TURRUBIATES et al v. RUSTGO CO et al Complaint

8/3/2019 TURRUBIATES et al v. RUSTGO CO et al Complaint

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IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF W ISCONSIN

GREEN BAY DIVISION

JEREMY TURRUBIATESP.O. Box 123Kimberly, WI 54136

Plaintiff,

ACE AMERICAN INSURANCE CO.426 Walnut StreetP.O. Box 1000Philadelphia, PA 19105

Involuntary Plaintiff,

RUSTGO CO.48926 State Highway 12Spencer, NE 68777-3567

and

ABC INSURANCE CO MPANY

Defendants.

Case No. 1-12-CV-25

COMPLAINT

NOW COMES the plaintiff, Jeremy Turrubiates, by his attorneys, Menn L aw Firm, Ltd.,

and as and for a claim for relief against the above-named defendants, allege and show to the

Court as follows:

JURISDICTION

1. That the plaintiff, Jeremy Turrubiates, is an adult residing in Kimberly,

Outagamie County, Wisconsin.

Case l:12-cv-00025-WCG Filed 01/09/12 of 5 Document 1



2. That the involuntary plaintiff, ACE American Insurance Company (hereinafter,

"ACE"), is, upon information and belief, a foreign insurance provider, authorized to do business

in the State of Wisconsin, with its principal office located at 426 Walnut Street, P.O. Box 1000,

Philadelphia, Pennsylvania 19105; upon information and belief, ACE, at all times referenced

herein, was the workers' compensation insurance provider for the employer of the plaintiff,

Jeremy Turrubiates; that upon information and belief ACE may have made payments for

workers' compensation benefits, including medical expenses incurred by the plaintiff, Jeremy

Turrubiates, as a result of injuries he sustained in an accident referred to herein; that by virtue of

said payments, ACE may be subrogated to the extent of those payments and is, therefore, a

necessary party to this action pursuant to Wis. Stats., § 803.03(2)2.

3. That the defendant, Rustgo Co. (hereinafter "Rustgo"), is a foreign corporation

with its home office and principal place of business located at 48926 State Highway 12, Spencer,

NE 68777-3567, and at all times material, was in the business of designing, manufacturing and

selling scaffolding equipmen t, including scaffold wa gon s. The registered agent for Rustgo is

Willard M. Rust, 48926 State Highway 12, Spencer, NE 68777.

4. That upon information and belief at all times material hereto, defendant, ABC

Insurance Company, was a corporation, the name, address, registered agent, and state of

incorporation of which are presently unknown, and that in place of the actual name of the

defendant insurance company , a fictitious name is being used for the defendant. Upon

information and belief, the defendant, ABC Insurance Company, at all times material herein, had

in full force and effect a policy of liability insurance providing liability insurance coverage for

the defendant, Rustgo, and that by reason of said policy of insurance and the liability of

defendant, Rustgo, said ABC Insurance Company is a proper party hereto and is directly liable to

Case l:12-cv-00 025-W CG Filed 01/09/12 of 5 Document 1



the plaintiff for his injuries and dam ages. Upon discovery of the correct nam e of said insurer,

said insurance company will be substituted in place of ABC Insurance Company and said

pleading relates back to the date of this Com plaint pursuant to Fed. R. C iv. P. 15(c).

5. The Court has jurisdiction pursuant to 28 U.S.C. § 1332 based on diversity of

citizenship of the parties and the amount in controversy (exclusive of costs and interest)

exceeding $75,000.00.

6. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391.

FIRST CLAIM BASED ON STRICT LIABILITY

7. That prior to July 12, 2009, the defendant, Rustgo, designed and manufactured a

Rustgo manually propelled work platform, model 195, in a defective condition; that said work

platform was ultimately distributed and sold to Consolidated Construction Company, Inc.,

located in App leton, Wisconsin. That on July 12, 2009, the plaintiff, Jeremy Turrubiates, was

climbing up the side ladder of the manually propelled work platform when the extension on the

ladder became dislodged, causing him to fall to the ground.

8. That the manually propelled work platform designed and manufactured by the

defendant, Rustgo, was in a defective condition when it left the possession and control of

Rustgo; that because of said defective condition, the work platform was unreasonably dangerous

to the ultimate user and consumer, the plaintiff, Jeremy Turrubiates.

9. That the work platform was a produc t which the defendant, Rustgo, intended to,

and expected to, and which did, in fact, reach the ultimate user and consumer, Jeremy

Turrubiates, without substantial change in the condition it was in when it was manufactured and

subsequently sold.




10. That the defendant, Rustgo, was engaged in the business of designing,

manufacturing and selling the aforesaid manually propelled work platform, and the sale of said

work platform was not an isolated nor infrequent transaction not related to the principal business

of said defendant.

11. That the defective and unreasonably dangerous condition of the manually

propelled work platform was the direct and proximate cause of the accident referred to herein.

12. That as a direct and proximate result of the defective and unreasonably dangerous

condition of the manually propelled work platform, the plaintiff, Jeremy Turrubiates, sustained

severe and permanent injuries which necessitated extensive treatment by health care providers,

and which he is informed, will continue to require treatment in the future, and which have, and

will permanently in the future, result in pain and suffering, loss of enjoyment of life, loss of

earning capacity, and other damages.

SECOND CLAIM BASED ON NEGLIGEN CE

13. That as and for a claim for relief based upon negligence, the plaintiff realleges

and incorporates by reference as though fully set forth herein each and every allegation contained

in Paragraphs 1-12, above.

14. That the defendant, Rustgo, was negligent in designing, manufacturing and selling

the manually propelled work platform in a defective condition, in failing to properly inspect and

test the work platform, in failing to provide adequate warnings and instructions regarding the

setup, assembly, inspection, servicing, maintenance and use of the manually propelled work

platform, and in other respects.

15. That the negligence of the defendant, Rustgo, was a substantial factor in causing

the accident and the injuries and damages sustained by the plaintiff as alleged herein.




WHEREFORE, the plaintiff demands judgment as follows:

A. For the amount of damages found to be appropriate, together with costs and

disbursements of this action;

B. For an adjudication of any subrogation claim which the involuntary plaintiff, ACE

American Insurance Company, may have; and,

C. For such other relief as the Court may deem just.

PLEASE TAKE NOTICE THAT THE PLAINTIFF HEREBY D EMAND S TRIAL

BY A 6- PERSON JURY.

Dated this 9m day of January, 2012.

P.O. ADDRESS:2501 East Enterprise Avenu eP.O. Box 785Appleton, WI 54912-0785

PHONE: 920.731.6631FAX: 920.734.0981EMAIL: mark-feldmann(5)mennlaw.com

MENN LAW FIRM, LTD.Attorneys for the Plaintiff

BY: /S/MARK R. FELDMANN

Mark R. FeldmannState Bar No. 1017847


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