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Filing # 134829148 E-Filed 09/17/2021 03:51:05 PM
IN THE CIRCUIT COURT OF THE
15T JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CASE NO: 502021CA007517XXXX MB AJ
JAMES N. MANOLAKOS,
Plaintiff,
vs.
RONALD PAUL HIMEBACK,,
Defendant.
/
DEFENDANT, RONALD PAUL HIMEBACK, ANSWER AND AFFIRMATIVE
DEFENSES TO PLAINTIFF’S AMENDED COMPLAINT.
Defendant, RONALD PAUL HIMEBACK, by and through his undersigned attorneys,
hereby answers Plaintiff, JAMES N. MANOLAKOS’ Amended Complaint as follows:
ANSWER AS TO GENERAL ALLEGATIONS
1. Defendant, RONALD PAUL HIMEBACK, denies the allegations of Paragraph 1 of
the General Allegations of the Plaintiff's Amended Complaint, and demands strict
proof thereof.
2. As to Paragraphs 2 and 4 of the General Allegations of the Plaintiff's Amended
Complaint, Defendant, RONALD PAUL HIMEBACK, has no knowledge, and
therefore, denies same of lack of knowledge and demands strict proof thereof.
3. Defendant, RONALD PAUL HIMEBACK, admits the allegations of Paragraphs 3
and 5 of the General Allegations of the Plaintiff's Amended Complaint.
CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZN FLED naln7innns n2.64-Ne DN
HILLY. PAL DLA VUUINE TT, PL, VUOL IE mDnNUeey, ULUIAN, Yoriieue! vo. t.us civANSWER AS TO COUNT I - AUTO NEGLIGENCE
4. As to Paragraph 6 of Count I - Auto Negligence, Defendant, RONALD PAUL
HIMEBACK, answers each allegation incorporated by reference in the same manner
as answered in the answers to the prior allegations.
5. Defendant, RONALD PAUL HIMEBACK, denies the allegations of Paragraphs 7, 8
including subparts A, B, and C, and 9 of Count I— Auto Negligence, and demands strict
proof thereof.
6. As to the Wherefore Clause in Count I— Auto Negligence, Defendant, RONALD
PAUL HIMEBACK, denies Plaintiffs’ claim for costs pursuant to F.S. 92.231,
57.041, 57.071 and Fla. R. Civ. Pro. 1.390(b) and moves to strike said claims as
alleged, and demands strict proof thereof.
ANSWER AS TO COUNT II- REQUEST FOR DECLARATORY RELIEF UNDER F.S.
86.11 ON UM COVERAGE ISSUES WITH REGARD TO SAFECO AUTO POLICY
7. As to Paragraph 10 of Count II — Request for Declaratory Relief Under F.S. 86.11 on
UM Coverage Issues with Regard to Safeco Auto Policy, Defendant, RONALD PAUL
HIMEBACK, answers each allegation incorporated by reference in the same manner
aS aiiSWered if The aasWeis 10 the prior allegations.
8. Defendant, RONALD PAUL HIMEBACK, states that the allegations contained in
Paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, and
30 including subparts A, B, C, D, E, are directed to a Defendant other than RONALD
PAUL HIMEBACK, and therefore, Defendant, RONALD PAUL HIMEBACK, has10.
11
no duty nor obligation to respond to said allegations, and has no knowledge of said
allegations. In the event any of these allegations relate or apply to Defendant,
RONALD PAUL HIMEBACK, Defendant RONALD PAUL HIMEBACK, denies
the same and demands strict proof thereof.
AFFIRMATIVE DEFENSES
As his first affirmative defense, Defendant, RONALD PAUL HIMEBACK states that
at all times material hereto, he was functioning as a volunteer agent for the City of West
Palm Beach, a non-profit organization pursuant to Florida Statute 768.1355. Further, he
was acting in good faith within the scope of any official duties performed under such
volunteer agent service and as an ordinary reasonably prudent person would have acted
under the same or similar circumstances, therefore, he is immune from civil liability for
the act sued upon by Plaintiff in this lawsuit.
As his second affirmative defense, Defendant, RONALD PAUL HIMEBACK, states
that he is immune from liability pursuant to F. S. Section 768.28(9)(a). At the time of
the subject accident, Defendant, RONALD PAUL HIMEBACK, was on duty as an
agent for the City of West aim Beach Citizen Observer Patroi operating a City of
West Palm Beach’s motor vehicle. Therefore, as an agent of the City of West Palm
Beach, while operating the subject vehicle within the scope of his employment and/or
volunteer responsibilities, and/or his function as an agent, as opposed to having acted
intentionally, willfully or in bad faith, Defendant, RONALD PAUL HIMEBACK, is
protected by the Doctrine of Sovereign Immunity.
. As his third affirmative defense, Defendant, RONALD PAUL HIMEBACK, states
that at tha Ha and data af the anaida: allanad in tha DinintifPs Amandad
tiat at Gie Um’ ana Gate OF Mie GCCideNt as anegea im wie Piaimtin $s Amended12.
Complaint, he was an agent for the Citizens Observer Patrol, performing his volunteer
agent duties in accordance with the rules and regulations governing his agent duties as
stated in the rules and regulations governing his activities, and in accordance with the
instruction of the individuals responsible for the operation of the Citizens Observer
Patrol, therein providing him immunity from liability from both Florida Statutes
section 768.28(9)(a) and Florida Statute section 768.1355.
As his fourth affirmative defense, Defendant, RONALD PAUL HIMEBACK, states
that if any injury or damage was sustained by the Plaintiff, such injury or damage was
proximately caused or contributed to by the Plaintiff's own negligence, and therefore, the
Plaintiff either may not recover or, in the alternative, any such recovery must be
diminished by the degree to which Plaintiff's own negligence contributed to the loss.
Aan lin GOL a flewatieen dn Dinfredont DARAT I DATIT TTAIED AOI atotan
AS his fifth afnimative deteiise, Detenaaiit, RONALD PAUL HIMEDACK, states
that at the time and place of the occurrence complained of herein, Plaintiff, JAMES N.
MANOLAKOS, had available collateral sources of indemnification as defined by
Florida Statute, F.S. 768.76, and therefore, cannot recover the value of any and all
benefits received from any such collateral source. That Defendant, RONALD PAUL
HIMEBACK, is entitled to a set-off of all payments made by any and all collateral
sources for expenses, bills or other obligations incurred as a result of the subject
incident
. As his sixth affirmative defense, Defendant, RONALD PAUL HIMEBACK, states that
the Plaintiff has failed to comply with the applicable sections of the Florida Automobile
Reparation Act, commonly referred to as the "Florida No Fault Law," including but notlimited to, the tort threshold limitations contained therein, and therefore, Plaintiffs
recovery is barred in its entirety and/or diminished accordingly.
15. As his seventh affirmative defense, Defendant, RONALD PAUL HIMEBACK, states the
Plaintiff failed to mitigate his damages by failing to submit their medical bills to their health
insurance carrier, and/or failing to provide their treating physicians with thetr health
insurance carrier information so that the medical bills could be submitted to the health
insurance company. Plaintiff is insured with health insurance coverage which insures to the
benefit of the Defendant in that Plaintiff's providers must submit all bills for services
rendered, to the Plaintiffs Health Insurer and the Plaintiff's providers must accept the
contracted amount in full payment in all chargers of treatment rendered. (Thus: this
Defendant is entitled to the benefit of the contracted difference.) Fla Stat 641.3154.)
Furuier, Derenaaiit iS Cititled to aiiy aiid aul Health insurance COMTaCtUal adjustments and/oT
write-offs (which is the difference between the amount billed by the provider and the
amount paid by health insurer, Medicare or other, pursuant to the fee schedules between
the provider and insurer), and only that sum should be presented to the jury as the actual
damage incurred. Goble v. Fohrman, 901 So.2d 830 (Fla. 2005); Thyssenkrupp Elevator
Crop. v. Lasky, 868 So. 2d 547 (4th DCA 2003).
16, Ashis eight affirmative defense, Defendant RONALD PAUL HIMERACK, alleges that
any recovery should be reduced or barred to the extent of available insurance coverage,
including benefits available through any guaranty, association, or other governmental
authority including but not limited to Medicare, available to any individual or entity which
may wholly or partially be responsible for the damages alleged in connection with thesubject matter of the incident described in the Amended Complaint for Damages.
17. As his ninth affirmative defense, Defendant, RONALD PAUL HIMEBACK states that
Defendant should be entitled to HMO contract adjustments pursuant to 641.3154, Florida
Statutes. The Plaintiff's treating doctors who accept HMO’s have failed to accept the
HMO, and have required the Plaintiff to pay more than the HMO contract requires.
18. As his tenth affirmative defense, Defendant, RONALD PAUL HIMEBACK, states
that the Plaintiff has no legal basis for the claims as alleged in the allegations contained
in the Wherefore Clause in Count I — Auto Negligence, Defendant, RONALD PAUL
HIMEBACK, including but not limited to costs pursuant to F.S. 92.231, 57.041,
57.071 and Fla. R. Civ. Pro. 1.390(b) and Plaintiff should take nothing from this
Defendant.
Dafredant DANAT I DATIT TIAADDAMI 2.07.
. Deleilddiit, RUNALD PAUL HEMEDACK, icscives tie Tigt re]
amend/supplement/withdraw affirmative defenses upon the discovery of new
information during the discovery process.
TRIAL DEMAND
WHEREFORE, Defendant, RONALD PAUL HIMEBACK, denies that the Plaintiff is
entitled to the relief demanded in the Plaintiffs Amended Complaint or to any relief whatsoever
and further demands trial by jury of all issues so triable.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-filed to:
DIEGO ASENCIO, ESQUIRE, Attorney for Plaintiff, Diego C. Asencio, PA, 4440 PGABlvd., Suite 600, Palm Beach Gardens, FL 33410, diego634c@aol.com: on this the 17th day
of September, 2021.
ROBINSON, PECARO & MIER, P.A.
Attorneys for Defendant
510 Shotgun Road, Suite 404
Sunrise, Florida 33326
Telephone: (954) 252-7197
Facsimile: (954) 252-7199
Email: ppecaro@lawdrive.com
gigi@lawdrive.com
By__/S/ PAUL R. PECARO, ESO.
PAUL PECARO, ESQ.
Florida Bar No. 821489
OLDS & STEPHENS, P.A.
Attorney for Defendant
312 11™ Street
West Palm Beach, FL 33491
Telephone: (561) 832-6814
Facsimile: (561) 832-4766
Email: dstephens@oslegal.com
By /S/DON STEPHENS, ESO
DON STEPHENS, ESQ.
Fiorida Bar No: 604208
Preview
Filing # 134829148 E-Filed 09/17/2021 03:51:05 PM IN THE CIRCUIT COURT OF THE 15T JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO: 502021CA007517XXXX MB AJ JAMES N. MANOLAKOS, Plaintiff, vs. RONALD PAUL HIMEBACK,, Defendant. / DEFENDANT, RONALD PAUL HIMEBACK, ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S AMENDED COMPLAINT. Defendant, RONALD PAUL HIMEBACK, by and through his undersigned attorneys, hereby answers Plaintiff, JAMES N. MANOLAKOS’ Amended Complaint as follows: ANSWER AS TO GENERAL ALLEGATIONS 1. Defendant, RONALD PAUL HIMEBACK, denies the allegations of Paragraph 1 of the General Allegations of the Plaintiff's Amended Complaint, and demands strict proof thereof. 2. As to Paragraphs 2 and 4 of the General Allegations of the Plaintiff's Amended Complaint, Defendant, RONALD PAUL HIMEBACK, has no knowledge, and therefore, denies same of lack of knowledge and demands strict proof thereof. 3. Defendant, RONALD PAUL HIMEBACK, admits the allegations of Paragraphs 3 and 5 of the General Allegations of the Plaintiff's Amended Complaint. CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZN FLED naln7innns n2.64-Ne DN HILLY. PAL DLA VUUINE TT, PL, VUOL IE mDnNUeey, ULUIAN, Yoriieue! vo. t.us civANSWER AS TO COUNT I - AUTO NEGLIGENCE 4. As to Paragraph 6 of Count I - Auto Negligence, Defendant, RONALD PAUL HIMEBACK, answers each allegation incorporated by reference in the same manner as answered in the answers to the prior allegations. 5. Defendant, RONALD PAUL HIMEBACK, denies the allegations of Paragraphs 7, 8 including subparts A, B, and C, and 9 of Count I— Auto Negligence, and demands strict proof thereof. 6. As to the Wherefore Clause in Count I— Auto Negligence, Defendant, RONALD PAUL HIMEBACK, denies Plaintiffs’ claim for costs pursuant to F.S. 92.231, 57.041, 57.071 and Fla. R. Civ. Pro. 1.390(b) and moves to strike said claims as alleged, and demands strict proof thereof. ANSWER AS TO COUNT II- REQUEST FOR DECLARATORY RELIEF UNDER F.S. 86.11 ON UM COVERAGE ISSUES WITH REGARD TO SAFECO AUTO POLICY 7. As to Paragraph 10 of Count II — Request for Declaratory Relief Under F.S. 86.11 on UM Coverage Issues with Regard to Safeco Auto Policy, Defendant, RONALD PAUL HIMEBACK, answers each allegation incorporated by reference in the same manner aS aiiSWered if The aasWeis 10 the prior allegations. 8. Defendant, RONALD PAUL HIMEBACK, states that the allegations contained in Paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, and 30 including subparts A, B, C, D, E, are directed to a Defendant other than RONALD PAUL HIMEBACK, and therefore, Defendant, RONALD PAUL HIMEBACK, has10. 11 no duty nor obligation to respond to said allegations, and has no knowledge of said allegations. In the event any of these allegations relate or apply to Defendant, RONALD PAUL HIMEBACK, Defendant RONALD PAUL HIMEBACK, denies the same and demands strict proof thereof. AFFIRMATIVE DEFENSES As his first affirmative defense, Defendant, RONALD PAUL HIMEBACK states that at all times material hereto, he was functioning as a volunteer agent for the City of West Palm Beach, a non-profit organization pursuant to Florida Statute 768.1355. Further, he was acting in good faith within the scope of any official duties performed under such volunteer agent service and as an ordinary reasonably prudent person would have acted under the same or similar circumstances, therefore, he is immune from civil liability for the act sued upon by Plaintiff in this lawsuit. As his second affirmative defense, Defendant, RONALD PAUL HIMEBACK, states that he is immune from liability pursuant to F. S. Section 768.28(9)(a). At the time of the subject accident, Defendant, RONALD PAUL HIMEBACK, was on duty as an agent for the City of West aim Beach Citizen Observer Patroi operating a City of West Palm Beach’s motor vehicle. Therefore, as an agent of the City of West Palm Beach, while operating the subject vehicle within the scope of his employment and/or volunteer responsibilities, and/or his function as an agent, as opposed to having acted intentionally, willfully or in bad faith, Defendant, RONALD PAUL HIMEBACK, is protected by the Doctrine of Sovereign Immunity. . As his third affirmative defense, Defendant, RONALD PAUL HIMEBACK, states that at tha Ha and data af the anaida: allanad in tha DinintifPs Amandad tiat at Gie Um’ ana Gate OF Mie GCCideNt as anegea im wie Piaimtin $s Amended12. Complaint, he was an agent for the Citizens Observer Patrol, performing his volunteer agent duties in accordance with the rules and regulations governing his agent duties as stated in the rules and regulations governing his activities, and in accordance with the instruction of the individuals responsible for the operation of the Citizens Observer Patrol, therein providing him immunity from liability from both Florida Statutes section 768.28(9)(a) and Florida Statute section 768.1355. As his fourth affirmative defense, Defendant, RONALD PAUL HIMEBACK, states that if any injury or damage was sustained by the Plaintiff, such injury or damage was proximately caused or contributed to by the Plaintiff's own negligence, and therefore, the Plaintiff either may not recover or, in the alternative, any such recovery must be diminished by the degree to which Plaintiff's own negligence contributed to the loss. Aan lin GOL a flewatieen dn Dinfredont DARAT I DATIT TTAIED AOI atotan AS his fifth afnimative deteiise, Detenaaiit, RONALD PAUL HIMEDACK, states that at the time and place of the occurrence complained of herein, Plaintiff, JAMES N. MANOLAKOS, had available collateral sources of indemnification as defined by Florida Statute, F.S. 768.76, and therefore, cannot recover the value of any and all benefits received from any such collateral source. That Defendant, RONALD PAUL HIMEBACK, is entitled to a set-off of all payments made by any and all collateral sources for expenses, bills or other obligations incurred as a result of the subject incident . As his sixth affirmative defense, Defendant, RONALD PAUL HIMEBACK, states that the Plaintiff has failed to comply with the applicable sections of the Florida Automobile Reparation Act, commonly referred to as the "Florida No Fault Law," including but notlimited to, the tort threshold limitations contained therein, and therefore, Plaintiffs recovery is barred in its entirety and/or diminished accordingly. 15. As his seventh affirmative defense, Defendant, RONALD PAUL HIMEBACK, states the Plaintiff failed to mitigate his damages by failing to submit their medical bills to their health insurance carrier, and/or failing to provide their treating physicians with thetr health insurance carrier information so that the medical bills could be submitted to the health insurance company. Plaintiff is insured with health insurance coverage which insures to the benefit of the Defendant in that Plaintiff's providers must submit all bills for services rendered, to the Plaintiffs Health Insurer and the Plaintiff's providers must accept the contracted amount in full payment in all chargers of treatment rendered. (Thus: this Defendant is entitled to the benefit of the contracted difference.) Fla Stat 641.3154.) Furuier, Derenaaiit iS Cititled to aiiy aiid aul Health insurance COMTaCtUal adjustments and/oT write-offs (which is the difference between the amount billed by the provider and the amount paid by health insurer, Medicare or other, pursuant to the fee schedules between the provider and insurer), and only that sum should be presented to the jury as the actual damage incurred. Goble v. Fohrman, 901 So.2d 830 (Fla. 2005); Thyssenkrupp Elevator Crop. v. Lasky, 868 So. 2d 547 (4th DCA 2003). 16, Ashis eight affirmative defense, Defendant RONALD PAUL HIMERACK, alleges that any recovery should be reduced or barred to the extent of available insurance coverage, including benefits available through any guaranty, association, or other governmental authority including but not limited to Medicare, available to any individual or entity which may wholly or partially be responsible for the damages alleged in connection with thesubject matter of the incident described in the Amended Complaint for Damages. 17. As his ninth affirmative defense, Defendant, RONALD PAUL HIMEBACK states that Defendant should be entitled to HMO contract adjustments pursuant to 641.3154, Florida Statutes. The Plaintiff's treating doctors who accept HMO’s have failed to accept the HMO, and have required the Plaintiff to pay more than the HMO contract requires. 18. As his tenth affirmative defense, Defendant, RONALD PAUL HIMEBACK, states that the Plaintiff has no legal basis for the claims as alleged in the allegations contained in the Wherefore Clause in Count I — Auto Negligence, Defendant, RONALD PAUL HIMEBACK, including but not limited to costs pursuant to F.S. 92.231, 57.041, 57.071 and Fla. R. Civ. Pro. 1.390(b) and Plaintiff should take nothing from this Defendant. Dafredant DANAT I DATIT TIAADDAMI 2.07. . Deleilddiit, RUNALD PAUL HEMEDACK, icscives tie Tigt re] amend/supplement/withdraw affirmative defenses upon the discovery of new information during the discovery process. TRIAL DEMAND WHEREFORE, Defendant, RONALD PAUL HIMEBACK, denies that the Plaintiff is entitled to the relief demanded in the Plaintiffs Amended Complaint or to any relief whatsoever and further demands trial by jury of all issues so triable. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-filed to: DIEGO ASENCIO, ESQUIRE, Attorney for Plaintiff, Diego C. Asencio, PA, 4440 PGABlvd., Suite 600, Palm Beach Gardens, FL 33410, diego634c@aol.com: on this the 17th day of September, 2021. ROBINSON, PECARO & MIER, P.A. Attorneys for Defendant 510 Shotgun Road, Suite 404 Sunrise, Florida 33326 Telephone: (954) 252-7197 Facsimile: (954) 252-7199 Email: ppecaro@lawdrive.com gigi@lawdrive.com By__/S/ PAUL R. PECARO, ESO. PAUL PECARO, ESQ. Florida Bar No. 821489 OLDS & STEPHENS, P.A. Attorney for Defendant 312 11™ Street West Palm Beach, FL 33491 Telephone: (561) 832-6814 Facsimile: (561) 832-4766 Email: dstephens@oslegal.com By /S/DON STEPHENS, ESO DON STEPHENS, ESQ. Fiorida Bar No: 604208