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Filing # 167813006 E-Filed 03/01/2023 02:10:39 PM
IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
BARBARA GONZALEZ
Plaintiff,
CASE NO.: 21000968CA
vs.
MICHAEL G. EDWARDS,
HHS ENVIRONMENTAL SERVICES, LLC and
PORT CHARLOTTE HMA, LLC d/b/a BAYFRONT
HEALTH PORT CHARLOTTE.
Defendants.
/
PLAINTIFF’S DENIAL OF DEFENDANT’S AFFIRMATIVE DEFENSES
COMES NOW the Plaintiff, by and through her undersigned attorneys, and hereby replies
to Defendant, MICHAEL G. EDWARDS’ Affirmative Defenses as follows:
1 Plaintiff hereby denies all Affirmative Defenses asserted by Defendant and
demands strict proof thereof.
PLAINTIFF’S MOTION TO STRIKE, OR IN THE ALTERNATIVE, MOTION FOR MORE
DEFINITE STATEMENT AS TO DEFENDANT’S AFFIRMATIVE DEFENSES
Plaintiff moves to strike Defendant’s First Affirmative Defense as this defense is
not supported by any facts or information; or in the alternative, Plaintiff seeks a
more definite statement to support the assertion that Plaintiff was contributorily or
comparatively negligent for being hit by the golf cart.
Plaintiff moves to strike Defendant’s Second Affirmative Defense as this defense
is not supported by any facts or information; or in the alternative, Plaintiff seeks a
more definite statement to support the assertion that Plaintiff did not exercise
ordinary care, caution, or prudence for her welfare to avoid the happening of the
alleged incident, injuries, or damages.
Plaintiff moves to strike Defendant’s Third Affirmative Defense as this defense
is not supported by any facts or information; or in the alternative, Plaintiff seeks a
more definite statement to support the assertion that Plaintiff was suffering from
one or more pre-existing conditions which caused or contributed to Plaintiff's
damages.
4 Plaintiff moves to strike Defendant’s Fourth Affirmative Defense as this defense
is not supported by any facts or information; or in the alternative, Plaintiff seeks a
more definite statement to support the assertion stated herein.
Plaintiff moves to strike Defendant’s Fifth Affirmative Defense as this defense
is not supported by any facts or information; or in the alternative, Plaintiff seeks a
more definite statement to support the assertion that Plaintiff failed to mitigate her
damages.
Plaintiff moves to strike Defendant’s Sixth Affirmative Defense as this defense
is not supported by any facts or information; or in the alternative, Plaintiff seeks a
more definite statement to support the assertion stated herein.
Plaintiff moves to strike Defendant’s Seventh Affirmative Defense as this
defense is not supported by any facts or information; or in the alternative, Plaintiff
seeks a more definite statement to support the assertion that she has waived any
claim to damages.
With regards to Defendant’s Eight Affirmative Defense and all others relating to
collateral sources and/or set-offs, Plaintiff is entitled to a credit for any premiums
paid for any such collateral sources.
Plaintiff moves to strike Defendant’s Tenth Affirmative Defense as this defense
is not supported by any facts or information; or in the alternative, Plaintiff seeks a
more definite statement to support the assertion that her medical bills and
treatment are exaggerated, unnecessary, unreasonable, or unrelated.
10 As for Defendant’s Eleventh Affirmative Defense, Plaintiff moves to strike this
defense; or in the alternative, seeks a more definite statement to support the
assertion that any Fabre Defendants may be responsible for Plaintiffs injuries and
damages. Further, the Defendant alleges that Plaintiff's injuries were proximately
caused in whole or in part by the negligent acts of BAYFRONT HEALTH PORT
CHARLOTTE, a named Defendant in this action. The two non-parties named, The
Cart Guys and Club Car, LLC, are merely listed without any further supporting
information. According to Nash v. Wells Fargo Guard Services, Inc., 678 So.2d
1262 (Fla. 1996), a Defendant pleading the negligence of a third person as an
affirmative defense must specifically identify the negligent third person and the
Defendant has the burden of proving that the third persons' fault contributed to the
occurrence. To the extent Defendant has failed to establish the required allegations
of negligence, the affirmative defense should be struck.
11 Plaintiff moves to strike Defendant’s Twelfth Affirmative Defense as this
defense is not supported by any facts or information; or in the alternative, Plaintiff
seeks a more definite statement to support the assertion that the subject condition
was open and obvious.
12 Plaintiff moves to strike Defendant’s Thirteenth Affirmative Defense as this
defense is not supported by any facts or information; or in the alternative, Plaintiff
seeks a more definite statement to support the assertion that the Defendant lacked
the requisite actual or constructive notice of the alleged condition.
13 Plaintiff moves to strike Defendant’s Fourteenth Affirmative Defense as this
defense is not supported by any facts or information; or in the alternative, Plaintiff
seeks a more definite statement to support the assertion that Plaintiff was under
the influence of drugs or alcohol.
14 Plaintiff moves to strike Defendant’s Sixteenth Affirmative Defense as this
defense is not supported by any facts or information and is a restatement of
Defendant’s Fourteenth Affirmative Defense.
15 Plaintiff moves to strike Defendant’s Twentieth Affirmative Defense as this
defense is not supported by any facts or information and is a restatement of
Defendant’s Eleventh Affirmative Defense.
16 Plaintiff moves to strike Defendant’s Twenty-First Affirmative Defense as this
defense is not supported by any facts or information; or in the alternative, Plaintiff
seeks a more definite statement to support the assertion stated herein.
17. Plaintiff moves to strike Defendant’s Twenty-Second Affirmative Defense as
this defense is not supported by any facts or information; or in the alternative,
Plaintiff seeks a more definite statement to support the assertion of any claim to
immunity under the Workers’ Compensation statutes stated herein.
18, Plaintiff moves to strike Defendant’s Twenty-Third and Twenty-Fourth
Affirmative Defenses as neither is supported by any facts or information; or in
the alternative, Plaintiff seeks a more definite statement to support the assertions
that EDWARDS was employed by BAYFRONT HEALTH PORT CHARLOTTE
as a “borrowed servant/special employee” or that BAYFRONT HEALTH PORT
CHARLOTTE was a “co-employer” of EDWARDS.
19 Unless said Defendant more specifically pleads said claims/A ffirmative Defenses,
Plaintiffhas no way of knowing on what facts Defendant bases such defenses, and
therefore Plaintiff moves to strike these defenses; or in the alternative, seeks a
more definite statement to support each defense.
Wherefore, based on the foregoing, Plaintiff hereby moves to strike Defendant’s
enumerated Affirmative Defenses without prejudice and/or moves for a more definite
statement as to these defenses, and would otherwise deny all such Affirmative Defenses.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished this Ist day of
March, 2023 by Electronic Mail to the following designated service email address(es): Francesca
Ippolito-Craven, Esq. at Fic@kubickidraper.com; FIC-KD@kubickidraper.com.
/s/ Michael Rossi
MICHAEL J. ROSSI, ESQ.
MICHAEL J. ROSSI, P.A.
Florida Bar No. 0868000
115 South Albany Ave.
Tampa, Florida 33606
(813) 253-3351
Michael@MichaelRossiLaw.com
Attorney for Plaintiff
and
/s/ Helen Stratigakos
HELEN STRATIGAKOS, ESQ.
Florida Bar No.: 0893633
STRATIGAKOS LAW, P.A.
412 East Madison Street, Suite 814
Tampa, Florida 33602
(P): (813) 226-0067
(F): (813) 259-2505
Attorney for Plaintiff
helen@stratigakoslaw.com
marty@stratigakoslaw.com
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Filing # 167813006 E-Filed 03/01/2023 02:10:39 PM IN THE CIRCUIT COURT FOR THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION BARBARA GONZALEZ Plaintiff, CASE NO.: 21000968CA vs. MICHAEL G. EDWARDS, HHS ENVIRONMENTAL SERVICES, LLC and PORT CHARLOTTE HMA, LLC d/b/a BAYFRONT HEALTH PORT CHARLOTTE. Defendants. / PLAINTIFF’S DENIAL OF DEFENDANT’S AFFIRMATIVE DEFENSES COMES NOW the Plaintiff, by and through her undersigned attorneys, and hereby replies to Defendant, MICHAEL G. EDWARDS’ Affirmative Defenses as follows: 1 Plaintiff hereby denies all Affirmative Defenses asserted by Defendant and demands strict proof thereof. PLAINTIFF’S MOTION TO STRIKE, OR IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT AS TO DEFENDANT’S AFFIRMATIVE DEFENSES Plaintiff moves to strike Defendant’s First Affirmative Defense as this defense is not supported by any facts or information; or in the alternative, Plaintiff seeks a more definite statement to support the assertion that Plaintiff was contributorily or comparatively negligent for being hit by the golf cart. Plaintiff moves to strike Defendant’s Second Affirmative Defense as this defense is not supported by any facts or information; or in the alternative, Plaintiff seeks a more definite statement to support the assertion that Plaintiff did not exercise ordinary care, caution, or prudence for her welfare to avoid the happening of the alleged incident, injuries, or damages. Plaintiff moves to strike Defendant’s Third Affirmative Defense as this defense is not supported by any facts or information; or in the alternative, Plaintiff seeks a more definite statement to support the assertion that Plaintiff was suffering from one or more pre-existing conditions which caused or contributed to Plaintiff's damages. 4 Plaintiff moves to strike Defendant’s Fourth Affirmative Defense as this defense is not supported by any facts or information; or in the alternative, Plaintiff seeks a more definite statement to support the assertion stated herein. Plaintiff moves to strike Defendant’s Fifth Affirmative Defense as this defense is not supported by any facts or information; or in the alternative, Plaintiff seeks a more definite statement to support the assertion that Plaintiff failed to mitigate her damages. Plaintiff moves to strike Defendant’s Sixth Affirmative Defense as this defense is not supported by any facts or information; or in the alternative, Plaintiff seeks a more definite statement to support the assertion stated herein. Plaintiff moves to strike Defendant’s Seventh Affirmative Defense as this defense is not supported by any facts or information; or in the alternative, Plaintiff seeks a more definite statement to support the assertion that she has waived any claim to damages. With regards to Defendant’s Eight Affirmative Defense and all others relating to collateral sources and/or set-offs, Plaintiff is entitled to a credit for any premiums paid for any such collateral sources. Plaintiff moves to strike Defendant’s Tenth Affirmative Defense as this defense is not supported by any facts or information; or in the alternative, Plaintiff seeks a more definite statement to support the assertion that her medical bills and treatment are exaggerated, unnecessary, unreasonable, or unrelated. 10 As for Defendant’s Eleventh Affirmative Defense, Plaintiff moves to strike this defense; or in the alternative, seeks a more definite statement to support the assertion that any Fabre Defendants may be responsible for Plaintiffs injuries and damages. Further, the Defendant alleges that Plaintiff's injuries were proximately caused in whole or in part by the negligent acts of BAYFRONT HEALTH PORT CHARLOTTE, a named Defendant in this action. The two non-parties named, The Cart Guys and Club Car, LLC, are merely listed without any further supporting information. According to Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla. 1996), a Defendant pleading the negligence of a third person as an affirmative defense must specifically identify the negligent third person and the Defendant has the burden of proving that the third persons' fault contributed to the occurrence. To the extent Defendant has failed to establish the required allegations of negligence, the affirmative defense should be struck. 11 Plaintiff moves to strike Defendant’s Twelfth Affirmative Defense as this defense is not supported by any facts or information; or in the alternative, Plaintiff seeks a more definite statement to support the assertion that the subject condition was open and obvious. 12 Plaintiff moves to strike Defendant’s Thirteenth Affirmative Defense as this defense is not supported by any facts or information; or in the alternative, Plaintiff seeks a more definite statement to support the assertion that the Defendant lacked the requisite actual or constructive notice of the alleged condition. 13 Plaintiff moves to strike Defendant’s Fourteenth Affirmative Defense as this defense is not supported by any facts or information; or in the alternative, Plaintiff seeks a more definite statement to support the assertion that Plaintiff was under the influence of drugs or alcohol. 14 Plaintiff moves to strike Defendant’s Sixteenth Affirmative Defense as this defense is not supported by any facts or information and is a restatement of Defendant’s Fourteenth Affirmative Defense. 15 Plaintiff moves to strike Defendant’s Twentieth Affirmative Defense as this defense is not supported by any facts or information and is a restatement of Defendant’s Eleventh Affirmative Defense. 16 Plaintiff moves to strike Defendant’s Twenty-First Affirmative Defense as this defense is not supported by any facts or information; or in the alternative, Plaintiff seeks a more definite statement to support the assertion stated herein. 17. Plaintiff moves to strike Defendant’s Twenty-Second Affirmative Defense as this defense is not supported by any facts or information; or in the alternative, Plaintiff seeks a more definite statement to support the assertion of any claim to immunity under the Workers’ Compensation statutes stated herein. 18, Plaintiff moves to strike Defendant’s Twenty-Third and Twenty-Fourth Affirmative Defenses as neither is supported by any facts or information; or in the alternative, Plaintiff seeks a more definite statement to support the assertions that EDWARDS was employed by BAYFRONT HEALTH PORT CHARLOTTE as a “borrowed servant/special employee” or that BAYFRONT HEALTH PORT CHARLOTTE was a “co-employer” of EDWARDS. 19 Unless said Defendant more specifically pleads said claims/A ffirmative Defenses, Plaintiffhas no way of knowing on what facts Defendant bases such defenses, and therefore Plaintiff moves to strike these defenses; or in the alternative, seeks a more definite statement to support each defense. Wherefore, based on the foregoing, Plaintiff hereby moves to strike Defendant’s enumerated Affirmative Defenses without prejudice and/or moves for a more definite statement as to these defenses, and would otherwise deny all such Affirmative Defenses. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished this Ist day of March, 2023 by Electronic Mail to the following designated service email address(es): Francesca Ippolito-Craven, Esq. at Fic@kubickidraper.com; FIC-KD@kubickidraper.com. /s/ Michael Rossi MICHAEL J. ROSSI, ESQ. MICHAEL J. ROSSI, P.A. Florida Bar No. 0868000 115 South Albany Ave. Tampa, Florida 33606 (813) 253-3351 Michael@MichaelRossiLaw.com Attorney for Plaintiff and /s/ Helen Stratigakos HELEN STRATIGAKOS, ESQ. Florida Bar No.: 0893633 STRATIGAKOS LAW, P.A. 412 East Madison Street, Suite 814 Tampa, Florida 33602 (P): (813) 226-0067 (F): (813) 259-2505 Attorney for Plaintiff helen@stratigakoslaw.com marty@stratigakoslaw.com