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Filing # 158203224 E-Filed 09/27/2022 01:02:04 PM
IN THE CIRCUIT COURT FOR THE TWENTIETH
JUDICIAL CIRCUIT IN AND FOR CHARLOTTE
COUNTY, STATE OF FLORIDA - CIVIL DIVISION
VENISSA DRIGGERS, as Personal
Representative of the Estate
of DAVID B. FLICK, Deceased,
Plaintiff,
vs. Case No: 21-CA-000410
MARK BARCIA, HOOTERS OF PORT CHARLOTTE,
INC., BWR NORTH PORT, LLC d/b/a BUFFALO
WINGS AND RINGS, ATLANTA RESTURANT
PARTNERS, LLC d/b/a TGI FRIDAYS, and
JACKMONT HOSPITALITY, INC. d/b/a TGI FRIDAYS,
Defendants.
/
DEFENDANT MARK BARCIA’S ANSWER AND AFFIRMATIVE DEFENSES TO
AMENDED COMPLAINT
COMES NOW, Defendant, MARK BARCIA, by and through his undersigned counsel and
files his Answer and Affirmative Defenses in response to the Amended Complaint of Plaintiff as
follows:
1. Denied.
2 Without knowledge, therefore denied.
3. Without knowledge, therefore denied.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
{00575226.DOCX}{00575226.DOCx}
Admitted.
Admitted.
Admitted.
Admitted.
Admitted.
Admitted.
Admitted.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Denied.
Without knowledge, therefore denied.
Without knowledge, therefore denied.
Without knowledge, therefore denied.
Without knowledge, therefore denied.
Denied.
Denied.
Denied.
Denied.
Denied.COUNT I
32. Defendant adopts his responses previously made to paragraphs 1-31.
33. Denied.
34. Denied.
35. Denied.
36a-d. Denied.
COUNT II
37. Defendant adopts his responses previously made to paragraphs 1-36.
38. Denied.
39. Denied.
40. Denied.
41. Denied.
42. Denied.
43. Denied.
COUNT Il
Count III does not apply to Defendant, MARK BARCIA, therefore no responses
are necessary. To the extent any allegation applies to Defendant. MARK BARCIA, it is
denied.
COUNT IV
Count IV does not apply to Defendant, MARK BARCIA, therefore no responses
are necessary. To the extent any allegation applies to Defendant, MARK BARCIA, it is
denied.
{00575226.D0Cx}COUNT V
Count V does not apply to Defendant, MARK BARCIA, therefore no responses are
necessary. To the extent any allegation applies to Defendant, MARK BARCIA, it is denied.
COUNT VI
Count VI does not apply to Defendant, MARK BARCIA, therefore no responses
are necessary. To the extent any allegation applies to Defendant, MARK BARCIA, it is
denied.
AFFIRMATIVE DEFENSES
First Affirmative Defense
Defendant states that at the time and place set forth in the Complaint, David Flick was
guilty of negligence which negligence was either the sole proximate cause of the event described
in the Complaint, or in the alternative contributed thereto, and Plaintiff is. therefore, either barred
of recovery, or in the alternative, any damages awarded Plaintiff against Defendant should be
reduced pursuant to the Rule of Comparative Negligence.
Second Affirmative Defense
Defendant state that the Plaintiff has received monies from collateral sources, and that
Defendant is entitled to a set-off to the extent of any collateral source benefits which have been
paid or are payable to the Plaintiff.
Third Affirmative Defense
Defendant states that at all times material herein, the Plaintiff David Flick had available a
fully operational seatbelt, further that Plaintiff David Flick failed to use said seatbelt, that Plaintiff's
failure to use said seatbelt at the time of this accident was unreasonable, and that Plaintiff's
damages would have been reduced or eliminated if the Plaintiff David Flick had used the seatbelt
{00575226.DOCX}in question; therefore, any damages awarded Plaintiff David Flick against the Defendant should
be reduced to the extent that said damages were a result of the failure to use said seatbelt.
Fourth Affirmative Defense
Defendant states that the alleged accident was caused by third person(s) and their
comparative fault should be apportioned, pursuant to F.S. 768.81(3); Fabre v. Marin, 623 So.2d
1182 (Fla. 1993); and Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. 5th DCA 1991),
rev. denied, 598 So.2d 77 (Fla. 5th DCA 1992) to wit Hooters of Port Charlotte.
Fifth Affirmative Defense
Defendant states that the alleged accident was caused by third person(s) and their
comparative fault should be apportioned, pursuant to F.S. 768.81(3); Fabre v. Marin, 623 So.2d
1182 (Fla. 1993); and Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. Sth DCA 1991),
rev. denied, 598 So.2d 77 (Fla. Sth DCA 1992) to wit BWR North Port, LLC.
Sixth Affirmative Defense
Defendant states that the alleged accident was caused by third person(s) and their
comparative fault should be apportioned, pursuant to F.S. 768.81(3); Fabre v. Marin, 623 So.2d
1182 (Fla. 1993); and Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. 5th DCA 1991),
rev. denied, 598 So.2d 77 (Fla. 5th DCA 1992) to wit Atlanta Restaurant Partners, LLC.
Seventh Affirmative Defense
Defendant states that the alleged accident was caused by third person(s) and their
comparative fault should be apportioned, pursuant to F.S. 768.81(3); Fabre v. Marin, 623 So.2d
1182 (Fla. 1993); and Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. 5th DCA 1991),
rev. denied, 598 So.2d 77 (Fla. Sth DCA 1992) to wit Jackmont Hospitality, Inc.
Eigth Affirmative Defense
(00S75226.D0Cx}Defendant states that the alleged accident was caused by third person(s) and their
comparative fault should be apportioned, pursuant to F.S. 768.81(3); Fabre v. Marin, 623 So.2d
1182 (Fla. 1993); and Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. Sth DCA 1991),
rev. denied, 598 So.2d 77 (Fla. 5th DCA 1992) to wit Pierre R. Louis.
Ninth Affirmative Defense
Defendant states that the alleged accident was caused by third person(s) and their
comparative fault should be apportioned, pursuant to F.S. 768.81(3); Fabre v. Marin, 623 So.2d
1182 (Fla. 1993): and Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. Sth DCA 1991),
rev. denied, 598 So.2d 77 (Fla. 5th DCA 1992) to wit Uber and/or Ly fi.
DEMAND FOR JURY TRIAL
Defendant MARK BARCIA demands a trial by jury for all issues so triable.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent via
email to Randall L. Spivey, Esquire (randall@spiveylaw.com), SPIVEY LAW FIRM, 13400
Parker Commons Boulevard, Fort Myers, Florida 33912; Cristobal A. Casal, Esquire
(eserviceftm@conroysimberg.com), CONROY SIMBERG, 12730 New Brittany Blvd., Suite 300,
Fort Myers FL 33907; Mitchel Chusid, Esquire mchusid@ritterchusid.com), RITTER CHUSID
LLP, 5850 Coral Ridge Drive, Suite 201, Coral Springs FL 33076; and Howard W. Holden,
Esquire (LUKSFTM-Pleadings@]Is-law.com), LUKS, SANTANIELLO, PETRILLO & COHEN,
1422 Hendry Street, Third Floor, Fort Myers FL 33901, on this day of September 2022.
{00575226.D0¢x}{00575226.D0Cx}
SouthState Bank Building, Second Floor
1815 Little Road
Trinity, Florida 34655
Phone (727)723-3772
Fax (727)723-1421
Attorney for Defendant
Primary Email: service@unicesalzman.com
Secondary Emails: — jjensen@unicesalzman.com
asiller@unicesalzman.com
dceantwell@unicesalzman.com
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Filing # 158203224 E-Filed 09/27/2022 01:02:04 PM IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, STATE OF FLORIDA - CIVIL DIVISION VENISSA DRIGGERS, as Personal Representative of the Estate of DAVID B. FLICK, Deceased, Plaintiff, vs. Case No: 21-CA-000410 MARK BARCIA, HOOTERS OF PORT CHARLOTTE, INC., BWR NORTH PORT, LLC d/b/a BUFFALO WINGS AND RINGS, ATLANTA RESTURANT PARTNERS, LLC d/b/a TGI FRIDAYS, and JACKMONT HOSPITALITY, INC. d/b/a TGI FRIDAYS, Defendants. / DEFENDANT MARK BARCIA’S ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT COMES NOW, Defendant, MARK BARCIA, by and through his undersigned counsel and files his Answer and Affirmative Defenses in response to the Amended Complaint of Plaintiff as follows: 1. Denied. 2 Without knowledge, therefore denied. 3. Without knowledge, therefore denied. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. {00575226.DOCX}{00575226.DOCx} Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Admitted. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Without knowledge, therefore denied. Without knowledge, therefore denied. Without knowledge, therefore denied. Without knowledge, therefore denied. Denied. Denied. Denied. Denied. Denied.COUNT I 32. Defendant adopts his responses previously made to paragraphs 1-31. 33. Denied. 34. Denied. 35. Denied. 36a-d. Denied. COUNT II 37. Defendant adopts his responses previously made to paragraphs 1-36. 38. Denied. 39. Denied. 40. Denied. 41. Denied. 42. Denied. 43. Denied. COUNT Il Count III does not apply to Defendant, MARK BARCIA, therefore no responses are necessary. To the extent any allegation applies to Defendant. MARK BARCIA, it is denied. COUNT IV Count IV does not apply to Defendant, MARK BARCIA, therefore no responses are necessary. To the extent any allegation applies to Defendant, MARK BARCIA, it is denied. {00575226.D0Cx}COUNT V Count V does not apply to Defendant, MARK BARCIA, therefore no responses are necessary. To the extent any allegation applies to Defendant, MARK BARCIA, it is denied. COUNT VI Count VI does not apply to Defendant, MARK BARCIA, therefore no responses are necessary. To the extent any allegation applies to Defendant, MARK BARCIA, it is denied. AFFIRMATIVE DEFENSES First Affirmative Defense Defendant states that at the time and place set forth in the Complaint, David Flick was guilty of negligence which negligence was either the sole proximate cause of the event described in the Complaint, or in the alternative contributed thereto, and Plaintiff is. therefore, either barred of recovery, or in the alternative, any damages awarded Plaintiff against Defendant should be reduced pursuant to the Rule of Comparative Negligence. Second Affirmative Defense Defendant state that the Plaintiff has received monies from collateral sources, and that Defendant is entitled to a set-off to the extent of any collateral source benefits which have been paid or are payable to the Plaintiff. Third Affirmative Defense Defendant states that at all times material herein, the Plaintiff David Flick had available a fully operational seatbelt, further that Plaintiff David Flick failed to use said seatbelt, that Plaintiff's failure to use said seatbelt at the time of this accident was unreasonable, and that Plaintiff's damages would have been reduced or eliminated if the Plaintiff David Flick had used the seatbelt {00575226.DOCX}in question; therefore, any damages awarded Plaintiff David Flick against the Defendant should be reduced to the extent that said damages were a result of the failure to use said seatbelt. Fourth Affirmative Defense Defendant states that the alleged accident was caused by third person(s) and their comparative fault should be apportioned, pursuant to F.S. 768.81(3); Fabre v. Marin, 623 So.2d 1182 (Fla. 1993); and Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. 5th DCA 1991), rev. denied, 598 So.2d 77 (Fla. 5th DCA 1992) to wit Hooters of Port Charlotte. Fifth Affirmative Defense Defendant states that the alleged accident was caused by third person(s) and their comparative fault should be apportioned, pursuant to F.S. 768.81(3); Fabre v. Marin, 623 So.2d 1182 (Fla. 1993); and Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. Sth DCA 1991), rev. denied, 598 So.2d 77 (Fla. Sth DCA 1992) to wit BWR North Port, LLC. Sixth Affirmative Defense Defendant states that the alleged accident was caused by third person(s) and their comparative fault should be apportioned, pursuant to F.S. 768.81(3); Fabre v. Marin, 623 So.2d 1182 (Fla. 1993); and Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. 5th DCA 1991), rev. denied, 598 So.2d 77 (Fla. 5th DCA 1992) to wit Atlanta Restaurant Partners, LLC. Seventh Affirmative Defense Defendant states that the alleged accident was caused by third person(s) and their comparative fault should be apportioned, pursuant to F.S. 768.81(3); Fabre v. Marin, 623 So.2d 1182 (Fla. 1993); and Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. 5th DCA 1991), rev. denied, 598 So.2d 77 (Fla. Sth DCA 1992) to wit Jackmont Hospitality, Inc. Eigth Affirmative Defense (00S75226.D0Cx}Defendant states that the alleged accident was caused by third person(s) and their comparative fault should be apportioned, pursuant to F.S. 768.81(3); Fabre v. Marin, 623 So.2d 1182 (Fla. 1993); and Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. Sth DCA 1991), rev. denied, 598 So.2d 77 (Fla. 5th DCA 1992) to wit Pierre R. Louis. Ninth Affirmative Defense Defendant states that the alleged accident was caused by third person(s) and their comparative fault should be apportioned, pursuant to F.S. 768.81(3); Fabre v. Marin, 623 So.2d 1182 (Fla. 1993): and Messmer v. Teachers Insurance Co., 588 So.2d 610 (Fla. Sth DCA 1991), rev. denied, 598 So.2d 77 (Fla. 5th DCA 1992) to wit Uber and/or Ly fi. DEMAND FOR JURY TRIAL Defendant MARK BARCIA demands a trial by jury for all issues so triable. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent via email to Randall L. Spivey, Esquire (randall@spiveylaw.com), SPIVEY LAW FIRM, 13400 Parker Commons Boulevard, Fort Myers, Florida 33912; Cristobal A. Casal, Esquire (eserviceftm@conroysimberg.com), CONROY SIMBERG, 12730 New Brittany Blvd., Suite 300, Fort Myers FL 33907; Mitchel Chusid, Esquire mchusid@ritterchusid.com), RITTER CHUSID LLP, 5850 Coral Ridge Drive, Suite 201, Coral Springs FL 33076; and Howard W. Holden, Esquire (LUKSFTM-Pleadings@]Is-law.com), LUKS, SANTANIELLO, PETRILLO & COHEN, 1422 Hendry Street, Third Floor, Fort Myers FL 33901, on this day of September 2022. {00575226.D0¢x}{00575226.D0Cx} SouthState Bank Building, Second Floor 1815 Little Road Trinity, Florida 34655 Phone (727)723-3772 Fax (727)723-1421 Attorney for Defendant Primary Email: service@unicesalzman.com Secondary Emails: — jjensen@unicesalzman.com asiller@unicesalzman.com dceantwell@unicesalzman.com