and/or indemnification from other parties. 18 34. OneBeacon affirmatively alleges that it has performed all of its obligations under 19 the policies. 20 35. OneBeacon affirmatively alleges that it is entitled to its reasonable and necessary 21 attorneys' fees and associated costs incurred in its defense of this action pursuant to ARS § 1222 341.01, as this action arises out of contract. 23 36. OneBeacon reserves all other applicable affirmative defenses that may develop 24 through discovery. If facts are discovered that give rise to additional affirmative defenses, 25 OneBeacon will seek leave of this Court to amend its Answer accordingly. 26 5

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WHEREFORE, having fully answered Plaintiff's complaint, OneBeacon requests

2 judgment in its favor, an award of its reasonable attorneys' fees and costs pursuant to ARS 123 341.01, and other appropriate relief. 4 5 6 7 8 9 10 11 I hereby certify that on May 30th, 2007, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of Notice of 12 Electronic filing to the following CM/ECF registrants: 13 Robert O. Dyer Wayne B. Ducharme 14 Dyer &Butler, LLP 2800 North Central Avenue, Suite 100 15 Phoenix, Arizona 85004 Attorneys for Plaintiff 16 17 18 19 20 21 22 23 24 25 26 6 /s/ Mary A. Kapalka _ /s/ Gena L. Sluga Douglas L. Christian Gena L. Sluga Attorneys for OneBeacon By DATED this 30th day of May, 2007. HARPER CHRISTIAN DICHTER GRAIF, P.C.