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, Monday, March 20, 2000. 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 Monday, September 13, 1999, at approximately 8:10 am, Ms. Andrea Albertson, a citizen of Louisiana, was driving her 1997 Honda automobile traveling South on NW 51st in Gainesville, Florida. At approximately the same time, Mr. Bill Bell, a citizen of Florida, was driving his 1995 Mazda Pick-Up 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 NW 23rd Avenue and prepared to make a left turn onto the Eastbound lanes of NW 23rd, there was a collision involving the last two 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 suffered no physical injuries and her car was undamaged. Ms. Albertson is a Physician who practices in New Orleans, Louisiana. She is an Ophthalmologist. Mr. Bell's Mazda Pick-Up, 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 (Mr. Bell had a part-time position at a local accounting firm, which paid him about $400.00 per week). 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. Mr. Crust's Suburban, suffered damages that cost $12,675.00 to repair. He also spent $1,500.00 in medical bills. His physical damages were limited to some bruising and soreness, which went away a few weeks after the accident. Mr. Crust is a Contractor from Louisiana.
You are a lawyer and Mr. Bell has asked you to represent him. He 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. He has indicated that he was not at fault for the accident, that he simply stopped when Ms. Albertson came to a sudden stop in front of him, and that although he was travelling at high speed, he was able to make a controlled stop, as shown by the fact that he did not hit Ms. Albertson. Then, the Suburban rear-ended his Mazda Pick-Up.
While conducting your own investigation of the case, you discover that the Louisiana residents were in Gainesville for a sporting event and had stayed a few extra days. You also obtain a copy of a one page police report. The police report, dated September 13, 1999, is attached hereto. The police filed no charges against Ms. Albertson. Officers filed charges against Mr. Bell and Mr. Crust. Both were charged traffic violations. The police alleged that Mr. Bell had been traveling at an excessive rate of speed 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 did not represent Mr. Bell in the traffic matter.
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 Mr. Bell's version of events and agree to represent him. Mr. Bell wishes to sue only Mr. Crust, because he has better insurance coverage than Ms. Albertson. Draft the complaint.
Naturally, the Complaint must be drafted first and it must be served upon opposing counsel in a timely fashion so that they may be afforded enough time to draft their own responses, counter-pleadings and third-party pleadings. Under no circumstances may the complaints be served later than one week before the final due date of the project.
Mr. Crust 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 Mr. Bell. He says that Ms. Albertson, slammed on her breaks and 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 further argues that Mr. Bell panicked and slammed on his breaks, when the most prudent alternative would have been to go into the right hand lane and avoid a collision.
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 further believe that a reasonable claim can be made that Mr. Bell then had a clear chance to avoid the accident by going into the right hand lane. You have serious doubts, however, about your client's statement that he was traveling within the posted speed limit.
You agree to undertake Mr. Crust'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. Crust, you have been asked by your co-counsel to prepare a counterclaim against Mr. Bell. Draft a counterclaim against Mr. Bell. 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. Crust has against Mr. Bell, arising out of the facts stated herein.
You are co-counsel for Mr. Crust. He wishes to implead Ms. Albertson, arguing that she made a sudden stop at the intersection because she was distracted speaking on her cellular telephone while she was driving, and something in the conversation caused her to become upset. You are also 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).
Law. Assume that that you may make allegations regarding fault against any of the three persons involved in the accident, consistent with Rule 11 of the Federal Rules of Civil Procedure. Assume further, that there is joint and several tort liability in this case. Otherwise, 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.
Practical Project Group and Pleading Assignments
[I do not use students' names in the web version.]
* Students drafting the complaint must serve it upon opposing counsel no later one week before the final date, i.e., Monday, March 13, 2000, in order to afford the other students sufficient time to do their work.