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Filing # 135661113 E-Filed 09/30/2021 01:25:38 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
HEATHER GRANT,
Plaintiff,
V
CASE NO: CACE21009583 (21)
FRANCISCO GABRIEL VAILLO, DAVID CIVIL DIVISION
VADILLO AND LYFT, INC.,
Defendants,
i
V
FRANCISCO GABRIEL VADILLO,
Counter-Plaintiff,
V
HEATHER GRANT,
Counter-Defendant.
i
ANSWER, AFFIRMATIVE DEFENSES
COMES NOW, the Counter -Defendant, HEATHER GRANT, by and through undersigned
counsel, and in response to the Plaintiffs Counter -Complaint, state:
1. Each and every allegation is hereby denied and strict proof thereof is demanded.
AFFIRMATIVE DEFENSES
1. Counter -Defendant is entitled to the protections afforded by any applicable
hospital lien law(s).
***
FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/30/2021 01:25:37 PM.****
CASE NO: CACE21009583 (21)
2. Counter -Defendant is entitled to a credit and/or setoff from any and all personal
injury protection benefits paid and/or payable, and any and all other benefits, collateral sources or
other sources of setoffs or recoupments and thereforeclaims said setoffs, credits and recoupments
in accordance with Section 768.76 ofthe Florida Statutes.
3 This action is subject to Section 768.81 Florida Statutes, and any liability found on
the part of Defendantsshall be apportioned on the basis of this Defendant' percentage of fault and
not on the basis of the doctrine of joint and several liability. Further, any contributory fault
chargeable to the Plaintiff diminishes proportionately the amount awarded as economic and
noneconomic damages for an injury attributable to the Plaintiffs contributory fault.
4. Counter -Defendant would affirmatively aver that at the time and place set forth in
the Complaint, the Plaintiff negligently operated or maintained Plaintiffs automobile so as to
proximately cause or contribute to the cause ofthe injuries complained of. Accordingly, either the
Plaintiff may not recover at all, or alternatively, the Plaintiffs recovery must be reduced to the
extent that Plaintiff own negligent conduct contributed to the injuries complained of.
5. Counter -
Defendant states that the Plaintiff was unreasonable in failing to use an
available and operational seatbelt which caused or contributed to the proximate cause of the
accident and damages.
6. This action is subject to the provisions of the Tort Reform Act of 1998.
7. Counter Defendant would affirmatively aver that the Plaintiffs claims are barred
by the tort exemption provision of the Florida Motor Vehicle No Fault Act, Florida Statutes
Section 627.730 through Section 627.7405, in that Plaintiff failed to meet the threshold provisions
of said Act outlined in Florida Statutes Section 627.737 and denies that the Plaintiff is entitled to
recover
by virtue of any exceptions to the tort exemption provided by the Statute.
CASE NO: CACE21009583 (21)
8 Counter Defendant would state that at all times material hereto, Plaintiff was
insured by a policy of automobile liability insurance providing no fault personal injury protection
and medical payments benefits which have been paid or are payable as a result of the subject
accident. Therefore, Defendant is entitled to set off for all sums paid or payable through the no
fault insurance benefits and medical payments benefits of said policy of insurance.
9. At all times material hereto, the accident and alleged injuries were caused by the
negligent and careless actions or omissions of third persons beyond the control, care and custody
of Counter Defendant, and accordingly, the Plaintiff is precluded from recovery for the alleged
damages against Defendants.
10. Counter Defendant states that the Plaintiff failed to mitigate damages, if any, and
therefore, is not entitled to recovery of any damages which could have been mitigated.
11. Plaintiff has failed to mitigate damages, including but not limited to failing to
submit all payable medical bills to his/her health insurer (and instead, executing a letter of
protection to his/her medical provider ), thus, depriving Counter Defendant of the contractual
discount available as a third party beneficiary of the contract between the Plaintiff and Provider.
Goble v Frohman, 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v. Last, 868 So 2d
547 (4th DCA 2003); Fla. Stat. 641.3154.
12. Plaintiff is insured with health insurance coverage which inures to the benefit of
Defendantsin that Plaintiffs providers must submit all bills for services rendered, to the Plaintiffs
Health Insurer and the Plaintiffs providers must accept the contracted amount in full payment of
all charges for treatment rendered. Thus; Counter Defendant is entitled to the benefit of the
contracted difference. Fla. Stat 641.3154.
CASE NO: CACE21009583 (21)
13. Counter Defendant is entitled to any and all health insurance contractual
adjustments and/or write offs and only that sum should be presented to the jury as the actual
damage incurred. Goble v Frohman, 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v.
Last, 868 So 2d 547 (4th DCA 2003).
14. Defendant would affirmatively aver that the Plaintiffs treating experts, providers
and/or facilities submission ofmedical bills to the PIP insurer violatedF.S. 627.736(5) (b) 1.e, and
as such, Defendant is liable only to the extent that the PIP carrier would be responsible for
reasonable and necessary charges for medical care incurred as a result of injuries sustained in the
accident at issue, exclusive of any upcoming charges submitted by said expert, facility or provider.
15. Counter Defendant is entitled to immunity from liability for the amount of any
deductible selected by Plaintiff or by which Plaintiff is bound pursuant to any applicable
automobile insurance agreement providingpersonal injury protection coverage since the Plaintiff
has not suffered a threshold breaking injury.
16. Counter Defendant is entitled to any and all Medicare/Medicaid insurance
contractual adjustments and/or write-offs and only that sum should be presented to the jury as the
actual damage incurred. Goble v Frohman 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator
th
Corp v. Last, 868 So 2d 547 (4z DCA 2003).
17. Counter Defendant reserves the right to amend these defenses.
WHEREFORE, the Counter Defendant, HEATHER GRANT, having fully responded to
the allegations in this cause, demand the same be dismissedwith prejudice to and at the cost ofthe
Plaintiff, and Defendantsherein preserve his/her rights to file any/all relevantcounterclaims in the
future and further demand a trial by jury of all issues so triable as of right.
CASE NO: CACE21009583 (21)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been
furnished via E-Mail on September 30, 2021 to Douglas E. Ede, Esq., Rumberger, Kirk, &
Caldwell, P.A., Attorney for Defendant, Lyft, Inc., dede@rumberger.com;
(305) 358-5577/(305) 371-7580 (F), George L. Fernandez, Esq,
Quintairos Prieto Wood & Boyer P.A., Attorney for Defendants, Francisco Gabriel Vadillo and
David Vadillo, bfetokakis-
(305) 670-1101/(305) 670-
1101 (F), Bruce F. Silver, Esq., Silver & Silver, P.A., Attorney for Counter Plaintiff, Francisco
Gabriel Vadillo,
(561) 488-3344/(561) 488-5899 (F) and Jon A. Zepnick,
Esquire, Ansel & Miller, L.L.C., Attorney for Plaintiff, Heather Grant,
Law Offices of Michael W. Carroll
Attorneys for Defendants
3230 West Commercial Blvd., Suite 400
Fort Lauderdale, FL 33309
(561) 402-8092 (Asst.)/(954) 903-6551 (Direct)
Fax: (866) 841-8921
SERVICE DESIGNATIONS:
Primary
Secondary
Af7
By-
LISA B. SILVERMAN, ESQUIRE
Florida Bar No68784
"Salaried EmployeesofProgressive Casualty Imurance Company"
Preview
Filing # 135661113 E-Filed 09/30/2021 01:25:38 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA HEATHER GRANT, Plaintiff, V CASE NO: CACE21009583 (21) FRANCISCO GABRIEL VAILLO, DAVID CIVIL DIVISION VADILLO AND LYFT, INC., Defendants, i V FRANCISCO GABRIEL VADILLO, Counter-Plaintiff, V HEATHER GRANT, Counter-Defendant. i ANSWER, AFFIRMATIVE DEFENSES COMES NOW, the Counter -Defendant, HEATHER GRANT, by and through undersigned counsel, and in response to the Plaintiffs Counter -Complaint, state: 1. Each and every allegation is hereby denied and strict proof thereof is demanded. AFFIRMATIVE DEFENSES 1. Counter -Defendant is entitled to the protections afforded by any applicable hospital lien law(s). *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/30/2021 01:25:37 PM.**** CASE NO: CACE21009583 (21) 2. Counter -Defendant is entitled to a credit and/or setoff from any and all personal injury protection benefits paid and/or payable, and any and all other benefits, collateral sources or other sources of setoffs or recoupments and thereforeclaims said setoffs, credits and recoupments in accordance with Section 768.76 ofthe Florida Statutes. 3 This action is subject to Section 768.81 Florida Statutes, and any liability found on the part of Defendantsshall be apportioned on the basis of this Defendant' percentage of fault and not on the basis of the doctrine of joint and several liability. Further, any contributory fault chargeable to the Plaintiff diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the Plaintiffs contributory fault. 4. Counter -Defendant would affirmatively aver that at the time and place set forth in the Complaint, the Plaintiff negligently operated or maintained Plaintiffs automobile so as to proximately cause or contribute to the cause ofthe injuries complained of. Accordingly, either the Plaintiff may not recover at all, or alternatively, the Plaintiffs recovery must be reduced to the extent that Plaintiff own negligent conduct contributed to the injuries complained of. 5. Counter - Defendant states that the Plaintiff was unreasonable in failing to use an available and operational seatbelt which caused or contributed to the proximate cause of the accident and damages. 6. This action is subject to the provisions of the Tort Reform Act of 1998. 7. Counter Defendant would affirmatively aver that the Plaintiffs claims are barred by the tort exemption provision of the Florida Motor Vehicle No Fault Act, Florida Statutes Section 627.730 through Section 627.7405, in that Plaintiff failed to meet the threshold provisions of said Act outlined in Florida Statutes Section 627.737 and denies that the Plaintiff is entitled to recover by virtue of any exceptions to the tort exemption provided by the Statute. CASE NO: CACE21009583 (21) 8 Counter Defendant would state that at all times material hereto, Plaintiff was insured by a policy of automobile liability insurance providing no fault personal injury protection and medical payments benefits which have been paid or are payable as a result of the subject accident. Therefore, Defendant is entitled to set off for all sums paid or payable through the no fault insurance benefits and medical payments benefits of said policy of insurance. 9. At all times material hereto, the accident and alleged injuries were caused by the negligent and careless actions or omissions of third persons beyond the control, care and custody of Counter Defendant, and accordingly, the Plaintiff is precluded from recovery for the alleged damages against Defendants. 10. Counter Defendant states that the Plaintiff failed to mitigate damages, if any, and therefore, is not entitled to recovery of any damages which could have been mitigated. 11. Plaintiff has failed to mitigate damages, including but not limited to failing to submit all payable medical bills to his/her health insurer (and instead, executing a letter of protection to his/her medical provider ), thus, depriving Counter Defendant of the contractual discount available as a third party beneficiary of the contract between the Plaintiff and Provider. Goble v Frohman, 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v. Last, 868 So 2d 547 (4th DCA 2003); Fla. Stat. 641.3154. 12. Plaintiff is insured with health insurance coverage which inures to the benefit of Defendantsin that Plaintiffs providers must submit all bills for services rendered, to the Plaintiffs Health Insurer and the Plaintiffs providers must accept the contracted amount in full payment of all charges for treatment rendered. Thus; Counter Defendant is entitled to the benefit of the contracted difference. Fla. Stat 641.3154. CASE NO: CACE21009583 (21) 13. Counter Defendant is entitled to any and all health insurance contractual adjustments and/or write offs and only that sum should be presented to the jury as the actual damage incurred. Goble v Frohman, 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v. Last, 868 So 2d 547 (4th DCA 2003). 14. Defendant would affirmatively aver that the Plaintiffs treating experts, providers and/or facilities submission ofmedical bills to the PIP insurer violatedF.S. 627.736(5) (b) 1.e, and as such, Defendant is liable only to the extent that the PIP carrier would be responsible for reasonable and necessary charges for medical care incurred as a result of injuries sustained in the accident at issue, exclusive of any upcoming charges submitted by said expert, facility or provider. 15. Counter Defendant is entitled to immunity from liability for the amount of any deductible selected by Plaintiff or by which Plaintiff is bound pursuant to any applicable automobile insurance agreement providingpersonal injury protection coverage since the Plaintiff has not suffered a threshold breaking injury. 16. Counter Defendant is entitled to any and all Medicare/Medicaid insurance contractual adjustments and/or write-offs and only that sum should be presented to the jury as the actual damage incurred. Goble v Frohman 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator th Corp v. Last, 868 So 2d 547 (4z DCA 2003). 17. Counter Defendant reserves the right to amend these defenses. WHEREFORE, the Counter Defendant, HEATHER GRANT, having fully responded to the allegations in this cause, demand the same be dismissedwith prejudice to and at the cost ofthe Plaintiff, and Defendantsherein preserve his/her rights to file any/all relevantcounterclaims in the future and further demand a trial by jury of all issues so triable as of right. CASE NO: CACE21009583 (21) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished via E-Mail on September 30, 2021 to Douglas E. Ede, Esq., Rumberger, Kirk, & Caldwell, P.A., Attorney for Defendant, Lyft, Inc., dede@rumberger.com; (305) 358-5577/(305) 371-7580 (F), George L. Fernandez, Esq, Quintairos Prieto Wood & Boyer P.A., Attorney for Defendants, Francisco Gabriel Vadillo and David Vadillo, bfetokakis- (305) 670-1101/(305) 670- 1101 (F), Bruce F. Silver, Esq., Silver & Silver, P.A., Attorney for Counter Plaintiff, Francisco Gabriel Vadillo, (561) 488-3344/(561) 488-5899 (F) and Jon A. Zepnick, Esquire, Ansel & Miller, L.L.C., Attorney for Plaintiff, Heather Grant, Law Offices of Michael W. Carroll Attorneys for Defendants 3230 West Commercial Blvd., Suite 400 Fort Lauderdale, FL 33309 (561) 402-8092 (Asst.)/(954) 903-6551 (Direct) Fax: (866) 841-8921 SERVICE DESIGNATIONS: Primary Secondary Af7 By- LISA B. SILVERMAN, ESQUIRE Florida Bar No68784 "Salaried EmployeesofProgressive Casualty Imurance Company"