Case 1:20-cv-00150-HSO-JCG Document 2 Filed 04/30/20 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION ESTATE OF JADA BRIGHT AND ON BEHALF OF THE WRONGFUL DEATH BENFICIARIES OF JADA BRIGHT VS. PLAINTIFF CASE NO. 1:20CV-00150-HSO-JCG THE ESTATE OF SHELLEY E. ROSE; EAN HOLDINGS, LLC; ENTERPRISE LEASING COMPANY-SOUTH CENTRAL, LLC; ENTERPRISE OLDINGS, INC.; ELCO ADMINISTRATIVE SERVICES COMPANY; NATIONAL CAR RENTAL SYSTEM, INC; LAUDERDALE CONTY; JONES COUNTY; CITY OF ELLISVILLE; BEECH’S TOWING & RECOVERY LLC; ABC CORPORATIONS 1-5; AND JOHN DOES 1-5 DEFENDANTS ANSWER AND DEFENSES OF DEFENDANT, BEECH’S TOWING & RECOVERY LLC (Jury Trial Requested) Comes now the Defendant, Beech’s Towing & Recovery LLC, (hereinafter “this Defendant”), by and through counsel, without waiving any of the defenses set forth in the Motion previously filed, and in the alternative to the Motion to Dismiss, answers the Complaint exhibited against it answers and says: FIRST DEFENSE The Complaint fails to state a claim against the Defendant, Beech’s Towing & Recovery, upon which relief may be granted and should be dismissed. This Defendant incorporates by reference all arguments and authorities set forth in its pending Motion to Dismiss. 1 Case 1:20-cv-00150-HSO-JCG Document 2 Filed 04/30/20 Page 2 of 14 SECOND DEFENSE: ANSWER Answering the allegations of the Complaint, paragraph by paragraph, this Defendant says: 1. The allegations in Paragraph 1 are admitted on information and belief. 2. The allegations in Paragraph 2 are directed at another Defendant and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 3. The allegations in Paragraph 3 are directed at another Defendant and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 4. The allegations in Paragraph 4 are directed at another Defendant and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 5. The allegations in Paragraph 5 are directed at another Defendant and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 6. The allegations in Paragraph 6 are directed at another Defendant and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 7. The allegations in Paragraph 7 are directed at another Defendant and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 8. The allegations in Paragraph 8 are directed at another Defendant and do not require a response from this Defendant, but if a response if required or if the allegations are construed 2 Case 1:20-cv-00150-HSO-JCG Document 2 Filed 04/30/20 Page 3 of 14 adversely against this Defendant, then the allegations are denied. 9. The allegations in Paragraph 9 are directed at another Defendant and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 10. The allegations in Paragraph 10 are directed at another Defendant and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 11. The allegations in Paragraph 11 are directed at another Defendant and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 12. This Defendant admits the allegations in Paragraph 12. 13. The allegations in Paragraph 13 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 14. The allegations in Paragraph 14 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 15. The allegations in Paragraph 15 are denied as this Defendant has no connection to Pearl River County and committed no acts there and is otherwise improperly joined to this lawsuit. 16. The allegations in Paragraph 16 are denied as this Defendant has no connection to Pearl River County and committed no acts there and is otherwise improperly joined to this lawsuit. 17. The allegations in Paragraph 17 are not directed at this Defendant, and no response is required, but if a response is required, this Defendant believes the allegations to be true. 3 Case 1:20-cv-00150-HSO-JCG Document 2 Filed 04/30/20 Page 4 of 14 18. The allegations in Paragraph 18 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 19. The allegations in Paragraph 19 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 20. The allegations in Paragraph 20 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 21. The allegations in Paragraph 21 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 22. The allegations in Paragraph 22 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 23. The allegations in Paragraph 23 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 24. The allegations in Paragraph 24 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 25. The allegations in Paragraph 25 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this 4 Case 1:20-cv-00150-HSO-JCG Document 2 Filed 04/30/20 Page 5 of 14 Defendant, then the allegations are denied. 26. The allegations in Paragraph 26 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 27. The allegations in Paragraph 27 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 28. The allegations in Paragraph 28 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 29. The allegations in Paragraph 29 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 30. The allegations in Paragraph 30 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 31. The allegations in Paragraph 31 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 32. The allegations in Paragraph 32 are not directed at this Defendant, and no response is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 33. The allegations in Paragraph 33 are not directed at this Defendant, and no response 5 Case 1:20-cv-00150-HSO-JCG Document 2 Filed 04/30/20 Page 6 of 14 is required, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 34. The allegations in Paragraph 34 are not entirely directed at this Defendant, and no response is required as to some allegations. This Defendant admits that Shelley did arrive to the Beech Towing property by police transport. Any remaining allegations are denied as stated. 35. The allegations in Paragraph 35 are admitted. 36. The allegations in Paragraph 36 are denied as stated. It is affirmatively stated that this Defendant learned that Shelley was the renter of the vehicle at the time she retrieved the vehicle, which she had every legal right to do as the lawful renter of the vehicle. Further, this Defendant affirmatively states that there was no police “hold” on the vehicle and that the police actually delivered Shelley to the tow yard to retrieve the vehicle. 37. This Defendant admits that on or about November 21, 2018, Beech Towing was contacted by Ms. Rose about retrieving the rental vehicle, but the remaining allegations are denied as stated. 38. This Defendant admits that on or about November 21, 2018, Beech Towing released the Dodge Caravan to Shelley Rose, but denies the remaining allegations as stated and affirmatively states that Shelley had the legal right to retrieve the vehicle and that there was no police hold on the vehicle. 39. The allegations in Paragraph 39 are denied, and it is affirmatively stated that Shelley had the legal right to possess the vehicle and that there was no hold on the vehicle. 40. The allegations in Paragraph 40 are admitted on information and belief, although it is denied that this information was known at the time. 6 Case 1:20-cv-00150-HSO-JCG Document 2 Filed 04/30/20 Page 7 of 14 41. This Defendant is without sufficient knowledge or information to admit or deny that Shelley was severely and heavily intoxicated or what her speed was on I-59 at the time of the accident, and those allegations, are, therefore, denied as stated. This Defendant admits that the Dodge Caravan was a rental vehicle. Any remaining allegations in Paragraph 41 are denied as stated. 42. This Defendant admits an accident occurred but is without sufficient knowledge or information to admit or deny the remaining allegations, which are therefore denied. 43. This Defendant admits an accident occurred but is without sufficient knowledge or information to admit or deny the remaining allegations, which are therefore denied. 44. This Defendant admits the allegations in Paragraph 44. 45. The responses to the allegations contained in the preceding paragraphs are incorporated herein by reference. 46. The allegations in Paragraph 46 including subparagraph a. through p. are directed at another Defendant and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 47. The allegations in Paragraph 47 are directed at another Defendant and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 48. The responses to the allegations contained in the preceding paragraphs are incorporated herein by reference. 49. The allegations in Paragraph 49 including subparagraphs a. through k. are directed at another Defendant and do not require a response from this Defendant. If a response if 7 Case 1:20-cv-00150-HSO-JCG Document 2 Filed 04/30/20 Page 8 of 14 required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 50. The allegations in Paragraph 50 are directed at another Defendant and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 51. The responses to the allegations contained in the preceding paragraphs are incorporated herein by reference. 52. The allegations in Paragraph 52 are directed at other Defendants and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 53. The allegations in Paragraph 53 are directed at other Defendants and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 54. The allegations in Paragraph 54 are directed at other Defendants and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 55. The allegations in Paragraph 55 are directed at other Defendants and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 56. The allegations in Paragraph 56 are directed at other Defendants and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 8 Case 1:20-cv-00150-HSO-JCG Document 2 Filed 04/30/20 Page 9 of 14 57. The responses to the allegations contained in the preceding paragraphs are incorporated herein by reference. 58. The allegations in Paragraph 58 are directed at other Defendants and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 59. The allegations in Paragraph 59 are directed at other Defendants and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 60. The allegations in Paragraph 60 are directed at other Defendants and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 61. The responses to the allegations contained in the preceding paragraphs are incorporated herein by reference. 62. The allegations in Paragraph 62 are directed at other Defendants and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 63. The allegations in Paragraph 63 including subparagraphs a. through f. are directed other Defendants and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 64. The allegations in Paragraph 64 are directed at other Defendants and do not require a response from this Defendant, but if a response if required or if the allegations are construed adversely against this Defendant, then the allegations are denied. 9 Case 1:20-cv-00150-HSO-JCG Document 2 Filed 04/30/20 Page 10 of 14 65. The responses to the allegations contained in the preceding paragraphs are incorporated herein by reference. 66. The allegations in Paragraph 66 are denied, as is the premise upon which the allegations are based. It is affirmatively stated that Shelley had every legal right to receive the vehicle and Beech Towing had every legal right (and obligation) to release the vehicle to the person who had the legal right to possess it. 67. Beech Towing admits that it did know the Dodge Caravan was a rental vehicle and affirmatively states that Shelley presented a copy of a valid rental agreement and a photo ID, verifying her legal right to possess the vehicle. 68. The allegations in Paragraph 68 are admitted, and it is affirmatively stated that Shelley had the legal right to possess the vehicle and that Beech Towing was under no obligation to contact the Rental Car Defendants. 69. The allegations in Paragraph 69 are denied, and the premise upon which the allegations are based is denied. Beech Towing demands that the Plaintiff identify which law and public policy prohibits it from releasing a vehicle to a person who has the legal right to possess that vehicle. 70. The allegations in Paragraph 70 are denied, and this Defendant specifically denies negligence. 71. The responses to the allegations contained in the preceding paragraphs are incorporated herein by reference. 72. Some of the allegations in Paragraph 72 are not directed at this defendant and no response is required. As to allegations directed at this Defendant, they are denied. 10 Case 1:20-cv-00150-HSO-JCG Document 2 Filed 04/30/20 Page 11 of 14 73. This Defendant denies that the Plaintiff is entitled to any such damages from Beech Towing, and any remaining allegations in Paragraph 73 are denied. 74. This Defendant denies that it is liable for any such elements of damages, past, present, and future arising from the wrongful death of Jada including those damages described in subparagraphs a. through j. This Defendant denies that it is liable for any such damages described in the second paragraph of Paragraph 74. This Defendant specifically denies the Plaintiff is entitled to any damages or judgment or relief to any judgment against Beech Towing whatsoever or in the alternative, this Defendant denies that the Plaintiff is entitled to a judgment for the amounts and types of claims made. THIRD DEFENSE The alleged accident, injuries, and damages may have been caused or contributed to by the culpable conduct of others over whom this Defendant had no control. As to all such persons, this Defendant pleads the apportionment and other provisions of Miss. Code Ann. § 85-5-7. FOURTH DEFENSE To the extent applicable, this Defendant affirmatively pleads comparative and/or contributory negligence under Miss. Code Ann. § 85-5-7. FIFTH DEFENSE The plaintiff may have failed to mitigate damages and damages should be reduced in proportion to the failure to mitigate. SIXTH DEFENSE Plaintiff’s claim for punitive damages under Mississippi law violates Defendant’s rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and 11 Case 1:20-cv-00150-HSO-JCG Document 2 Filed 04/30/20 Page 12 of 14 Article III, Sections 14, 23, 26, and 28 of the Mississippi Constitution because, among other things: (1) Mississippi’s standard for an award of punitive damages is so vague and indefinite that it does not give this Defendant fair notice of the kind of conduct that would subject it to punishment or the severity of the penalty that the state might impose; (2) the jury is not provided with standards of sufficient clarity, objectivity, and uniformity for determining either the appropriateness or the appropriate amount of the punitive damage award; (3) the jury is not instructed on the limits of punitive damages awards imposed by the applicable principals of punishment and deterrence; (4) an award of punitive damages is not subject to judicial review on the basis of objective and uniform standards; (5) Plaintiff’s claim exceeds the legitimate interest of the State in pushing unlawful conduct and deterring its repetition; (6) Plaintiff’s claim is grossly excessive in comparison to the civil or criminal penalties that could be imposed for comparable conduct; (7) there is no basis to assume that a lesser deterrent would not adequately protect the interest of the State’s citizens; (8) Plaintiff’s claim would impose an undue burden on interstate commerce; and (9) for other reasons to be assigned at trial. In the alternative, Defendant asserts the provisions of Miss. Code Ann. § 11-1-65 that are applicable. SEVENTH DEFENSE Without waiving any other defense set forth herein, and because the facts are not yet fully developed, the Defendant additionally pleads the following affirmative defenses which may be applicable: arbitration and award, accord and satisfaction, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, res judicata, payment and release, statute of frauds, statute of limitations, and waiver. Defendant further reserves the right to assert further affirmative defenses if they become evident through discovery or investigation. 12 Case 1:20-cv-00150-HSO-JCG Document 2 Filed 04/30/20 Page 13 of 14 EIGHTH DEFENSE Unless expressly admitted herein, this Defendant denies all allegations of the Plaintiff’s Complaint. NINTH DEFENSE This Defendant reserves the right to assert further affirmative defenses if they become evident through discovery or investigation. AND NOW, having fully answered the Complaint, Defendant, Beech Towing & Recovery LLC, demands judgment dismissing the Complaint with prejudice and awarding costs. THIS, the 30th day of April, 2020. Respectfully submitted, /s/ C. Maison Heidelberg C. MAISON HEIDELBERG, MB #9559 OF COUNSEL: WATSON HEIDELBERG PLLC 2829 Lakeland Drive, Suite 1502 Flowood, Mississippi 39232 P.O. Box 23546 Jackson, Mississippi 39225-3546 601-503-1935 (direct) 601-939-8900 (general) Fax.601-932-4400 mheidelberg@whjpllc.com 13 Case 1:20-cv-00150-HSO-JCG Document 2 Filed 04/30/20 Page 14 of 14 CERTIFICATE OF SERVICE I, C. Maison Heidelberg, of counsel for Beech Towing & Recovery LLC, do hereby certify that I have this day served via the Court’s electronic filing system a true and correct copy of the above and foregoing to: Mary Lee Holmes Marcus A. McLelland Cory N. Ferraez HOLMES, MCLELLAND & FERRAEZ, PLLC 601 East Central Avenue Petal, MS 39465 James G. Wyly, III Scott Ellzey Drury S. Holland 2602 13th Street, Suite 300 Gulfport, MS 39501 Clark Hicks, Jr, Hicks Law Firm, PLLC P.O. Box 18350 Hattiesburg, MS 39404 THIS, the 30th day of April, 2020. /s/ C. Maison Heidelberg C. MAISON HEIDELBERG 14