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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA CIVIL ACTION
WILLIAM H. SCHMITZ and JANICE K.
SCHMITZ, as Husband and wife,
2P
Plaintiffs, &
Vv CASE NO. 16001754CA
oF
ALEXMAR PIMIENTA GARRIDO, JLL
LOGISTIC INC and ROBERTO LI, =>
Defendants. Gp
/
AGREED ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO FILE
AMENDED ANSWER AND AFFIRMATIVE DEFENSES
THIS MATTER having come before the Court upon the Motion for Leave to File
Amended Answer and Affirmative Defenses of Defendant, JLL LOGISTIC INC, and it
appearing that this Order has been agreed upon by all parties, and the Court having been
otherwise duly advised in the premises, it is hereby
ORDERED AND ADJUDGED:
1 Defendant's Motion is hereby GRANTED.
2 Defendant's Amended Answer and Affirmative Defenses (attached hereto as
Exhibit “A”) shall be deemed served and filed as the date of execution of this Order.
3. The service of responsive pleadings, if any, shall be governed by Rule 1.190,
Fla.R.Civ.P.
DONE AND ORDERED at Punta Gorda, Charlotte County, Florida, this © day of
Quy an
HONORABLE LISA S. PORTER
Circuit Court Judge
Pursuant to Rule 1.080, service of the
foregoing Order has been made by U.S.
Mail this day of
Deborah msharie
, July, 2017, upon:
Judicial Assistant
JUL 31 2017
Michael M. Noone, Esq.
William Boltrek, I!l, Esq.
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
CHARLOTTE COUNTY, FLORIDA CIVIL ACTION
WILLIAM H. SCHMITZ and JANICE K.
SCHMITZ, as Husband and wife,
Plaintiffs,
Vv CASE NO. 16001754CA
ALEXMAR PIMIENTA GARRIDO, JLL
LOGISTIC INC and ROBERTO LI,
Defendants.
/
AMENDED ANSWER, AFFIRMATIVE DEFENSES AND DEMAND FOR JURY TRIAL
Defendants, ALEXMAR PIMIENTA GARRIDO, JLL LOGISTIC, INC. and
ROBERTO LI, by and through its undersigned attorneys, in answer to Plaintiffs
Complaint filed herein, states as follows:
JURISDICTION AND VENUE
Denied.
Without knowledge, therefore denied.
Admitted.
Admitted.
Admitted except the vehicle is owned by JLL LOGISTIC, INC.
Admitted.
GENERAL ALLEGATIONS
7 Admitted on November 24, 2015, Defendant ALEXMAR PIMIENTA
GARRIDO, operated a 1999 Volvo truck that was owned by Defendant JLL LOGISTIC,
INC. Denied the subject vehicle was an instrumentality that is peculiarly dangerous in
its operation.
EXHIBIT A
8 Admitted that the subject vehicle was being used at the direction of
Defendants, JLL LOGISTIC, INC. and ROBERTO LI. Denied the subject vehicle was
an instrumentality that is peculiarly dangerous in its operation.
9 Admitted.
10. Without knowledge, therefore denied.
11. Denied.
COUNT I: NEGLIGENCE (As to ALEXMAR PIMIENTA GARRIDO)
12. Defendants re-allege and reincorporate their answers to paragraphs 1
through 11 above as if fully set forth herein.
13. Admitted.
14. Defendant ALEXMAR PIMIENTA GARRIDO is aware of his duty to
exercise reasonable care in the operation, maintenance and/or use of the subject
vehicle for the benefit of other individuals on public roadways. Defendant denies the
remaining allegations of the paragraph.
15. Denied.
16. Denied.
a Denied
Denied
Denied
Denied
Denied
Denied
17 Denied.
18. Denied.
COUNT II: NEGLIGENCE (As to JLL LOGISTIC, INC.)
19. Defendants re-allege and reincorporate their answers to paragraphs 1
through 18 above as if fully set forth herein.
20. Admitted.
21. Defendant JLL LOGISTIC, INC. is aware of its duty to exercise reasonable
care in the operation, maintenance and/or use of the subject vehicle for the benefit of
other individuals on public roadways. Defendant denies the remaining allegations of the
paragraph.
22. Denied.
23. Denied.
24. Denied.
COUNT Il: NEGLIGENCE (As to ROBERTO LI)
25. Defendants re-allege and reincorporate their answers to paragraphs 1
through 24 above asif fully set forth herein.
26. Defendant ROBERTO LI is aware of his duty to exercise reasonable care
in the operation, maintenance and/or use of the subject vehicle for the benefit of other
individuals on public roadways. Defendant denies the remaining allegations of the
paragraph.
27. Denied
28. Denied
29. Denied
COUNT Ill: CONSORTIUM CLAIM (As to ALEXMAR PIMIENTA GARRIDO)
30. Defendants re-allege and reincorporate their answers to paragraphs 1
through 29 above as if fully set forth herein.
31. Without knowledge, therefore denied.
32. Denied.
a Denied.
b Denied.
Cc. Denied.
COUNT Ill: CONSORTIUM CLAIM (As to JLL LOGISTIC, INC.)
33. Defendants. re-allege and reincorporate their answers to paragraphs 1
through 32 above as if fully set forth herein.
34. Without knowledge, therefore denied.
35. Denied.
a Denied.
b Denied.
Cc. Denied.
COUNT III: CONSORTIUM CLAIM (As to ROBERTO LI)
36. Defendants re-allege and reincorporate their answers to paragraphs 1
through 35 above as if fully set forth herein.
37. Without knowledge, therefore denied.
38. Denied.
a Denied.
b. Denied.
Cc. Denied.
AFFIRMATIVE DEFENSES
1 Defendants affirmatively allege that William H. Schmitz was guilty of
carelessness or negligence which caused or contributed to the cause of the incident,
losses, and damages described in the Complaint so that his negligence must be
compared. By this affirmative defense, Defendants are in no way admitting to
negligence on their part.
2 “ Defendants allege that they are entitled to an apportionment of damages
in relation to the degree of fault of all persons or entities, pursuant to Fabre v. Marin,
623 So.2d 1182 (Fla. 1993) and Florida Statute §768.81.
3 Defendants allege entitlement to all the provisions of the Florida Motor
Vehicle No-Fault law, including, but not limited to, provisions dealing with tort-
exemptions and setoffs for personal injury benefits paid or payable to or on behalf of
Plaintiff.
4 Defendants allege that the provisions of Section 768.71 through Section
768.81, Florida Statutes, apply to this action, the provisions of which are incorporated
herein by reference, and Defendants are entitled to the privileges, benefits, protections
and limitations provided therein.
5. The Plaintiffs recovery for medical damages is limited to only those
medical expenses for which the Plaintiff has become liable. Cooperative Leasing, Inc.
vy. Johnson, 872 So.2d 956 (Fla. 2d DCA 2004).
6 Defendants affirmatively allege that any recovery to or on behalf of Plaintiff
shall be reduced by the amount of collateral sources as defined by Section 627.7372
and 627.736(3) of the Florida Statutes, paid or payable to or on behalf of Plaintiff.
5
7 _ Defendants affirmatively allege that any recovery to or on behalf of Plaintiff
shall be reduced by the amount of collateral source benefits received but for which
Plaintiff incurred no obligation, liability or expense.
8 Defendants affirmatively allege that the Plaintiff failed to mitigate his
damages or avoid the consequences of the accident and the alleged injuries, if any.
9 Defendants affirmatively allege entitlement to the benefits of the Florida
Tort Reform Act.
10. Defendants allege that any negligence of the Defendants, if any, was not
the legal cause of any injuries allegedly suffered by the Plaintiff.
11. Defendants allege that the Plaintiffs alleged injuries are the result of a
preexisting condition and were not the result of any alleged negligence of the
Defendants.
12. Defendants allege that Plaintiff failed to use proper safety devices.
13. As a defense, Defendants state that Plaintiff's Complaint fails to state a
cause of action against the Defendants, ALEXMAR PIMIENTA GARRIDO, JLL
LOGISTIC, INC. and ROBERTO LI.
14. At the time of the accident, Plaintiff was under the influence of alcohol
and/or drugs, to the extent that his normal faculties were impaired as a result of the
influence of alcohol and/or drugs, Plaintiff was more than 50% at fault such that he
cannot recover in this legal action pursuant to F.S. 768.36.
DEMAND FOR JURY TRIAL
Defendant demands a trial by jury on all issues so triable in this case.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the above and foregoing has
been electronically filed with the Clerk of Court using the E-Portal Filing System this
Atk day of June, 2017, and a copy of the same will be furnished by electronic
mail service through the E-portal, to the following:
Michael M. Noone, Esquire
Florida Bar #: 0105139
Goldberg, Racila, D’Alessandro & Noone, P.A.
P.O. Box 190
Fort Myers, FL 33902-0190
(239) 461-5508
MikeNoone@goldberg-law.com
service@goldberg-law.com
ElizeteVelado@goldberg-law.com
Florida Bar #: 0099668
Attorneys for Plaintiffs
HENDERSON, FRANKLIN, STARNES & HOLT, P.A
Attorneys for Defendant
Post Office Box 280
1715 Monroe Street
Fort Myers, FL 33902-0280
239.344.1299
239.344.1521 Facsimile
william.boltrek@henlaw.com
brenda.sitar@henla
By:
Willi ul
Florida Bar lo. 100901
2201797
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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION WILLIAM H. SCHMITZ and JANICE K. SCHMITZ, as Husband and wife, 2P Plaintiffs, & Vv CASE NO. 16001754CA oF ALEXMAR PIMIENTA GARRIDO, JLL LOGISTIC INC and ROBERTO LI, => Defendants. Gp / AGREED ORDER GRANTING DEFENDANT’S MOTION FOR LEAVE TO FILE AMENDED ANSWER AND AFFIRMATIVE DEFENSES THIS MATTER having come before the Court upon the Motion for Leave to File Amended Answer and Affirmative Defenses of Defendant, JLL LOGISTIC INC, and it appearing that this Order has been agreed upon by all parties, and the Court having been otherwise duly advised in the premises, it is hereby ORDERED AND ADJUDGED: 1 Defendant's Motion is hereby GRANTED. 2 Defendant's Amended Answer and Affirmative Defenses (attached hereto as Exhibit “A”) shall be deemed served and filed as the date of execution of this Order. 3. The service of responsive pleadings, if any, shall be governed by Rule 1.190, Fla.R.Civ.P. DONE AND ORDERED at Punta Gorda, Charlotte County, Florida, this © day of Quy an HONORABLE LISA S. PORTER Circuit Court Judge Pursuant to Rule 1.080, service of the foregoing Order has been made by U.S. Mail this day of Deborah msharie , July, 2017, upon: Judicial Assistant JUL 31 2017 Michael M. Noone, Esq. William Boltrek, I!l, Esq. IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION WILLIAM H. SCHMITZ and JANICE K. SCHMITZ, as Husband and wife, Plaintiffs, Vv CASE NO. 16001754CA ALEXMAR PIMIENTA GARRIDO, JLL LOGISTIC INC and ROBERTO LI, Defendants. / AMENDED ANSWER, AFFIRMATIVE DEFENSES AND DEMAND FOR JURY TRIAL Defendants, ALEXMAR PIMIENTA GARRIDO, JLL LOGISTIC, INC. and ROBERTO LI, by and through its undersigned attorneys, in answer to Plaintiffs Complaint filed herein, states as follows: JURISDICTION AND VENUE Denied. Without knowledge, therefore denied. Admitted. Admitted. Admitted except the vehicle is owned by JLL LOGISTIC, INC. Admitted. GENERAL ALLEGATIONS 7 Admitted on November 24, 2015, Defendant ALEXMAR PIMIENTA GARRIDO, operated a 1999 Volvo truck that was owned by Defendant JLL LOGISTIC, INC. Denied the subject vehicle was an instrumentality that is peculiarly dangerous in its operation. EXHIBIT A 8 Admitted that the subject vehicle was being used at the direction of Defendants, JLL LOGISTIC, INC. and ROBERTO LI. Denied the subject vehicle was an instrumentality that is peculiarly dangerous in its operation. 9 Admitted. 10. Without knowledge, therefore denied. 11. Denied. COUNT I: NEGLIGENCE (As to ALEXMAR PIMIENTA GARRIDO) 12. Defendants re-allege and reincorporate their answers to paragraphs 1 through 11 above as if fully set forth herein. 13. Admitted. 14. Defendant ALEXMAR PIMIENTA GARRIDO is aware of his duty to exercise reasonable care in the operation, maintenance and/or use of the subject vehicle for the benefit of other individuals on public roadways. Defendant denies the remaining allegations of the paragraph. 15. Denied. 16. Denied. a Denied Denied Denied Denied Denied Denied 17 Denied. 18. Denied. COUNT II: NEGLIGENCE (As to JLL LOGISTIC, INC.) 19. Defendants re-allege and reincorporate their answers to paragraphs 1 through 18 above as if fully set forth herein. 20. Admitted. 21. Defendant JLL LOGISTIC, INC. is aware of its duty to exercise reasonable care in the operation, maintenance and/or use of the subject vehicle for the benefit of other individuals on public roadways. Defendant denies the remaining allegations of the paragraph. 22. Denied. 23. Denied. 24. Denied. COUNT Il: NEGLIGENCE (As to ROBERTO LI) 25. Defendants re-allege and reincorporate their answers to paragraphs 1 through 24 above asif fully set forth herein. 26. Defendant ROBERTO LI is aware of his duty to exercise reasonable care in the operation, maintenance and/or use of the subject vehicle for the benefit of other individuals on public roadways. Defendant denies the remaining allegations of the paragraph. 27. Denied 28. Denied 29. Denied COUNT Ill: CONSORTIUM CLAIM (As to ALEXMAR PIMIENTA GARRIDO) 30. Defendants re-allege and reincorporate their answers to paragraphs 1 through 29 above as if fully set forth herein. 31. Without knowledge, therefore denied. 32. Denied. a Denied. b Denied. Cc. Denied. COUNT Ill: CONSORTIUM CLAIM (As to JLL LOGISTIC, INC.) 33. Defendants. re-allege and reincorporate their answers to paragraphs 1 through 32 above as if fully set forth herein. 34. Without knowledge, therefore denied. 35. Denied. a Denied. b Denied. Cc. Denied. COUNT III: CONSORTIUM CLAIM (As to ROBERTO LI) 36. Defendants re-allege and reincorporate their answers to paragraphs 1 through 35 above as if fully set forth herein. 37. Without knowledge, therefore denied. 38. Denied. a Denied. b. Denied. Cc. Denied. AFFIRMATIVE DEFENSES 1 Defendants affirmatively allege that William H. Schmitz was guilty of carelessness or negligence which caused or contributed to the cause of the incident, losses, and damages described in the Complaint so that his negligence must be compared. By this affirmative defense, Defendants are in no way admitting to negligence on their part. 2 “ Defendants allege that they are entitled to an apportionment of damages in relation to the degree of fault of all persons or entities, pursuant to Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) and Florida Statute §768.81. 3 Defendants allege entitlement to all the provisions of the Florida Motor Vehicle No-Fault law, including, but not limited to, provisions dealing with tort- exemptions and setoffs for personal injury benefits paid or payable to or on behalf of Plaintiff. 4 Defendants allege that the provisions of Section 768.71 through Section 768.81, Florida Statutes, apply to this action, the provisions of which are incorporated herein by reference, and Defendants are entitled to the privileges, benefits, protections and limitations provided therein. 5. The Plaintiffs recovery for medical damages is limited to only those medical expenses for which the Plaintiff has become liable. Cooperative Leasing, Inc. vy. Johnson, 872 So.2d 956 (Fla. 2d DCA 2004). 6 Defendants affirmatively allege that any recovery to or on behalf of Plaintiff shall be reduced by the amount of collateral sources as defined by Section 627.7372 and 627.736(3) of the Florida Statutes, paid or payable to or on behalf of Plaintiff. 5 7 _ Defendants affirmatively allege that any recovery to or on behalf of Plaintiff shall be reduced by the amount of collateral source benefits received but for which Plaintiff incurred no obligation, liability or expense. 8 Defendants affirmatively allege that the Plaintiff failed to mitigate his damages or avoid the consequences of the accident and the alleged injuries, if any. 9 Defendants affirmatively allege entitlement to the benefits of the Florida Tort Reform Act. 10. Defendants allege that any negligence of the Defendants, if any, was not the legal cause of any injuries allegedly suffered by the Plaintiff. 11. Defendants allege that the Plaintiffs alleged injuries are the result of a preexisting condition and were not the result of any alleged negligence of the Defendants. 12. Defendants allege that Plaintiff failed to use proper safety devices. 13. As a defense, Defendants state that Plaintiff's Complaint fails to state a cause of action against the Defendants, ALEXMAR PIMIENTA GARRIDO, JLL LOGISTIC, INC. and ROBERTO LI. 14. At the time of the accident, Plaintiff was under the influence of alcohol and/or drugs, to the extent that his normal faculties were impaired as a result of the influence of alcohol and/or drugs, Plaintiff was more than 50% at fault such that he cannot recover in this legal action pursuant to F.S. 768.36. DEMAND FOR JURY TRIAL Defendant demands a trial by jury on all issues so triable in this case. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the above and foregoing has been electronically filed with the Clerk of Court using the E-Portal Filing System this Atk day of June, 2017, and a copy of the same will be furnished by electronic mail service through the E-portal, to the following: Michael M. Noone, Esquire Florida Bar #: 0105139 Goldberg, Racila, D’Alessandro & Noone, P.A. P.O. Box 190 Fort Myers, FL 33902-0190 (239) 461-5508 MikeNoone@goldberg-law.com service@goldberg-law.com ElizeteVelado@goldberg-law.com Florida Bar #: 0099668 Attorneys for Plaintiffs HENDERSON, FRANKLIN, STARNES & HOLT, P.A Attorneys for Defendant Post Office Box 280 1715 Monroe Street Fort Myers, FL 33902-0280 239.344.1299 239.344.1521 Facsimile william.boltrek@henlaw.com brenda.sitar@henla By: Willi ul Florida Bar lo. 100901 2201797