Preview
Filing # 135360789 E-Filed 09/27/2021 12:10:35 PM
IN THE CIRCUIT COURT OF THE 9%
JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
DIANA TORRES, as Personal Representative
of the Estate of VICTOR MANUEL NIEVES CASE NO.: 2020-CA-1069-AN
CALDERON,
Deceased,
Plaintiff,
VS.
WASTE MANAGEMENT INC. OF FLORIDA,
and EMANUEL ANDERSON, & JOMA HOLDING,
LLC
Defendants.
/
DEFENDANTS’ MOTION TO BIFURCATE TRIAL
COME NOW, Defendants, WASTE MANAGEMENT INC. OF FLORIDA (“WMIF”), and
EMANUEL ANDERSON (“Anderson”), by and through their undersigned counsel and
pursuant to the applicable Florida Rules of Civil Procedure and other applicable authorities,
and hereby file this instant Motion to Bifurcate Trial, and as grounds in support thereof states
the following:
1 In the instant matter, Plaintiff has brought claims against Defendants under
Florida’s Wrongful Death Act sounding in negligence for the death of Decedent, Victor Nieves.
Specifically, Plaintiff asserts a count of negligence against Defendant Emanuel Anderson as the
driver and vicarious liability against WMIF, Mr. Anderson’s employer, under a respondeat
superior theory of liability. A copy of the Plaintiff’s Operative Complaint is attached hereto as
Exhibit “A.”
2. Plaintiff has also brought a cause of action against co-defendant JOMA Holding,
LLC, the owner of the subject premises upon which the subject accident occurred (“JDMA”).
Page 1 of 7
3 This case has been set for trial on the Court’s three-week trial period beginning
on November 29, 2022.
4. Plaintiffs claims against Defendants derive entirely from the allegations that
around 5:30 am on or about November 21, 2019, Plaintiff was sleeping on the ground in a
parking lot when he was struck by a vehicle owned by WMIF and driven by Anderson, causing
personal injury and resultant death.
5 As a result, Plaintiff, the Personal Representative of the Decedent's Estate, has
filed a Wrongful Death suit, seeking to recover both economic and non-economic damages on
behalf of the Estate and the Survivors, under section 768.21 of the Florida Statutes.
6 This case presents the ideal set of facts for bifurcation, as liability is highly
contested in this case and Plaintiff's claims for liability against Defendants derive from one
simple legal issue: Plaintiff's ability or inability to prove that Anderson was negligent in the
operation of the WMIF vehicle.
7. Moreover, the entire incident was captured on a surveillance camera and a video
clip was generated.
8 On the other hand, Plaintiff's claims for damages are complex, extensive,
expensive for all parties to try, grossly prejudicial to the determination of liability, and likely to
require a significant allocation of judicial resources.
9. The Decedent's Survivors are listed as his estranged wife and two minor
daughters.
10. At the time of the subject accident, Decedent was experiencing homelessness and
had been for about a six-year period, during which he had essentially no contact or relationship
with his estranged spouse or children.
Page 2 of 7
11. As the Survivors’ damages will be based in large part on the extent of their
relationship with the Decedent, a determination of damages will require the testimony of a
number of witnesses with knowledge of the relationships, expert psychology testimony, expert
economist testimony, as well as many other considerations.
12. Thus, Plaintiff's damages claims are complex and multi-layered and their
disposition will require travel and expense of lay and expert witnesses. The need for the above-
mentioned witnesses, however, will be rendered moot if Defendant prevails on the issue of
liability at trial. Therefore, bifurcating this case into liability and damages trials is appropriate
and will potentially save the parties, the court, and the witnesses the burdens and expenses of
travel and time, which have become incredibly costly.
13. Due to the narrowness of the legal issue and small number of witnesses
necessary to conduct a trial on liability, Defendants believe this portion of the trial will be brief.
However, the issues of damages will be long, complex, expensive, and complicated.
Furthermore, there is concern due to the severe nature of the injuries alleged by Plaintiff's
survivors that the jury will become sympathetic and lose sight of the burden Plaintiff must
prove to prevail on the issue of liability. For example, Plaintiff’s children are only seven (7) and
eleven (11) years old and are without a father and have bills that need paying; such a fact has
the potential to garner sympathy with the jury that can cloud the issue of liability. Since the
damages in this case have no legal bearing whatsoever on the issue of negligence liability, any
potential prejudice as a result can and should be avoided by way of bifurcation.
14, Bifurcating this trial will be both convenient and economical for the court, the
litigants, and the attorneys. The trial will involve a series of fact witnesses and experts. The
liability experts and witnesses are not expected to testify on damages issues and, conversely, the
damages experts will not testify as to liability.
Page 3 of 7
15. Moreover, bifurcation will likely help promote settlement of the instant matter as
the parties will be in a much better position to evaluate their respective cases once a jury has
determined fault.
MEMORANDUM OF LAW
16. Florida Rule of Civil Procedure 1.270(b) states in pertinent part, “The court in
furtherance of convenience or to avoid prejudice may order a separate trial of any claim [...], or
of any separate issue, or of any number of claims [...] or issues.”
17. The general rule is that a trial court has discretion to bifurcate the issues of
liability and damages, and that such bifurcation will not be disturbed absent a clear showing of
abuse. BDO Seidman, LLP v. Banco Espirito Santo Intern, 38 So. 3d 874 (Fla. 3d DCA 2010);
Roseman v. Town Square Ass'n, Inc., 810 So, 2d 516, 520 (Fla. 4th DCA 2001); see Diamond v.
Whaley, Chapman & Hannah, M.D. s, 550 So. 2d 54 (Fla. 2d DCA 1989).
18. Additionally, “Bifurcation is generally proper absent a specific threat of
inconsistent verdicts or prejudice to a party.” Roseman, 810 So. 2d at 520 (Fla. 4th DCA 2001).
19. Further, issues of liability and damages are separate and distinct, so trial courts
often exercise their discretion to bifurcate, not only because it promotes judicial economy, but
also because it tends to be more economical and expedient for the parties. See BDO Seidman, 38
So. 3d at 875; Roseman, 810 So. 2d at 520.
20. For example, in Zuniga, the defendant was successful in bifurcating the issues of
liability and compensatory damages in an automobile negligence case by arguing that if liability
was tried on its own, the trial would take three to four days while a joint trial would take six to
seven days. Zuniga v. Eisinger, 954 So.2d 634, 637 (Fla. 3rd DCA 2007). The defendant added that
a trial on liability alone was likely to resolve the matter in its entirety. (Id.). This was ultimately
upheld on appeal after a finding that the plaintiffs were not unduly prejudiced. (Id. at 638).
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21. Former Judge David L. Tobin wrote in “To B...or Not to B...B means
Bifurcation,” that bifurcation is an extremely useful tool in allowing judges to maintain judicial
efficiency. As an advantage of bifurcation he wrote:
“Without the issues of damages being tried in the first case, the
litigants and court will be spared the numerous pretrial motions
relating to treating physicians, medical records, expert opinions, fees
for costs of depositions, and other matters which always rise from the
preparation for the damage issues. The trial on liability is greatly
simplified.”
See “To B...or Not to B...B means Bifurcation,” Fla. B.J., Nov. 2000 at 14.
22. Further, Florida’s Supreme Court explained:
“The rule is a salutary one, particularly in negligence cases, for it would
be senseless to require the parties to go to the time and expense to
produce evidence on the issue of damages where it is evident that the
pleadings or circumstances indicate that such an issue will call for
extensive testimony upon such issue. Consequently, time and expense,
as well as judicial labor, are conserved if the issue of liability in such
cases is first determined.”
Marley v. Suanders, 249 So. 2d 30 (Fla. 1971).
23. While case law regarding the bifurcation of compensatory damages and liability
in wrongful death actions is scant, bifurcation in this matter is proper so long because
Defendants can show that bifurcation does not pose a specific threat of an inconsistent verdict
or prejudice to Plaintiff and that not bifurcating will in fact prejudice Defendants. Johansen v.
Vuocolo, 125 So.3d 197, 200 (Fla. 4th DCA 2013).
24. The instant wrongful death action should be separated into two trials: first, to
determine whether Defendants are liable; and secondly, if necessary, to determine the estate’s
and survivors’ damages.
25. Bifurcation of liability and damages will prove convenient and judicially efficient
for all parties involved, in part, because in the event Defendants are not found liable for
Page 5 of 7
Plaintiff's death, then the survivors’ claims for damages would be moot and thus, there would
be no need for calling numerous witnesses or providing evidence to substantiate the survivors’
claims for damages.
26. Further, if Defendants are found liable, bifurcation could lead to an accelerated
resolution motivating Defendants to settle prior to trying the survivors’ claims for damages
before the jury.
27. Moreover, bifurcation of liability and damages would help ensure that no
evidence considered prejudicial in regards to either liability or damages be submitted before the
jury, thus avoiding the jury’s potential confusion of the issues and the need for any appeals or
motions for new trial.
28. There is absolutely no threat of inconsistent verdicts or any prejudice to the
Plaintiff if the trial were to be bifurcated, as liability and damages are completely and totally
distinct and a discussion of damages-related evidence or issues is completely unnecessary to the
determination of liability.
29. Based upon the foregoing, in the furtherance of convenience, and in the best
interests of judicial economy, and to avoid any undue prejudice; Plaintiffs claims of liability
and damages would be optimally litigated in bifurcated trials; first, deciding whether
Defendants are liable; and secondly, if necessary, deciding the survivors’ damages.
WHEREFORE, Defendants, WASTE MANAGEMENT INC. OF FLORIDA, and
EMANUEL ANDERSON, hereby respectfully requests that this Honorable Court enter an order
granting Defendant's Motion to Bifurcate Liability and Damages, and for any other relief this
Court may deem just and proper.
Page 6 of 7
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was delivered by
Florida E-Portal and/or Electronic Mail to the following: Jessica Gonzalez-Monge, Esq.,
Rubenstein Law, P.A,, 200 S. Orange Avenue, Suite 2000, Orlando, FL 32801,
jessica@rubensteinlaw.com; jcortiz@rubensteinlaw.com; eservice@rubensteinlaw.com , and
Nina Harney-Hiller, Esq. and Gilda Romano Flam, Esq., Hamilton, Miller & Birthisel, LLP, 150
Southeast Second Avenue, Suite 1200, Miami, Florida 33131, nharney@hamiltonmillerlaw.com;
gflam@hamiltonmillerlaw.com; nmbhservice@hamiltonmillerlaw.com on this 27 day of
September, 2021.
HIGHTOWER, STRATTON, NOVIGROD &
KANTOR
330 Clematis Street, Suite 201
West Palm Beach, Florida 33401
(561) 833-2022 - Telephone
(661) 833-2140 - Facsimile
HERB L. UZZI, ESQ.
Florida Bar No.: 112244
Primary: k huzzi@hightowerlaw.nel f
Secondary: rosa. 1 S! @hightowerlaw.ne! t
Page 7 of 7
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
DIANA TORRES as Personal Representative of CIVIL DIVISION
the Estate of Victor Manuel Nieves Calderon,
Deceased, CASE NO.: 2020-CA-001069
Plaintiff,
Vv.
WASTE MANAGEMENT, INC. OF FLORIDA,
JDMA HOLDING,
ANDERSON,
LLC and EMANUEL EXHIBIT "A"
Defendants.
/
SECOND AMENDED COMPLAINT FOR DAMAGES
AND DEMAND FOR JURY TRIAL
The Plaintiff, DIANA TORRES as Personal Representative of the Estate of Victor
Manuel Nieves Calderon, Deceased, and on behalf of all statutory survivors, by and through the
undersigned counsel, hereby sues the Defendants, WASTE MANAGEMENT, INC. OF
FLORIDA, JDMA HOLDING, LLC and EMANUEL ANDERSON, and alleges:
1 This is an action for damages which exceed Thirty Thousand Dollars ($30,000.00)
exclusive of interest and costs, and otherwise within this Court’s jurisdictional limits.
2. Plaintiff, DIANA TORRES is the Personal Representative of the Estate of Victor
Manuel Nieves Calderon and was appointed as such on May 21, 2020.
3 At all times material hereto, the Plaintiff, Diana Torres, as the Personal
Representative of the Estate of Victor Manuel Nieves Calderon, was and is a resident of Florida,
and is otherwise sui juris.
4 At all times material hereto, the Defendant, JDMA Holding LLC, was and is a
Florida Limited Liability Company organized under the Laws of the State of Florida and doing
business in Kissimmee, Osceola County, Florida.
5 Venue is proper in this County in that the Defendants do business in Osceola
County, Florida, and/or all of the acts complained of herein occurred in Osceola County, Florida.
6 That on or about November 21, 2019, the decedent, Victor Manuel Nieves
Calderon, was an invitee of the Defendant, JOMA HOLDING LLC’s premises located at 931 W.
Oak Street Kissimmee, FL 34741.
7 Atall times material hereto, the Defendant, EMANUEL ANDERSON, was and is
a resident of Orange County, Florida and is otherwise sui juris.
8 At all times material hereto, Defendant, WASTE MANAGEMENT INC. OF
FLORIDA, was a Florida corporation, licensed to and doing business in Osceola County, Florida.
9 That at all times material hereto, and specifically on or about November 21, 2019,
the Defendant, WASTE MANAGEMENT INC. OF FLORIDA, was the registered owner of a
dump truck, which was operated by Defendant, EMANUEL ANDERSON, at or near the parking
lot of 931 W Oak St., in Kissimmee, Osceola County, Florida.
10. That all times material hereto, Defendant, EMANUEL ANDERSON, was an
employee of Defendant, WASTE MANAGEMENT INC. OF FLORIDA, and at all times
material hereto was acting within the course and scope of his employment with WASTE
MANAGEMENT INC. OF FLORIDA.
11. On or about November 21, 2019 while on Defendant, JOMA HOLDING, LLC’s
premises, Victor Manuel Nieves Torres was run over twice by the WASTE MANAGEMENT
INC. OF FLORIDA dump truck and he died as a result of the injuries he sustained.
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12. At the time of his death, and at all times material hereto, the decedent, Victor
Manuel Nieves Calderon, was a resident of Osceola County, Florida.
13. At the time of his death, and at all times material hereto, the decedent, Victor
Manuel Nieves Calderon, was married and had two minor children.
14, The survivors and beneficiaries of the decedent under and within the meaning of the
"Florida Wrongful Death Act" are as follows:
a. Diana Torres — Wife of Victor Manuel Nieves Calderon;
b Zoe Luz Nieves — Daughter of Victor Manuel Nieves Calderon;
c. Melody Jane Nieves — Daughter of Victor Manuel Nieves Calderon;
COUNT I - NEGLIGENCE CLAIM AGAINST JDMA HOLDING LLC.
15. Plaintiff re-alleges and restates the allegations in paragraphs | through 14 as if fully
set forth herein.
16. That at all times material hereto, and specifically on November 21, 2019,
Defendant, JOMA HOLDING, LLC, owned, managed, controlled, operated, and/or maintained
the premises located at 931 W. Oak Street, Kissimmee, FL 34741, in Osceola County.
17. That on or about November 21, 2019, the decedent, Victor Manuel Nieves
Calderon, was lawfully on Defendant, JOMA HOLDING, LLC’s premises, when he was run
over by a dump truck.
18. That the Defendant owed to decedent, and other members of the public, a non-
delegable duty to maintain the premises in a reasonably safe condition that are safe and compliant
with all applicable codes and standards, and to warn of any dangerous conditions which it knew
of or should have known of.
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19. That the Defendant, its agents, servants or employees, breached its non-delegable
duty owed to the decedent by committing the following acts and omissions:
a. By failing to maintain the premises in a reasonably safe condition;
b By failing to have proper and operational lighting;
By failing to maintain the premises so that drivers have safe ingress and
egress of the property, that is unobstructed and free from impediments;
By failing to warn of the dangerous condition that existed at the time of the
decedent’s incident;
By failing to comply with the applicable municipal codes, building codes,
and safety standards;
By failing to correct the hazardous condition of the premises when the
Defendant knew or should have known that the general public visits said
premises and specifically the Decedent herein; and/or
Was otherwise negligent in the care, maintenance, and upkeep of the
premises, and specifically by allowing an improperly illuminated and
poorly maintained parking lot to exist.
20. That the Defendant knew or in the exercise of reasonable care should have known
of the existence of the hazardous and dangerous condition which constituted a dangerous condition
to the decedent, and the condition had existed for a sufficient length of time that the Defendant
knew or should have known of the condition and could have easily remedied it.
21. That the hazardous and dangerous condition which constituted a dangerous
condition to the decedent occurred with such frequency that owner should have known of its
existence.
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22. Asa direct and proximate result of the aforementioned negligence of the Defendant,
JDMA HOLDING LLC, the Decedent, Victor Manuel Nieves Calderon, was run over twice by
a dump truck and sustained severe, grievous and permanent injuries, mental pain and suffering,
disability, physical impairment, disfigurement, mental anguish, and/or injuries that ultimately
resulted in his death.
23. As direct and proximate result of decedent, Victor Manuel Nieves Calderon’s death,
decedent’s survivors, as identified above, suffered mental pain and suffering, agony, humiliation
and emotional distress, loss of companionship and society, loss of guidance and instruction, and
loss of support and services. These injuries and damages are permanent or continuing in nature
and Victor Manuel Nieves Calderon survivors will continue to suffer these injuries and damages
in the future.
24. In addition, decedent’s estate has sustained damages for loss of net accumulations,
medical expenses incurred for the care and treatment of the decedent at the scene of the subject
incident and hospitalization at the time of his death and the funeral expenses incurred due to his
burial. The expenses have become charges against the estate.
WHEREFORE, Plaintiff, DIANA TORRES as Personal Representative of the Estate
of Victor Manuel Nieves Calderon, Deceased, demands judgment against the Defendant, JDMA
HOLDING, LLC for the damages outlined in paragraphs twenty-two (22), twenty-three (23) and
twenty-four (24) with costs, and any further relief as the Court deems proper. The Plaintiff,
DIANA TORRES as Personal Representative of the Estate of Victor Manuel Nieves
Calderon, Deceased, demands trial by a jury in the above titled action.
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COUNT II - NEGLIGENCE CLAIM AGAINST DEFENDANT,
EMANUEL ANDERSON
25. Plaintiff re-alleges and restates the allegations in paragraphs | through 14 as if fully
set forth herein.
26. At all times material herein, Defendant, EMANUEL ANDERSON, had a duty to
operate and/or maintain the dump truck he was driving in a safe and reasonable manner, to be
aware of his surroundings, and to keep a proper look out as he was driving.
27. On or about November 21, 2019, Defendant, EMANUEL ANDERSON,
negligently operated or maintained the dump truck he was driving so that it ran over Victor Manuel
Nieves Calderon, and then backed over him a second time, seriously injuring him and ultimately
resulting in his death.
28. Asa direct and proximate result of the aforementioned negligence of the Defendant,
EMANUEL ANDERSON, Victor Manuel Nieves Calderon sustained severe, grievous and
permanent injuries, mental pain and suffering, disability, physical impairment, disfigurement,
mental anguish, and injuries that ultimately resulted in his death.
29. As direct and proximate result of decedent, Victor Manuel Nieves Calderon’s death,
decedent’s survivors, Diana Torres and M.J. Nieves, as identified above, suffered mental pain and
suffering, agony, humiliation and emotional distress, loss of companionship and society and loss
of guidance and instruction. These injuries and damages are permanent or continuing in nature and
Victor Manuel Nieves Calderon survivors, Diana Torres and M.J. Nieves,, will continue to suffer
these injuries and damages in the future.
30. As direct and proximate result of decedent, Victor Manuel Nieves Calderon’s death,
decedent’s survivor, Z.L. Nieves, as identified above, suffered mental pain and suffering, agony,
humiliation and emotional distress, loss of companionship and society, loss of guidance and
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instruction and loss of support and services. These injuries and damages are permanent or
continuing in nature and Victor Manuel Nieves Calderon survivor, Z.L. Nieves, will continue to
suffer these injuries and damages in the future.
31. In addition, decedent’s estate has sustained damages for medical expenses incurred
for the care and treatment of the decedent at the scene of the subject incident and hospitalization
at the time of his death and the funeral expenses incurred due to his burial. The expenses have
become charges against the estate.
WHEREFORE, Plaitniff, DIANA TORRES as Personal Representative of the Estate
of Victor Manuel Nieves Calderon, Deceased, demands judgment against the Defendant,
EMANUEL ANDERSON for the damages outlined in paragraphs twenty-eight (28), twenty-nine
(29), thirty (30) and thirty-one (31) with costs, and any further relief as the Court deems proper.
The PLAINTIFF demands trial by a jury in the above titled action.
COUNT III - VICARIOUS LIABILITY OF DEFENDANT,
WASTE MANAGEMENT INC. OF FLORIDA
32. Plaintiff re-alleges and restates the allegations in paragraphs | through 14 as if fully
set forth herein.
33. At all times material hereto, Defendant, EMANUEL ANDERSON, had a duty to
operate and/or maintain the dump truck he was driving in a safe and reasonable manner, to be
aware of his surroundings, and to keep a proper look out as he was driving.
34, Despite that duty, on or about November 21, 2019, Defendant, EMANUEL
ANDERSON, negligently operated and/or maintained the motor vehicle he was driving causing
it to run over, and then back over, the Decedent, VICTOR MANUEL NIEVES CALDERON.
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35. At all times material hereto, and specifically on or about November 21, 2019, the
Defendant, EMANUEL ANDERSON, was an employee, agent and/or servant of Defendant,
WASTE MANAGEMENT INC. OF FLORIDA, and was acting within the course and scope of
his employment and/or agency with Defendant, WASTE MANAGEMENT INC. OF
FLORIDA.
36. Defendant, WASTE MANAGEMENT INC. OF FLORIDA, was the registered
owner of a dump truck, being driven by Defendant, EMANUEL ANDERSON on or about
November 21, 2019.
37. Defendant, WASTE MANAGEMENT INC. OF FLORIDA, is vicariously liable
for the negligent acts and/or omissions of the Defendant, EMANUEL ANDERSON, under the
doctrine of respondeat superior and/or agency.
38. As a direct and proximate result of the negligence of Defendant, EMANUEL
ANDERSON, and the resulting vicarious liability of Defendant, WASTE MANAGEMENT
INC. OF FLORIDA, decedent, VICTOR MANUEL NIEVES CALDERON, sustained severe,
grievous and permanent injuries, mental pain and suffering, disability, physical impairment,
disfigurement, mental anguish, and injuries that ultimately resulted in his death.
39. As direct and proximate result of decedent, Victor Manuel Nieves Calderon’s death,
decedent’s survivors, Diana Torres and M.J. Nieves, as identified above, suffered mental pain and
suffering, agony, humiliation and emotional distress, loss of companionship and society and loss
of guidance and instruction. These injuries and damages are permanent or continuing in nature and
Victor Manuel Nieves Calderon survivors, Diana Torres and M.J. Nieves, will continue to suffer
these injuries and damages in the future.
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40. As direct and proximate result of decedent, Victor Manuel Nieves Calderon’s death,
decedent’s survivor, Z.L. Nieves, as identified above, suffered mental pain and suffering, agony,
humiliation and emotional distress, loss of companionship and society, loss of guidance and
instruction and loss of support and services. These injuries and damages are permanent or
continuing in nature and Victor Manuel Nieves Calderon survivor, Z.L. Nieves, will continue to
suffer these injuries and damages in the future.
41. In addition, decedent’s estate has sustained damages for medical expenses incurred
for the care and treatment of the decedent at the scene of the subject incident and hospitalization
at the time of his death and the funeral expenses incurred due to his burial. The expenses have
become charges against the estate.
WHEREFORE, Plaintiff, DIANA TORRES as Personal Representative of the Estate
of Victor Manuel Nieves Calderon, Deceased, demands judgment against the Defendant,
WASTE MANAGEMENT INC. OF FLORIDA for the damages outlined in paragraphs thirty-
eight (38), thirty-nine (39), forty (40) and forty-one (41) with costs, and any further relief as the
Court deems proper. The PLAINTIFF demands trial by a jury in the above titled action.
DEMAND FOR JURY TRIA!
The Plaintiff hereby demands trial by jury of all issues so triable as a matter of right.
Dated: May 5, 2021
RUBENSTEIN LAW, P.A.
Attorneys for Plaintiffs
200 South Orange Avenue, Suite 2000
Orlando, FL 32801
Tel: (407) 269-8560
Fax: (407) 392-0396
-9-
Email: jessica@rubensteinlaw.com
Icolon@rubensteinlaw.com
eservice@rubensteinlaw.com
By: _/s/ Jessica J. Gonzalez-Monge
JESSICA J. GONZALEZ- MONGE
Florida Bar No.: 92412
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Preview
Filing # 135360789 E-Filed 09/27/2021 12:10:35 PM IN THE CIRCUIT COURT OF THE 9% JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA DIANA TORRES, as Personal Representative of the Estate of VICTOR MANUEL NIEVES CASE NO.: 2020-CA-1069-AN CALDERON, Deceased, Plaintiff, VS. WASTE MANAGEMENT INC. OF FLORIDA, and EMANUEL ANDERSON, & JOMA HOLDING, LLC Defendants. / DEFENDANTS’ MOTION TO BIFURCATE TRIAL COME NOW, Defendants, WASTE MANAGEMENT INC. OF FLORIDA (“WMIF”), and EMANUEL ANDERSON (“Anderson”), by and through their undersigned counsel and pursuant to the applicable Florida Rules of Civil Procedure and other applicable authorities, and hereby file this instant Motion to Bifurcate Trial, and as grounds in support thereof states the following: 1 In the instant matter, Plaintiff has brought claims against Defendants under Florida’s Wrongful Death Act sounding in negligence for the death of Decedent, Victor Nieves. Specifically, Plaintiff asserts a count of negligence against Defendant Emanuel Anderson as the driver and vicarious liability against WMIF, Mr. Anderson’s employer, under a respondeat superior theory of liability. A copy of the Plaintiff’s Operative Complaint is attached hereto as Exhibit “A.” 2. Plaintiff has also brought a cause of action against co-defendant JOMA Holding, LLC, the owner of the subject premises upon which the subject accident occurred (“JDMA”). Page 1 of 7 3 This case has been set for trial on the Court’s three-week trial period beginning on November 29, 2022. 4. Plaintiffs claims against Defendants derive entirely from the allegations that around 5:30 am on or about November 21, 2019, Plaintiff was sleeping on the ground in a parking lot when he was struck by a vehicle owned by WMIF and driven by Anderson, causing personal injury and resultant death. 5 As a result, Plaintiff, the Personal Representative of the Decedent's Estate, has filed a Wrongful Death suit, seeking to recover both economic and non-economic damages on behalf of the Estate and the Survivors, under section 768.21 of the Florida Statutes. 6 This case presents the ideal set of facts for bifurcation, as liability is highly contested in this case and Plaintiff's claims for liability against Defendants derive from one simple legal issue: Plaintiff's ability or inability to prove that Anderson was negligent in the operation of the WMIF vehicle. 7. Moreover, the entire incident was captured on a surveillance camera and a video clip was generated. 8 On the other hand, Plaintiff's claims for damages are complex, extensive, expensive for all parties to try, grossly prejudicial to the determination of liability, and likely to require a significant allocation of judicial resources. 9. The Decedent's Survivors are listed as his estranged wife and two minor daughters. 10. At the time of the subject accident, Decedent was experiencing homelessness and had been for about a six-year period, during which he had essentially no contact or relationship with his estranged spouse or children. Page 2 of 7 11. As the Survivors’ damages will be based in large part on the extent of their relationship with the Decedent, a determination of damages will require the testimony of a number of witnesses with knowledge of the relationships, expert psychology testimony, expert economist testimony, as well as many other considerations. 12. Thus, Plaintiff's damages claims are complex and multi-layered and their disposition will require travel and expense of lay and expert witnesses. The need for the above- mentioned witnesses, however, will be rendered moot if Defendant prevails on the issue of liability at trial. Therefore, bifurcating this case into liability and damages trials is appropriate and will potentially save the parties, the court, and the witnesses the burdens and expenses of travel and time, which have become incredibly costly. 13. Due to the narrowness of the legal issue and small number of witnesses necessary to conduct a trial on liability, Defendants believe this portion of the trial will be brief. However, the issues of damages will be long, complex, expensive, and complicated. Furthermore, there is concern due to the severe nature of the injuries alleged by Plaintiff's survivors that the jury will become sympathetic and lose sight of the burden Plaintiff must prove to prevail on the issue of liability. For example, Plaintiff’s children are only seven (7) and eleven (11) years old and are without a father and have bills that need paying; such a fact has the potential to garner sympathy with the jury that can cloud the issue of liability. Since the damages in this case have no legal bearing whatsoever on the issue of negligence liability, any potential prejudice as a result can and should be avoided by way of bifurcation. 14, Bifurcating this trial will be both convenient and economical for the court, the litigants, and the attorneys. The trial will involve a series of fact witnesses and experts. The liability experts and witnesses are not expected to testify on damages issues and, conversely, the damages experts will not testify as to liability. Page 3 of 7 15. Moreover, bifurcation will likely help promote settlement of the instant matter as the parties will be in a much better position to evaluate their respective cases once a jury has determined fault. MEMORANDUM OF LAW 16. Florida Rule of Civil Procedure 1.270(b) states in pertinent part, “The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim [...], or of any separate issue, or of any number of claims [...] or issues.” 17. The general rule is that a trial court has discretion to bifurcate the issues of liability and damages, and that such bifurcation will not be disturbed absent a clear showing of abuse. BDO Seidman, LLP v. Banco Espirito Santo Intern, 38 So. 3d 874 (Fla. 3d DCA 2010); Roseman v. Town Square Ass'n, Inc., 810 So, 2d 516, 520 (Fla. 4th DCA 2001); see Diamond v. Whaley, Chapman & Hannah, M.D. s, 550 So. 2d 54 (Fla. 2d DCA 1989). 18. Additionally, “Bifurcation is generally proper absent a specific threat of inconsistent verdicts or prejudice to a party.” Roseman, 810 So. 2d at 520 (Fla. 4th DCA 2001). 19. Further, issues of liability and damages are separate and distinct, so trial courts often exercise their discretion to bifurcate, not only because it promotes judicial economy, but also because it tends to be more economical and expedient for the parties. See BDO Seidman, 38 So. 3d at 875; Roseman, 810 So. 2d at 520. 20. For example, in Zuniga, the defendant was successful in bifurcating the issues of liability and compensatory damages in an automobile negligence case by arguing that if liability was tried on its own, the trial would take three to four days while a joint trial would take six to seven days. Zuniga v. Eisinger, 954 So.2d 634, 637 (Fla. 3rd DCA 2007). The defendant added that a trial on liability alone was likely to resolve the matter in its entirety. (Id.). This was ultimately upheld on appeal after a finding that the plaintiffs were not unduly prejudiced. (Id. at 638). Page 4 of 7 21. Former Judge David L. Tobin wrote in “To B...or Not to B...B means Bifurcation,” that bifurcation is an extremely useful tool in allowing judges to maintain judicial efficiency. As an advantage of bifurcation he wrote: “Without the issues of damages being tried in the first case, the litigants and court will be spared the numerous pretrial motions relating to treating physicians, medical records, expert opinions, fees for costs of depositions, and other matters which always rise from the preparation for the damage issues. The trial on liability is greatly simplified.” See “To B...or Not to B...B means Bifurcation,” Fla. B.J., Nov. 2000 at 14. 22. Further, Florida’s Supreme Court explained: “The rule is a salutary one, particularly in negligence cases, for it would be senseless to require the parties to go to the time and expense to produce evidence on the issue of damages where it is evident that the pleadings or circumstances indicate that such an issue will call for extensive testimony upon such issue. Consequently, time and expense, as well as judicial labor, are conserved if the issue of liability in such cases is first determined.” Marley v. Suanders, 249 So. 2d 30 (Fla. 1971). 23. While case law regarding the bifurcation of compensatory damages and liability in wrongful death actions is scant, bifurcation in this matter is proper so long because Defendants can show that bifurcation does not pose a specific threat of an inconsistent verdict or prejudice to Plaintiff and that not bifurcating will in fact prejudice Defendants. Johansen v. Vuocolo, 125 So.3d 197, 200 (Fla. 4th DCA 2013). 24. The instant wrongful death action should be separated into two trials: first, to determine whether Defendants are liable; and secondly, if necessary, to determine the estate’s and survivors’ damages. 25. Bifurcation of liability and damages will prove convenient and judicially efficient for all parties involved, in part, because in the event Defendants are not found liable for Page 5 of 7 Plaintiff's death, then the survivors’ claims for damages would be moot and thus, there would be no need for calling numerous witnesses or providing evidence to substantiate the survivors’ claims for damages. 26. Further, if Defendants are found liable, bifurcation could lead to an accelerated resolution motivating Defendants to settle prior to trying the survivors’ claims for damages before the jury. 27. Moreover, bifurcation of liability and damages would help ensure that no evidence considered prejudicial in regards to either liability or damages be submitted before the jury, thus avoiding the jury’s potential confusion of the issues and the need for any appeals or motions for new trial. 28. There is absolutely no threat of inconsistent verdicts or any prejudice to the Plaintiff if the trial were to be bifurcated, as liability and damages are completely and totally distinct and a discussion of damages-related evidence or issues is completely unnecessary to the determination of liability. 29. Based upon the foregoing, in the furtherance of convenience, and in the best interests of judicial economy, and to avoid any undue prejudice; Plaintiffs claims of liability and damages would be optimally litigated in bifurcated trials; first, deciding whether Defendants are liable; and secondly, if necessary, deciding the survivors’ damages. WHEREFORE, Defendants, WASTE MANAGEMENT INC. OF FLORIDA, and EMANUEL ANDERSON, hereby respectfully requests that this Honorable Court enter an order granting Defendant's Motion to Bifurcate Liability and Damages, and for any other relief this Court may deem just and proper. Page 6 of 7 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was delivered by Florida E-Portal and/or Electronic Mail to the following: Jessica Gonzalez-Monge, Esq., Rubenstein Law, P.A,, 200 S. Orange Avenue, Suite 2000, Orlando, FL 32801, jessica@rubensteinlaw.com; jcortiz@rubensteinlaw.com; eservice@rubensteinlaw.com , and Nina Harney-Hiller, Esq. and Gilda Romano Flam, Esq., Hamilton, Miller & Birthisel, LLP, 150 Southeast Second Avenue, Suite 1200, Miami, Florida 33131, nharney@hamiltonmillerlaw.com; gflam@hamiltonmillerlaw.com; nmbhservice@hamiltonmillerlaw.com on this 27 day of September, 2021. HIGHTOWER, STRATTON, NOVIGROD & KANTOR 330 Clematis Street, Suite 201 West Palm Beach, Florida 33401 (561) 833-2022 - Telephone (661) 833-2140 - Facsimile HERB L. UZZI, ESQ. Florida Bar No.: 112244 Primary: k huzzi@hightowerlaw.nel f Secondary: rosa. 1 S! @hightowerlaw.ne! t Page 7 of 7 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA DIANA TORRES as Personal Representative of CIVIL DIVISION the Estate of Victor Manuel Nieves Calderon, Deceased, CASE NO.: 2020-CA-001069 Plaintiff, Vv. WASTE MANAGEMENT, INC. OF FLORIDA, JDMA HOLDING, ANDERSON, LLC and EMANUEL EXHIBIT "A" Defendants. / SECOND AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL The Plaintiff, DIANA TORRES as Personal Representative of the Estate of Victor Manuel Nieves Calderon, Deceased, and on behalf of all statutory survivors, by and through the undersigned counsel, hereby sues the Defendants, WASTE MANAGEMENT, INC. OF FLORIDA, JDMA HOLDING, LLC and EMANUEL ANDERSON, and alleges: 1 This is an action for damages which exceed Thirty Thousand Dollars ($30,000.00) exclusive of interest and costs, and otherwise within this Court’s jurisdictional limits. 2. Plaintiff, DIANA TORRES is the Personal Representative of the Estate of Victor Manuel Nieves Calderon and was appointed as such on May 21, 2020. 3 At all times material hereto, the Plaintiff, Diana Torres, as the Personal Representative of the Estate of Victor Manuel Nieves Calderon, was and is a resident of Florida, and is otherwise sui juris. 4 At all times material hereto, the Defendant, JDMA Holding LLC, was and is a Florida Limited Liability Company organized under the Laws of the State of Florida and doing business in Kissimmee, Osceola County, Florida. 5 Venue is proper in this County in that the Defendants do business in Osceola County, Florida, and/or all of the acts complained of herein occurred in Osceola County, Florida. 6 That on or about November 21, 2019, the decedent, Victor Manuel Nieves Calderon, was an invitee of the Defendant, JOMA HOLDING LLC’s premises located at 931 W. Oak Street Kissimmee, FL 34741. 7 Atall times material hereto, the Defendant, EMANUEL ANDERSON, was and is a resident of Orange County, Florida and is otherwise sui juris. 8 At all times material hereto, Defendant, WASTE MANAGEMENT INC. OF FLORIDA, was a Florida corporation, licensed to and doing business in Osceola County, Florida. 9 That at all times material hereto, and specifically on or about November 21, 2019, the Defendant, WASTE MANAGEMENT INC. OF FLORIDA, was the registered owner of a dump truck, which was operated by Defendant, EMANUEL ANDERSON, at or near the parking lot of 931 W Oak St., in Kissimmee, Osceola County, Florida. 10. That all times material hereto, Defendant, EMANUEL ANDERSON, was an employee of Defendant, WASTE MANAGEMENT INC. OF FLORIDA, and at all times material hereto was acting within the course and scope of his employment with WASTE MANAGEMENT INC. OF FLORIDA. 11. On or about November 21, 2019 while on Defendant, JOMA HOLDING, LLC’s premises, Victor Manuel Nieves Torres was run over twice by the WASTE MANAGEMENT INC. OF FLORIDA dump truck and he died as a result of the injuries he sustained. -2- 12. At the time of his death, and at all times material hereto, the decedent, Victor Manuel Nieves Calderon, was a resident of Osceola County, Florida. 13. At the time of his death, and at all times material hereto, the decedent, Victor Manuel Nieves Calderon, was married and had two minor children. 14, The survivors and beneficiaries of the decedent under and within the meaning of the "Florida Wrongful Death Act" are as follows: a. Diana Torres — Wife of Victor Manuel Nieves Calderon; b Zoe Luz Nieves — Daughter of Victor Manuel Nieves Calderon; c. Melody Jane Nieves — Daughter of Victor Manuel Nieves Calderon; COUNT I - NEGLIGENCE CLAIM AGAINST JDMA HOLDING LLC. 15. Plaintiff re-alleges and restates the allegations in paragraphs | through 14 as if fully set forth herein. 16. That at all times material hereto, and specifically on November 21, 2019, Defendant, JOMA HOLDING, LLC, owned, managed, controlled, operated, and/or maintained the premises located at 931 W. Oak Street, Kissimmee, FL 34741, in Osceola County. 17. That on or about November 21, 2019, the decedent, Victor Manuel Nieves Calderon, was lawfully on Defendant, JOMA HOLDING, LLC’s premises, when he was run over by a dump truck. 18. That the Defendant owed to decedent, and other members of the public, a non- delegable duty to maintain the premises in a reasonably safe condition that are safe and compliant with all applicable codes and standards, and to warn of any dangerous conditions which it knew of or should have known of. -3- 19. That the Defendant, its agents, servants or employees, breached its non-delegable duty owed to the decedent by committing the following acts and omissions: a. By failing to maintain the premises in a reasonably safe condition; b By failing to have proper and operational lighting; By failing to maintain the premises so that drivers have safe ingress and egress of the property, that is unobstructed and free from impediments; By failing to warn of the dangerous condition that existed at the time of the decedent’s incident; By failing to comply with the applicable municipal codes, building codes, and safety standards; By failing to correct the hazardous condition of the premises when the Defendant knew or should have known that the general public visits said premises and specifically the Decedent herein; and/or Was otherwise negligent in the care, maintenance, and upkeep of the premises, and specifically by allowing an improperly illuminated and poorly maintained parking lot to exist. 20. That the Defendant knew or in the exercise of reasonable care should have known of the existence of the hazardous and dangerous condition which constituted a dangerous condition to the decedent, and the condition had existed for a sufficient length of time that the Defendant knew or should have known of the condition and could have easily remedied it. 21. That the hazardous and dangerous condition which constituted a dangerous condition to the decedent occurred with such frequency that owner should have known of its existence. -4- 22. Asa direct and proximate result of the aforementioned negligence of the Defendant, JDMA HOLDING LLC, the Decedent, Victor Manuel Nieves Calderon, was run over twice by a dump truck and sustained severe, grievous and permanent injuries, mental pain and suffering, disability, physical impairment, disfigurement, mental anguish, and/or injuries that ultimately resulted in his death. 23. As direct and proximate result of decedent, Victor Manuel Nieves Calderon’s death, decedent’s survivors, as identified above, suffered mental pain and suffering, agony, humiliation and emotional distress, loss of companionship and society, loss of guidance and instruction, and loss of support and services. These injuries and damages are permanent or continuing in nature and Victor Manuel Nieves Calderon survivors will continue to suffer these injuries and damages in the future. 24. In addition, decedent’s estate has sustained damages for loss of net accumulations, medical expenses incurred for the care and treatment of the decedent at the scene of the subject incident and hospitalization at the time of his death and the funeral expenses incurred due to his burial. The expenses have become charges against the estate. WHEREFORE, Plaintiff, DIANA TORRES as Personal Representative of the Estate of Victor Manuel Nieves Calderon, Deceased, demands judgment against the Defendant, JDMA HOLDING, LLC for the damages outlined in paragraphs twenty-two (22), twenty-three (23) and twenty-four (24) with costs, and any further relief as the Court deems proper. The Plaintiff, DIANA TORRES as Personal Representative of the Estate of Victor Manuel Nieves Calderon, Deceased, demands trial by a jury in the above titled action. -5- COUNT II - NEGLIGENCE CLAIM AGAINST DEFENDANT, EMANUEL ANDERSON 25. Plaintiff re-alleges and restates the allegations in paragraphs | through 14 as if fully set forth herein. 26. At all times material herein, Defendant, EMANUEL ANDERSON, had a duty to operate and/or maintain the dump truck he was driving in a safe and reasonable manner, to be aware of his surroundings, and to keep a proper look out as he was driving. 27. On or about November 21, 2019, Defendant, EMANUEL ANDERSON, negligently operated or maintained the dump truck he was driving so that it ran over Victor Manuel Nieves Calderon, and then backed over him a second time, seriously injuring him and ultimately resulting in his death. 28. Asa direct and proximate result of the aforementioned negligence of the Defendant, EMANUEL ANDERSON, Victor Manuel Nieves Calderon sustained severe, grievous and permanent injuries, mental pain and suffering, disability, physical impairment, disfigurement, mental anguish, and injuries that ultimately resulted in his death. 29. As direct and proximate result of decedent, Victor Manuel Nieves Calderon’s death, decedent’s survivors, Diana Torres and M.J. Nieves, as identified above, suffered mental pain and suffering, agony, humiliation and emotional distress, loss of companionship and society and loss of guidance and instruction. These injuries and damages are permanent or continuing in nature and Victor Manuel Nieves Calderon survivors, Diana Torres and M.J. Nieves,, will continue to suffer these injuries and damages in the future. 30. As direct and proximate result of decedent, Victor Manuel Nieves Calderon’s death, decedent’s survivor, Z.L. Nieves, as identified above, suffered mental pain and suffering, agony, humiliation and emotional distress, loss of companionship and society, loss of guidance and -6- instruction and loss of support and services. These injuries and damages are permanent or continuing in nature and Victor Manuel Nieves Calderon survivor, Z.L. Nieves, will continue to suffer these injuries and damages in the future. 31. In addition, decedent’s estate has sustained damages for medical expenses incurred for the care and treatment of the decedent at the scene of the subject incident and hospitalization at the time of his death and the funeral expenses incurred due to his burial. The expenses have become charges against the estate. WHEREFORE, Plaitniff, DIANA TORRES as Personal Representative of the Estate of Victor Manuel Nieves Calderon, Deceased, demands judgment against the Defendant, EMANUEL ANDERSON for the damages outlined in paragraphs twenty-eight (28), twenty-nine (29), thirty (30) and thirty-one (31) with costs, and any further relief as the Court deems proper. The PLAINTIFF demands trial by a jury in the above titled action. COUNT III - VICARIOUS LIABILITY OF DEFENDANT, WASTE MANAGEMENT INC. OF FLORIDA 32. Plaintiff re-alleges and restates the allegations in paragraphs | through 14 as if fully set forth herein. 33. At all times material hereto, Defendant, EMANUEL ANDERSON, had a duty to operate and/or maintain the dump truck he was driving in a safe and reasonable manner, to be aware of his surroundings, and to keep a proper look out as he was driving. 34, Despite that duty, on or about November 21, 2019, Defendant, EMANUEL ANDERSON, negligently operated and/or maintained the motor vehicle he was driving causing it to run over, and then back over, the Decedent, VICTOR MANUEL NIEVES CALDERON. -7- 35. At all times material hereto, and specifically on or about November 21, 2019, the Defendant, EMANUEL ANDERSON, was an employee, agent and/or servant of Defendant, WASTE MANAGEMENT INC. OF FLORIDA, and was acting within the course and scope of his employment and/or agency with Defendant, WASTE MANAGEMENT INC. OF FLORIDA. 36. Defendant, WASTE MANAGEMENT INC. OF FLORIDA, was the registered owner of a dump truck, being driven by Defendant, EMANUEL ANDERSON on or about November 21, 2019. 37. Defendant, WASTE MANAGEMENT INC. OF FLORIDA, is vicariously liable for the negligent acts and/or omissions of the Defendant, EMANUEL ANDERSON, under the doctrine of respondeat superior and/or agency. 38. As a direct and proximate result of the negligence of Defendant, EMANUEL ANDERSON, and the resulting vicarious liability of Defendant, WASTE MANAGEMENT INC. OF FLORIDA, decedent, VICTOR MANUEL NIEVES CALDERON, sustained severe, grievous and permanent injuries, mental pain and suffering, disability, physical impairment, disfigurement, mental anguish, and injuries that ultimately resulted in his death. 39. As direct and proximate result of decedent, Victor Manuel Nieves Calderon’s death, decedent’s survivors, Diana Torres and M.J. Nieves, as identified above, suffered mental pain and suffering, agony, humiliation and emotional distress, loss of companionship and society and loss of guidance and instruction. These injuries and damages are permanent or continuing in nature and Victor Manuel Nieves Calderon survivors, Diana Torres and M.J. Nieves, will continue to suffer these injuries and damages in the future. -8- 40. As direct and proximate result of decedent, Victor Manuel Nieves Calderon’s death, decedent’s survivor, Z.L. Nieves, as identified above, suffered mental pain and suffering, agony, humiliation and emotional distress, loss of companionship and society, loss of guidance and instruction and loss of support and services. These injuries and damages are permanent or continuing in nature and Victor Manuel Nieves Calderon survivor, Z.L. Nieves, will continue to suffer these injuries and damages in the future. 41. In addition, decedent’s estate has sustained damages for medical expenses incurred for the care and treatment of the decedent at the scene of the subject incident and hospitalization at the time of his death and the funeral expenses incurred due to his burial. The expenses have become charges against the estate. WHEREFORE, Plaintiff, DIANA TORRES as Personal Representative of the Estate of Victor Manuel Nieves Calderon, Deceased, demands judgment against the Defendant, WASTE MANAGEMENT INC. OF FLORIDA for the damages outlined in paragraphs thirty- eight (38), thirty-nine (39), forty (40) and forty-one (41) with costs, and any further relief as the Court deems proper. The PLAINTIFF demands trial by a jury in the above titled action. DEMAND FOR JURY TRIA! The Plaintiff hereby demands trial by jury of all issues so triable as a matter of right. Dated: May 5, 2021 RUBENSTEIN LAW, P.A. Attorneys for Plaintiffs 200 South Orange Avenue, Suite 2000 Orlando, FL 32801 Tel: (407) 269-8560 Fax: (407) 392-0396 -9- Email: jessica@rubensteinlaw.com Icolon@rubensteinlaw.com eservice@rubensteinlaw.com By: _/s/ Jessica J. Gonzalez-Monge JESSICA J. GONZALEZ- MONGE Florida Bar No.: 92412 -10-