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Filing # 128590311 E-Filed 06/11/2021 01:31:51 PM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CIVIL DIVISION
CASE NO. 18-34416 CA 01
YVETTE BONHEUR, as Personal
Representative of the Estate of LEGITIME
ELISBRUN,
Plaintiff,
v.
FLORIDA POWER & LIGHT COMPANY and
LEWIS TREE SERVICE, INC.,
Defendants.
/
DEFENDANT FLORIDA POWER & LIGHT COMPANY’S
AMENDED ANSWER & AFFIRMATIVE DEFENSES TO
PLAINTIFF’S THIRD AMENDED COMPLAINT
COMES NOW, the Defendant FLORIDA POWER & LIGHT COMPANY (FPL) by and
through undersigned counsel, and files this Amended Answer and Affirmative Defenses to the
Plaintiff’s Third Amended Complaint, and as grounds states as follows:
1. Defendant FPL denies the allegations contained in Paragraphs No. 1, 8, 10, 13,
14, 15, 16, 17, 19, 20, 21, 22 and 29-36, and would demand strict proof thereof.
2. Defendant FPL has no knowledge of the allegations contained in Paragraphs No.
4, 5 and 6 and would therefore deny the same and demand strict proof thereof.
3. Defendant FPL admits the allegations in Paragraph 7 to the extent that FPL is a
Florida business for profit. All other allegations contained therein are hereby Denied.
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Case No. 18-34416 CA 01
4. Defendant FPL admits the allegations in Paragraph 9 to the extent that FPL is a
Florida Corp that supplies power and electricity. All other allegations contained therein are
hereby Denied.
5. Paragraph No. 12 refers to an attached Contract and said Contract speaks for itself
and requires no response.
6. In response to Paragraphs No. 18 and 28, Defendant FPL re-alleges its responses
to Paragraphs No. 1 through 17.
7. In response to Paragraphs No.11 and Count II, said paragraphs are addressed to
another defendant. Defendant FPL would deny same in any event.
8. Any allegation not specifically admitted herein is hereby denied.
AFFIRMATIVE DEFENSES
9. Defendant FPL would state that it is not guilty of any negligence whatsoever.
10. Defendant FPL complied with all requirements of the National Electrical Safety
Code.
11. Defendant FPL complied with all requirements of Florida Law, including Chapter
366 of the Florida Statutes and as a matter of law, compliance with the code shall constitute
acceptable and adequate requirements for the protection of the safety of the public, and compliance
with the minimum requirements of that code shall constitute good engineering practice.
12. At the time and place in question, and immediately prior thereto, the Plaintiff,
YVETTE BONHEUR and/or LEGITIME ELISBRUN was guilty of negligence, which negligence
was the sole proximate cause of the incident in question by failing to observe and maintain a safe
distance from the power lines, failed to work within a safe distance from the power lines, failed to
use personal protective equipment, failed to use a fiberglass ladder and pole handle, failed to call
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Bonheur/Elisbrun v. FPL, et al.
Case No. 18-34416 CA 01
FPL for assistance, failed to follow FPL's warnings about working around power lines and
otherwise violated OSHA regulations regarding working in proximity to energized power lines,
thereby barring this claim, or reducing it by the proportion that the negligence aforesaid
contributed to the total negligence, which proximately caused the accident.
13. Defendant FPL moves for a set-off of all benefits which Plaintiff is entitled to
receive from any collateral source whatsoever.
14. The damages complained of were as a result of the negligence of third parties or
persons which proximately caused or contributed to the alleged damages, to wit: Homeowners of
the premises, VINCENT S. JOSEPH AND DEBORAH F. JOSEPH, who failed to follow FPL’s
instructions and advice not to attempt to trim any trees or vegetation growing near any overhead
power lines; who failed to notify FPL or request line clearance or maintain line clearance and to
maintain the tree which they allege interfered with FPL’s lines and which were in violation of the
Florida Tariff, Section 6 Rules & Regulations, Subsection 5.5 - Interference with Company’s
Facilities. Said Tariff states as follows:
5.5 Interference with Company’s Facilities. The Customer should
not allow trees, vines and shrubs to interfere with the Company’s
adjacent overhead conductors, service wires, pad mounted
transformers and meter. Such interference may result in an injury
to persons, or may cause the Customer’s service to be interrupted.
In all cases the customer should request the Company to trim or
remove trees and other growth near the Company’s adjacent
overhead wires, and under no circumstances should the Customer
undertake this work himself, except around service cables when
specifically authorized by and arranged with the Company.
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Bonheur/Elisbrun v. FPL, et al.
Case No. 18-34416 CA 01
15. The damages complained of were as a result of the negligence of third parties or
persons which proximately caused or contributed to the alleged damages, to wit: Homeowners of
the premises, “VINCENT S. JOSEPH AND DEBORAH F. JOSEPH” who failed to properly
protect the company’s property and permitted an unauthorized person to have access to the
company’s facilities, all in violation of FLORIDA POWER & LIGHT COMPANY Tariff, Section
6 Rules & Regulations, Subsection 5.1 – Protection of Company’s Property. Said Tariff states as
follows:
5.1 Protection of Company’s Property. The Customer shall
properly protect the Company’s property on the Customer’s
premises, and shall permit no one but the Company’s agents, or
persons authorized by law, to have access to the Company’s wiring,
meters, and apparatus.
16. Said damages were also as a result of the negligence of homeowners, VINCENT
S. JOSEPH AND DEBORAH F. JOSEPH, and the Plaintiff’s employer, VISUALSCAPE INC.,
who violated OSHA requirements by, including, but not limited to, failing to maintain a safe work
place, failing to keep proper clearance from lines, failing to provide proper training or equipment,
failing to warn, failing to contact the utility, etc.
17. All of FLORIDA POWER & LIGHT COMPANY facilities were installed in
accordance with the National Electric Safety Code and met or exceeded all required clearances
and other standards set forth therein.
18. FLORIDA POWER & LIGHT COMPANY had no notice or knowledge of the
condition alleged in Plaintiff’s Complaint.
19. LEWIS TREE SERVICE, INC. is an independent contractor as defined under
Florida law over which FLORIDA POWER & LIGHT COMPANY has no control in the manner
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Bonheur/Elisbrun v. FPL, et al.
Case No. 18-34416 CA 01
of their work and FLORIDA POWER & LIGHT COMPANY is not therefore vicariously liable
for their negligence, if any. LEWIS TREE SERVICE, INC. is the contractor hired to clear lines
in the area in question. Any such deficiencies, if any, would be through the actions of LEWIS
TREE SERVICE.
20. The alleged condition was open and obvious.
21. The damages were caused by the negligence of a third party who owned or created
the condition alleged, to wit: SRP SUB, LLC d/b/a Invitation Homes and such other entities as
may be discovered through investigation and discovery and disclosed prior to trial herein.
WHEREFORE, the Plaintiff is not entitled to any relief whatsoever. This Honorable
Court is requested to assess the costs of these proceedings herein against the Plaintiff, and grant
such further relief as it deems just and proper. Trial by jury of all issues triable as a matter of right
is hereby demanded.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via email
in compliance with Rule 2.516 this 11th day of June, 2021, to: Steven M. Singer, Esq., Steven M.
Singer, PA, 7901 SW 6 Court, Suite 305, Plantation, FL 33324, steven.m.singerpa@gmail.com;
Joel H. Brown, Esq. and Jonathan Freidin, Esq., Freidin Brown, PA, One Biscayne Tower, Suite
3100, 2 South Biscayne Blvd., Miami, FL 33131, jhb@fblawyers.net; jf@fblawyers.net;
mw@fblawyers.net; pleadings@fblawyers.net, Attorneys for Plaintiffs; Michael K. Wilensky,
Esq., Conroy Simberg, 3440 Hollywood Blvd., 2nd Floor, Hollywood, FL 33021,
mwilensky@conroysimberg.com, ddemarais@conroysimberg.com;
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Bonheur/Elisbrun v. FPL, et al.
Case No. 18-34416 CA 01
eservicehwd@conroysimberg.com, Attorneys for Lewis Tree Service, Inc., and to all Counsel of
Record as listed in the Florida Courts E-Filing Portal.
FLORIDA POWER & LIGHT COMPANY
By: /s/ Angelica Torrents Roque
Angelica Torrents Roque, Esq.
Fla. Bar No. 0037874
Robert E. Boan, Esq.
Fla. Bar No. 353078
4200 West Flagler Street
LAW/SCS – Second Floor
Miami, FL 33134
Telephone: (305) 442-5115
Primary: angelica.roque@fpl.com
Co-Counsel: robert.boan@fpl.com
Secondary: miriam.corzo.garcia@fpl.com
Attorneys for Defendant FPL
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Filing # 128590311 E-Filed 06/11/2021 01:31:51 PM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL DIVISION CASE NO. 18-34416 CA 01 YVETTE BONHEUR, as Personal Representative of the Estate of LEGITIME ELISBRUN, Plaintiff, v. FLORIDA POWER & LIGHT COMPANY and LEWIS TREE SERVICE, INC., Defendants. / DEFENDANT FLORIDA POWER & LIGHT COMPANY’S AMENDED ANSWER & AFFIRMATIVE DEFENSES TO PLAINTIFF’S THIRD AMENDED COMPLAINT COMES NOW, the Defendant FLORIDA POWER & LIGHT COMPANY (FPL) by and through undersigned counsel, and files this Amended Answer and Affirmative Defenses to the Plaintiff’s Third Amended Complaint, and as grounds states as follows: 1. Defendant FPL denies the allegations contained in Paragraphs No. 1, 8, 10, 13, 14, 15, 16, 17, 19, 20, 21, 22 and 29-36, and would demand strict proof thereof. 2. Defendant FPL has no knowledge of the allegations contained in Paragraphs No. 4, 5 and 6 and would therefore deny the same and demand strict proof thereof. 3. Defendant FPL admits the allegations in Paragraph 7 to the extent that FPL is a Florida business for profit. All other allegations contained therein are hereby Denied. 1 Bonheur/Elisbrun v. FPL, et al. Case No. 18-34416 CA 01 4. Defendant FPL admits the allegations in Paragraph 9 to the extent that FPL is a Florida Corp that supplies power and electricity. All other allegations contained therein are hereby Denied. 5. Paragraph No. 12 refers to an attached Contract and said Contract speaks for itself and requires no response. 6. In response to Paragraphs No. 18 and 28, Defendant FPL re-alleges its responses to Paragraphs No. 1 through 17. 7. In response to Paragraphs No.11 and Count II, said paragraphs are addressed to another defendant. Defendant FPL would deny same in any event. 8. Any allegation not specifically admitted herein is hereby denied. AFFIRMATIVE DEFENSES 9. Defendant FPL would state that it is not guilty of any negligence whatsoever. 10. Defendant FPL complied with all requirements of the National Electrical Safety Code. 11. Defendant FPL complied with all requirements of Florida Law, including Chapter 366 of the Florida Statutes and as a matter of law, compliance with the code shall constitute acceptable and adequate requirements for the protection of the safety of the public, and compliance with the minimum requirements of that code shall constitute good engineering practice. 12. At the time and place in question, and immediately prior thereto, the Plaintiff, YVETTE BONHEUR and/or LEGITIME ELISBRUN was guilty of negligence, which negligence was the sole proximate cause of the incident in question by failing to observe and maintain a safe distance from the power lines, failed to work within a safe distance from the power lines, failed to use personal protective equipment, failed to use a fiberglass ladder and pole handle, failed to call 2 Bonheur/Elisbrun v. FPL, et al. Case No. 18-34416 CA 01 FPL for assistance, failed to follow FPL's warnings about working around power lines and otherwise violated OSHA regulations regarding working in proximity to energized power lines, thereby barring this claim, or reducing it by the proportion that the negligence aforesaid contributed to the total negligence, which proximately caused the accident. 13. Defendant FPL moves for a set-off of all benefits which Plaintiff is entitled to receive from any collateral source whatsoever. 14. The damages complained of were as a result of the negligence of third parties or persons which proximately caused or contributed to the alleged damages, to wit: Homeowners of the premises, VINCENT S. JOSEPH AND DEBORAH F. JOSEPH, who failed to follow FPL’s instructions and advice not to attempt to trim any trees or vegetation growing near any overhead power lines; who failed to notify FPL or request line clearance or maintain line clearance and to maintain the tree which they allege interfered with FPL’s lines and which were in violation of the Florida Tariff, Section 6 Rules & Regulations, Subsection 5.5 - Interference with Company’s Facilities. Said Tariff states as follows: 5.5 Interference with Company’s Facilities. The Customer should not allow trees, vines and shrubs to interfere with the Company’s adjacent overhead conductors, service wires, pad mounted transformers and meter. Such interference may result in an injury to persons, or may cause the Customer’s service to be interrupted. In all cases the customer should request the Company to trim or remove trees and other growth near the Company’s adjacent overhead wires, and under no circumstances should the Customer undertake this work himself, except around service cables when specifically authorized by and arranged with the Company. 3 Bonheur/Elisbrun v. FPL, et al. Case No. 18-34416 CA 01 15. The damages complained of were as a result of the negligence of third parties or persons which proximately caused or contributed to the alleged damages, to wit: Homeowners of the premises, “VINCENT S. JOSEPH AND DEBORAH F. JOSEPH” who failed to properly protect the company’s property and permitted an unauthorized person to have access to the company’s facilities, all in violation of FLORIDA POWER & LIGHT COMPANY Tariff, Section 6 Rules & Regulations, Subsection 5.1 – Protection of Company’s Property. Said Tariff states as follows: 5.1 Protection of Company’s Property. The Customer shall properly protect the Company’s property on the Customer’s premises, and shall permit no one but the Company’s agents, or persons authorized by law, to have access to the Company’s wiring, meters, and apparatus. 16. Said damages were also as a result of the negligence of homeowners, VINCENT S. JOSEPH AND DEBORAH F. JOSEPH, and the Plaintiff’s employer, VISUALSCAPE INC., who violated OSHA requirements by, including, but not limited to, failing to maintain a safe work place, failing to keep proper clearance from lines, failing to provide proper training or equipment, failing to warn, failing to contact the utility, etc. 17. All of FLORIDA POWER & LIGHT COMPANY facilities were installed in accordance with the National Electric Safety Code and met or exceeded all required clearances and other standards set forth therein. 18. FLORIDA POWER & LIGHT COMPANY had no notice or knowledge of the condition alleged in Plaintiff’s Complaint. 19. LEWIS TREE SERVICE, INC. is an independent contractor as defined under Florida law over which FLORIDA POWER & LIGHT COMPANY has no control in the manner 4 Bonheur/Elisbrun v. FPL, et al. Case No. 18-34416 CA 01 of their work and FLORIDA POWER & LIGHT COMPANY is not therefore vicariously liable for their negligence, if any. LEWIS TREE SERVICE, INC. is the contractor hired to clear lines in the area in question. Any such deficiencies, if any, would be through the actions of LEWIS TREE SERVICE. 20. The alleged condition was open and obvious. 21. The damages were caused by the negligence of a third party who owned or created the condition alleged, to wit: SRP SUB, LLC d/b/a Invitation Homes and such other entities as may be discovered through investigation and discovery and disclosed prior to trial herein. WHEREFORE, the Plaintiff is not entitled to any relief whatsoever. This Honorable Court is requested to assess the costs of these proceedings herein against the Plaintiff, and grant such further relief as it deems just and proper. Trial by jury of all issues triable as a matter of right is hereby demanded. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via email in compliance with Rule 2.516 this 11th day of June, 2021, to: Steven M. Singer, Esq., Steven M. Singer, PA, 7901 SW 6 Court, Suite 305, Plantation, FL 33324, steven.m.singerpa@gmail.com; Joel H. Brown, Esq. and Jonathan Freidin, Esq., Freidin Brown, PA, One Biscayne Tower, Suite 3100, 2 South Biscayne Blvd., Miami, FL 33131, jhb@fblawyers.net; jf@fblawyers.net; mw@fblawyers.net; pleadings@fblawyers.net, Attorneys for Plaintiffs; Michael K. Wilensky, Esq., Conroy Simberg, 3440 Hollywood Blvd., 2nd Floor, Hollywood, FL 33021, mwilensky@conroysimberg.com, ddemarais@conroysimberg.com; 5 Bonheur/Elisbrun v. FPL, et al. Case No. 18-34416 CA 01 eservicehwd@conroysimberg.com, Attorneys for Lewis Tree Service, Inc., and to all Counsel of Record as listed in the Florida Courts E-Filing Portal. FLORIDA POWER & LIGHT COMPANY By: /s/ Angelica Torrents Roque Angelica Torrents Roque, Esq. Fla. Bar No. 0037874 Robert E. Boan, Esq. Fla. Bar No. 353078 4200 West Flagler Street LAW/SCS – Second Floor Miami, FL 33134 Telephone: (305) 442-5115 Primary: angelica.roque@fpl.com Co-Counsel: robert.boan@fpl.com Secondary: miriam.corzo.garcia@fpl.com Attorneys for Defendant FPL 6