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REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION PASIG CITY BRANCH ___

ISABELA C. ABLAZA, Plaintiff,

Civil Case No. _____ For: Recovery of temperate, attorneys fees, and litigation costs

-versus-

SPOUSES RONALD A. ABUEL&ANNA MARIA S. ABUEL

Defendants. x--------------------------------------------------x

ANSWER WITH COUNTERCLAIMS

Defendants RONALD A. ABUEL (Ronald) and ANNA MARIA S. ABUEL (Anna) through their counsels, respectfully submit this Answer. The filing of this Answer is only a precautionary measure and is not an abandonment, waiver, or limitation of the grounds for the dismissal of the Complaint.

I.

ADMISSIONS AND SPECIFIC DENIALS

1. Ronald and Anna admit the averments in paragraphs 1, 2, 4, and 5 of the Complaint.

2. Ronald and Anna specifically deny the allegation in paragraph 3 of the Complaint, the truth being that Adam Musni is the registered owner of the Kia Potentia 2000, with plate number NPI-150, as evidenced by Certificate of Registration issued by the Land Transportation Office (LTO) in Quezon City hereto attached as Annex A.

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Ablaza is presumed negligent for violating the traffic rules and regulations

3. Ronald and Anna specifically deny the allegations in paragraph 6 of the Complaint, the truth being that Isabela C. Ablaza (Ablaza) did not exercise proper caution. Ablaza violated the traffic rules by abruptly and negligently turning left at a designated U-turn slot towards the DOTC building. She neither checked the lane for approaching vehicles nor gave proper warning signals.

4. Article 2185 of the New Civil Code (NCC) states that,

[u]nless there is proof to the contrary, 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.

5. The case of Guillang v. Bedania is similar to the facts in this present case. The truck in the given case did not signal while making the U-turn, which is a violation of traffic rules. In the present case, Ablaza negligently and abruptly turned left in the U-turn section without using the necessary warning signals. 1

6. Hence, there is a presumption that Ablaza is negligent by violating and disregarding such traffic regulations.

Abuel exercised due diligence under the given circumstances.

7. Ronald and Anna admit particular allegations in paragraphs 7, 8, and 9 of the Complaint, that Ronald was around 15 to 20 meters from where Ablaza was negotiating her left turn and the Hyundai Sta. Fe collided with the Kia Potentia, causing damage to the latters frontal and rear doors.

8. However, Ronald and Anna specifically deny particular allegations in paragraphs 8, 9, and 10 of the Complaint, the truth being that Ronald was not negligent and in fact did everything humanly possible and took precautions to avoid the collision. To reiterate, Ronald was driving at a moderate speed of approximately 40 kph. Apart from reducing his speed, Ronald honked his horn and blinked his vehicles headlights in an effort to warn Ablaza. Nevertheless, despite all of the precautions, Ablaza

1 Guillang v Bedania, G.R. No. 162987 (2009).

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thoughtlessly proceeded to the same lane, placing the Kia in the direct path of the defendant.

9. The Police Report and Supporting-Affidavit prepared by PO2 Amado Garcia (Garcia) support that Abuel did not commit any driver error, as evidenced by Annex B and Annex C, respectively.

The Emergency Doctrine applies under the circumstances of the case.

10. In Gan v. CA, the Supreme Court held that,

[o]ne who 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.2

11. Upon seeing that Ablaza disregarded his warning signals and proceeded with the left turn, Ronald immediately maneuvered to the inner lane immediately beside the DOTC building to avoid collision. With a 15 to 20 meter distance from the Kia Potentia and a speed of approximately 40 kph, even an attempt to a full stop was futile to avoid the collision. Thus, under the attending circumstances in this case, Abuel exercised ordinary diligence by reducing his speed and consequently, maneuvering his vehicle to the rightmost lane of Ortigas Avenue.

12. It should be noted that Ronald employed the "best means possible in the given situation".3 To avoid graver injury to his own safety and of Ablaza, Ronald had no choice but to swerve to the rightmost lane.

Defendants should not be held liable for actual and moral damages to Ablaza

13. Ronald and Anna specifically deny liability arising from the collision as stated in paragraphs 9 and 10. The damage on Ablazas frontal and rear doors was due to her own negligence. The accident could have not occurred if Ablaza did not violate the traffic rules and regulations and took proper precautions while driving.

2 Gan v CA, G.R. No. L-44264 (1988). 3 Valenzuela v. CA, G.R. No. 115024, (1996).

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14. Assuming but not conceding that Ronald and Anna are liable for actual damages as provided in the Repair Estimate, the document is not sufficient to prove actual damages given the fact that it is only a repair estimate, which amounts merely to hypothetical computation of the damage. As stated in Marikina Auto Line Transport Corporation v. Valdellon, an estimate of damages will not suffice.4 Actual damages must be proven with reasonable certainty.

15. Ronald specifically denies the allegations in paragraphs 11 and 12 of the Complaint, the truth being that Ronald did not assure Ablaza that his insurance company would take care of the repair costs.

16. Ronald and Anna specifically deny the allegations in paragraph 13 and 14, the truth being that defendant Ronald exercised due diligence to avoid the collision. Pursuant to Article 2179 of the NCC, if the plaintiff is the immediate and proximate cause of the injury, he or she cannot recover damages. Ablazas negligence was the proximate cause of the collision; therefore, she is not entitled for any damages.

II.

COUNTERCLAIMS

Defendants are entitled to Temperate Damages

17. Ronald and Anna are entitled to Temperate Damages. As provided in Tan v. OMC Carriers Inc., temperate damages may be awarded when from the nature of the case, definite proof of pecuniary loss cannot be adduced, but there is sufficient proof that the aggrieved party suffered some pecuniary loss.5

18. In the present case, a copy of photographs attached as Annex "D" shows the extent of the damage brought about by the collision to Annas vehicle. There was a recognizable dent at the front-right portion of the Hyundai Sta. Fe. According to the case of Macalinao v. Sebastian, this kind of evidence is "mute but eloquent manifestation of truth".6

4 Marikina Auto Line v Valdellon, G.R. No. 152040, (2006). 5 Tan v. OMC Carriers, G.R. No. 190521, (2011). 6 Macalinao v. Sebastian, G.R. No. 146635, (2005).

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As provided in Article 2208 of the NCC, Ronald and Anna are entitled to Attorneys Fees and Litigation Costs.

19. As provided in Article 2208 (11) of the NCC, "[a]ttorneys fees should be awarded when the court deems just and equitable."

20. In this case, Ablaza wantonly filed this civil suit to harass Ronald and Anna despite the clear facts showing that she was negligent in the course of her actions by violating the necessary traffic rules and regulations.

21. On the other hand, Ronald exercised due diligence under the given circumstances by reducing his speed, honking his horn and blinking his vehicles headlights, which were Ablaza completely disregarded.

22. By virtue of this unwarranted and malicious act initiated by Ablaza, Ronald and Anna were forced to engage with the services of a counsel in the sum of SEVENTY FIVE THOUSAND PESOS (Php 75,000.00) as acceptance fee and TEN THOUSAND PESOS (Php 10,000.00) per court appearance.

III.

PRAYER

WHEREFORE, it is respectfully prayed that the complaint be dismissed and Defendant be awarded attorneys fees in the amount of SEVENTY FIVE THOUSAND PESOS (Php 75,000.00) and TEN THOUSAND PESOS (Php 10,000.00) per court appearance.

Other equitable reliefs are likewise prayed for.

Makati City for Pasig City, December 3, 2014.

MORALES, SANTOS, SYSONLAW OFFICES Counsel for defendant 35 Palma St., Rockwell, Makati City Tel. No.: (632) 6586288 Mobile No.: +639274085924

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By: VIKTOR IVAN NICOLO MORALES IBP no. 984620, 01/13/14, Quezon City PTR No. 1967891, 01-13-14, Taguig City Roll No. 98012 MCLE No. IV-0015477 (N/A Admitted 2013)

ROXANNE VIEL C. SANTOS IBP no. 973610, 01/13/14, Quezon City PTR No. 1957791, 01-13-14, Taguig City Roll No. 90032 MCLE No. IV-0016877 (N/A Admitted 2013) PATRICIA RAMOS-SYSON IBP no. 986610, 01/13/14, Quezon City PTR No. 1957891, 01-13-14, Taguig City Roll No. 90132 MCLE No. IV-0016847 (N/A Admitted 2013)

Copy furnished through personal service: REYES ODUCADO CAMACHO SANTOS Counsel for Plaintiff 12345 Sunlife Building Ayala corner Paseo de Roxas Makati City Philippines

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VERIFICATION AND CERTIFICATION

AGAINST FORUM SHOPPING

We, Ronald A. Abuel and Anna Maria S. Abuel, after being duly sworn in accordance with law, hereby depose and say that:

1. We are the defendants in the above-entitled case.

2. We have read and caused the preparation of the foregoing Answer, the factual allegations of which are true of my own personal knowledge and based on authentic records.

3. We have not theretofore commenced any other or similar action or proceeding involving the same issues raised in the above-entitled case before any Curt, tribunal, or body, and there is, to the best of my knowledge and information, no such other or similar action or proceeding pending before any Court, tribunal, or bod; and finally, I certify that should it come to my knowledge that any other or similar action or proceeding has been filed or is pending before any other Court, tribunal, or body, I hereby undertake to notify the court or tribunal taking congnizance of the above-entitled case of such fact within five (5) days from receipt of such knowledge.

Ronald A. Abuel Affiant

Anna Maria S. Abuel Affiant

SUBSCRIBED AND SWORN to before me this 3rd day of December, 2014, in the City of Pasig, affiant exhibiting her Drivers License No. 123456789, issued at Pasig City, Metro Manila, on January 1, 2010. Doc. No. __; Page No. __; Book No. __; Series of 2014.