Republic of the Philippines

REGIONAL TRIAL COURT

FIRST JUDICIAL REGION
Branch 8
La Trinidad, Benguet

DAVE BAGTA, ENIE ILUSTRISIMO, CIVIL CASE NO. 18-CV-5432

HARMONY NAGULMAN, and THE FOR: DAMAGES
HEIRS OF JUAN CAGAN herein
represented by JENALYN CAGAN,
Plaintiffs,

-versus-

TOMAD LAMBERT, ABC DELIVERY

SERVICE, INC., AND EASTAN LEE
PATINGAN,
Defendants.
x- - - - - - - - - - - - - - - - - - - - - -x

ANSWER WITH COUNTERCLAIM

Respondent, ABC DELIVERY SERVICE, INC., herein represented by its

HUMAN RESOURCE/ADMINISTRATION MANAGER and through the
undersigned counsel, most respectfully submits its Answer with
Counterclaim, and avers that:

1. Respondent ABC DELIVERY SERVICE, INC., (“ABC”, hereinafter for

brevity) specifically denies plaintiffs’ allegations in paragraphs 1 to 4
of their complaint for lack of sufficient knowledge and information
sufficient to form a belief as to their veracity.

2. Respondent ABC admits plaintiffs’ allegation in paragraph 5 of the

complaint as to the address of respondent JASON LAMBERT TOMAD
(“Tomad”), but specifically denies that the latter respondent is still an
employee of ABC.

3. Respondent ABC admits the allegations in paragraph 6 of plaintiffs’

complaint as to its corporate circumstances but specifically denies
the remaining portion of the allegations that the other respondents
are still employed with ABC.

4. Respondent ABC admits plaintiffs’ allegation in paragraph 7 of the

complaint as to the address of respondent EASTAN LEE PATINGAN
 (“Patingan”), but specifically denies that the latter respondent is still
an employee of ABC.

5. Respondent ABC admits the allegation in paragraph 8 b) of the

plaintiffs’ complaint as to the former’s use of the FUSO Canter
Aluminum Van with license plate number DEF 456 (“FUSO”), but
specifically denies the rest of the allegations therein not only for
ABC’s lack of sufficient knowledge and information to believe the
veracity of the allegations but also owing to plaintiffs' uncertainty as
to the actual date of the alleged incident and the true identity of the
driver of the FUSO vehicle.

6. Respondent specifically denies the rest of the allegations in plaintiffs’

complaint not only for its lack of sufficient knowledge and
information as to form a belief as to their veracity but also as to the
utter tentativeness, and lack of particularity and specificity of the
remaining allegations.

AFFIRMATIVE DEFENSES

7. Preliminarily, it is only prudent to declare at this point of the

argument that the other respondents are no longer employees of
respondent ABC prior to its receipt of the copy of the instant
complaint. Both were terminated not because of their alleged
negligence but at the time of the accident subject matter of the
instant complaint, but because of their lack of compassion to the
victims of the accident who consist of most of the plaintiffs herein.

8. Plaintiffs should now move for the service of the pleadings,

judgments, resolutions and processes of the Honorable Court and
other papers related to the case pertaining to the other respondents
to be furnished them through their respective residential addresses
to avert any miscarriage of justice, unwittingly caused. Respondent
ABC hereby notices the plaintiffs and the Honorable Court that
service of pleadings and other papers relating to the case for the
other respondents through ABC’s office address will not be received.

9. That having said, the instant complaint for damages as against

respondent ABC should be dismissed for various compelling reasons
but all redounding to one common ground: lack of cause of action.
Rule 2 of the Rules of Court defines a cause of action as:

Sec. 2. Cause of action defined. - A cause of action is the act or

omission by which a party violates the right of another.
 The essential elements of a cause of action are (1) a right in favor of
the plaintiff by whatever means and under whatever law it arises or
is created; (2) an obligation on the part of the named defendant to
respect or not to violate such right; and (3) an act or omission on
the part of such defendant in violation of the right of the plaintiff or
constituting a breach of the obligation of the defendant to the
plaintiff for which the latter may maintain an action for recovery of
damages or other appropriate relief.

10. Now, before dwelling on the patent absence of a justiciable cause of

action of plaintiffs against respondent ABC, and begging the
indulgence of the Honorable Court, it is apt to cite this threshold the
disconcerting manner of the plaintiffs who constructed their
allegations in their complaint as predicated to the explanation of the
cogent grounds to dismiss the case against respondent ABC, that
every pleading shall contain in a methodical and logical form, a plain,
concise and direct statement of the ultimate facts on which the party
pleading relies for his claim or defense, as the case may be, omitting
the statement of mere evidentiary facts.

11. Contrarily, the allegations in plaintiffs’ complaint contain nothing but

confusing, tentative, uncertain even conflicting allegations which
rendered it extremely difficult for respondent ABC to properly
prepare an Answer thereto. The manner of plaintiffs’ making the
allegations in the complaint tersely violated the cited provision of the
Rules of Court, making their true cause of action against respondent
ABC disorienting if not for their patently negative pregnant
allegations.

12. In paragraph 8 b) plaintiffs claim that Tomad volunteered respondent

Patingan as the true driver of the FUSO at the time of the accident, in
conflict with the same paragraph that states that the respondent ABC
volunteered respondent Patingan as the driver of the FUSO at the
time of the accident.

13. It should not be deemed overeagerly exaggerated to emphasize too,

that plaintiffs are consistently unsure as to who between Tomad and
Patingan were, as they claim, negligent in driving the FUSO.
Additionally, there were indeed no concrete evidence adduced as to
the real identity of the driver of the FUSO, and neither does a speck
of convincing evidence, other than seriously rebuttable
presumptions, as to who between the drivers involved at the time of
the accident.

14. Finally, in a revealing fashion of maliciously impleading respondent

ABC, and despite them knowing which they could claim solidary
 liability with the driver of FUSO in the event that its driver is found
negligent, plaintiffs alleged in paragraph 16 with much feigned
certainty that they established the identity of the driver of the FUSO
and his employer when police investigators discovered the expired
license of respondent Tomad and the registration papers of the
vehicle. This is a downright lie. Nothing in the Traffic Vehicular
Report can it be discerned or even inferred that the said investigation
report contains a categorical determination that the driver was
respondent Tomad, and neither does the registration paper of the
FUSO declared that the latter was respondent ABC’s employee.

15. All of the foregoing cited allegations by plaintiffs put forth, with all of
its conflicting, skewed and perplexing textual and contextual
insinuations, it respectfully submitted, more than supports the grant
of a motion for a more definite statement or a bill of particulars, if
pursued. However, maintaining candor and avoiding further delay
cause of plaintiffs to vindicate their rights which they perceived to
have been violated, and so as not to waste the precious time and
resources of the Honorable Court in hewing superfluous evidence,
respondent ABC musters enough perseverance to ascertain where
plaintiffs are coming from.

16. With squinted eyes perusing the complaint, and a forceful help of
epiphany from Divine, respondent ABC submits before the following
defenses from the foregoing confused allegations of the complaint,
as what it perceived to be what plaintiffs would either like to convey
or what they would wish to impress to the Honorable Court. With the
defenses heretofore cited are adequate support from law and
jurisprudential dicta.

17. Vicarious liability has not attached to respondent ABC. Respondent

ABC concedes that, once proven negligent in causing damages, the
law presumes the vehicle owner equally negligent and imposes upon
the latter the burden of proving proper selection of employee as a
defense. The legal precept, it is respectfully submitted that a finding
of guilt for criminal negligence should be had against the employee-
driver before the employer is burdened to prove that he exercised
diligence of a good father of a family in the selection of his
employees. This precept requisite determination of criminal guilt
against either Tomad or Patingan has yet to be had. Stated
otherwise, the complaint was filed prematurely.

18. Of significant consideration too, is that Tomad is denying that he was

driving the FUSO at the time when the alleged accident involving the
plaintiffs happened. There is not one credible and conclusive
 evidence presented even at this stage to support an imputation of
criminal negligence to respondent Tomad. Thus, vicarious liability of
respondent ABC, if applicable in this case, has yet to attach.
Incidentally, from the damage of the HiAce Van and from the
position where and how it was found after the impact more than tells
that it was the latter vehicle which was cruising in an excessive speed
and that because of its perilous velocity, it was the one who
propelled itself outside of its legal lane at the curved road and
towards the path of the oncoming FUSO in the opposite direction.

19. Continuing with the insinuations against respondent Tomad, and to

adequately support the defense that vicarious liability of ABC, if
applicable in this case, has not yet attached as to respondent ABC,
plaintiffs allegations insisting that Tomad could have been the driver
consisted of merely very speculative statements and anemic
circumstantial evidence. The discovery of Tomad's license could have
been due to an amalgam of reason which is as doubtful as what
plaintiffs wanted to point. But still, nothing conclusive versus Tomad.

20. Again, Tomad is not proven to be the driver of the FUSO at the time
of the accident, which must be established as a predicate fact before
the determination of whether or not he was negligent. Other than a
complaint for reckless imprudence resulting in homicide, multiple
injuries and damage to property, there is yet no case filed in the
proper court for said offense. Plaintiffs failed to adduce evidence to
create an otherwise assumption. That makes it more nugatory for
plaintiffs’ claim of vicarious liability of respondent ABC, caused by the
supposed tort committed by Tomad. No ultimate fact was alleged by
plaintiffs to prove the criminal negligence of Tomad.

21. More compelling is the case of Patingnan. To date, no concrete

charge of criminal negligence is filed against him for vicarious liability
to attach to respondent ABC arising from the latter’s tortuous act.
Significantly, there is recent raw information that reached ABC’s
knowledge that Patingan was pursuing an activity outside of his
official assignment and beyond the scope of his function when the
accident happened.

22. Even if it be assumed, for the exclusive purpose of argument, that

the information that it was Patingan who was driving the FUSO at the
time of the accident was volunteered to plaintiffs, such fact could not
give rise to a cause of action worthy to implead ABC for vicarious
liability with Patingan and in the plaintiffs’ favor. The accuracy of the
volunteered information as to Patingan’s presence at the time of the
 incident being not verified and for manifestly being hearsay is an
inadmissible evidence of what it purportedly conveyed.

23. This is for the fact that, other than it is obvious that no proof is
hurdled against the innocence of Patingan, making this complaint
pre-mature too, he could still deny the version of plaintiffs and file a
criminal complaint in the nature of counter-charge against plaintiff
who was driving the real HiAce Van that engaged the FUSO on its
rightful lane, and a civil case for indemnity against Dave Bagta and
Enie Elustrisimo who is the registered owner of the HiAce Van.

24. The latter theory is a legal principle which, without the other
plaintiffs even knowing, is appropriately applicable here. It does not
matter that Dave Bagta is the employee of Enie Elustrisimo, because
unanimous admission of Enie Elustrisimo is the registered owner of
the HiAce Van driven by Dave Bagat, as to establish their employer-
employee relationship.

25. Dave Bagta and Enie Elustrismo are necessary party-defendants as to

other co-plaintiffs. Settled is the rule that registered owner of a
vehicle is jointly and severally liable with the driver for damages
incurred by passengers and third persons as a consequence of
injuries or death sustained in the operation of said vehicle.

26. It is well settled that in case of motor vehicle mishaps, the registered
owner of the motor vehicle is considered as the employer of the
tortfeasor-driver, and is made primarily liable for the tort committed
by the latter under Article 2176 in relation to Article 2180 of the Civil
Code.

27. The Plaintiffs, except Juan Cagan and Harmony Nagulman, are the
primary parties legally presumed to have been negligent in carrying
their passengers safely. Article 1756 of the Civil Code, in creating a
presumption of fault or negligence on the part of the common carrier
when its passenger is injured, merely relieves the latter, for the time
being, from introducing evidence to fasten the negligence on the
former, because the presumption stands in the place of evidence.
Being a mere presumption, however, the same is rebuttable by proof
that the common carrier had exercised extraordinary diligence as
required by law in the performance of its contractual obligation, or
that the injury suffered by the passenger was solely due to a
fortuitous event.
28. Diligence of a good father of a family must be observed in selecting
and supervising the employees by the employer, as observed by
herein respondent ABC. Assuming for the sake of argument that the
vicarious liability enunciated by Article 2180 of the Civil Code can be
applied to ABC here, still the vicarious liability doctrine is negated
here by the evident observance of the respondent ABC of the
diligence of a good father of a family in the selection of its
employees.

29. ABC holds training and seminars on road safety and cargo handlings
for all its drivers and helpers who ply different routes to deliver ABC's
clients' goods. ABC also conducts a regular unannounced random
drug testing on the same drivers and helpers through the services of
an independent Department of Health accredited drug-testing
centers.

30. Proof also of the swift assertion of ABC as pater familia, is its swift
disposition of respondents' Tomad and Patingan's cases wherein
after meticulous deliberation and determining that they have
abandoned the opportunity to prove themselves innocent which
consequently compromised ABC's image and reputation, they were
meted the proper penalties. Having said that, ABC still maintains that
there still remains the lack of any credible speck of evidence to
confirm the hollowed allegation of negligence against Tomad and
Patingan.

COUNTERCLAIM

31. For having filed a premature and legally unsubstantiated claim

against respondent ABC, the latter was compelled to engage the
services of a lawyer to protest its interest. Thus, plaintiffs should be
made to compensate respondent by way of attorney’s fees.
32. To deter others from emulating plaintiffs in fomenting unwarranted
and substantiated claims, they should be made liable to compensate
respondent ABC by way of exemplary damages.

PRAYER

WHEREFORE, premises considered, respondent prays that the instant

complaint be dismissed as to respondent ABC for being premature and for
utter lack of legal basis, and further:
1. To order that Dave Bagta and Enie Elustrisimo be dropped as
plaintiffs and be joined as necessary party-defendants;

2. To order plaintiffs, jointly and severally, to compensate respondent

ABC in the amount of P50,000.00 by way of attorney’s fees and the
total appearance fees incurred for the actual appearance of its
counsel before the Honorable Court; and

3. To decree that plaintiffs are liable jointly and solidarily for exemplary
damages in favor of respondent ABC in the amount of P100,00.00;
Other reliefs just and equitable warranted by the foregoing premises
are likewise prayed for.

Banaue, Ifugao for La Trinidad, Benguet Province, September 13,

2018.

ALVIN LEE ORDILLO

Counsel for ABC Delivery Service, Inc.
IBP NO. 98765, January 02, 2018, Lagawe
PTR NO. 98765, January 3, 2018, Ifugao
Roll of Attorneys No. 76543
MCLE Compliance IV-0009876, December 20, 2017
Room 7 Payaso Building, Banaue, Ifugao

EXPLANATION

Copies of this Answer with Counterclaim were served and filed before this
Honorable Court and to plaintiffs’ counsel through courier service due to time
constraints and the restricting circumstance of considerable distance in this case.

Atty. Alvin Lee Ordillo

Copy furnished:
Atty. Sharon Degay

VERIFICATION and CERTIFICATION

I, GERALDINE MAY CARDONA, Filipino, of legal age, after having been

duly sworn hereby depose and state that:

1. I am the Human Resource Manager of ABC Delivery Service, Inc. and duly
authorized representative to represent the corporation in the case entitled
Civil Case No. 18-CV-5432 captioned "Dave Bagta, et al. vs. Jason Lambert
Tomad, et al." pending before the Regional Trial Court, Branch 8 of La
Trinidad, Benguet Province as evidenced by the hereto attached Secretary's
Certificate;
2. I have caused the preparation of the foregoing Answer with
Counterclaim filed before this Honorable Court; and

3. I have read the Answer with Counterclaim and affirm that the contents
herein are true and correct based on my personal knowledge and/or based
on authentic records, and further certify that:

ABC Delivery Service, Inc., or any of its officers have not commenced
a similar action with any other courts, tribunals and/or other judicial or
quasi-judicial bodies; and to the best of my knowledge, no other similar
action or claim is pending before any other courts, tribunals and/or other
judicial or quasi-judicial body; and that, should I learn that the same or
similar action or claim has been filed or pending, I shall promptly report
that fact within five (5) days therefrom to this Honorable Court.

GERALDINE MAY CARDONA

Affiant

SUBSCRIBED AND SWORN TO before me this 3th day of September

2018, affiant exhibiting to me her Driver's License No. DMI-123456, issued
on December 1, 2014 at Baguio City, Philippines, and valid until November
1, 2030.

NOTARY PUBLIC
Doc. No. 178;
Page No. 12;
Book No. X;
Series of 2018.

SECRETARY'S CERTIFICATE
KNOW ALL MEN BY THESE PRESENTS:
I, MARY GRACE MENDEZ, Filipino, of legal age, with the office postal
address at 34 Dimabirukan St, Quezon City, in my capacity as
PRESIDENT/OWNER of ABC Delivery Service, Inc., do hereby certify that at
the special meeting of the Board of Directors of said company held at its
principal office on August 1, 2017 at which a quorum was duly constituted
the said Board unanimously passed, approved and adopted the following
Resolution, thus:
"RESOLVE, as it is hereby resolved, that Ms. Geraldine May Cardona
the company's Human Resource and Administrative Manager, be
authorized and empowered:
1. To appoint the services of a legal counsel which she deems
competent to prosecute and defend the interest of the company in CIVIL
CASE NO. 18-CV-5432 captioned "Dave Bagta, et al. vs. Jason Lambert
Tomad, et al." where the company is one of the respondents pending
before the Regional Trial Court, Branch 8 of La Trinidad, Benguet Province,
until the case is finally terminated;
2. To hypothecate, negotiate and enter into a Compromise
Agreement or amicable settlement for and in behalf of the company with
the proper parties concerning any matter relative to the particular case;
represent company during the stages of pre-trial; and to make, execute,
sign and deliver any and all papers, pleadings documents, or instruments as
would give effect to the above-mentioned purposes including the power to
appoint a substitute on for her and in the company's behalf."

I further certify that as of date, the afore-qouted Resolution has not

been revoked or cancelled and is still valid, existing and binding.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 1st
day of August 20 2018 at Quezon City, Philippines.

___________________

PRESIDENT/OWNER
SUBSCRIBED AND SWORN TO, before me, this 20th day of August
2018, affiant exhibited to me his Driver's License No. IHG-543210.

MEAGAN YOUNG
Notary Public for Quezon City
Roll of Attorneys No. 12345
IBP Lifetime Membership No. 123456
PTR No. 123789
134 H Tower, Roxas Ave., Quezon City
Doc. No.: 456;
Page No.: 90;
Book No.: XXV;
Series of 2018.