Preview
Filing # 162369610 E-Filed 12/05/2022 12:32:49 PM
IN THE CIRCUIT COURT OF THE
FOURTH JUDICIAL CIRCUIT IN AND
FOR DUVAL COUNTY, FLORIDA
CASE NO: 16-2022-CA-006098-XX
KEVIN FRANKLIN,
Plaintiff,
vs.
SAFECO INSURANCE COMPANY OF ILLINOIS, a foreign profit corporation,
Defendant.
/
DEFENDANT SAFECO INSURANCE COMPANY OF ILLINOIS’ ANSWER AND
AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT.
Comes now, Defendant, SAFECO INSURANCE COMPANY OF ILLINOIS, by and
by and through its undersigned attorney, and pursuant to the Florida Rules of Civil Procedure
1.140, hereby files its Answer and Affirmative Defenses to Plaintiffs Complaint, and states as
follows:
1 Admitted for jurisdictional purposes only, otherwise denied.
2 Defendant is without knowledge as to the allegations contained in Paragraph 2 of
Plaintiff’s Complaint, therefore, denies and demands strict proof thereof.
Defendant admits the allegations contained in Paragraph 3 (a-b) of Plaintiff's
Complaint.
Defendant is without sufficient information to either admit or deny the allegations
contained in paragraph 4 of Plaintiff's Complaint and therefore denies demanding
strict proof thereof.
Defendant is without sufficient information to either admit or deny the allegations
contained in paragraph 5 of Plaintiff's Complaint and therefore denies demanding
Case No.: 16-2022-CA-006098-XX
Answer to Plaintiff's Complaint
Page 1 of 6
ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 12/05/2022 02:08:15 PM
strict proof thereof.
Defendant is without sufficient information to either admit or deny the allegations
contained in paragraph 6 of Plaintiff’s Complaint and therefore denies demanding
strict proof thereof.
Defendant admits the allegations contained in Paragraph 7 of Plaintiffs
Complaint as to venue purposes only.
Defendant admits the existence of a policy of automobile insurance, number:
F2714245, which provides uninsured/underinsured motorist coverage as alleged
in Paragraph 8 of Plaintiffs Complaint, subject to conditions, limitations, and
provisions of that policy, and that policy was in effect on the date of the accident
alleged in the Complaint. Defendant denies that Plaintiff is entitled to recover.
Defendant further states that this action is subject to Florida Statute, Section
627.727.
Defendant admits the existence of a policy of automobile insurance, number:
F2714245, which provides uninsured/underinsured motorist coverage as alleged
in Paragraph 9 of Plaintiff's Complaint, subject to conditions, limitations, and
provisions of that policy, and that policy was in effect on the date of the accident
alleged in the Complaint. Defendant denies that Plaintiff is entitled to recover.
Defendant further states that this action is subject to Florida Statute, Section
627.727.
10 Defendant admits the existence of a policy of automobile insurance, number:
F2714245, which provides uninsured/underinsured motorist coverage as alleged
in Paragraph 10 of Plaintiff’s Complaint, subject to conditions, limitations, and
Case No.: 16-2022-CA-006098-XX
Answer to Plaintiff's Complaint
Page 2 of 6
provisions of that policy, and that policy was in effect on the date of the accident
alleged in the Complaint. Defendant denies that Plaintiff is entitled to recover.
Defendant further states that this action is subject to Florida Statute, Section
627.727.
11 Defendant denies the allegations contained in Paragraph 11 of Plaintiffs
Complaint and demands strict proof thereof.
12. Defendant is without sufficient information to either admit or deny the allegations
contained in paragraph 12 of Plaintiff's Complaint and therefore denies
demanding strict proof thereof.
AFFIRMATIVE DEFENSES
1 Defendant avers that Plaintiff had an opportunity to mitigate Defendant’s
contractual damages, if any, but failed to do so, and any recovery must be reduced by the amount
of damages incurred as a result of the Plaintiff's failure to mitigate.
2. Defendant avers that it is entitled to a set-off for any payments made by or on
behalf of any other defendants, persons or entities alleged to be responsible for the Plaintiff's
injuries.
3 Defendant avers that Plaintiff has received or is entitled to receive Personal Injury
Protection (PIP) benefits and other collateral source benefits as defined in the Florida Statutes,
which the jury must consider in determining the amount of damages, if any.
4 Defendant avers that the Plaintiff has failed to perform or allege any and all
conditions precedent to the filing of this action.
5 Defendant avers that the injuries or damages claimed by the Plaintiff in the
Complaint were pre-existing to any entitlement by the Plaintiff to contractual benefits and are,
therefore, not injuries or damages for which the Plaintiff is entitled to recover under the
insurance contract.
6 Defendant avers that the Plaintiff has failed to state a cause of action for breach of
contract and the action should, therefore, be dismissed with prejudice.
Case No.: 16-2022-CA-006098-XX
Answer to Plaintiff's Complaint
Page 3 of 6
7
Defendant affirmatively alleges that Plaintiff's damages, if any, were proximately
caused by or contributed to by Plaintiff’s own negligence, and therefore, the claims of Plaintiff
should be either barred or diminished in accordance with the degree of Plaintiff's own
negligence.
8 For affirmative defense, Defendant alleges that the injuries or damages
complained of were as a result of the sole negligence of other Defendants or individuals not a
party to this suit and not as a result of any acts or omissions on the part of this Defendant.
Defendant reserves the right to amend this affirmative defense.
9 In the event that an award for future economic losses is returned in excess of Two
Hundred Fifty Thousand ($250,000.00) Dollars, Defendant is entitled to seek payment as
provided for by F.S.A. 768.78.
10. For affirmative defense, Defendant alleges that at the time and on the occasion set
out in the Complaint, Plaintiff was subject to the Florida Automobile Reparations Reform Act
and does not have threshold injuries as required by said Act.
ll. Defendant affirmatively alleges that certain non-parties, whose identities are
currently unknown and whose identities will be revealed after discovery of same, were negligent,
and this negligence proximately contributed to causing the incident and/or damages complained
of by the Plaintiff. This includes the potential negligence of Lovey Latrina Bryant. Defendant
reserves the right to amend this affirmative defense.
12. Defendant affirmatively alleges that it is entitled to the procedures, protections
and benefits of Florida Statutes, Section 627.737, and such other defenses available pursuant to
the Tort Threshold Doctrine.
13. For a further affirmative defense, Defendant alleges that the Plaintiffs acts or
omissions constituted negligence which proximately caused or substantially contributed to cause
the alleged damages, and therefore, the alleged damages should be barred or proportionately
reduced against this Defendant pursuant to Florida Statutes § 768.81 and the doctrine of
comparative negligence.
14. For a further affirmative defense, Defendant alleges that this action is governed
by the provisions of Florida Statutes § 768.81 in regards to any claims for economic losses,
payment of damage awards, and comparative fault.
Case No.: 16-2022-CA-006098-XX
Answer to Plaintiff's Complaint
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15. For affirmative defense, Defendant alleges that Plaintiff has received or is entitled
to receive collateral source benefits, and this Defendant is entitled to a setoff or deduction equal
to the value of all benefits received by the Plaintiff from any collateral source.
16. Defendant affirmatively alleges that it is entitled to an offset to the extent that the
Plaintiff has received any other collateral source benefits or other amounts paid to or received by
the Plaintiff under workers’ compensation law, under a disability benefits policy, medical
payments policy, Medicare, Medicaid, health insurance policy, personal injury protection (PIP)
policy, motor vehicle liability insurance policy, and any and all other No-Fault benefits/payments
for injuries and damages arising out of the incident described in the Plaintiff’s Amended
Complaint, or for which injuries are apportioned.
17. Defendant reserves the right to withdraw, add, or amend these affirmative
defenses, as discovery is ongoing.
RESERVATION OF RIGHTS
Defendant, SAFECO INSURANCE COMPANY OF ILLINOIS, reserves the right to
supplement the Affirmative Defenses upon proper motion and notice, as discovery is ongoing.
DEMAND FOR JURY TRIAL
WHEREFORE, Defendant, SAFECO INSURANCE COMPANY OF ILLINOIS,
demand Judgment against the Plaintiff for costs and all other damages which this Court deems
just and equitable and further demands a trial by jury of all issues so triable as of right by jury.
CERTIFICATE OF SERVICE
I certify that the foregoing document has been furnished to Brandi A. Gartrell, Esquire,
Morgan & Morgan, 501 Riverside Ave, Suite 1200, Jacksonville, FL 32202, Primary E-Mail:
bgartrell@forthpeople.com, by e-mail on this 5 day of December, 2022.
Law Offices of J. Christopher Norris
PO Box 7217
London, KY 40742
Telephone: (407) 563-3416
Attorney for Defendant, Safeco Insurance Company of Illinois
Case No.: 16-2022-CA-006098-XX
Answer to Plaintiff's Complaint
Page 5 of 6
ga
JORDAN D. BROUGHER, FBN #1036574
Primary E-mail (eservice only): OrlandoLegalMail@LibertyMutual.com
Secondary E-mail: jordan.brougher@libertymutual.com
Case No.: 16-2022-CA-006098-XX
Answer to Plaintiff's Complaint
Page 6 of 6
Preview
Filing # 162369610 E-Filed 12/05/2022 12:32:49 PM IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR DUVAL COUNTY, FLORIDA CASE NO: 16-2022-CA-006098-XX KEVIN FRANKLIN, Plaintiff, vs. SAFECO INSURANCE COMPANY OF ILLINOIS, a foreign profit corporation, Defendant. / DEFENDANT SAFECO INSURANCE COMPANY OF ILLINOIS’ ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT. Comes now, Defendant, SAFECO INSURANCE COMPANY OF ILLINOIS, by and by and through its undersigned attorney, and pursuant to the Florida Rules of Civil Procedure 1.140, hereby files its Answer and Affirmative Defenses to Plaintiffs Complaint, and states as follows: 1 Admitted for jurisdictional purposes only, otherwise denied. 2 Defendant is without knowledge as to the allegations contained in Paragraph 2 of Plaintiff’s Complaint, therefore, denies and demands strict proof thereof. Defendant admits the allegations contained in Paragraph 3 (a-b) of Plaintiff's Complaint. Defendant is without sufficient information to either admit or deny the allegations contained in paragraph 4 of Plaintiff's Complaint and therefore denies demanding strict proof thereof. Defendant is without sufficient information to either admit or deny the allegations contained in paragraph 5 of Plaintiff's Complaint and therefore denies demanding Case No.: 16-2022-CA-006098-XX Answer to Plaintiff's Complaint Page 1 of 6 ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 12/05/2022 02:08:15 PM strict proof thereof. Defendant is without sufficient information to either admit or deny the allegations contained in paragraph 6 of Plaintiff’s Complaint and therefore denies demanding strict proof thereof. Defendant admits the allegations contained in Paragraph 7 of Plaintiffs Complaint as to venue purposes only. Defendant admits the existence of a policy of automobile insurance, number: F2714245, which provides uninsured/underinsured motorist coverage as alleged in Paragraph 8 of Plaintiffs Complaint, subject to conditions, limitations, and provisions of that policy, and that policy was in effect on the date of the accident alleged in the Complaint. Defendant denies that Plaintiff is entitled to recover. Defendant further states that this action is subject to Florida Statute, Section 627.727. Defendant admits the existence of a policy of automobile insurance, number: F2714245, which provides uninsured/underinsured motorist coverage as alleged in Paragraph 9 of Plaintiff's Complaint, subject to conditions, limitations, and provisions of that policy, and that policy was in effect on the date of the accident alleged in the Complaint. Defendant denies that Plaintiff is entitled to recover. Defendant further states that this action is subject to Florida Statute, Section 627.727. 10 Defendant admits the existence of a policy of automobile insurance, number: F2714245, which provides uninsured/underinsured motorist coverage as alleged in Paragraph 10 of Plaintiff’s Complaint, subject to conditions, limitations, and Case No.: 16-2022-CA-006098-XX Answer to Plaintiff's Complaint Page 2 of 6 provisions of that policy, and that policy was in effect on the date of the accident alleged in the Complaint. Defendant denies that Plaintiff is entitled to recover. Defendant further states that this action is subject to Florida Statute, Section 627.727. 11 Defendant denies the allegations contained in Paragraph 11 of Plaintiffs Complaint and demands strict proof thereof. 12. Defendant is without sufficient information to either admit or deny the allegations contained in paragraph 12 of Plaintiff's Complaint and therefore denies demanding strict proof thereof. AFFIRMATIVE DEFENSES 1 Defendant avers that Plaintiff had an opportunity to mitigate Defendant’s contractual damages, if any, but failed to do so, and any recovery must be reduced by the amount of damages incurred as a result of the Plaintiff's failure to mitigate. 2. Defendant avers that it is entitled to a set-off for any payments made by or on behalf of any other defendants, persons or entities alleged to be responsible for the Plaintiff's injuries. 3 Defendant avers that Plaintiff has received or is entitled to receive Personal Injury Protection (PIP) benefits and other collateral source benefits as defined in the Florida Statutes, which the jury must consider in determining the amount of damages, if any. 4 Defendant avers that the Plaintiff has failed to perform or allege any and all conditions precedent to the filing of this action. 5 Defendant avers that the injuries or damages claimed by the Plaintiff in the Complaint were pre-existing to any entitlement by the Plaintiff to contractual benefits and are, therefore, not injuries or damages for which the Plaintiff is entitled to recover under the insurance contract. 6 Defendant avers that the Plaintiff has failed to state a cause of action for breach of contract and the action should, therefore, be dismissed with prejudice. Case No.: 16-2022-CA-006098-XX Answer to Plaintiff's Complaint Page 3 of 6 7 Defendant affirmatively alleges that Plaintiff's damages, if any, were proximately caused by or contributed to by Plaintiff’s own negligence, and therefore, the claims of Plaintiff should be either barred or diminished in accordance with the degree of Plaintiff's own negligence. 8 For affirmative defense, Defendant alleges that the injuries or damages complained of were as a result of the sole negligence of other Defendants or individuals not a party to this suit and not as a result of any acts or omissions on the part of this Defendant. Defendant reserves the right to amend this affirmative defense. 9 In the event that an award for future economic losses is returned in excess of Two Hundred Fifty Thousand ($250,000.00) Dollars, Defendant is entitled to seek payment as provided for by F.S.A. 768.78. 10. For affirmative defense, Defendant alleges that at the time and on the occasion set out in the Complaint, Plaintiff was subject to the Florida Automobile Reparations Reform Act and does not have threshold injuries as required by said Act. ll. Defendant affirmatively alleges that certain non-parties, whose identities are currently unknown and whose identities will be revealed after discovery of same, were negligent, and this negligence proximately contributed to causing the incident and/or damages complained of by the Plaintiff. This includes the potential negligence of Lovey Latrina Bryant. Defendant reserves the right to amend this affirmative defense. 12. Defendant affirmatively alleges that it is entitled to the procedures, protections and benefits of Florida Statutes, Section 627.737, and such other defenses available pursuant to the Tort Threshold Doctrine. 13. For a further affirmative defense, Defendant alleges that the Plaintiffs acts or omissions constituted negligence which proximately caused or substantially contributed to cause the alleged damages, and therefore, the alleged damages should be barred or proportionately reduced against this Defendant pursuant to Florida Statutes § 768.81 and the doctrine of comparative negligence. 14. For a further affirmative defense, Defendant alleges that this action is governed by the provisions of Florida Statutes § 768.81 in regards to any claims for economic losses, payment of damage awards, and comparative fault. Case No.: 16-2022-CA-006098-XX Answer to Plaintiff's Complaint Page 4 of 6 15. For affirmative defense, Defendant alleges that Plaintiff has received or is entitled to receive collateral source benefits, and this Defendant is entitled to a setoff or deduction equal to the value of all benefits received by the Plaintiff from any collateral source. 16. Defendant affirmatively alleges that it is entitled to an offset to the extent that the Plaintiff has received any other collateral source benefits or other amounts paid to or received by the Plaintiff under workers’ compensation law, under a disability benefits policy, medical payments policy, Medicare, Medicaid, health insurance policy, personal injury protection (PIP) policy, motor vehicle liability insurance policy, and any and all other No-Fault benefits/payments for injuries and damages arising out of the incident described in the Plaintiff’s Amended Complaint, or for which injuries are apportioned. 17. Defendant reserves the right to withdraw, add, or amend these affirmative defenses, as discovery is ongoing. RESERVATION OF RIGHTS Defendant, SAFECO INSURANCE COMPANY OF ILLINOIS, reserves the right to supplement the Affirmative Defenses upon proper motion and notice, as discovery is ongoing. DEMAND FOR JURY TRIAL WHEREFORE, Defendant, SAFECO INSURANCE COMPANY OF ILLINOIS, demand Judgment against the Plaintiff for costs and all other damages which this Court deems just and equitable and further demands a trial by jury of all issues so triable as of right by jury. CERTIFICATE OF SERVICE I certify that the foregoing document has been furnished to Brandi A. Gartrell, Esquire, Morgan & Morgan, 501 Riverside Ave, Suite 1200, Jacksonville, FL 32202, Primary E-Mail: bgartrell@forthpeople.com, by e-mail on this 5 day of December, 2022. Law Offices of J. Christopher Norris PO Box 7217 London, KY 40742 Telephone: (407) 563-3416 Attorney for Defendant, Safeco Insurance Company of Illinois Case No.: 16-2022-CA-006098-XX Answer to Plaintiff's Complaint Page 5 of 6 ga JORDAN D. BROUGHER, FBN #1036574 Primary E-mail (eservice only): OrlandoLegalMail@LibertyMutual.com Secondary E-mail: jordan.brougher@libertymutual.com Case No.: 16-2022-CA-006098-XX Answer to Plaintiff's Complaint Page 6 of 6