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Filing # 122789238 E-Filed 03/09/2021 04:25:54 PM
IN THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA
CIVIL DIVISION
Case No. 2021-000223-CI-7
RONALD GICKA,
Plaintiff
VS.
RICHARD EDWARD NOWAK,
Defendant,
i
ANSWER AND AFFIRMATIVE DEFENSES
COME NOW the Defendant, RICHARD EDWARD NOWAK, by and through
undersigned counsel, and answering the Plaintiffs Complaint, says:
1. Admitted for Jurisdictional purposes only.
2. The responding Defendants are without knowledge as to each and every allegation
contained within Paragraph 2 ofPlaintiff'sComplaint as well as inferences which can be
drawn therefrom and therefor Denies the allegations and demands strict proof.
3. The responding Defendants are without knowledge as to each and every allegation
contained within Paragraph 3 ofPlaintiff'sComplaint as well as inferences which can be
drawn therefrom and therefor Denies the allegations and demands strict proof.
4. The responding Defendants are without knowledge as to each and every allegation
contained within Paragraph 4 ofPlaintiff'sComplaint as well as inferences which can be
drawn therefrom and therefor Denies the allegations and demands strict proof.
***ELECTRONICALLYFILED 03/09/2021 04:25:53 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
5. The responding Defendants are without knowledge as to each and every allegation
contained within Paragraph 5 ofPlaintiff'sComplaint as well as inferences which can be
drawn therefrom and therefor Denies the allegations and demands strict proof.
6. The responding Defendants are without knowledge as to each and every allegation
contained within Paragraph 6 ofPlaintiff'sComplaint as well as inferences which can be
drawn therefrom and therefor Denies the allegations and demands strict proof.
7. The responding Defendants are without knowledge as to each and every allegation
contained within Paragraph 7 ofPlaintiff'sComplaint as well as inferences which can be
drawn therefrom and therefor Denies the allegations and demands strict proof.
WHEREFORE, having fully answered the Complaint filed herein, the Defendant,
RICHARD EDWARD NOWAK, by and through its undersigned counsel, hereby assert the
following AffirmativeDefenses:
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Defendant affirmatively alleges that Plaintiffs damages, if any, were proximately caused
by or contributed to by Plaintiffs own negligence, and therefore, the claims of Plaintiff should be
either barred or diminished in accordance with the degree o f Plaintiffs own negligence.
SECOND AFFIRMATIVE DEFENSE
Defendant affirmatively alleges that at the time of the accident, Plaintiff, ,
was not
wearing the seatbelt which was provided with her automobile and the failure to use the safety
device was the sole and/or contributing proximate cause of the alleged injuries to the Plaintiff
resulting from the alleged accident.
THIRD AFFIRMATIVE DEFENSE
Pursuant to the holdings in Fabre v. Marin, 623 So. 2d 1182 (Fla.1993); Nash v. Wells
Fargo Guard Services, 678 So. 2d 1262 (Fla. 1996) and E.H.P. Corp. v. Cousin, 654 So. 2d 976
(Fla. 2d DCA 1995), the Defendants, ,expressly assert a "Fabre" defense regarding unknown
entities and expressly reserves their right to amend and list these unknown entities as third
parties if any are determined, as a result of discovery and investigation, to be responsible for the
Plaintiff's alleged injuries and/or damages. If these other parties are determined to be liable to
the Plaintiff, the Defendants are entitled to the benefit of Florida Statues sections 768.31 and/or
768.81, and case law there under, with respect to the comparative fault and apportionment of
damages between the Plaintiffand such others and to contribution among joint tortfeasors and/or
such others that may be discovered and/or realized as a result of ongoing discovery and
investigation. It may be determined the acts of these other parties constituted a sufficient and
independent intervening cause as to any acts or omissions on the part of the Defendants and the
acts of these other parties may be held to be beyond for foresight of a reasonably prudent person.
FOURTH AFFIRMATIVE DEFENSE
Defendant affirmatively alleges that Plaintiff had a reasonably available opportunity to
mitigate damages, but failed to do so, and any recovery must be reduced by the amount of
damages incurred as a result of the Plaintiffs failure to mitigate.
FIFTH AFFIRMATIVE DEFENSE
In the event that an award for future economic losses is returned in excess of Two
Hundred Fifty Thousand ($250,000.00) Dollars, Defendant is entitled to seek payment as
provided for by F.S.A. 768.78.
SIXTH AFFIRMATIVE DEFENSE
Defendant is entitled to a set-off for any payments made by or on behalf of any other
defendants, persons, or entities alleged to be responsible for the Plaintiffs injuries.
SEVENTH AFFIRMATIVE DEFENSE
Defendant affirmatively alleges that Plaintiffhas received or is entitled to receive PIP
benefits and collateral source benefits as defined in Florida statutes, which the jury must consider
in determining the amount of damages, if any.
EIGHTH AFFIRMATIVE DEFENSE
Defendant affirmatively alleges that at the time and on the occasion set out in the
Complaint, Plaintiff was subject to the Florida Automobile Reparations Reform Act and does not
have a threshold injury as required by said Act.
NINTH AFFIRMATIVE DEFENSE
For a further affirmative defense, Defendant would show that the insurance policy referred
to in the Complaint, upon which this action is brought, was written with certain conditions and
limitations which limit the liability of the Defendants, including the applicable limits of coverage
and all other conditions, exclusions and declarations contained in the policy, all of which are
expressly invoked.
TENTH AFFIRMATIVE DEFENSE
For a further affirmative defense, Defendant would state that its liability to the Plaintiff, if
any, under said policy is limited by the terms and conditions of the aforementioned insurance
policy, including the limits motorist coverage contained therein.
ELEVENTH AFFIRMATIVE DEFENSE
Defendant is entitled to a set off of any contractual discount of medical bills or expenses,
negotiated write off of medical bills, or expenses or negotiated agreement to pay medical bills or
other expenses in the future pursuant to the law of the collateral source set offs and Goble v.
Frohman, 848 So. 2d 406 (Fla. 2d DCA 2003). Alternatively, Plaintiffis not entitled to claim
bills, costs or expenses incurred but waived or not actually incurred by Plaintiff.
WHEREFORE, the Defendant, RICHARD EDWARD NOWAK, demand judgment
against the Plaintiff, costs of suit, trial by jury of all issues so triable as a matter ofright and for such
other relief as the Court may deemjust and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
email to Timothy M. Ingram, Esq. and Timothy M. Ingram, Jr., Esq. at
or com on
March 9,2021.
Law Offices of Jack D. Evans
1 N. Dale Mabry Highway, Suite 805
Tampa, Florida 33609
Telephone: (813) 357-6200
Attorney for Defendant
Florida Bar #826138
Email:
By /s/ Douglas C. Saltarelli
Douglas C. Saltarelli, Esq.
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Filing # 122789238 E-Filed 03/09/2021 04:25:54 PM IN THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA CIVIL DIVISION Case No. 2021-000223-CI-7 RONALD GICKA, Plaintiff VS. RICHARD EDWARD NOWAK, Defendant, i ANSWER AND AFFIRMATIVE DEFENSES COME NOW the Defendant, RICHARD EDWARD NOWAK, by and through undersigned counsel, and answering the Plaintiffs Complaint, says: 1. Admitted for Jurisdictional purposes only. 2. The responding Defendants are without knowledge as to each and every allegation contained within Paragraph 2 ofPlaintiff'sComplaint as well as inferences which can be drawn therefrom and therefor Denies the allegations and demands strict proof. 3. The responding Defendants are without knowledge as to each and every allegation contained within Paragraph 3 ofPlaintiff'sComplaint as well as inferences which can be drawn therefrom and therefor Denies the allegations and demands strict proof. 4. The responding Defendants are without knowledge as to each and every allegation contained within Paragraph 4 ofPlaintiff'sComplaint as well as inferences which can be drawn therefrom and therefor Denies the allegations and demands strict proof. ***ELECTRONICALLYFILED 03/09/2021 04:25:53 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY*** 5. The responding Defendants are without knowledge as to each and every allegation contained within Paragraph 5 ofPlaintiff'sComplaint as well as inferences which can be drawn therefrom and therefor Denies the allegations and demands strict proof. 6. The responding Defendants are without knowledge as to each and every allegation contained within Paragraph 6 ofPlaintiff'sComplaint as well as inferences which can be drawn therefrom and therefor Denies the allegations and demands strict proof. 7. The responding Defendants are without knowledge as to each and every allegation contained within Paragraph 7 ofPlaintiff'sComplaint as well as inferences which can be drawn therefrom and therefor Denies the allegations and demands strict proof. WHEREFORE, having fully answered the Complaint filed herein, the Defendant, RICHARD EDWARD NOWAK, by and through its undersigned counsel, hereby assert the following AffirmativeDefenses: AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Defendant affirmatively alleges that Plaintiffs damages, if any, were proximately caused by or contributed to by Plaintiffs own negligence, and therefore, the claims of Plaintiff should be either barred or diminished in accordance with the degree o f Plaintiffs own negligence. SECOND AFFIRMATIVE DEFENSE Defendant affirmatively alleges that at the time of the accident, Plaintiff, , was not wearing the seatbelt which was provided with her automobile and the failure to use the safety device was the sole and/or contributing proximate cause of the alleged injuries to the Plaintiff resulting from the alleged accident. THIRD AFFIRMATIVE DEFENSE Pursuant to the holdings in Fabre v. Marin, 623 So. 2d 1182 (Fla.1993); Nash v. Wells Fargo Guard Services, 678 So. 2d 1262 (Fla. 1996) and E.H.P. Corp. v. Cousin, 654 So. 2d 976 (Fla. 2d DCA 1995), the Defendants, ,expressly assert a "Fabre" defense regarding unknown entities and expressly reserves their right to amend and list these unknown entities as third parties if any are determined, as a result of discovery and investigation, to be responsible for the Plaintiff's alleged injuries and/or damages. If these other parties are determined to be liable to the Plaintiff, the Defendants are entitled to the benefit of Florida Statues sections 768.31 and/or 768.81, and case law there under, with respect to the comparative fault and apportionment of damages between the Plaintiffand such others and to contribution among joint tortfeasors and/or such others that may be discovered and/or realized as a result of ongoing discovery and investigation. It may be determined the acts of these other parties constituted a sufficient and independent intervening cause as to any acts or omissions on the part of the Defendants and the acts of these other parties may be held to be beyond for foresight of a reasonably prudent person. FOURTH AFFIRMATIVE DEFENSE Defendant affirmatively alleges that Plaintiff had a reasonably available opportunity to mitigate damages, but failed to do so, and any recovery must be reduced by the amount of damages incurred as a result of the Plaintiffs failure to mitigate. FIFTH AFFIRMATIVE DEFENSE In the event that an award for future economic losses is returned in excess of Two Hundred Fifty Thousand ($250,000.00) Dollars, Defendant is entitled to seek payment as provided for by F.S.A. 768.78. SIXTH AFFIRMATIVE DEFENSE Defendant is entitled to a set-off for any payments made by or on behalf of any other defendants, persons, or entities alleged to be responsible for the Plaintiffs injuries. SEVENTH AFFIRMATIVE DEFENSE Defendant affirmatively alleges that Plaintiffhas received or is entitled to receive PIP benefits and collateral source benefits as defined in Florida statutes, which the jury must consider in determining the amount of damages, if any. EIGHTH AFFIRMATIVE DEFENSE Defendant affirmatively alleges that at the time and on the occasion set out in the Complaint, Plaintiff was subject to the Florida Automobile Reparations Reform Act and does not have a threshold injury as required by said Act. NINTH AFFIRMATIVE DEFENSE For a further affirmative defense, Defendant would show that the insurance policy referred to in the Complaint, upon which this action is brought, was written with certain conditions and limitations which limit the liability of the Defendants, including the applicable limits of coverage and all other conditions, exclusions and declarations contained in the policy, all of which are expressly invoked. TENTH AFFIRMATIVE DEFENSE For a further affirmative defense, Defendant would state that its liability to the Plaintiff, if any, under said policy is limited by the terms and conditions of the aforementioned insurance policy, including the limits motorist coverage contained therein. ELEVENTH AFFIRMATIVE DEFENSE Defendant is entitled to a set off of any contractual discount of medical bills or expenses, negotiated write off of medical bills, or expenses or negotiated agreement to pay medical bills or other expenses in the future pursuant to the law of the collateral source set offs and Goble v. Frohman, 848 So. 2d 406 (Fla. 2d DCA 2003). Alternatively, Plaintiffis not entitled to claim bills, costs or expenses incurred but waived or not actually incurred by Plaintiff. WHEREFORE, the Defendant, RICHARD EDWARD NOWAK, demand judgment against the Plaintiff, costs of suit, trial by jury of all issues so triable as a matter ofright and for such other relief as the Court may deemjust and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by email to Timothy M. Ingram, Esq. and Timothy M. Ingram, Jr., Esq. at or com on March 9,2021. Law Offices of Jack D. Evans 1 N. Dale Mabry Highway, Suite 805 Tampa, Florida 33609 Telephone: (813) 357-6200 Attorney for Defendant Florida Bar #826138 Email: By /s/ Douglas C. Saltarelli Douglas C. Saltarelli, Esq.