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Filing # 179486911 E-Filed 08/11/2023 03:35:40 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
MARVIN OWENS, JR.,
Plaintiff,
vs. CASE NO. 23000608CA
ZOFIA ZAK RHODES,
Defendant.
_______________________________________ /
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW Defendant, ZOFIA ZAK RHODES, by and through her undersigned
counsel, and serves her Answer and Affirmative Defenses to Plaintiff’s Complaint filed herein as
follows:
1. This Defendant admits for jurisdictional purposes only the allegations of
paragraph 1 of Plaintiff’s Complaint.
2. This Defendant is without knowledge and therefore denies paragraph 2 of
Plaintiff’s Complaint.
3. This Defendant admits for jurisdictional purposes only the allegations of
paragraph 3 of Plaintiff’s Complaint.
4. This Defendant admits the allegations of paragraph 4 of Plaintiff’s Complaint.
5. This Defendant admits for jurisdictional purposes only the allegations of
paragraph 5 of Plaintiff’s Complaint.
6. This Defendant admits the allegations of paragraph 6 of Plaintiff’s Complaint.
7. This Defendant denies the allegations of paragraph 7 of Plaintiff’s Complaint.
8. This Defendant denies the allegations of paragraph 8 of Plaintiff’s Complaint.
WHEREFORE, Defendant ZOFIA ZAK RHODES respectfully requests this Honorable
Court enter an order dismissing the Plaintiff’s Complaint and award this Defendant her fees,
costs and such further relief this Court may deem just and proper.
AFFIRMATIVE DEFENSES
9. This Defendant affirmatively alleges that the carelessness and negligence of the
Plaintiff was the sole or proximate cause of the happening of the incident which is the subject
matter of this suit and the damages complained of and, accordingly, Plaintiff is estopped from
recovery herein. Alternatively, the carelessness or negligence of Plaintiff contributed to the
cause of the accident and the damages complained of so that the negligence of all parties, if any,
must be compared.
10. This Defendant affirmatively alleges the terms and provision of Florida Statute
11. This Defendant affirmatively alleges that if Plaintiff has sustained or incurred any
damages on the matters referred to in his Complaint, it is the result of the negligence of other
parties, person, or entities other than this Defendant, and accordingly, this Defendant bears no
responsibility therefore, or alternatively, the carelessness or negligence of such other persons,
parties or entities contributed to the cause of the incident complained of, so that the negligence of
all persons, parties or entities, if any, must be compared.
12. This Defendant affirmatively alleges that any recovery for or on behalf of Plainti
should be reduced by the amount of collateral source payments as prescribed by Florida Statute
§768.76, paid or payable, for or on behalf of the Plaintiff.
13. This Defendant affirmatively alleges that Plaintiff may not recover any damages
for past or future medical expenses above the amount which was paid and accepted or which is
to be paid and accepted by the Plaintiff’s healthcare providers as payment in full. This
Defendant further alleges that she is entitled to a set-off against Plaintiff’s medical providers and
the amounts paid pursuant to any fee schedules or contracts between Plaintiff’s medical
providers, insurers and/or payors, as well as all write-offs or reductions of any kind.
14. This Defendant affirmatively alleges that Plaintiff has failed to meet the threshold
requirements of Florida Statute §627.737.
15. This Defendant affirmatively alleges that Plaintiff’s alleged damages were caused
by the fault of other parties, named or unnamed, and as a result, this Defendant should be liable,
if at all, only for its proportionate share of liability, pursuant to Florida Statutes §768.81(3),
Messmer v. Teachers Ins. Co., 588 So.2d 610 (Fla. 5th DCA 1991), and as further supported in
Fabre v. State Farm Mutual Automobile Insurance Company, 623 So.2d 1182 (Fla. 1993).
Defendant is undertaking reasonable investigation and discovery in connection with this
affirmative defense as the case proceeds. It is anticipated that, by the time of the pre-trial
conference, at which it is appropriate to narrow the issues to be tried, Defendant may be in a
position to specifically name or specifically identify potential Fabre defendants, or in the
alternative, may be in the position to withdraw such affirmative defense. All rights are preserved
in connection with such defense.
16. This Defendant affirmatively alleges that Plaintiff failed to wear available and
fully operational seatbelts, and that such failure was unreasonable under the circumstances and
either caused or contributed to the injuries, if any, suffered by Plaintiff herein.
17. This Defendant affirmatively alleges that Plaintiff suffered from a previously
existing condition or conditions, and accordingly, Plaintiff cannot recover for such conditions
18. This Defendant affirmatively alleges that any recovery herein should be reduced
or barred by Plaintiff’s failure to mitigate his damages, if any.
19. To the extent the new Tort Legislation applies, if Plaintiff is more than 50% at
fault, his claim is barred.
20. To the extent the new Tort Legislation applies, the Plaintiff’s recovery for past
and future medical expenses is limited to the amount reimbursed by insurance, Medicare and
Medicaid and the Plaintiff’s proposed co-payments and deductibles.
21. To the extent the new Tort Legislation applies, if Plaintiff is seeking treatment
under a Letter of Protection or similar device, his/her recovery for medical expenses is limited to
what would have been paid by health insurance, Medicare and Medicaid, and Plaintiff’s
proposed co-payments and deductibles.
22. To the extent the new Tort Legislation applies, if medical treatment after the
incident described in the Complaint was not reasonably and medically necessary, Plaintiff cannot
recover the cost of the medical expenses related to that treatment.
DEMAND FOR JURY TRIAL
Defendant, ZOFIA ZAK RHODES, hereby demands a trial by jury on all issues so
triable.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the above and foregoing has been
furnished by e-mail to R. Timothy Vannatta, Esq. at tim@rubensteinlaw.com,
jmolano@rubensteinlaw.com, and eservice@rubensteinlaw.com, Rubenstein Law, P.A., 250
South Australian Avenue, Suite 1000 West Palm Beach, Florida 33401 this 11 th day of August,
BANKER LOPEZ GASSLER P.A.
4415 Metro Parkway, Suite 208
Fort Myers, FL 33916
Telephone: (239) 322-1300
Facsimile: (239) 322-1310
Email: service-jgubernat@bankerlopez.com
BY: ____/s/ Jesse Gubernat_______
Jesse Gubernat
Florida Bar No. 55928
Attorneys for Defendant
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Filing # 179486911 E-Filed 08/11/2023 03:35:40 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA MARVIN OWENS, JR., Plaintiff, vs. CASE NO. 23000608CA ZOFIA ZAK RHODES, Defendant. _______________________________________ / DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES COMES NOW Defendant, ZOFIA ZAK RHODES, by and through her undersigned counsel, and serves her Answer and Affirmative Defenses to Plaintiff’s Complaint filed herein as follows: 1. This Defendant admits for jurisdictional purposes only the allegations of paragraph 1 of Plaintiff’s Complaint. 2. This Defendant is without knowledge and therefore denies paragraph 2 of Plaintiff’s Complaint. 3. This Defendant admits for jurisdictional purposes only the allegations of paragraph 3 of Plaintiff’s Complaint. 4. This Defendant admits the allegations of paragraph 4 of Plaintiff’s Complaint. 5. This Defendant admits for jurisdictional purposes only the allegations of paragraph 5 of Plaintiff’s Complaint. 6. This Defendant admits the allegations of paragraph 6 of Plaintiff’s Complaint. 7. This Defendant denies the allegations of paragraph 7 of Plaintiff’s Complaint. 8. This Defendant denies the allegations of paragraph 8 of Plaintiff’s Complaint. WHEREFORE, Defendant ZOFIA ZAK RHODES respectfully requests this Honorable Court enter an order dismissing the Plaintiff’s Complaint and award this Defendant her fees, costs and such further relief this Court may deem just and proper. AFFIRMATIVE DEFENSES 9. This Defendant affirmatively alleges that the carelessness and negligence of the Plaintiff was the sole or proximate cause of the happening of the incident which is the subject matter of this suit and the damages complained of and, accordingly, Plaintiff is estopped from recovery herein. Alternatively, the carelessness or negligence of Plaintiff contributed to the cause of the accident and the damages complained of so that the negligence of all parties, if any, must be compared. 10. This Defendant affirmatively alleges the terms and provision of Florida Statute 11. This Defendant affirmatively alleges that if Plaintiff has sustained or incurred any damages on the matters referred to in his Complaint, it is the result of the negligence of other parties, person, or entities other than this Defendant, and accordingly, this Defendant bears no responsibility therefore, or alternatively, the carelessness or negligence of such other persons, parties or entities contributed to the cause of the incident complained of, so that the negligence of all persons, parties or entities, if any, must be compared. 12. This Defendant affirmatively alleges that any recovery for or on behalf of Plainti should be reduced by the amount of collateral source payments as prescribed by Florida Statute §768.76, paid or payable, for or on behalf of the Plaintiff. 13. This Defendant affirmatively alleges that Plaintiff may not recover any damages for past or future medical expenses above the amount which was paid and accepted or which is to be paid and accepted by the Plaintiff’s healthcare providers as payment in full. This Defendant further alleges that she is entitled to a set-off against Plaintiff’s medical providers and the amounts paid pursuant to any fee schedules or contracts between Plaintiff’s medical providers, insurers and/or payors, as well as all write-offs or reductions of any kind. 14. This Defendant affirmatively alleges that Plaintiff has failed to meet the threshold requirements of Florida Statute §627.737. 15. This Defendant affirmatively alleges that Plaintiff’s alleged damages were caused by the fault of other parties, named or unnamed, and as a result, this Defendant should be liable, if at all, only for its proportionate share of liability, pursuant to Florida Statutes §768.81(3), Messmer v. Teachers Ins. Co., 588 So.2d 610 (Fla. 5th DCA 1991), and as further supported in Fabre v. State Farm Mutual Automobile Insurance Company, 623 So.2d 1182 (Fla. 1993). Defendant is undertaking reasonable investigation and discovery in connection with this affirmative defense as the case proceeds. It is anticipated that, by the time of the pre-trial conference, at which it is appropriate to narrow the issues to be tried, Defendant may be in a position to specifically name or specifically identify potential Fabre defendants, or in the alternative, may be in the position to withdraw such affirmative defense. All rights are preserved in connection with such defense. 16. This Defendant affirmatively alleges that Plaintiff failed to wear available and fully operational seatbelts, and that such failure was unreasonable under the circumstances and either caused or contributed to the injuries, if any, suffered by Plaintiff herein. 17. This Defendant affirmatively alleges that Plaintiff suffered from a previously existing condition or conditions, and accordingly, Plaintiff cannot recover for such conditions 18. This Defendant affirmatively alleges that any recovery herein should be reduced or barred by Plaintiff’s failure to mitigate his damages, if any. 19. To the extent the new Tort Legislation applies, if Plaintiff is more than 50% at fault, his claim is barred. 20. To the extent the new Tort Legislation applies, the Plaintiff’s recovery for past and future medical expenses is limited to the amount reimbursed by insurance, Medicare and Medicaid and the Plaintiff’s proposed co-payments and deductibles. 21. To the extent the new Tort Legislation applies, if Plaintiff is seeking treatment under a Letter of Protection or similar device, his/her recovery for medical expenses is limited to what would have been paid by health insurance, Medicare and Medicaid, and Plaintiff’s proposed co-payments and deductibles. 22. To the extent the new Tort Legislation applies, if medical treatment after the incident described in the Complaint was not reasonably and medically necessary, Plaintiff cannot recover the cost of the medical expenses related to that treatment. DEMAND FOR JURY TRIAL Defendant, ZOFIA ZAK RHODES, hereby demands a trial by jury on all issues so triable. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the above and foregoing has been furnished by e-mail to R. Timothy Vannatta, Esq. at tim@rubensteinlaw.com, jmolano@rubensteinlaw.com, and eservice@rubensteinlaw.com, Rubenstein Law, P.A., 250 South Australian Avenue, Suite 1000 West Palm Beach, Florida 33401 this 11 th day of August, BANKER LOPEZ GASSLER P.A. 4415 Metro Parkway, Suite 208 Fort Myers, FL 33916 Telephone: (239) 322-1300 Facsimile: (239) 322-1310 Email: service-jgubernat@bankerlopez.com BY: ____/s/ Jesse Gubernat_______ Jesse Gubernat Florida Bar No. 55928 Attorneys for Defendant