As I anticipated in the Syllabus, each student will be responsible for drafting a simple pleading. This practical project will account for 10% of your testing score and will be graded on a pass/fail basis. You will work in small work-groups designated in the chart attached hereto. Each member of the work-group will be responsible for one document only, as indicated in the attached chart, and shall be graded accordingly. However, group members must coordinate to produce the pertinent documents: the answer produced by the group member designated to write that document, must be an answer to the complaint drafted by the group member assigned to write the complaint; the counterclaim and third-party complaint must be tailored to that complaint as well. After the documents are turned-in, I will be happy to meet with each group to give you some feedback on your work.
All the documents will be due on or before 5:00 pm, Thursday, April 1, 1998. You may turn them in to me after class or in my office any day prior to the deadline, or you may turn them in to my secretary, Ms. Betty Donaldson in the secretarial pool office.
On Sunday, September 13, 1998, at approximately 1:10 am, Ms. Andrea Albertson, a citizen of Louisiana, was driving her 1997 Corvette automobile traveling East to West on University Avenue in Gainesville, Florida. At approximately the same time, Mr. Bill Bell, a citizen of Florida, was driving his 1995 Saturn coupe in the same direction. Mr. Charles Crust, a citizen of Louisiana, was following in his Chevrolet Suburban. As the three cars reached the intersection of University Avenue and 34th Street, there was a collision involving all three of the above-described persons and their vehicles. The only witnesses to the collision that have been found and interviewed are the drivers involved. The police were unable to find anyone else driving in that area at the time of the accident, or any other independent witness.
As a result of the accident, Ms. Albertson's automobile, which cost $43,525.50 was a total loss. Ms. Albertson suffered serious bodily injuries (broken bones, facial lacerations, etc.) and has incurred medical expenses in excess of $65,000.00 and it is estimated that she will need further medical care in the amount of $85,000.00. Ms. Albertson is a Physician who practices in New Orleans, Louisiana. She is an Ophthalmologist.
You are a lawyer. Ms. Albertson has asked you to represent her. She has informed you of the above facts and has asked you to draft a complaint to be filed in the U.S. District court for the Northern District of Florida. She has indicated that she was not at fault for the accident, that she simply stopped when the traffic light controlling the intersection turned to red. She also knows that the Saturn rear-ended her car and that the Suburban rear-ended the Saturn. However, she does not know if the Saturn hit her first and was then rear ended by the Suburban, or if the Suburban hit the Saturn and pushed it into her car.
While conducting your own investigation of the case, you discover that the Louisiana residents were in Gainesville for the Florida-Northeast Louisiana Football game. You also obtain a copy of a one page police report. The police report, dated September 14, 1998, is attached hereto. The police filed no charges against Ms. Albertson. Officers filed charges against Mr. Bell and Mr. Crust. Both were charged with reckless driving. The police alleged that Mr. Bell had been traveling at an excessive rate of speed and tailgating Ms. Albertson (failing to keep proper distance between automobiles) at the time of the accident. They also charged Mr. Crust with reckless driving for traveling at an excessive rate of speed and for failing to keep proper distance from the traffic ahead of him. Both drivers pleaded "no contest" to the charges and each paid the corresponding $1000.00 fines. (You should assume that there is no res judicata or issue preclusion resulting from the criminal proceedings.)
You also go the intersection and observe the layout of the intersection and the functioning of the traffic light.
After interviewing your client and conducting your own investigation, you believe most of Ms. Albertson's version of events and agree to represent her. You may assume that allegations of liability can be made against both Mr. Bell and Mr. Crust consistent with your obligations under Rule 11. You may assume further that joint and several liability is the law of the state of Florida. Ms. Albertson wishes to sue only Mr. Bell, because he has better insurance coverage than Mr. Crust, and she wants this case to be filed in Federal Court. She would also feel bad if she sued a fellow Ragin' Cajun. Draft the complaint.
Naturally, the Complaint must be drafted first and it must be served upon opposing counsel in a timely fashion. Under no circumstances may the complaint be served later than one week before the final due date of the project.
Mr. Bell comes to you after being served with a copy of the complaint and asks you to represent him and file an answer and counterclaim against Ms. Albertson. He says that Ms. Albertson, slammed on her breaks when she approached the intersection as the traffic light controlling their lane turned yellow. He says that he did not have enough time to stop his car, which was traveling at a normal rate of speed, within the posted speed limit. He adds further that he managed to stop before hitting Ms. Albertson but that Mr. Crust rear-ended his little car and pushed it into the rear of Ms. Albertson's Corvette.
You also have the police report that was described in the previous section and are aware of the result of the criminal cases. You believe that it is reasonable to believe that Ms. Albertson was the proximate cause of the accident because she slammed on her breaks when she should have kept going, rather than stopping. You have serious doubts, however, about your client's statement that he was traveling within the posted speed limit. You are unable clearly to establish the order in which the cars collided, but it is reasonable to argue that the order was as Mr. Bell suggests.
You agree to undertake Mr. Bell's representation. You believe that you can draft an answer and counterclaims to this complaint, as well as file a third-party complaint, based on the information available to you, which are consistent with your obligations to represent your client within the limits of Rule 11 and all other applicable rules and laws. Draft the answer to the complaint.
You are co-counsel for Mr. Bell, you have been asked by your co-counsel to prepare a counterclaim against Ms. Albertson. In addition to the facts relevant to the answer, you are aware of the following facts: Mr. Bell's Saturn, which cost $16,500.00, was a total loss. He suffered many serious bodily injuries, and remained in the hospital for ten weeks following the accident. He will not be able to work again for at least six months. His medical treatment has cost $216,800.86 so far. His doctors anticipate that he will have to spend another $1,050,000.00 for treatment of physical injuries. Mr. Bell is a student at the University of Florida. He is studying accounting.
Draft a counterclaim against Ms. Albertson. Although counterclaims are usually included with the answer to the complaint, you should draft this as a separate document. The counterclaim should include all claims Mr. Bell has against Ms. Albertson, arising out of the facts stated herein.
You are co-counsel for Mr. Bell. He wishes to implead Mr. Crust. You are aware of all facts relevant to the Answer and to the Counterclaim. Draft a third-party complaint. You have chosen to raise as many claims in this third-party complaint as would be allowed by the Federal Rules of Civil Procedure, given the facts of this case.
Assume that in drafting your pleadings you must please a federal judge who thinks like judge Keeton (see, Cash Energy, Inc. v. Weiner, casebook page 157). Make both jurisdictional and venue allegations. (See 28 USC §§ 1332, 1391).
Assume that the applicable substantive law will be that of Florida. The laws of Florida make damages allegations in tort cases generally, and in automobile accidents specifically, somewhat difficult. Florida generally subscribes to the "Impact Rule," i.e., no claim for emotional trauma may be pursued unless it is related to physical injury. There are few exceptions to the general rule. For a good discussion of the matter, see R.J. and P.J., v. Humana Of Florida, Inc., 652 So. 2d 360 (1995). In automobile cases, the law is also quite strict. See Fla. Stat § 627.737. Take this into account when drafting your complaint.
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COMPLAINT |
ANSWER |
COUNTER-CLAIM |
THIRD-PARTY COMPLAINT |
* Both students must draft separate Third Party Complaints.