REPUBLIC OF THE PHILIPPINES

Regional Trial Court

Branch 33
Mandaue City

Ms. A,
Plaintiff,
CIVIL CASE NO. CEB - 123456
FOR: RECOVERY OF
DAMAGES
-versus-

Mr. B and Mr. C,

Defendant.

x---------------------------------/

VERIFIED ANSWER WITH SPECIAL AND AFFIRMATIVE

DEFENSES WITH COUNTERCLAIM

Defendant, Mr. B, through undersigned counsel, unto the

Honorable Court, having received the Summons on June 1, 2017 and a
copy of plaintiffs complaint on the same day, hereby respectfully
submits this Verified Answer with Counterclaim and states that:

1. That defendant admits the contents of paragraphs 1, 2 and 3

only insofar as the parties personal circumstances are
concerned;

2. That defendant admits the contents of paragraph 4 but will

further qualify that despite pulling over under a lamp post, the
area was generally poorly lighted and there was no parking
lights or an early warning device around the vicinity of the
plaintiffs car;

3. That defendant admits the contents of paragraph 5;

4. That defendant is without knowledge or information sufficient

to form a belief as to the veracity of the averments in paragraph
6;
 5. That defendants admit the content of paragraph 7 but only to the
fact of having bumped the plaintiff and deny speeding during
the incident;

6. That defendant is without knowledge or information sufficient

to form a belief as to the veracity of the averments in paragraph
8 and 9;

7. That defendant denies the averments in paragraph 10 for the

truth of the matter is, defendant Mr. B was driving only at a
reasonable speed of 45kph;

8. That defendant is without knowledge or information sufficient

to form a belief as to the veracity of the averments in paragraph
11, 12, 13, 15, 15, 16, and 17.

SPECIAL AND AFFIRMATIVE DEFENSES

Defendant hereby repleads and incorporates by way of reference all

the allegations in the preceding paragraphs, and further state as follows:

9. That on the night of the incident, it was raining hard which

affected the road visibility. As defendant Mr. B was driving
along the inner portion of the right lane of M.C. Briones Street,
a car coming from the opposite direction of the same lane
travelled with full bright lights, temporarily blinding defendant
Mr. B who instinctively swerved to the right to avoid a head-on
collision with the incoming vehicle which then resulted to
bumping with the plaintiff.

I. Mr. Bs acts can be excused under the Emergency Rule

10.The act of Mr. B was nothing more than a mere human instinct
of self-preservation under an emergency. Under the
emergency rule, when a person suddenly finds himself in a
place of danger and is required to act without time to
consider the best means that may be adopted to avoid the
impending danger, is not guilty of negligence, if he fails to
adopt what subsequently and upon reflection may appear to
 have been a better method, unless the emergency in which
he finds himself is brought about by his own negligence.1

11. When the defendant swerved to the right, he took all the
necessary actions available to him at such precise moment to
prevent his life and the life of the person in the opposite
direction from the possibility of being harmed. As stated in the
similar case of Gan v. CA2:

Thus, under the circumstances narrated by petitioner, we

find that the appellate court is asking too much from a mere
mortal like the petitioner who in the blink of an eye had to
exercise her best judgment to extricate herself from a
difficult and dangerous situation caused by the driver of the
overtaking vehicle. Petitioner certainly could not be
expected to act with all the coolness of a person under
normal conditions. The danger confronting petitioner was
real and imminent, threatening her very existence. She had
no opportunity for rational thinking but only enough time to
heed the instinct of self-preservation.

12. Moreover, the swerving to the right is the best possible action
that the defendant could do, as swerving to the left would make
him face all the vehicles in the opposite lane and is even more
dangerous.

13.That as per Mr. Z, a witness to the incident, something caught

his attention due to its bright lights which made him look up to
see its source. He noticed that it came from a car travelling in a
direction opposite from Mr. B. He also observed that Mr. Bs
car was travelling at a speed not more than 50kph before it
swerved and hit the plaintiff; and a copy of the affidavit of Mr.
Z is attached as Annex 1;

II. Ms. A was the one negligent for violating a traffic rule

14. During the incident, it was raining, thus the visibility on the
road was greatly affected. Moreover, as stated in Par. 4 of the
complaint, the color of the vehicle was maroon. As a general
knowledge, a maroon colored vehicle would not be clear

1
Gan v. CA ( G.R. No. L-44264) September 19, 1988
2
G.R. No. L-44264) September 19, 1988
 during the night, especially when there is heavy rain which
makes it more difficult to see.

15. Also, as previously stated, the plaintiff did use any early
warning device or her warning lights to let other vehicles know
that she was parking temporarily on the side of the road.

16. In the present case, the plaintiff stopped and parked at the side
of the road due to an alleged wrong in her vehicle. However,
she did not use an early warning device or followed the rules
regarding the use of an early warning device. It is required that
an EWD must be installed at least four (4) meters to the
front and at the rear of the motor vehicle whenever the
motor vehicle is stationary for any reason, or it is compelled
to stop on an area where standing or parking is prohibited.3

17.The plaintiff having stopped for a reason did not use the
required early warning device, hence, a clear violation of the
traffic rule. Under the Civil Code, it is presumed that a person
driving a motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation. 4 Thus, the
plaintiff having violated a traffic rule, she is presumed to be
negligent at the time the incident occurred.

COUNTERCLAIM

18.Due to the plaintiffs unwarranted filing of the instant case

against herein defendants, the latter were constrained to engage
the services of legal counsel to plead their case in court in order
to fend off this baseless and unfounded suit foisted by plaintiffs.
Said defendants engaged the services of the undersigned
counsels for a fee of Php70,000.00 plus Php10,000.00 per
hearing as appearance fee. They likewise incurred and will
continue to incur, litigation expenses estimated at
Php100,000.00. Defendants also suffered mental anguish and
anxiety hence, they should be made to pay moral damages in

3
Memorandum Circular NO.VPT-2012-1609, otherwise known as Revised
Rules on the Implementation of the Early warning device (EWD)
Requirement, Par 3.
4
Art. 2185 of the New Civil Code of the Philippines
 the amount of Php500,000.00 and exemplary damages of
Php500,000.00. The plaintiffs must be made to reimburse these
amounts to herein defendants.

PRAYER

WHEREFORE, foregoing premises considered, it is most

respectfully prayed of this Honorable Court that instant Answer with
Counterclaim be duly considered and that the instant Complaint be
dismissed or denied for reasons aforestated.

Other reliefs just and equitable under the premises are likewise
prayed for.

Lapu-Lapu City, June 20, 2017

MARY STEPHANIE BONTUYAN

Counsel for the Defendants
IBP No. 23456, Cebu City
PTR No. 22222, May 2017
Roll of Attorneys No. 79929
MCLE Compliance No. 5544332211
Door 10, ABC Bldg, Pusok, Lapu-Lapu City

ALEXANDRA NICOLE BARING

Counsel for the Defendants
IBP No. 102890, Cebu City
PTR No. 102890, May 2017
Roll of Attorneys No. 102890
MCLE Compliance No. 1028199013
Door 10, ABC Bldg, Pusok, Lapu-Lapu City

COPY FURNISHED:

KRISTINE JOY ARGALLON

KARL PAGATPAT
Counsels for the Plaintiffs
ADDRESS
Cebu City

By Registered Mail
Registry Receipt No. 00-739264
Date: June 20, 2017

EXPLANATION

The foregoing Answer has been served to Atty. Kristine Joy

Argallon and Atty. Karl Pagatpat by registered mail since personal
service is not feasible due to distance and lack of office messenger.

MARY STEPHANIE BONTUYAN

ALEXANDRA NICOLE BARING