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Filing # 173548284 E-Filed 05/19/2023 12:14:26 PM
IN THE CIRCUIT COURT OF THE 4th
JUDICIAL CIRCUIT, IN AND FOR DUVAL
COUNTY, FLORIDA
CASE NO: 16-2022-CA-003897-XXXX-MA
GEICO GENERAL INSURANCE
COMPANY ASO ALEJANDRO ROSARIO
JR. AND RADHA CHENNU AND GEICO
INDEMNITY COMPANY ASO THOMAS
FREY,
Plaintiff,
v.
DORA LUZ LOPEZ CRUZ,
Defendant.
__________________________________/
DEFENDANT’S MOTION FOR LEAVE TO AMEND
ANSWER AND AFFIRMATIVE DEFENSES
Defendant, DORA LUZ LOPEZ CRUZ, by and through her undersigned attorney,
pursuant to Florida Rules of Civil Procedure 1.190(a), and files this Motion for Leave to
Amend its Answer and Affirmative Defenses and in support thereof states as follows:
1. On or about February 23, 2023, the undersigned filed Answer and Affirmative
Defenses on behalf of the Defendant based upon the information available.
2. Defendant requires leave of this Court to amend its Answer and Affirmative
Defenses to include additional defense and supporting allegations. This includes
the fact that the Defendant was not driving the vehicle at the time of the accident
nor was she the owner of the vehicle.
3. hereto attached as Exhibit A.
4. Fla. R. Civ. Pro. 1.190 provides for liberal amendment of pleadings. All doubts
should be resolved in factor of allowing amendments. It is the public policy of this
ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 05/23/2023 10:04:29 AM
state to freely allow amendments to pleadings so that cases may be resolved
upon their merits. Bill Williams Air Conditioning & heating, Inc. v. Haymarket Co-
Op. Bank, 592 So. 2d 302 (Fla. 1st DCA1991), rev. Dismissed, 598 So. 2d 76
(Fla. 1992)(quoting Adams v. Knabb Turpentine Co., 435 So. 2d 944, 946 (Fla.
1st DCA 1983)).
5. Rule 1.190(e) instructs that “[i]t every stage of the action the court must disregard
any error or defect in the proceedings which does not affect the substantial rights
of the parties”.
6. Florida allows liberal pleading amendments unless it clearly appears that
allowing the amendment would prejudice the opposing party, the privilege to
amend has been abused, or the amendment would be futile. ABC liquors, Inc. v.
Centimark Corp., 967 So. 2d 1053,1057, 2007 Fla. App. Lexis 17332, 10, 32 Fla.
L. Weekly D 2598 (Fla. Dist. Ct. App. 5th Dist. 2007) citing Yun Enters., Ltd. V.
Graziani, 840 So. 2d 420, 423. (Fla. 5th DCA 2003).
7. This case is not presently on a trial docket as of the date of this Motion, minimal
discovery has been initiated. Plaintiff will have sufficient time to conduct the
necessary discovery related to the new defense.
WHEREFORE, Defendant, DORA LUZ LOPEZ CRUZ, requests this Honorable
Court enter an Order GRANTING Defendant’s Motion for Leave to Amend her Answer
and Affirmative Defenses, deeming the attached Amended Answer and Affirmative
Defense filed, and for all other relief as this Court deems just and proper.
2
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished
by electronic mail pleadings@yatesandschiller.com; Julie E. Yates, Esq., and Bruce H.
Schiller, Esq., Law Offices of Yates & Schiller, P.A., 7900 Glades Road, Suite 405, Boca
Raton, FL 33434 on this 19th day of May, 2023.
McFARLANE LAW
McFarlane Dolan & Prince
Attorneys for Defendant
210 N. University Drive, 6th Floor
Coral Springs, Florida 33071
(954) 340-0005 Broward
(954) 340-0055 Facsimile
PLEADING SERVICE E-MAIL ADDRESS:
pleadingservice@mcfarlanedolanlaw.com
By: /s/ William J. McFarlane, III, Esquire
William McFarlane, Esquire
Florida Bar No: 768601
3
EXHIBIT “A”
4
IN THE CIRCUIT COURT OF THE 4th
JUDICIAL CIRCUIT, IN AND FOR DUVAL
COUNTY, FLORIDA
CASE NO: 16-2022-CA-003897-XXXX-MA
GEICO GENERAL INSURANCE
COMPANY ASO ALEJANDRO ROSARIO
JR. AND RADHA CHENNU AND GEICO
INDEMNITY COMPANY ASO THOMAS
FREY,
Plaintiff,
v.
DORA LUZ LOPEZ CRUZ,
Defendant.
__________________________________/
AMENDED ANSWER AND AFFIRMATIVE DEFENSES
Defendant, DORA LUZ LOPEZ CRUZ, through her undersigned counsel, pursuant to
Rule 1.190 of the Florida Rules of Civil Procedure, files this her Amended Answer and
Affirmative Defenses, and would state as follows:
1. The allegations contained in paragraph #1 of the Plaintiff’s Complaint are admitted
for jurisdictional purposes only.
2. Defendant is without knowledge; therefore, denied and strict proof thereof is
demanded.
3. Denied and strict proof thereof is demanded.
4. Denied and strict proof thereof is demanded.
5. Denied and strict proof thereof is demanded.
6. Denied and strict proof thereof is demanded.
7. Denied and strict proof thereof is demanded.
8. Denied and strict proof thereof is demanded.
9. Denied and strict proof thereof is demanded.
10. Denied and strict proof thereof is demanded.
AFFIRMATIVE DEFENSES
As her First Affirmative Defense, Defendant affirmatively alleges that if the Plaintiff’s
subrogor has suffered losses as alleged, those losses are the proximate result of negligence
committed by the Plaintiffs’ subrogor and/or representatives of the Plaintiffs, by reason of
which the Plaintiffs’ recovery, if any, should be proportionally diminished under Florida’s
comparative negligence doctrine.
As her Second Affirmative Defense, Defendant further affirmatively alleges that the
Plaintiff’s subrogor has failed to mitigate her damages.
As its Third Affirmative Defense, Defendant further affirmatively alleges that although
Defendant denies liability to the Plaintiff, if any liability is found on the part of the Defendant, then
the Defendant would only be responsible for her portion of damages based on her percentage
of liability pursuant to section 768.81, Florida Statutes.
As her Fourth Affirmative Defense, Defendant further affirmatively alleges that any
recovery should be reduced or barred by any settlement, judgment, or payment of any kind
by any individual or entity in connection with the subject matter of the incidents described in
the Complaint.
As her Fifth Affirmative Defense, Defendant affirmatively alleges that she was not the
owner of the vehicle on the date of the subject accident. Prior to the date of the accident, the
Insured sold the vehicle for $800 and had singed over the title to the buyer, Agosto Guzman.
Although Mr. Guzman had not processed the paperwork as of the date of the accident, Mr.
Guzman was owner of the vehicle; therefore, Defendant is not vicariously liable for the
accident.
As her Sixth Affirmative Defense, Defendant affirmatively alleges that she was not driving
the GMC Van on the night of the subject accident; therefore, she is not liable for any of the
damages allegedly attributable to GMC Van.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by
electronic mail pleadings@yatesandschiller.com; Julie E. Yates, Esq., and Bruce H. Schiller,
Esq., Law Offices of Yates & Schiller, P.A., 7900 Glades Road, Suite 405, Boca Raton, FL
33434 on this 19th day of May, 2023.
McFARLANE LAW
McFarlane Dolan & Prince
Attorneys for Defendant
210 N. University Drive, 6th Floor
Coral Springs, Florida 33071
(954) 340-0005 Broward
(954) 340-0055 Facsimile
PLEADING SERVICE E-MAIL ADDRESS:
pleadingservice@mcfarlanedolanlaw.com
By: /s/ William J. McFarlane, III, Esquire
William McFarlane, Esquire
Florida Bar No: 768601
Preview
Filing # 173548284 E-Filed 05/19/2023 12:14:26 PM IN THE CIRCUIT COURT OF THE 4th JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASE NO: 16-2022-CA-003897-XXXX-MA GEICO GENERAL INSURANCE COMPANY ASO ALEJANDRO ROSARIO JR. AND RADHA CHENNU AND GEICO INDEMNITY COMPANY ASO THOMAS FREY, Plaintiff, v. DORA LUZ LOPEZ CRUZ, Defendant. __________________________________/ DEFENDANT’S MOTION FOR LEAVE TO AMEND ANSWER AND AFFIRMATIVE DEFENSES Defendant, DORA LUZ LOPEZ CRUZ, by and through her undersigned attorney, pursuant to Florida Rules of Civil Procedure 1.190(a), and files this Motion for Leave to Amend its Answer and Affirmative Defenses and in support thereof states as follows: 1. On or about February 23, 2023, the undersigned filed Answer and Affirmative Defenses on behalf of the Defendant based upon the information available. 2. Defendant requires leave of this Court to amend its Answer and Affirmative Defenses to include additional defense and supporting allegations. This includes the fact that the Defendant was not driving the vehicle at the time of the accident nor was she the owner of the vehicle. 3. hereto attached as Exhibit A. 4. Fla. R. Civ. Pro. 1.190 provides for liberal amendment of pleadings. All doubts should be resolved in factor of allowing amendments. It is the public policy of this ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 05/23/2023 10:04:29 AM state to freely allow amendments to pleadings so that cases may be resolved upon their merits. Bill Williams Air Conditioning & heating, Inc. v. Haymarket Co- Op. Bank, 592 So. 2d 302 (Fla. 1st DCA1991), rev. Dismissed, 598 So. 2d 76 (Fla. 1992)(quoting Adams v. Knabb Turpentine Co., 435 So. 2d 944, 946 (Fla. 1st DCA 1983)). 5. Rule 1.190(e) instructs that “[i]t every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties”. 6. Florida allows liberal pleading amendments unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or the amendment would be futile. ABC liquors, Inc. v. Centimark Corp., 967 So. 2d 1053,1057, 2007 Fla. App. Lexis 17332, 10, 32 Fla. L. Weekly D 2598 (Fla. Dist. Ct. App. 5th Dist. 2007) citing Yun Enters., Ltd. V. Graziani, 840 So. 2d 420, 423. (Fla. 5th DCA 2003). 7. This case is not presently on a trial docket as of the date of this Motion, minimal discovery has been initiated. Plaintiff will have sufficient time to conduct the necessary discovery related to the new defense. WHEREFORE, Defendant, DORA LUZ LOPEZ CRUZ, requests this Honorable Court enter an Order GRANTING Defendant’s Motion for Leave to Amend her Answer and Affirmative Defenses, deeming the attached Amended Answer and Affirmative Defense filed, and for all other relief as this Court deems just and proper. 2 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by electronic mail pleadings@yatesandschiller.com; Julie E. Yates, Esq., and Bruce H. Schiller, Esq., Law Offices of Yates & Schiller, P.A., 7900 Glades Road, Suite 405, Boca Raton, FL 33434 on this 19th day of May, 2023. McFARLANE LAW McFarlane Dolan & Prince Attorneys for Defendant 210 N. University Drive, 6th Floor Coral Springs, Florida 33071 (954) 340-0005 Broward (954) 340-0055 Facsimile PLEADING SERVICE E-MAIL ADDRESS: pleadingservice@mcfarlanedolanlaw.com By: /s/ William J. McFarlane, III, Esquire William McFarlane, Esquire Florida Bar No: 768601 3 EXHIBIT “A” 4 IN THE CIRCUIT COURT OF THE 4th JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASE NO: 16-2022-CA-003897-XXXX-MA GEICO GENERAL INSURANCE COMPANY ASO ALEJANDRO ROSARIO JR. AND RADHA CHENNU AND GEICO INDEMNITY COMPANY ASO THOMAS FREY, Plaintiff, v. DORA LUZ LOPEZ CRUZ, Defendant. __________________________________/ AMENDED ANSWER AND AFFIRMATIVE DEFENSES Defendant, DORA LUZ LOPEZ CRUZ, through her undersigned counsel, pursuant to Rule 1.190 of the Florida Rules of Civil Procedure, files this her Amended Answer and Affirmative Defenses, and would state as follows: 1. The allegations contained in paragraph #1 of the Plaintiff’s Complaint are admitted for jurisdictional purposes only. 2. Defendant is without knowledge; therefore, denied and strict proof thereof is demanded. 3. Denied and strict proof thereof is demanded. 4. Denied and strict proof thereof is demanded. 5. Denied and strict proof thereof is demanded. 6. Denied and strict proof thereof is demanded. 7. Denied and strict proof thereof is demanded. 8. Denied and strict proof thereof is demanded. 9. Denied and strict proof thereof is demanded. 10. Denied and strict proof thereof is demanded. AFFIRMATIVE DEFENSES As her First Affirmative Defense, Defendant affirmatively alleges that if the Plaintiff’s subrogor has suffered losses as alleged, those losses are the proximate result of negligence committed by the Plaintiffs’ subrogor and/or representatives of the Plaintiffs, by reason of which the Plaintiffs’ recovery, if any, should be proportionally diminished under Florida’s comparative negligence doctrine. As her Second Affirmative Defense, Defendant further affirmatively alleges that the Plaintiff’s subrogor has failed to mitigate her damages. As its Third Affirmative Defense, Defendant further affirmatively alleges that although Defendant denies liability to the Plaintiff, if any liability is found on the part of the Defendant, then the Defendant would only be responsible for her portion of damages based on her percentage of liability pursuant to section 768.81, Florida Statutes. As her Fourth Affirmative Defense, Defendant further affirmatively alleges that any recovery should be reduced or barred by any settlement, judgment, or payment of any kind by any individual or entity in connection with the subject matter of the incidents described in the Complaint. As her Fifth Affirmative Defense, Defendant affirmatively alleges that she was not the owner of the vehicle on the date of the subject accident. Prior to the date of the accident, the Insured sold the vehicle for $800 and had singed over the title to the buyer, Agosto Guzman. Although Mr. Guzman had not processed the paperwork as of the date of the accident, Mr. Guzman was owner of the vehicle; therefore, Defendant is not vicariously liable for the accident. As her Sixth Affirmative Defense, Defendant affirmatively alleges that she was not driving the GMC Van on the night of the subject accident; therefore, she is not liable for any of the damages allegedly attributable to GMC Van. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by electronic mail pleadings@yatesandschiller.com; Julie E. Yates, Esq., and Bruce H. Schiller, Esq., Law Offices of Yates & Schiller, P.A., 7900 Glades Road, Suite 405, Boca Raton, FL 33434 on this 19th day of May, 2023. McFARLANE LAW McFarlane Dolan & Prince Attorneys for Defendant 210 N. University Drive, 6th Floor Coral Springs, Florida 33071 (954) 340-0005 Broward (954) 340-0055 Facsimile PLEADING SERVICE E-MAIL ADDRESS: pleadingservice@mcfarlanedolanlaw.com By: /s/ William J. McFarlane, III, Esquire William McFarlane, Esquire Florida Bar No: 768601