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Filing # 102674692 E-Filed 02/03/2020 05:16:04 PM
IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR MARION
COUNTY, FLORIDA
Case No. 19-2549-CA
DORA HOPKINS,
Plaintiff,
v.
ATHENA LOGAN and SUSHA LOGAN,
Defendants.
DEFENDANT, ATHENA LOGAN’S, ANSWER AND AFFIRMATIVE
DEFENSES TO PLAINTIFE’S COMPLAINT
Defendant, ATHENA LOGAN, by and through her undersigned counsel, serves this, her
Answer and Affirmative Defenses, and in response to the Plaintiffs’ Complaint, and states as
follows:
1. Admitted for jurisdictional purposes only.
2. Admitted.
3. Defendant is without knowledge, and therefore, denied.
4, Admitted that I was operating a 2005 Toyota motor vehicle owned by one or both
of the Defendants on or about November 21, 2018, and at approximately 3:45 p.m., eastbound in
the 6800 block of Northeast 7" Street in Ocala, Marion County, Florida, and that the front of my
vehicle collided with the rear of a 2004 Dodge automobile. As to the remaining allegations, the
Defendant is without knowledge, and therefore, denied.
5. Admitted.
6. Admitted.
7. Admitted subject to Florida law.
Electronically Filed Marion Case # 19CA002549AX 62/03/2020 05:16:04 PM8. Admitted subject to Florida law.
9. Denied.
10. Denied.
WHEREFORE, Defendant, ATHENA LOGAN, requests judgment against the Plaintiff,
including but not limited to costs under all applicable Florida Statutes and all applicable Florida
Rules of Civil Procedure.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Any injuries, conditions, or damages alleged by the Plaintiff resulted from prior,
subsequent, or otherwise unrelated accidents, incidents, or conditions.
SECOND AFFIRMATIVE DEFENSE
The Plaintiff failed to take due care for her own safety, which negligence contributed to or
was the sole proximate cause of the accident and the damages complained of. The Plaintiffs
recovery in this matter should be barred, or in the alternative, any damages awarded to Plaintiff
should be reduced by the percentage of comparative negligence by the Plaintiff.
THIRD AFFIRMATIVE DEFENSE
The Plaintiff may not recover any damages for which personal injury protection benefits
pursuant to F.S. 627.730 - 627.741 are paid or payable.
FOURTH AFFIRMATIVE DEFENSE
The Plaintiffs claim for injury is limited and/or nonexistent and should be reduced by the
total amount of all collateral sources paid to the Plaintiff, including, but not limited to, those
collateral sources paid pursuant to Florida Statutes Section 627.737 and Florida Statutes Section
768.76.FIFTH AFFIRMATIVE DEFENSE
The Plaintiffs injuries, if any, were caused in whole or in part by the Plaintiff's negligence
in failing to use the existing occupant safety system that was then available and operational in the
vehicle. This failure caused or contributed substantially to causing part or all of the Plaintiffs
injuries. Thus, any damages should be reduced in proportion to the degree of negligence in failing
to use said safety system or reduced by the amount incurred by Plaintiff due to the failure to
mitigate damages.
SIXTH AFFIRMATIVE DEFENSE
The Defendant is entitled to a set-off for all sums of money recovered by or on behalf of
the Plaintiff for any and all claims made in this action, by way of any settlement, judgment, or
otherwise which was entered into or received by the Plaintiff from any party or non-party to this
action.
SEVENTH AFFIRMATIVE DEFENSE
The provisions of Section 768.81, Florida Statutes, apply to this action, thereby
diminishing the Plaintiff's recovery to the appropriate percentage of responsibility, if any, and not
on the basis of the doctrine of joint and several liability. The percentage of responsibility, if any,
shall be further limited by that percentage of responsibility attributable to third persons, including
any potentially responsible non-parties not yet discovered.
EIGHTH AFFIRMATIVE DEFENSE
The Defendant is entitled to the privileges, benefits, protections, and limitations provided
by any applicable Florida Statutes, if applicable, including but not limited to Florida Statute
sections 768.71 — 768.81.
NINTH AFFIRMATIVE DEFENSEThe Plaintiff failed to mitigate damages by failing to obtain such medical treatment as
reasonably expected to diminish disability, discomfort, or damage, and the Plaintiff failed to
mitigate damages by failing to resume gainful employment at a time when the Plaintiff was
physically able to do so following the accident.
TENTH AFFIRMATIVE DEFENSE
The Plaintiff was insured with or a beneficiary of health insurance coverage which inures
to the benefit of the Defendant, in that Plaintiff's providers must submit all bills for services
rendered to the Plaintiff's health insurer and the Plaintiff's providers must accept the contracted
amount in full payment of all charges for treatment rendered pursuant to F.S. 641.3154.
ELEVENTH AFFIRMATIVE DEFENSE
The Defendant is entitled to any and all health insurance contractual adjustments, and only
the net amount of medical bills owed should be presented to the jury as the damages allegedly
incurred. Goble vy, Frohman, 901 So. 2d 830 (Fla. 2005); and Thyssenkrupp Elevator Corp v.
Lasky, 868 So. 2d 547 (Fla. 4" DCA 2003).
TWELFTH AFFIRMATIVE DEFENSE
The Plaintiff failed to mitigate damages by failing to submit all payable medical bills to a
health insurer, thus depriving the Defendant of the contractual discount available as a third party
beneficiary of the contract. Goble v. Frohman, 901 So. 2d 830 (Fla. 2005); Thyssenkrupp Elevator
Corp v. Lasky, 868 So. 2d 547 (4 DCA 2003); Fla. Statutes 641.3154.
THIRTEENTH AFFIRMATIVE DEFENSE
The Plaintiff's treating providers and/or facilities’ submission of medical bills to the PIP
insurer violated F.S. 627.736(5)(b)1 and as such the Defendant is liable only to the extent that the
PIP carrier would be responsible for reasonable and necessary charges for medical care incurredas a result of injuries sustained in the accident at issue, exclusive of any upcoding charges
submitted by said providers or facilities.
FOURTEENTH AFFIRMATIVE DEFENSE
The Plaintiff cannot maintain this action under Chapter 627.737, Florida Statutes, as the
tort exemption contained therein specifically bars the Plaintiff from any action and recovery
thereon. Plaintiff did not sustain a permanent injury as defined by Florida Statutes and the Plaintiff
cannot meet the threshold for recovery under the Florida Motor Vehicle No-Fault Laws.
DEMAND FOR JURY TRIAL
The Defendant, ATHENA LOGAN, demands a trial by jury on all issues so triable.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the forgoing has been furnished via
electronic mail on the 3“ day of February, 2020, to Dennis L. Finch, P.A., dlfinchpa@aol.com.
/s/ Elizabeth E. Andrews
Elizabeth E. Andrews, Esquire
Florida Bar No. 0058572
ANDREWS & MANNO, P.A.
701 Harbour Post Drive
Tampa, FL 33602
Telephone: (813) 463-9800
Facsimile: (813) 463-9801
Primary E-mail address:
eandrews@andrewsmanno.com
Secondary E-mail address:
mkeasey@andrewsmanno.com
Attorneys for Defendants
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Filing # 102674692 E-Filed 02/03/2020 05:16:04 PM IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT IN AND FOR MARION COUNTY, FLORIDA Case No. 19-2549-CA DORA HOPKINS, Plaintiff, v. ATHENA LOGAN and SUSHA LOGAN, Defendants. DEFENDANT, ATHENA LOGAN’S, ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFE’S COMPLAINT Defendant, ATHENA LOGAN, by and through her undersigned counsel, serves this, her Answer and Affirmative Defenses, and in response to the Plaintiffs’ Complaint, and states as follows: 1. Admitted for jurisdictional purposes only. 2. Admitted. 3. Defendant is without knowledge, and therefore, denied. 4, Admitted that I was operating a 2005 Toyota motor vehicle owned by one or both of the Defendants on or about November 21, 2018, and at approximately 3:45 p.m., eastbound in the 6800 block of Northeast 7" Street in Ocala, Marion County, Florida, and that the front of my vehicle collided with the rear of a 2004 Dodge automobile. As to the remaining allegations, the Defendant is without knowledge, and therefore, denied. 5. Admitted. 6. Admitted. 7. Admitted subject to Florida law. Electronically Filed Marion Case # 19CA002549AX 62/03/2020 05:16:04 PM8. Admitted subject to Florida law. 9. Denied. 10. Denied. WHEREFORE, Defendant, ATHENA LOGAN, requests judgment against the Plaintiff, including but not limited to costs under all applicable Florida Statutes and all applicable Florida Rules of Civil Procedure. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Any injuries, conditions, or damages alleged by the Plaintiff resulted from prior, subsequent, or otherwise unrelated accidents, incidents, or conditions. SECOND AFFIRMATIVE DEFENSE The Plaintiff failed to take due care for her own safety, which negligence contributed to or was the sole proximate cause of the accident and the damages complained of. The Plaintiffs recovery in this matter should be barred, or in the alternative, any damages awarded to Plaintiff should be reduced by the percentage of comparative negligence by the Plaintiff. THIRD AFFIRMATIVE DEFENSE The Plaintiff may not recover any damages for which personal injury protection benefits pursuant to F.S. 627.730 - 627.741 are paid or payable. FOURTH AFFIRMATIVE DEFENSE The Plaintiffs claim for injury is limited and/or nonexistent and should be reduced by the total amount of all collateral sources paid to the Plaintiff, including, but not limited to, those collateral sources paid pursuant to Florida Statutes Section 627.737 and Florida Statutes Section 768.76.FIFTH AFFIRMATIVE DEFENSE The Plaintiffs injuries, if any, were caused in whole or in part by the Plaintiff's negligence in failing to use the existing occupant safety system that was then available and operational in the vehicle. This failure caused or contributed substantially to causing part or all of the Plaintiffs injuries. Thus, any damages should be reduced in proportion to the degree of negligence in failing to use said safety system or reduced by the amount incurred by Plaintiff due to the failure to mitigate damages. SIXTH AFFIRMATIVE DEFENSE The Defendant is entitled to a set-off for all sums of money recovered by or on behalf of the Plaintiff for any and all claims made in this action, by way of any settlement, judgment, or otherwise which was entered into or received by the Plaintiff from any party or non-party to this action. SEVENTH AFFIRMATIVE DEFENSE The provisions of Section 768.81, Florida Statutes, apply to this action, thereby diminishing the Plaintiff's recovery to the appropriate percentage of responsibility, if any, and not on the basis of the doctrine of joint and several liability. The percentage of responsibility, if any, shall be further limited by that percentage of responsibility attributable to third persons, including any potentially responsible non-parties not yet discovered. EIGHTH AFFIRMATIVE DEFENSE The Defendant is entitled to the privileges, benefits, protections, and limitations provided by any applicable Florida Statutes, if applicable, including but not limited to Florida Statute sections 768.71 — 768.81. NINTH AFFIRMATIVE DEFENSEThe Plaintiff failed to mitigate damages by failing to obtain such medical treatment as reasonably expected to diminish disability, discomfort, or damage, and the Plaintiff failed to mitigate damages by failing to resume gainful employment at a time when the Plaintiff was physically able to do so following the accident. TENTH AFFIRMATIVE DEFENSE The Plaintiff was insured with or a beneficiary of health insurance coverage which inures to the benefit of the Defendant, in that Plaintiff's providers must submit all bills for services rendered to the Plaintiff's health insurer and the Plaintiff's providers must accept the contracted amount in full payment of all charges for treatment rendered pursuant to F.S. 641.3154. ELEVENTH AFFIRMATIVE DEFENSE The Defendant is entitled to any and all health insurance contractual adjustments, and only the net amount of medical bills owed should be presented to the jury as the damages allegedly incurred. Goble vy, Frohman, 901 So. 2d 830 (Fla. 2005); and Thyssenkrupp Elevator Corp v. Lasky, 868 So. 2d 547 (Fla. 4" DCA 2003). TWELFTH AFFIRMATIVE DEFENSE The Plaintiff failed to mitigate damages by failing to submit all payable medical bills to a health insurer, thus depriving the Defendant of the contractual discount available as a third party beneficiary of the contract. Goble v. Frohman, 901 So. 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v. Lasky, 868 So. 2d 547 (4 DCA 2003); Fla. Statutes 641.3154. THIRTEENTH AFFIRMATIVE DEFENSE The Plaintiff's treating providers and/or facilities’ submission of medical bills to the PIP insurer violated F.S. 627.736(5)(b)1 and as such the Defendant is liable only to the extent that the PIP carrier would be responsible for reasonable and necessary charges for medical care incurredas a result of injuries sustained in the accident at issue, exclusive of any upcoding charges submitted by said providers or facilities. FOURTEENTH AFFIRMATIVE DEFENSE The Plaintiff cannot maintain this action under Chapter 627.737, Florida Statutes, as the tort exemption contained therein specifically bars the Plaintiff from any action and recovery thereon. Plaintiff did not sustain a permanent injury as defined by Florida Statutes and the Plaintiff cannot meet the threshold for recovery under the Florida Motor Vehicle No-Fault Laws. DEMAND FOR JURY TRIAL The Defendant, ATHENA LOGAN, demands a trial by jury on all issues so triable. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the forgoing has been furnished via electronic mail on the 3“ day of February, 2020, to Dennis L. Finch, P.A., dlfinchpa@aol.com. /s/ Elizabeth E. Andrews Elizabeth E. Andrews, Esquire Florida Bar No. 0058572 ANDREWS & MANNO, P.A. 701 Harbour Post Drive Tampa, FL 33602 Telephone: (813) 463-9800 Facsimile: (813) 463-9801 Primary E-mail address: eandrews@andrewsmanno.com Secondary E-mail address: mkeasey@andrewsmanno.com Attorneys for Defendants