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Filing # 109343957 E-Filed 06/24/2020 02:34:38 PM
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR ORANGE
COUNTY, FLORIDA
CASE NO.: 2020 CA 5553-O
TONETTA WARD,
Plaintiff,
v.
PENNSYLVANIA LUMBERMAN’S
MUTUAL INSURANCE COMPANY,
Defendant.
_______________________________/
DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES
AND DEMAND FOR JURY TRIAL
COMES NOW, the Defendant, PENNSYLVANIA LUMBERMAN’S MUTUAL
INSURANCE COMPANY, who by and through their undersigned counsel hereby file this
Answer, Affirmative Defenses, and Demand for Jury Trial in response to Plaintiff’s Complaint,
indicating as follows:
1. Admitted for jurisdictional purposes alone, otherwise denied.
2. Admitted.
3. Without knowledge, therefore denied.
4. Admitted.
5. Without knowledge, therefore denied.
6. Without knowledge, therefore denied.
7. Without knowledge, therefore denied.
8. Without knowledge, therefore denied. Strict proof demanded thereof.
9. Without knowledge, therefore denied. Strict proof demanded thereof.
10. Denied as stated.
11. Denied as stated.
12. Admitted.
13. Without knowledge, therefore denied.
14. Denied.
15. Without knowledge, therefore denied. Strict proof demanded thereof.
AFFIRMATIVE DEFENSES
1. As a first affirmative defense, this Defendant states that if the Plaintiff was injured as
alleged, said injuries were proximately caused by the acts or forces of third parties not
under the control of this Defendant, and therefore, Plaintiff is barred from recovery
against this Defendant, or else Defendant’s exposure is limited to their degree of fault
pursuant to Section 768.81, Florida Statutes, and Fabre v. Marin, 623 So. 2d 1182 (Fla.
1993). At this time, such other third parties are unknown to this Defendant. Pursuant to
Nash v. Wells Fargo, 678 So. 2d 1262 (Fla. 1996), this Defendant will seek amendment
to identify such additional third parties as soon as practical.
2. As a second affirmative defense, this Defendant states that at all times material to this
action, the Plaintiff was herself guilty of negligence and carelessness and that this
negligence and carelessness was the sole proximate cause of the alleged damages herein,
and therefore the Plaintiff is barred from recovery in whole or in part against this
Defendant on the grounds of comparative negligence.
3. For a third affirmative defense, this Defendant alleges entitlement to immunity from
liability for the amount of any deductible selected by the Plaintiff or by which Plaintiff is
bound pursuant to any applicable automobile insurance agreement providing personal
injury protection coverage.
4. For a fourth affirmative defense, this Defendant alleges that any recovery should be
reduced or barred as the claim of the Plaintiff is restricted to benefits of the Florida Motor
Vehicle No-Fault Law.
5. For a fifth affirmative defense, this Defendant alleges that Plaintiff has failed to comply
with the threshold provisions of the Florida Motor Vehicle No-Fault Law, and therefore,
recovery is barred in items entirely and/or diminished accordingly.
6. For a sixth affirmative defense, this Defendant states that the Plaintiff has failed to
mitigate damages, if any, and is therefore not entitled to recovery of any damages which
could have been mitigated.
7. For an seventh affirmative defense, this Defendant pleads the benefit of all provisions of
the Florida Tort Reform Act of 1986 regarding the partial abolition of the joint and
several liability doctrines; collateral source setoffs; and the option to pay judgment over
time; and otherwise.
8. For an eighth affirmative defense, this Defendant states that this action is governed by the
Doctrine of Comparative Fault and as a result, this Defendant may only be held liable, if
at all, on the basis of the percentage of fault, liability, or responsibility for the entire
incident of October 24, 2019.
9. As a ninth affirmative defense, this Defendant states that the sole proximate cause of the
Plaintiff’s alleged injuries, if any, was the efficient intervening negligence of the Plaintiff
or some third party not under the control of this Defendant, and therefore Plaintiff is
barred from recovery against this Defendant.
10. As a tenth affirmative defense, this Defendant specifically claims any credit or setoff to
which it is entitled or may be entitled for any payments paid or payable to the Plaintiff
herein for any damages alleged in this action from any collateral source whatsoever.
11. As an eleventh affirmative defense, this Defendant states that any recovery should be
reduced or barred by any settlement judgment or payment of any kind by any individual
or entity in connection with the subject matter of the incident described in the Complaint.
12. For a twelfth affirmative defense, this Defendant states that any recovery should be
reduced or barred to the extent of available insurance coverage including benefits
available through any guarantee association or other governmental authority available to
any individual or entity which may be wholly or partially responsible for the damages
alleged in connection with the subject matter of the incident described in the Complaint.
13. For a thirteenth affirmative defense, this Defendant would state that the Plaintiff’s
damages, if any, were solely and proximately caused by an intervening medical
condition, which was not itself the result of any negligence on the part of this Defendant
and, accordingly, recovery against this Defendant should be denied.
14. This Defendant reserves the right to amend the affirmative defenses as discovery in this
case progresses.
DEMAND FOR JURY TRIAL
Defendant, PENNSYLVANIA LUMBERMAN’S MUTUAL INSURANCE
COMPANY, demands TRIAL BY JURY of all issues so triable as a right by jury.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that a true and correct copy of the foregoing was sent via E-
service to: Dane Jordan, Esq., Morgan & Morgan, P.A., 20 N. Orange Avenue, 16th Floor, P.O.
Box 4979, Orlando, Florida 32802, djordan@forthepeople.com, smoler@forthepeople.com,
tuebele@forthepeople.com, Counsel for Plaintiff, this 24th day of June, 2020.
KUBICKI DRAPER
Attorney for Defendant
515 N. Flagler Drive
18th Floor
West Palm Beach, FL 33401
Telephone: (561) 615-4315
DMD-KD@kubickidraper.com
BY: /s/ David M. Drahos
David M. Drahos, Esq.
Florida Bar No.: 25907
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Filing # 109343957 E-Filed 06/24/2020 02:34:38 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CASE NO.: 2020 CA 5553-O TONETTA WARD, Plaintiff, v. PENNSYLVANIA LUMBERMAN’S MUTUAL INSURANCE COMPANY, Defendant. _______________________________/ DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND DEMAND FOR JURY TRIAL COMES NOW, the Defendant, PENNSYLVANIA LUMBERMAN’S MUTUAL INSURANCE COMPANY, who by and through their undersigned counsel hereby file this Answer, Affirmative Defenses, and Demand for Jury Trial in response to Plaintiff’s Complaint, indicating as follows: 1. Admitted for jurisdictional purposes alone, otherwise denied. 2. Admitted. 3. Without knowledge, therefore denied. 4. Admitted. 5. Without knowledge, therefore denied. 6. Without knowledge, therefore denied. 7. Without knowledge, therefore denied. 8. Without knowledge, therefore denied. Strict proof demanded thereof. 9. Without knowledge, therefore denied. Strict proof demanded thereof. 10. Denied as stated. 11. Denied as stated. 12. Admitted. 13. Without knowledge, therefore denied. 14. Denied. 15. Without knowledge, therefore denied. Strict proof demanded thereof. AFFIRMATIVE DEFENSES 1. As a first affirmative defense, this Defendant states that if the Plaintiff was injured as alleged, said injuries were proximately caused by the acts or forces of third parties not under the control of this Defendant, and therefore, Plaintiff is barred from recovery against this Defendant, or else Defendant’s exposure is limited to their degree of fault pursuant to Section 768.81, Florida Statutes, and Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). At this time, such other third parties are unknown to this Defendant. Pursuant to Nash v. Wells Fargo, 678 So. 2d 1262 (Fla. 1996), this Defendant will seek amendment to identify such additional third parties as soon as practical. 2. As a second affirmative defense, this Defendant states that at all times material to this action, the Plaintiff was herself guilty of negligence and carelessness and that this negligence and carelessness was the sole proximate cause of the alleged damages herein, and therefore the Plaintiff is barred from recovery in whole or in part against this Defendant on the grounds of comparative negligence. 3. For a third affirmative defense, this Defendant alleges entitlement to immunity from liability for the amount of any deductible selected by the Plaintiff or by which Plaintiff is bound pursuant to any applicable automobile insurance agreement providing personal injury protection coverage. 4. For a fourth affirmative defense, this Defendant alleges that any recovery should be reduced or barred as the claim of the Plaintiff is restricted to benefits of the Florida Motor Vehicle No-Fault Law. 5. For a fifth affirmative defense, this Defendant alleges that Plaintiff has failed to comply with the threshold provisions of the Florida Motor Vehicle No-Fault Law, and therefore, recovery is barred in items entirely and/or diminished accordingly. 6. For a sixth affirmative defense, this Defendant states that the Plaintiff has failed to mitigate damages, if any, and is therefore not entitled to recovery of any damages which could have been mitigated. 7. For an seventh affirmative defense, this Defendant pleads the benefit of all provisions of the Florida Tort Reform Act of 1986 regarding the partial abolition of the joint and several liability doctrines; collateral source setoffs; and the option to pay judgment over time; and otherwise. 8. For an eighth affirmative defense, this Defendant states that this action is governed by the Doctrine of Comparative Fault and as a result, this Defendant may only be held liable, if at all, on the basis of the percentage of fault, liability, or responsibility for the entire incident of October 24, 2019. 9. As a ninth affirmative defense, this Defendant states that the sole proximate cause of the Plaintiff’s alleged injuries, if any, was the efficient intervening negligence of the Plaintiff or some third party not under the control of this Defendant, and therefore Plaintiff is barred from recovery against this Defendant. 10. As a tenth affirmative defense, this Defendant specifically claims any credit or setoff to which it is entitled or may be entitled for any payments paid or payable to the Plaintiff herein for any damages alleged in this action from any collateral source whatsoever. 11. As an eleventh affirmative defense, this Defendant states that any recovery should be reduced or barred by any settlement judgment or payment of any kind by any individual or entity in connection with the subject matter of the incident described in the Complaint. 12. For a twelfth affirmative defense, this Defendant states that any recovery should be reduced or barred to the extent of available insurance coverage including benefits available through any guarantee association or other governmental authority available to any individual or entity which may be wholly or partially responsible for the damages alleged in connection with the subject matter of the incident described in the Complaint. 13. For a thirteenth affirmative defense, this Defendant would state that the Plaintiff’s damages, if any, were solely and proximately caused by an intervening medical condition, which was not itself the result of any negligence on the part of this Defendant and, accordingly, recovery against this Defendant should be denied. 14. This Defendant reserves the right to amend the affirmative defenses as discovery in this case progresses. DEMAND FOR JURY TRIAL Defendant, PENNSYLVANIA LUMBERMAN’S MUTUAL INSURANCE COMPANY, demands TRIAL BY JURY of all issues so triable as a right by jury. CERTIFICATE OF SERVICE I HEREBY CERTIFY, that a true and correct copy of the foregoing was sent via E- service to: Dane Jordan, Esq., Morgan & Morgan, P.A., 20 N. Orange Avenue, 16th Floor, P.O. Box 4979, Orlando, Florida 32802, djordan@forthepeople.com, smoler@forthepeople.com, tuebele@forthepeople.com, Counsel for Plaintiff, this 24th day of June, 2020. KUBICKI DRAPER Attorney for Defendant 515 N. Flagler Drive 18th Floor West Palm Beach, FL 33401 Telephone: (561) 615-4315 DMD-KD@kubickidraper.com BY: /s/ David M. Drahos David M. Drahos, Esq. Florida Bar No.: 25907