Preview
Filing # 126516695
83957923 E-FiledE-Filed01/28/2019
05/10/202109:00:34
04:59:49AM PM
IN THE CIRCUIT COURT OF THE 11th
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO: 2018-032555-CA-01
JUTA BOIANGIN, an individual,
Plaintiff,
v.
BLUE JAY TRUCKING, INC.,
a Florida for profit corporation, and
IMPACT LOGISTICS SERVICES, LLC,
a New Jersey limited liability company, and
AJA PROPERTIES NO. 6 LTD., a
Florida limited partnership.
Defendants.
_______________________________________/
ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S
AMENDED COMPLAINT
COME NOW Defendant, BLUE JAY TRUCKING, INC., by and through its undersigned
counsel and pursuant to Fla. R. Civ. P. 1.140, hereby files this Answer and Affirmative Defenses
to Plaintiff’s Amended Complaint, and as grounds therefore state as follows:
1. Admitted for jurisdictional purposes only, otherwise denied.
2. Admitted for jurisdictional purposes only, otherwise denied.
3. Without knowledge and therefore denied.
4. Admitted.
5. Without knowledge and therefore denied.
6. Without knowledge and therefore denied.
7. Without knowledge and therefore denied.
8. Denied.
9. Denied.
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10. This Defendant does not have independent knowledge to admit or deny this
allegation at this time, however based on the police report it is admitted upon information and
belief.
11. This Defendant does not have independent knowledge to admit or deny this
allegation at this time, however based on the police report it is admitted upon information and
belief.
12. Unknown therefore denied.
13. Unknown therefore denied.
14. Denied.
15. Admitted.
16. Unknown therefore denied.
17. Denied as to Blue Jay Trucking, Inc.
18. Denied.
19. Denied.
20. Denied.
21. Unknown therefore denied.
22. Denied.
23. Admitted. Defendant did not park the Trailer at all prior to the accident.
24. Denied.
25. Denied.
26. Denied.
27. Denied.
28. Denied.
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CASE NO: 2018-032555-CA-01
29. Denied.
30. Denied.
31. – 50. The allegations in these counts and paragraphs are not directed to this
Defendant, however to the extent they are same are denied.
51. Any allegation not specifically admitted is denied.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Blue Jay has never owned, leased or operated the stationary trailer which the Plaintiff
crashed her car into, and Blue Jay has never had any business relationship with the owner of the
trailer, whether said owner be Defendant Impact Logistics Services, LLC or any other entity. As
such, Plaintiff’s claims against Blue Jay fail as Blue Jay had no duty with regard to the Plaintiff or
the subject trailer. Furthermore, Plaintiff’s claims against Blue Jay fail as Blue Jay was not the
proximate cause of the Plaintiff’s accident and/or injuries.
SECOND AFFIRMATIVE DEFENSE
Any damages for which the Plaintiff makes complaint were caused either in whole or in
part by the Plaintiff’s own negligence, and therefore due to the Plaintiff’s comparative or sole
negligence she should not be entitled to any award, or in the alternative, any award rendered should
be reduced accordingly in proportion to the respective negligence, fault and responsibility of the
Plaintiff in accordance with Florida comparative fault law.
THIRD AFFIRMATIVE DEFENSE
There was no nexus between the Plaintiff’s alleged injuries and any alleged negligence on
the part of this Defendant, and thus this action should fail due to the absence of proximate cause.
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CASE NO: 2018-032555-CA-01
FOURTH AFFIRMATIVE DEFENSE
Neither the conduct of this Defendant, or the conduct of any others giving rise to the subject
incident, created a foreseeable zone of risk, and as such there was no duty on the part of this
Defendant.
FIFTH AFFIRMATIVE DEFENSE
The damages allegedly suffered by the Plaintiff were not caused by any act or omission on
the part of Defendant, but instead were caused by other trauma, illness, or disease, suffered by the
Plaintiff in her lifetime.
SIXTH AFFIRMATIVE DEFENSE
Some or all of the medical treatment received by the Plaintiff in this case was not related,
reasonable, or necessary, and neither were the amounts billed for same.
SEVENTH AFFIRMATIVE DEFENSE
The incident and alleged injuries and damages alleged in Plaintiff’s Amended Complaint
were caused by third persons beyond the control of Defendant, including but not limited to Impac
Logistics and/or Aja Properties No. 6 Ltd. and/or whomever owned and/or controlled the subject
trailer at the time of the incident, for whose negligence Defendant is not reasonably responsible
for. As such, Defendant requests that the negligence of the third persons be apportioned in
accordance with Florida Statutes 768.81 and Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).
Defendant reserves the right to amend this defense to name additional responsible parties identified
through discovery.
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CASE NO: 2018-032555-CA-01
EIGHTH AFFIRMATIVE DEFENSE
The incident and injuries alleged in the Plaintiff’s Amended Complaint were brought about
as a result of intervening, unforeseeable or superseding causes from which Defendant had no duty
to protect the Plaintiff, and for which Defendant cannot be held liable under Florida law.
NINTH AFFIRMATIVE DEFENSE
Defendant is entitled to the benefits and provisions of the Florida Tort Reform Act
including but not limited to any setoff for collateral sources for which the Plaintiff received
payment or will receive payment for medical expenses, lost wages, or other benefits. Furthermore,
Plaintiff is prohibited from introducing evidence at trial of economic damages beyond those
actually incurred. See Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA
2003); Boyd v. National Mutual Fire Ins. Co., (Fla. 4th DCA 2005).
TENTH AFFIRMATIVE DEFENSE
If Defendant is found liable to Plaintiff, which Defendant expressly denies, the Court, when
entering judgment, must enter judgment against this Defendant only for that percentage of fault
attributable thereto, and not on the basis of joint and several liability, in accordance with §768.81,
Florida Statutes.
ELEVENTH AFFIRMATIVE DEFENSE
Plaintiff failed to mitigate her damages and is therefore barred, in whole or in part, from
any recovery.
TWELFTH AFFIRMATIVE DEFENSE
Defendant is entitled to a set off for all personal injury protection benefits paid or payable
to or on behalf of the Plaintiff.
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THIRTEENTH AFFIRMATIVE DEFENSE
Plaintiff is barred from recovery from Defendant as to any medical, hospital, and other bills
which have been paid or are payable under any collateral sources of indemnity as set forth in
applicable Florida Statutes.
FOURTEENTH AFFIRMATIVE DEFENSE
Plaintiff was negligent in failing to utilize available and operational seat belts or safety
devices, all of which directly and proximately resulted in the injuries and damages incurred, if any.
Any recovery by the Plaintiff in this action must be reduced in accordance with his negligence and
failure to mitigate her damages as a matter of law.
FIFTEENTH AFFIRMATIVE DEFENSE
If Plaintiff is subject to a deductible on her personal injury protection benefits, Plaintiff has
no right to claim or recover those amounts from Defendant, pursuant to Section 627.739(1), Florida
Statutes, or alternatively Defendant is entitled to a setoff for P.I.P. benefits paid.
SIXTEENTH AFFIRMATIVE DEFENSE
The injuries and damages sustained by the Plaintiff, if any, fail to satisfy the mandates and
requirements of Section 627.737(2), Florida Statutes, which are a condition precedent to recovery
of certain damages in this action. Plaintiff’s action is barred under the terms, provisions, and
exclusions of Florida's Automobile Reparations Reform Act including, but not limited to,
provisions dealing with tort exemptions (i.e., failing to have sustained a permanent injury).
SEVENTEENTH AFFIRMATIVE DEFENSE
Any injuries or damages received by the Plaintiff were the result of an unavoidable accident
and/or sudden emergency rather than there being any negligence on the part of Defendant, and
therefore Plaintiff cannot recover for said injuries or damages.
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CASE NO: 2018-032555-CA-01
EIGHTEENTH AFFIRMATIVE DEFENSE
Plaintiff’s injuries, if any, were the result of pre-existing injury or disease or subsequent
injury or disease, which was not caused or aggravated by the alleged incident herein. In the
alternative, if any pre-existing injury or disease, or subsequent injury caused or aggravated
Plaintiff’s claimed injuries, Plaintiff is entitled to recover only for that degree of aggravation as
determined by a jury, and any recovery obtained herein must be reduced or limited to that degree
of aggravation.
NINETEENTH AFFIRMATIVE DEFENSE
There are no supported facts to establish any of the claims alleged in the Amended
Complaint against Blue Jay, and therefore Blue Jay asserts all statutory relief pursuant to Florida
Statute Section 57.105.
DEMAND FOR TRIAL BY JURY
Defendant hereby demands trial by jury of all issues triable as of right by jury.
WHEREFORE Defendant, BLUE JAY TRUCKING, INC., having fully answered
Plaintiff’s Amended Complaint, demands judgment in their favor, and against Plaintiff, together
with all taxable fees and costs.
FOX ROTHSCHILD LLP
Attorneys for Blue Jay Trucking, Inc.
2 South Biscayne Boulevard
One Biscayne Tower, Suite 2750
Miami, FL 33131
Telephone: (305) 442-6540
Facsimile: (305) 442-6541
By: /s/ Aaron H. Epstein
MICHAEL A. SASTRE
Florida Bar No. 0070335
msastre@foxrothschild.com (primary)
krodriguez@foxrothschild.com (secondary)
AARON H. EPSTEIN
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CASE NO: 2018-032555-CA-01
Florida Bar No. 0048051
aepstein@foxrothschild.com (primary)
krodriguez@foxrothschild.com (secondary)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served utilizing
the Court’s e-filing portal and e-service in accordance with Fla. R. Jud. Admin. 2.516 on this 28th
day of January, 2019 to: RYAN M. CLANCY, ESQ., Ainsworth + Clancy, PLLC, Counsel for
Plaintiff, 1111 Brickell Avenue, Suite 1100, Miami, FL 33131.
By: /s/Aaron H. Epstein
AARON H. EPSTEIN
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Preview
Filing # 126516695 83957923 E-FiledE-Filed01/28/2019 05/10/202109:00:34 04:59:49AM PM IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO: 2018-032555-CA-01 JUTA BOIANGIN, an individual, Plaintiff, v. BLUE JAY TRUCKING, INC., a Florida for profit corporation, and IMPACT LOGISTICS SERVICES, LLC, a New Jersey limited liability company, and AJA PROPERTIES NO. 6 LTD., a Florida limited partnership. Defendants. _______________________________________/ ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S AMENDED COMPLAINT COME NOW Defendant, BLUE JAY TRUCKING, INC., by and through its undersigned counsel and pursuant to Fla. R. Civ. P. 1.140, hereby files this Answer and Affirmative Defenses to Plaintiff’s Amended Complaint, and as grounds therefore state as follows: 1. Admitted for jurisdictional purposes only, otherwise denied. 2. Admitted for jurisdictional purposes only, otherwise denied. 3. Without knowledge and therefore denied. 4. Admitted. 5. Without knowledge and therefore denied. 6. Without knowledge and therefore denied. 7. Without knowledge and therefore denied. 8. Denied. 9. Denied. -1- ACTIVE\86923414.v1-1/28/19 CASE NO: 2018-032555-CA-01 10. This Defendant does not have independent knowledge to admit or deny this allegation at this time, however based on the police report it is admitted upon information and belief. 11. This Defendant does not have independent knowledge to admit or deny this allegation at this time, however based on the police report it is admitted upon information and belief. 12. Unknown therefore denied. 13. Unknown therefore denied. 14. Denied. 15. Admitted. 16. Unknown therefore denied. 17. Denied as to Blue Jay Trucking, Inc. 18. Denied. 19. Denied. 20. Denied. 21. Unknown therefore denied. 22. Denied. 23. Admitted. Defendant did not park the Trailer at all prior to the accident. 24. Denied. 25. Denied. 26. Denied. 27. Denied. 28. Denied. ACTIVE\86923414.v1-1/28/19 -2- CASE NO: 2018-032555-CA-01 29. Denied. 30. Denied. 31. – 50. The allegations in these counts and paragraphs are not directed to this Defendant, however to the extent they are same are denied. 51. Any allegation not specifically admitted is denied. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Blue Jay has never owned, leased or operated the stationary trailer which the Plaintiff crashed her car into, and Blue Jay has never had any business relationship with the owner of the trailer, whether said owner be Defendant Impact Logistics Services, LLC or any other entity. As such, Plaintiff’s claims against Blue Jay fail as Blue Jay had no duty with regard to the Plaintiff or the subject trailer. Furthermore, Plaintiff’s claims against Blue Jay fail as Blue Jay was not the proximate cause of the Plaintiff’s accident and/or injuries. SECOND AFFIRMATIVE DEFENSE Any damages for which the Plaintiff makes complaint were caused either in whole or in part by the Plaintiff’s own negligence, and therefore due to the Plaintiff’s comparative or sole negligence she should not be entitled to any award, or in the alternative, any award rendered should be reduced accordingly in proportion to the respective negligence, fault and responsibility of the Plaintiff in accordance with Florida comparative fault law. THIRD AFFIRMATIVE DEFENSE There was no nexus between the Plaintiff’s alleged injuries and any alleged negligence on the part of this Defendant, and thus this action should fail due to the absence of proximate cause. ACTIVE\86923414.v1-1/28/19 -3- CASE NO: 2018-032555-CA-01 FOURTH AFFIRMATIVE DEFENSE Neither the conduct of this Defendant, or the conduct of any others giving rise to the subject incident, created a foreseeable zone of risk, and as such there was no duty on the part of this Defendant. FIFTH AFFIRMATIVE DEFENSE The damages allegedly suffered by the Plaintiff were not caused by any act or omission on the part of Defendant, but instead were caused by other trauma, illness, or disease, suffered by the Plaintiff in her lifetime. SIXTH AFFIRMATIVE DEFENSE Some or all of the medical treatment received by the Plaintiff in this case was not related, reasonable, or necessary, and neither were the amounts billed for same. SEVENTH AFFIRMATIVE DEFENSE The incident and alleged injuries and damages alleged in Plaintiff’s Amended Complaint were caused by third persons beyond the control of Defendant, including but not limited to Impac Logistics and/or Aja Properties No. 6 Ltd. and/or whomever owned and/or controlled the subject trailer at the time of the incident, for whose negligence Defendant is not reasonably responsible for. As such, Defendant requests that the negligence of the third persons be apportioned in accordance with Florida Statutes 768.81 and Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). Defendant reserves the right to amend this defense to name additional responsible parties identified through discovery. ACTIVE\86923414.v1-1/28/19 -4- CASE NO: 2018-032555-CA-01 EIGHTH AFFIRMATIVE DEFENSE The incident and injuries alleged in the Plaintiff’s Amended Complaint were brought about as a result of intervening, unforeseeable or superseding causes from which Defendant had no duty to protect the Plaintiff, and for which Defendant cannot be held liable under Florida law. NINTH AFFIRMATIVE DEFENSE Defendant is entitled to the benefits and provisions of the Florida Tort Reform Act including but not limited to any setoff for collateral sources for which the Plaintiff received payment or will receive payment for medical expenses, lost wages, or other benefits. Furthermore, Plaintiff is prohibited from introducing evidence at trial of economic damages beyond those actually incurred. See Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003); Boyd v. National Mutual Fire Ins. Co., (Fla. 4th DCA 2005). TENTH AFFIRMATIVE DEFENSE If Defendant is found liable to Plaintiff, which Defendant expressly denies, the Court, when entering judgment, must enter judgment against this Defendant only for that percentage of fault attributable thereto, and not on the basis of joint and several liability, in accordance with §768.81, Florida Statutes. ELEVENTH AFFIRMATIVE DEFENSE Plaintiff failed to mitigate her damages and is therefore barred, in whole or in part, from any recovery. TWELFTH AFFIRMATIVE DEFENSE Defendant is entitled to a set off for all personal injury protection benefits paid or payable to or on behalf of the Plaintiff. ACTIVE\86923414.v1-1/28/19 -5- CASE NO: 2018-032555-CA-01 THIRTEENTH AFFIRMATIVE DEFENSE Plaintiff is barred from recovery from Defendant as to any medical, hospital, and other bills which have been paid or are payable under any collateral sources of indemnity as set forth in applicable Florida Statutes. FOURTEENTH AFFIRMATIVE DEFENSE Plaintiff was negligent in failing to utilize available and operational seat belts or safety devices, all of which directly and proximately resulted in the injuries and damages incurred, if any. Any recovery by the Plaintiff in this action must be reduced in accordance with his negligence and failure to mitigate her damages as a matter of law. FIFTEENTH AFFIRMATIVE DEFENSE If Plaintiff is subject to a deductible on her personal injury protection benefits, Plaintiff has no right to claim or recover those amounts from Defendant, pursuant to Section 627.739(1), Florida Statutes, or alternatively Defendant is entitled to a setoff for P.I.P. benefits paid. SIXTEENTH AFFIRMATIVE DEFENSE The injuries and damages sustained by the Plaintiff, if any, fail to satisfy the mandates and requirements of Section 627.737(2), Florida Statutes, which are a condition precedent to recovery of certain damages in this action. Plaintiff’s action is barred under the terms, provisions, and exclusions of Florida's Automobile Reparations Reform Act including, but not limited to, provisions dealing with tort exemptions (i.e., failing to have sustained a permanent injury). SEVENTEENTH AFFIRMATIVE DEFENSE Any injuries or damages received by the Plaintiff were the result of an unavoidable accident and/or sudden emergency rather than there being any negligence on the part of Defendant, and therefore Plaintiff cannot recover for said injuries or damages. ACTIVE\86923414.v1-1/28/19 -6- CASE NO: 2018-032555-CA-01 EIGHTEENTH AFFIRMATIVE DEFENSE Plaintiff’s injuries, if any, were the result of pre-existing injury or disease or subsequent injury or disease, which was not caused or aggravated by the alleged incident herein. In the alternative, if any pre-existing injury or disease, or subsequent injury caused or aggravated Plaintiff’s claimed injuries, Plaintiff is entitled to recover only for that degree of aggravation as determined by a jury, and any recovery obtained herein must be reduced or limited to that degree of aggravation. NINETEENTH AFFIRMATIVE DEFENSE There are no supported facts to establish any of the claims alleged in the Amended Complaint against Blue Jay, and therefore Blue Jay asserts all statutory relief pursuant to Florida Statute Section 57.105. DEMAND FOR TRIAL BY JURY Defendant hereby demands trial by jury of all issues triable as of right by jury. WHEREFORE Defendant, BLUE JAY TRUCKING, INC., having fully answered Plaintiff’s Amended Complaint, demands judgment in their favor, and against Plaintiff, together with all taxable fees and costs. FOX ROTHSCHILD LLP Attorneys for Blue Jay Trucking, Inc. 2 South Biscayne Boulevard One Biscayne Tower, Suite 2750 Miami, FL 33131 Telephone: (305) 442-6540 Facsimile: (305) 442-6541 By: /s/ Aaron H. Epstein MICHAEL A. SASTRE Florida Bar No. 0070335 msastre@foxrothschild.com (primary) krodriguez@foxrothschild.com (secondary) AARON H. EPSTEIN ACTIVE\86923414.v1-1/28/19 -7- CASE NO: 2018-032555-CA-01 Florida Bar No. 0048051 aepstein@foxrothschild.com (primary) krodriguez@foxrothschild.com (secondary) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served utilizing the Court’s e-filing portal and e-service in accordance with Fla. R. Jud. Admin. 2.516 on this 28th day of January, 2019 to: RYAN M. CLANCY, ESQ., Ainsworth + Clancy, PLLC, Counsel for Plaintiff, 1111 Brickell Avenue, Suite 1100, Miami, FL 33131. By: /s/Aaron H. Epstein AARON H. EPSTEIN ACTIVE\86923414.v1-1/28/19 -8-