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Filing # 128580455 E-Filed 06/11/2021 12:06:18 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CIVIL DIVISION
EVELYN LEVY,
CASE NO. CACE-21-007757(12)
Plaintiff.
VS.
CLER.JEAN THOMAS, and UBER
TECHNOLOGIES,INC., a Foreign Profit
Corporation,
Defendants.
i
DEFENDANT, CLERJEAN THOMAS'S ANSWER AND AFFIRMATIVE DEFENSES
TO PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIAL
COMES NOW, the Defendant, CLER.JEANTHOMAS (hereinafter "Defendant"),by and
through his undersigned counsel and hereby respond and serve this Answer and Affirmative
Defenses to Plaintiff, EVELYN LEVY's Complaint and Demand for Jury Trial, and as grounds
thereof Defendant would state as follows
1.
Defendant is without knowledge and therefore denies same and demand strictproof
thereof.
2.
Defendant is without knowledge and therefore denies same and demand strictproof
thereof.
3
Defendant denies the allegations contained in Paragraph3.
4.
Defendant is without knowledge and therefore denies same and demand strictproof
thereof.
FACTS GIVING RISE TO CAUSE OF ACTION
5.
Defendant admits the allegations contained in Paragraph 5.
6.
Defendant denies the allegations contained in Paragraph6.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/11/2021 12:06:17 PM.****
Case No. CACE-21-007757(12)
Defendant, Clerjean Thomas's Answer and AffirmativeDefenses to Plaintiff'sComplaint
and Demand for Jury Trial
7.
Defendant admits that he was utilizing the driver version of the Uber application
while transportingPlaintiff as a passenger. Defendant denies the remaining allegations as phrased.
8
Defendant denies the allegations contained in Paragraph8.
9-
Defendant denies the allegations contained in Paragraph9.
10.
Defendant denies the allegations contained in Paragraph 10.
COUNT I - PLAINTIFF, EVENLY LEVY'S CLAIM FOR NEGLIGENCEAGAINST
DEFENDANT, CLERJEAN THOMAS
Defendant re-adopts, re-alleges, and re-incorporatesby references paragraph 1 through 10
as further alleges:
11.
Defendant denies the allegations contained in Paragraph 11.
COUNT II - PLAINTIFF, EVENLY LEVY'S CLAIM FOR NEGLIGENCE AGAINST
DEFENDANT, UBER
Defendant re-adopts, re-alleges, and re-incorporatesby references paragraph 1 through 10
as further alleges.
12.
Defendantmakes no response to the allegations as they are not directedagainst him.
To the extent that said allegations are construed as being directed against Defendant, the
allegations are denied.
13.
Defendantmakes no response to the allegations as they are not directedagainst him.
To the extent that said allegations are construed as being directed against Defendant, the
allegations are denied.
Defendant denies each and every allegation ofnegligence, cause of facts, proximate cause,
damages and/or injuries as Defendant is without sufficient information to affirm or deny said
allegations at the present time.
2
Case No. CACE-21-007757(12)
Defendant, Clerjean Thomas's Answer and AffirmativeDefenses to Plaintiff'sComplaint
and Demand for Jury Trial
DEMAND FOR JURY TRIAL
Defendant demands trial by jury of all issues so triable as a matter of right.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
At all times material hereto, Plaintiffconductedherselfin a negligent and careless manner.
That said negligence and carelessnesswas a contributingand/or the sole proximate legal cause of
the injuries and damages complained of and that by reason thereof,the Plaintiffis barred in whole
and/or in part from recovery against Defendant on the ground of comparative negligence.
Defendant denies any negligence.
SECOND AFFIRMATIVE DEFENSE
Plaintiffmaybe entitled to certain collateral sourcebenefits and, to the extent of collateral
sources paid, payable, or available,Defendant is entitled to a set-offin the amount thereof.
THIRD AFFIRMATIVE DEFENSE
Pursuant to Florida Statute § 768.041, Defendant relies upon the set-off created by any
settlement(s) with Defendant(s) and/or non-parties, in satisfaction of the same damages that
Plaintiff is suing. The right of set-offshall prevent duplicative recovery by Plaintiff. See Wells v
TallahasseeMemorial Medical Center, Inc., 659 So. 2d 249 (Fla. 1995).
FOURTH AFFIRMATIVE DEFENSE
Plaintiff failed to mitigate her damages and as such, Plaintiffsrecovery, if any, should be
reduced by the amount that could have lessened the claimed injuries or damages.
FIFTH AFFIRMATIVE DEFENSE
Defendant states that the alleged injuries and damages suffered by the Plaintiff are the
result of actions and/or omissions of third persons not a party to this lawsuit, or for whom
3
Case No. CACE-21-007757(12)
Defendant, Clerjean Thomas's Answer and AffirmativeDefenses to Plaintiff'sComplaint
and Demand for Jury Trial
Defendant has no control. Accordingly, the liability of Defendant, which is expressly denied,
should be reducedby the degree offault ofthese thirdpartiespursuantto §768.81, Florida Statutes,
as well as Nash v. Wells Fargo Guard Services, Eli; So. ld 1262 (Fla. 1996). Any damages
awarded in favor of the Plaintiff are subjectto the provisions of Fla. Stat. §768.81, and Defendant
cannot be liable for more than her pro rata proportionatepercentageshare ofany damages awarded.
Further, pursuantto Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), any damages awardedare subject
to the total fault of all participants,and should be included on the verdict form for purposes of
apportionment of fault. At this time, Defendant identifies OSWALD MCDONALD as a potential
Fabre Third Party. Should other such evidence develop, Defendant reserves her right to amend
these pleadings in accordance with Nash v. Wells Fargo Guard Services, Inc.,678 So. 2d 1262
(Fla. 1996).
SIXTH AFFIRMATIVE DEFENSE
Plaintiff's damages and injuries, if any, were a result of independent, supersedingand/or
intervening causes over which the Defendant had no control, and for which the Defendant cannot
be legally liable. Defendant denies any negligence.
SEVENTH AFFIRMATIVE DEFENSE
The disability, disfigurement or injury claimed of or alleged by the Plaintiff is as a result
of pre-existing conditions which were not caused by or aggravated by any alleged acts of
negligenceofDefendant. Defendant denies any negligence.
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff's alleged damages, if any, can be attributed to several causes and should be
apportionedamong the various causes accordingto the respectivecontributionof each such cause.
NINTH AFFIRMATIVE DEFENSE
4
Case No. CACE-21-007757(12)
Defendant, Clerjean Thomas's Answer and AffirmativeDefenses to Plaintiff'sComplaint
and Demand for Jury Trial
Plaintiff's Complaint fails to state a claim upon which relief can be granted.
TENTH AFFIRMATIVE DEFENSE
The accident allegedin PlaintiffsComplaint falls under the provisions ofthe "Tort Reform
and Insurance Act of 1986." The Act specifically addresses, but is not limited to: Fla. Stat.
§768.76, collateral sources of indemnity; Fla. Stat. §768.78, alternative methods of payment of
damage awards; §768.81, comparative fault. Defendant pleads all ofthe defenses available under
said Act, specifically including, without limitation, §768.81(3), abolishing joint and several
liability, and requiring that judgment be entered against each party liable on the basis of such
party's percentage of fault.
ELEVENTH AFFIRMATIVE DEFENSE
The accident alleged in Plaintiffs Complaint falls under the provisions of The Florida
Motor Vehicle No-Fault Law, §§ 627.730 and 627.7405, Fla. Stat. Defendant pleads all of the
defenses and exemptions available under the provisions of said Act including, but not limited to
§627.736(3), Fla. Stat., providingno right ofrecoveryfor any damages that are paid or payable by
Plaintiffs' PIP benefits,and §627.739(1), Fla. Stat., providingno right ofrecoveryfor any amount
elected as a deductible under PIP coverage.
TWELFTH AFFIRMATIVE DEFENSE
The injuries and damages allegedby Plaintiffarenot ofthe severity, magnitude, or duration
required by the tort threshold provisions of section 617.7370), Florida Statutes,so that said tort
threshold stands as a complete and total bar to Plaintiff's claims for reliefherein.
THIRTEENTH AFFIRMATIVE DEFENSE
Defendant expressly reserves the right to amend, delete and/or add additional defenses as
discoveryand investigation in this matter continues.
5
Case No. CACE-21-007757(12)
Defendant, Clerjean Thomas's Answer and AffirmativeDefenses to Plaintiff'sComplaint
and Demand for Jury Trial
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was served via
Florida Courts E-Filing Portal and sent via Electronic Mail on 1 lth day of June 2021 to: Brett L.
Borrow, THE BORROWLAW FIRM, One FlaglerBuilding, 14 NE 1St Avenue, Suite 514, Miami,
FL 33121
(AttorneysforPlaintif).
HINSHAW & CULBERTSON LLP
Attorneys for Defendant Clerjean Thomas
One East BrowardBoulevard, Suite 1010
Fort Lauderdale,FL 33301
Telephone: 954.467.7900
Facsimile: 954.467.1024
Email:
/sl MatthewJ. Walker
By:
April M. Zloch Dahl
Florida Bar No. 088601
Matthew J. Walker
Florida Bar No. 104838
6
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Filing # 128580455 E-Filed 06/11/2021 12:06:18 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CIVIL DIVISION EVELYN LEVY, CASE NO. CACE-21-007757(12) Plaintiff. VS. CLER.JEAN THOMAS, and UBER TECHNOLOGIES,INC., a Foreign Profit Corporation, Defendants. i DEFENDANT, CLERJEAN THOMAS'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIAL COMES NOW, the Defendant, CLER.JEANTHOMAS (hereinafter "Defendant"),by and through his undersigned counsel and hereby respond and serve this Answer and Affirmative Defenses to Plaintiff, EVELYN LEVY's Complaint and Demand for Jury Trial, and as grounds thereof Defendant would state as follows 1. Defendant is without knowledge and therefore denies same and demand strictproof thereof. 2. Defendant is without knowledge and therefore denies same and demand strictproof thereof. 3 Defendant denies the allegations contained in Paragraph3. 4. Defendant is without knowledge and therefore denies same and demand strictproof thereof. FACTS GIVING RISE TO CAUSE OF ACTION 5. Defendant admits the allegations contained in Paragraph 5. 6. Defendant denies the allegations contained in Paragraph6. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/11/2021 12:06:17 PM.**** Case No. CACE-21-007757(12) Defendant, Clerjean Thomas's Answer and AffirmativeDefenses to Plaintiff'sComplaint and Demand for Jury Trial 7. Defendant admits that he was utilizing the driver version of the Uber application while transportingPlaintiff as a passenger. Defendant denies the remaining allegations as phrased. 8 Defendant denies the allegations contained in Paragraph8. 9- Defendant denies the allegations contained in Paragraph9. 10. Defendant denies the allegations contained in Paragraph 10. COUNT I - PLAINTIFF, EVENLY LEVY'S CLAIM FOR NEGLIGENCEAGAINST DEFENDANT, CLERJEAN THOMAS Defendant re-adopts, re-alleges, and re-incorporatesby references paragraph 1 through 10 as further alleges: 11. Defendant denies the allegations contained in Paragraph 11. COUNT II - PLAINTIFF, EVENLY LEVY'S CLAIM FOR NEGLIGENCE AGAINST DEFENDANT, UBER Defendant re-adopts, re-alleges, and re-incorporatesby references paragraph 1 through 10 as further alleges. 12. Defendantmakes no response to the allegations as they are not directedagainst him. To the extent that said allegations are construed as being directed against Defendant, the allegations are denied. 13. Defendantmakes no response to the allegations as they are not directedagainst him. To the extent that said allegations are construed as being directed against Defendant, the allegations are denied. Defendant denies each and every allegation ofnegligence, cause of facts, proximate cause, damages and/or injuries as Defendant is without sufficient information to affirm or deny said allegations at the present time. 2 Case No. CACE-21-007757(12) Defendant, Clerjean Thomas's Answer and AffirmativeDefenses to Plaintiff'sComplaint and Demand for Jury Trial DEMAND FOR JURY TRIAL Defendant demands trial by jury of all issues so triable as a matter of right. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE At all times material hereto, Plaintiffconductedherselfin a negligent and careless manner. That said negligence and carelessnesswas a contributingand/or the sole proximate legal cause of the injuries and damages complained of and that by reason thereof,the Plaintiffis barred in whole and/or in part from recovery against Defendant on the ground of comparative negligence. Defendant denies any negligence. SECOND AFFIRMATIVE DEFENSE Plaintiffmaybe entitled to certain collateral sourcebenefits and, to the extent of collateral sources paid, payable, or available,Defendant is entitled to a set-offin the amount thereof. THIRD AFFIRMATIVE DEFENSE Pursuant to Florida Statute § 768.041, Defendant relies upon the set-off created by any settlement(s) with Defendant(s) and/or non-parties, in satisfaction of the same damages that Plaintiff is suing. The right of set-offshall prevent duplicative recovery by Plaintiff. See Wells v TallahasseeMemorial Medical Center, Inc., 659 So. 2d 249 (Fla. 1995). FOURTH AFFIRMATIVE DEFENSE Plaintiff failed to mitigate her damages and as such, Plaintiffsrecovery, if any, should be reduced by the amount that could have lessened the claimed injuries or damages. FIFTH AFFIRMATIVE DEFENSE Defendant states that the alleged injuries and damages suffered by the Plaintiff are the result of actions and/or omissions of third persons not a party to this lawsuit, or for whom 3 Case No. CACE-21-007757(12) Defendant, Clerjean Thomas's Answer and AffirmativeDefenses to Plaintiff'sComplaint and Demand for Jury Trial Defendant has no control. Accordingly, the liability of Defendant, which is expressly denied, should be reducedby the degree offault ofthese thirdpartiespursuantto §768.81, Florida Statutes, as well as Nash v. Wells Fargo Guard Services, Eli; So. ld 1262 (Fla. 1996). Any damages awarded in favor of the Plaintiff are subjectto the provisions of Fla. Stat. §768.81, and Defendant cannot be liable for more than her pro rata proportionatepercentageshare ofany damages awarded. Further, pursuantto Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), any damages awardedare subject to the total fault of all participants,and should be included on the verdict form for purposes of apportionment of fault. At this time, Defendant identifies OSWALD MCDONALD as a potential Fabre Third Party. Should other such evidence develop, Defendant reserves her right to amend these pleadings in accordance with Nash v. Wells Fargo Guard Services, Inc.,678 So. 2d 1262 (Fla. 1996). SIXTH AFFIRMATIVE DEFENSE Plaintiff's damages and injuries, if any, were a result of independent, supersedingand/or intervening causes over which the Defendant had no control, and for which the Defendant cannot be legally liable. Defendant denies any negligence. SEVENTH AFFIRMATIVE DEFENSE The disability, disfigurement or injury claimed of or alleged by the Plaintiff is as a result of pre-existing conditions which were not caused by or aggravated by any alleged acts of negligenceofDefendant. Defendant denies any negligence. EIGHTH AFFIRMATIVE DEFENSE Plaintiff's alleged damages, if any, can be attributed to several causes and should be apportionedamong the various causes accordingto the respectivecontributionof each such cause. NINTH AFFIRMATIVE DEFENSE 4 Case No. CACE-21-007757(12) Defendant, Clerjean Thomas's Answer and AffirmativeDefenses to Plaintiff'sComplaint and Demand for Jury Trial Plaintiff's Complaint fails to state a claim upon which relief can be granted. TENTH AFFIRMATIVE DEFENSE The accident allegedin PlaintiffsComplaint falls under the provisions ofthe "Tort Reform and Insurance Act of 1986." The Act specifically addresses, but is not limited to: Fla. Stat. §768.76, collateral sources of indemnity; Fla. Stat. §768.78, alternative methods of payment of damage awards; §768.81, comparative fault. Defendant pleads all ofthe defenses available under said Act, specifically including, without limitation, §768.81(3), abolishing joint and several liability, and requiring that judgment be entered against each party liable on the basis of such party's percentage of fault. ELEVENTH AFFIRMATIVE DEFENSE The accident alleged in Plaintiffs Complaint falls under the provisions of The Florida Motor Vehicle No-Fault Law, §§ 627.730 and 627.7405, Fla. Stat. Defendant pleads all of the defenses and exemptions available under the provisions of said Act including, but not limited to §627.736(3), Fla. Stat., providingno right ofrecoveryfor any damages that are paid or payable by Plaintiffs' PIP benefits,and §627.739(1), Fla. Stat., providingno right ofrecoveryfor any amount elected as a deductible under PIP coverage. TWELFTH AFFIRMATIVE DEFENSE The injuries and damages allegedby Plaintiffarenot ofthe severity, magnitude, or duration required by the tort threshold provisions of section 617.7370), Florida Statutes,so that said tort threshold stands as a complete and total bar to Plaintiff's claims for reliefherein. THIRTEENTH AFFIRMATIVE DEFENSE Defendant expressly reserves the right to amend, delete and/or add additional defenses as discoveryand investigation in this matter continues. 5 Case No. CACE-21-007757(12) Defendant, Clerjean Thomas's Answer and AffirmativeDefenses to Plaintiff'sComplaint and Demand for Jury Trial CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was served via Florida Courts E-Filing Portal and sent via Electronic Mail on 1 lth day of June 2021 to: Brett L. Borrow, THE BORROWLAW FIRM, One FlaglerBuilding, 14 NE 1St Avenue, Suite 514, Miami, FL 33121 (AttorneysforPlaintif). HINSHAW & CULBERTSON LLP Attorneys for Defendant Clerjean Thomas One East BrowardBoulevard, Suite 1010 Fort Lauderdale,FL 33301 Telephone: 954.467.7900 Facsimile: 954.467.1024 Email: /sl MatthewJ. Walker By: April M. Zloch Dahl Florida Bar No. 088601 Matthew J. Walker Florida Bar No. 104838 6