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Filing# 180136059 E-Filed 08/21/2023 02:53:09 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
ADRIANA HINCAPIE and, CASE NO.: CACE 21-016648
NICOLAS HINCAPIE,
CIVIL DIVISION
Plaintiffs,
VS.
JOSEPH BERNARD WEZKIEWICZ, JR.,
and
JOSEPH BERNARD WEZKIEWICZ III,
Defendants.
PLAINTIFFS' MOTION FOR SANCTIONS AGAINST THE DEFENDANTS FOR
SPOLIATION OF EVIDENCE
Plaintiffs ADRIANA HINCAPIE and NICOLAS HINCAPIE, by and through
undersigned counsel, hereby moves for the entry o f an Order grantingPlainti ff' s Motion
for Sanctions againstthe Defendants, JOSEPH BERNARD WEZKIEWICZ, JR., and
JOSEPH BERNARD WEZKIEWICZ, of evidence based
III,for the spoliation on their
failure to preserve critical evidence in this litigation.
In support thereof,Plaintiffs
state the following:
SUMMARY OF FACTS
1. On July 26,2020, a motor vehicle collision occurred between
Defendant JOSEPH BERNARD WEZKIEWICZ, III, who was operating a 2018
BMW, and the Plaintiffs, who were operating their vehicle westbound on
Interstate 595 in Broward County, Florida.
2. At the time of the collision, Defendant JOSEPH BERNARD
WEZKIEWICZ, III, was under the age o f 18. Defendant JOSEPH BERNARD
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/21/2023 02:53:09 PM.****
WEZKIEWICZ, JR., was the owner of the 2018 BMW that the defendant driver
was operating and in addition had signed the driver's license application for
Defendant JOSEPH BERNARD WEZKIEWICZ, III, the defendant driver.
3. The collision between the vehicles was a rear impact to
Plaintiffs' vehicle by the front end of Defendants' BMW, which has been
conclusively demonstrated by photographic evidence as well as testimony by
Plaintiffs.
4. On July 30, 2020, Defendant JOSEPH BERNARD
WEZKIEWICZ, Jr., was placed on notice by Plaintiffs' counsel of the need to
preserve all evidence involving the crash of July 26, 2020, including "any
instrumentality that may have contributed to the above referenced loss."
(Exhibit "A" Defendant Joseph Bernard Wezkiewicz, Jr's Response to
Plaintiff' Supplemental Request for Admissions)
5. On July 30, 3030, Defendants' insurance carrier, State Farm
Mutual Automobile Insurance Company, was placed on notice by Plaintiffs'
counsel and directed to preserve "any instrumentality including the vehicles
involved in the accident that may have contributed to the loss." (Exhibit "A")
6. Defendants admit their insurance carrier received the
correspondence dated July 30,2020, and that the letter specifically directed
them to retain the defendants' vehicle. (Exhibit "A")
7. Despite the letters received by the Defendant and their carrier,
Defendants' carrier did not make the vehicle available for inspection,and in fact,sold
the vehicle for scrap on August 25,2020. Neither Defendants or their insurance carrier
advised Plaintiffs or their counsel the vehicle was being sold,nor did they preserve the
black box data from the vehicle, despite State Farm Mutual Automobile Insurance
Company being aware that black box data is commonly used to determine causes of
crashes and knows that the failure to preserve the data could have a deleterious impact
on their insureds claim. (Exhibit "A")
8. In Defendant's answer to the Plaintiff's Complaint dated November 14,
2022, Defendants denied causing the collision between the two vehicles,and further,in
Affirmative Defense number Eight,allegedthat the cause of the collision was a "black
Range Rover" which caused the collision. (Exhibit "B" Defendants Answer and
Affirmative Defenses)
9. In Defendant JOSEPH BERNARD WEZKIEWICZ, IIIs answer to
Interrogatorynumber 5, dated November 11,2021, Defendant stated the following:
"A black Range Rover improperly cut me off/merged into my lane causing
my right/passengerside front to make contact with the left/driver' s rear o f
the Range Rover. As a result of the contact with the Range Rover, I lost
control of
.,
my vehicle and only recall crashing into the I-595 barrier
wall...
(Exhibit "C" Defendant's Responses to Plaintiff's Interrogatories,
November 11,2021).
10. On October 13, 2022, Defendant JOSEPH BERNARD
WEZKIEWICZ, III, was placed under oath in his deposition. When asked to
describe how the collision occurred, he stated the following:
"I saw briefly a black Range Rover on the right side of my car on
the passenger's side. And I remember him driving very fast and
him merging into the lane like into my lane and the back left of
of his car hit me in the front right of
this car, the driver's side left
my car. He made contact with me. And after that my airbags went
off, and I don't remember the rest."
(Exhibit Deposition of Defendant Joseph Bernard
Wezkiewicz, III, October 13, 2022, Pp. 28).
11. On March 3, 2023, Defendant JOSEPH BERNARD
WEZKIEWICZ, Jr., was placed under oath in his deposition. He testified that
he went to the scene after he was notified by his son o f the collision, and when
asked about the damage he observed to his vehicle from the collision, he stated
that he observed damage on "the side and front. I believe it was on the
passenger side." (Exhibit "E" Deposition of Joseph Bernard Wezkiewicz, Jr.,
March 3,2023, Pp. 16).
12. Defendant's responses to Request for Admission numbers 11 and
12 in Exhibit "A" notwithstanding, the data obtained from the Defendant's
black box in the 2018 BMW would have provided relevant information, along
with the relevant vehicle inspection. The data obtained from the vehicle
inspection would have indicated whether there was one impact, or multiple
impacts as Defendants claim.
13. On August 4, 2023, Rodney Pack, ACTAR, a traffic
reconstruction expert retained by Plaintiffs, produced a report on the July 26,
2020, collision between the two cars. Through his investigation,Mr. Pack
was able to locate the Defendant's vehicle via an internet search and was able
to demonstrate that it had been sold on August 25,2020, less than a month
after the collision, and after Plaintiffs had put both the Defendants and their
insurance carrier on notice to retain it.
14. On the Copart website where the Defendants' vehicle was listed
and sold, Mr. Pack was able to identify the Defendants' vehicle based on the
VIN. The listed vehicle had numerous photographs showing significant
damage to the front o f the vehicle. It should be noted that Mr. Pack noted "no
photographic evidence which would support Mr. Wezkiewicz's claim that he
first contacted a 'black Range Rover' with his 'right/passenger side front' of
his vehicle," and that there was a "singular PDOF (Principle Direction of
Force) entering the BMW directly from the front of the vehicle and extending
rearward." (Exhibit "F" Report of Rodney Pack, ACTAR, August 4,2023.)
15. Mr. Pack further stated that had the electronic data been
preserved, "it could allow for a much more detailed reconstruction and could
provide enough data to confirm or deny the involvement of the black Range
Rover." Mr. Pack stated the electronic data would have also "included the
speed of the BMW, braking efforts and possibly steering effort at the time of
the crash."
16. It is very important to note also, as stated above, that Defendant
stated his airbags deployed immediately after contact with the black Range
Rover. As Mr. Pack stated in his report, "[tlhe actual deployment of airbag(s)
is the triggering event for these airbag modules to permanently store the crash
related electronic data and requires the full replacement of these modules
before returning the vehicle to service."
17. In other words, based on Defendant JOSEPH BERNARD
WEZKIEWICZ,
.,
III's testimony, the deployment of those airbags "right away
after impact with the Range Rover would have written that data permanently
to the airbag module, and it would have been available for all parties to review,
including the Plaintiffs. To put it in plain English, if the crash had occurred
exactly how the Defendant stated it did, the data would have been present for
all to see, to demonstrate the black Range Rover was the proximate cause of
the collision. The intentional destruction of that evidence by Defendants
leaves only one conclusion.
18. Defendant JOSEPH BERNARD WEZKIEWICZ, III, claims he
was struck hard enough by a "black Range Rover" to cause him to lose control
of his vehicle, cause air bags to deploy, and strike the barrier, all prior to
colliding with Plaintiffs' vehicle. As it stands now, Plaintiffs are without
valuable data, which was in the exclusive control of the Defendants, to
establish an essential part of their claim, that being the negligence of the
Defendants.
19. Because the vehicle was not preserved,the Plaintiffs will be hindered
from proving a prima facie case of negligenceand are therefore entitled to sanctions
rangingfrom the striking
the Defendants pleadings,
to givingthe jury an adverse inference
instruction to the burden ofproof.
shifting
20. The Defendants failure to preserve the vehicle for inspectionand
retrieval of the black box data, even after admittingthey were placed on notice of the
need to preserve it,clearlydemonstrates the Defendants were aware of the significance
of the vehicle and data, and made a knowing decision to destroyit,making it unavailable
for the Plaintiffs in pursuing their claims.
Memorandum of Law
Florida law requires a party to preserve evidence when there is merely a
"reasonable anticipation League of Women Voters of Fla.
of litigation." v. Detzer, 171
So.3d 363, 391 (Fla.2015). See also Hagopian v. Publix Supermarkets, Inc.,1%8 So.2d
1088 (Fla.4th DCA 2001). Even absent a legalduty,spoliationof evidence results in an
adverse inference againstthe party that discarded or destroyedthe evidence. Id. at 391.
Florida courts may also impose sanctions,includingstriking againsta
pleadings,
lost,misplaced, or destroyed evidence, and a jury could infer
party that intentionally
under such circumstances that the evidence would have contained indications of liability.
Martino v. Wal-Mart Stores, Inc. 835 So.2d 1251 (Fla.4th DCA 2003). The Fourth
District Court of Appeals held "an adverse inference may arise in any situation where
self-damagingevidence
potentially is in the possessionof a party and that party either
loses or destroysthe evidence." Golden Yachts, Inc. v. Hall, 910 So.2d 777,781 (Fla.
4th DCA 2006) citingMartino.
In the instant case, as detailed above, the Defendants were in possession of the
vehicle involved in the collision and were put on notice within a week by the Plaintiffs,
through their attorney, to preserve the vehicle for inspectionby Plaintiffs. Despite
admittingthey were notified,Defendants in essence "destroyed"the evidence by selling
the vehicle,not even botheringto notifyPlaintiffs or Plaintiffs' counsel the vehicle was
being sold, and thus deprivingPlaintiffs of crucial evidence in this case.
While in many rear end collision cases the vehicle does not matter as defendants
in this case the Defendants' vehicle has become crucial evidence.
do not deny liability,
Defendants have asserted they are not at fault for the collision,blamed a "black Range
Rover" under oath
as the cause of the crash,then testified, and penaltyof perjury,that
there was a preliminarycrash with a different vehicle,which set this chain of events into
motion. In such a situation,the evidence from the Defendants' vehicle plays an
incrediblyimportant role and through Defendants' actions, this evidence has been
destroyed.
The Defendants made the conscious decision to destroythe evidence in this case.
The only logicalconclusion that can be made is that the vehicle and its electronic data
was damaging to the Defendants' claims and helpfulto prove the Plaintiffs' claims.
Thus, disposing of the evidence served Defendants' intent ofhindering the Plaintiffs in
the prosecutionof the present action. It can be reasonablyinferred that the destroyed
evidence would have contained indications of Defendants' liability,
resultingin the
Plaintiffs' and subsequent medical treatment.
injuries
Defendants did not have the unilateral rightto act as judge and jury when they
to be relevant
allowed the destruction of evidence reasonablyanticipated to this matter.
Defendants did not have the unilateral rightto make their own determination of what
evidence was relevant and destroythe only piece of evidence in this case which was
within their control, and key to the claims they are making regardingliability.
Florida
law does not allow a Defendant to decide what is reasonable to preserve and what is not
reasonable to preserve. Defendants' actions are in clear violation of Florida law noted
above. Defendants should be sanctioned for their intentional destruction of critical
evidence in this case.
Remedies Under Florida Law
In Florida, sanctions imposed for lost or destroyed evidence are analogous to
Federal procedure, not substantive state law. Federal Insurance Company v. Allister
Manufacturing Company, 622 So.2d 1348 (Fla.4th DCA 1993).In Florida, courts have the
optionof imposing one of the three followingremedies when evidence is lost or destroyed
by a party:
1. Giving a jury instruction that an adverse inference may be drawn that the
withheld evidence would be unfavorable to the party to
failing produce it;
2. Shiftingthe burden ofproof to the offending party, requiringthat party to prove
by the greater weight of the evidence that it was not negligent;and
3. Strikingthe offendingparty'spleadings.1
Options #1 and #2 have been codified in Florida Standard Jury Instruction 301.11:
1
a. Adverse inference.
If you find that: (Name of party) [lost] [destroyed] [mutilated] [altered] [concealed] or
otherwise caused the (describe evidence) to be unavailable, while it was within [his] [her] [its]
possession,custody, or control; and the (describeevidence) would have been material in deciding the
disputed issues in this case; then you may, but are not required to, infer that this evidence would have
been unfavorable to (name of party). You may consider this, together with the other evidence, in
determining the issues of the case.
NOTES ON USE FOR 301.11a
1. This instruction is not intended to limit the trial court's discretion to impose additional or other sanctions or
remedies againsta party for either inadvertent or intentional conduct in the loss,destruction, mutilation, alteration,
of evidence material
concealment, or other disposition to a case. See, e.g, Golden Fachts, Inc. v. Hall, 920 So.
2d 777, 780 (Fla.4th DCA 2006); Am. Hosp. Mgmt. Co. ofMinnesota v. Hettiger,904 So. ld 547 (Fla. 4th DCA
2005); Jost v Lakeland Reg. Med. Ctr., 844 So. 2d 656 (Fla.2d DCA 2003); Nationwide LiftTrucks, Inc. v.
DCA 2002); Torres v. Matsushita Elec. Corp., 762
Smith, 832 So. 2d 824 (Fla. 4th So. 2d 1014 (Fla. 5th
DCA 2000); and Sponco Mfg, Inc. v. AIcover, 656 So. 2d 629 (Fla.3d DCA 1995).
2. The inference addressed in this instruction does not rise to the level of a presumption.Pub. Health Tr. of
Dade Cty. v. Falcin, 507 So. 2d 596 (Fla.1987), and Instruction 301.11b.
3. This instruction may require modification in the event a factual dispute exists as to which party or person
is responsible for the loss of any evidence.
b. Burden shifting
presumption.
The court has determined that (name of party) had a duty to [maintain (describe missing
evidence)] [keep a record of (describe subject matter as to which party had record keeping duty)].(Name of
party) did not [maintain (describe missing evidence)] [or] [keep a record of (describesubjectmatter as to
which party had recordkeeping duty)].Because (name of party) did not [maintain (describe missing
Florida courts relyon the followingfactors to determine the appropriate
remedy:
a)The willfulness or bad faith,if any, of the party responsiblefor the loss
of the evidence;
b)The extent of prejudicesuffered by the other party; and
c)What is requiredto cure the prejudice.
Sponco A(&, Inc v. Alcover, 656 So.2d 629 (Fla.3rd DCA 1995).
In balancingthese factors,courts attempt to fashion a solution which is less than the ultimate
sanction (ifpossible)but still gives the partiesa fair trial on the merits. The Defendants
herein had:
1. direct knowledge of the injuries;
2. exclusive possession of the evidence;
3. would arise;
belief that litigation
4. knowledge that the evidence would support Plaintiffs' allegations
and claims
and
for injuries;
5. exhibited a willful disregard for the rights of Plaintiffs by intentionally
disposing of the evidence.
Plaintiffs are severely prejudiced as the only completely unbiased evidence
showing fault has been intentionally
disposed of by the Defendants. There is no way of
this evidence. Thus, there
recreating is no adequate remedy available to cure the actual
destruction of evidence.
evidence)] [or] [keep a record of (describe subject matter as to which party had a record keeping duty)],
you should find that (name of invoking party)established [his] [her] (describeapplicable claim or defense)
unless (name ofparty) proves otherwise by the greater weight of the evidence.
NOTES ON USE FOR 301.11b
1. This instruction appliesonly when the court has determined that there was a duty to maintain or preserve
the missing evidence at issue and the party invoking the presumption has established to the satisfaction of
the court that the absenceof the missing evidence hinders the other party'sabilityto establish its claim or
defense. See Pub. Health Tr. of Dade Cty. v. Valcin, 507 So. 2d 596 (Fla.1987).
2. This instruction may require modification in the event a factual dispute exists as to which party or person
is responsiblefor the loss of any evidence.
A. Inference of Negligence
One remedy this Court could employ is to instruct the jury that it is permittedto
infer that the disposed of evidence would have been unfavorable to Defendants. In
circumstances where critical missing evidence was under the sole control of the party
againstwhom the evidence might have been used to effect,an adverse inference instruction
may be necessary to achieve fairness in the jury'sdetermination of the case. American
Mgmt. Company ofMinnesota
Hospitality v.
Hettiger,904 So.2d 547 (Fla.4thDCA 2005).
This is true where the party failingto preserve the evidence argues that the thing lost was
not as representedby the injuredparty, or that the injuredparty should not prevailbecause
of the failure to present the evidence foreclosedby the loss of the item. Id at 500 - 501.
In Hettiger, a repairman was injured on ladder provided to him by the hotel
operator. The hotel The repairman sued the
destroyedthe ladder on the day of the injury.
hotel for negligence.The hotel argued that it had no notice that a claim was imminent, such
as a letter from plaintiff
advisingof a claim and identifying
the evidence to be preserved.
The trial court gave the jury a jury instruction as to a rebuttable presumption o f negligence.
The Fourth District found the trial court's instruction In
inappropriate. its place,the Court
instructed trial judges to implement a jury instruction that resembled a jury instruction
given in Palmas v Bambu. S.A. v. El DuPont de Nemours & Co., 881 So.2d 565 (Fla.3rd
DCA 2004) which read:
You have heard testimony about potentialevidence which the party having
custodyfailedto produce. Plaintiffs have argued that this evidence was in
defendant's control and would have proven facts material to the issue of
negligence. Ifyou?#ndthat this evidence was then within defendant'scontrol,
that defendant could have preserved this evidence so that it was available
for the parties in preparing for the trial in this case, and that this evidence
would have been material in deciding the facts in disputein this case, then
you are permitted,but are not required,to inferthat the evidence would have
been unfavorableto defendant.Any inferenceyou decide to make should be
based on all of the factsand circumstances in this case.
in Adamson v. R.J Reynolds Tobacco Company, 325
More recently, So. 3d 887 (Fla
DCA 2021),the courts have continued this position.After bringinga claim for his wife's
4tl?
death againstthe defendant tobacco company, the court found that the husband's admitted
destruction of the decedent's medical records allowed
pre-suit for "an adverse inference
instruction...to achieve justicein the jury'sdetermination of the case." Adamson, Id. at 897,
He#inger, supra at 551.
citing
In the present case, the Defendant is asserting
that the black Range Rover and should
be an "empty chair,"based solelyon the testimonyof Defendants. This issue is exactlywhat
a proper post-incident ofthe vehicle would have revealed. Thus, like Hettinger,the
inspection
Plaintiffs would be entitled to, at the least,an adverse injuryjury instruction. However, that
will not cure the harm that has been done here. More importantly,
unlike in He#inger, the
Defendants did have notice of the claim, less than a week after the incident and more than
three weeks priorto the destruction of the evidence.
B. Valcin Presumption of Negligence
Under the Fakin Doctrine, Florida courts have adopted a rebuttable presumption of
negligence upon a defendant whose negligence causes essential evidence to be lost or
missing,and such absence or inadequacy hinders the plaintiff's to establish
ability its prima
facie case. Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla. 1987);
AnesthesiolozyCritical Care & Pain Management Consultants, P.A. v. Kretzer, %01 Sold
346 (Fla.4th DCA 2001). The doctrine is applicableto those cases in which either primary
or secondary evidence is lost,destroyed,or not maintained. Id at 349 citingRockwell Int7
Corp. v. Menzies, 561 So.2d 677, 681 (Fla.3rd DCA 1990).The purpose of a rebuttable
presumption is to respectivepositionsin regardto the evidence and to
equalizethe parties'
allow the plaintiff
to proceed when evidence within the knowledge or control of an
adversary is not made available to the party which has the burden of proof. Fakin at 599.
It is importantto point out two (2) aspects of the Falcin doctrine. First,it does not
requirea showing malice or intent on the part of defendant. Second, it does not requirea
showing of complete destruction ofplaintiff's to establish
ability its prima facie case, only
that such inadequacy "hinders" plaintiff's to establish
ability its prima facie case. Falcin at
599. In the instant case, the Plaintiffs are hindered by the disposalof the vehicle, thereby
destroyingthe evidence. There is no way to recreate the destroyedevidence which would
confirm Plaintiffs' allegationsand claims.
The Florida Supreme Court recentlyexpanded the scope of Martino and Fakin in
League of H/omen Foters ofFloridav. Detzner, 172 So.3d 363 (Fla.2015).In a constitutional
plan,the Detzner defendant failed
challengeto a redistricting to preserve evidence relating
to
the challengedredistricting over the planwas inevitable.
plandespiteknowledge that litigation
Id at 390 - 391. However, that defendant did not receive a specific
request to preserve the
destroyedevidence, nor did it have a legalduty to preserve the evidence. Id. Nevertheless,the
Florida Supreme Court held that "[elvenin the absence of a legalduty,though,the spoliation
of evidence results in an adverse inference againstthe party that discarded or destroyedthe
Martino and Golden Yachts.
evidence." Id. citing As the Florida
a result, Supreme Court held
that the trial court was justified
in drawing an adverse inference againstthe defendant due to
the failure to preserve the evidence even without a request to preserve same. Id.
In the instant matter, Defendants had notice of Plaintiffs injuries
and anticipated
by their
litigation, own admissions, certainlymandating the preservationof the subject
vehicle. Accordingly,this Court should instruct the jury on a presumption of negligence.
C. Striking Pleadings
Courts have also stricken an offendingparty'spleadingsfor the inadvertent loss of
evidence when the opposing party demonstrates that its case is fatallyprejudicedby its
to examine the
inability lost evidence. Aldrich v. Roche BiomedicalLaboratories. Inc., 737
So.2d 1124 (Fla.5th DCA 1999) citingSponco Mfg., Inc. v. Alcover, 656 So.2d 629 (Fla.
3rd DCA 1995).
Even in the absence ofwillfulness or bad faith,a court may implement the ultimate
sanction of dismissal when primary physicalevidence is use
unavailable for the plaintiffs
and the plaintiff
has demonstrated an inability
to proceed without the evidence. DePuy.
Inc. v. Eckes, 427 So.2d 306 (Fla.3rd DCA 1983) (itis irrelevant whether the evidence
was destroyedin bad faith or lost accidentally; defendant's answer was appropriate
striking
where evidence is use and the plaintiff
unavailable for the plaintiffs has demonstrated an
Rockwell International Corporation v. Menzies. 56
to proceed without it);
inability 1 So.2d
677 (Fla.3rd DCA 1 990) (even absent a findingof bad faith,strikingdefendant's pleading
where defendant lost two bolts was not only warranted but consistent with Valcin since
Falcin dealt with the loss ofmedical records,considered to be secondary evidence);Sponco
Mtk?, Inc. v. Alcover, 656 So.2d 629 (Fla. 3rd DCA 1995) (a determination of willful
destruction was not imperativewhere expert convinced the
the testimonyofplaintiffs trial
no longerable to proceed
court that,in the absence ofthe crucial evidence, the plaintiffwas
againstthe defendant).
In the instant case the Defendants unequivocallydisposedof the vehicle,which was
of critical importance to the Plaintiffs' case. and
Despite knowledge of Plaintiffs' injuries
anticipating failed to preserve the vehicle. Due
a claim, Defendant intentionally to their
intentional acts of destroying evidence, this Court should consider strikingDefendants'
pleadingsin their entirety.
WHEREFORE, Plaintiffs ADRIANA HINCAPIE and NICOLAS HINCAPIE
respectfully
request this Court for the entry of an Order sanctioningthe Defendants,
JOSEPH BERNARD WEZKIEWICZ, JR., and JOSEPH BERNARD WEZKIEWICZ,
III,by:
1. Giving a jury instruction that an adverse inference may be drawn that the
destroyed evidence would be unfavorable to the party failingto produce it;
2. Shiftingthe burden of proof to the offendingparties,
requiringthose partiesto
prove by the greater weight of the evidence that they were not negligent;
3. Strikingthe Defendants' pleadings,including their Answer and Affirmative
Defenses;
4. the Defendants and any of their own witnesses from testifying
Prohibiting that
any unknown vehicle, specificallythe "black Range Rover" or any other
unknown vehicle, was the proximate cause of the collision between the
Plaintiffs' and the Defendant; and
5. Any and all other relief deemed appropriatedue to Defendants' conduct.
(CERTIFICATE OF SERVICE ON FOLLOWING PAGE)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 21
St
day o f August 2023, I filed
electronically
the foregoingwith the Clerk of Courts via the Florida Courts E-filingPortal,which will
send notification o f electronic filingto all counsel o f record.
RUBENSTEIN LAW, PA.
Attorneys for Plaintiff
9130 S Dadeland Blvd
Miami, Florida 33156
Phone: (305) 661-6000
Fax: (305) 670-7555
Email: klabertew@rubensteinlaw.com
mdavila@rubensteinlaw.com
eservice@rubensteinlaw.com
By. /s/ Karl W. Labertew
KARL W. LABERTEW, B.C.S.
Florida Bar No.: 0615234
Filing# 178944484 E-Filed 08/04/2023 11:36:00 AM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
ADRIANA HINCAPIE AND NICOLAS CASE NO.: CACE 21-016648 (14)
HINCAPIE,
Plaintiffs,
VS.
JOSEPH BERNARD WEZKIEWICZ,
JR., AND JOSEPH BERNARD
WEZKIEWICZ, III,
Defendant.
DEFENDANT'S, JOSEPH BERNARD WEZKIEWICZ, JR., RESPONSE TO
PLAINTIFFS' SUPPLEMENTAL REOUEST FOR ADMISSIONS
COMES NOW, the Defendant, JOSEPH BERNARD WEZKIEWICZ, JR. (hereinafter
"Defendant"),by and through his undersigned counsel, and files his Response to the Plaintiffs'
Supplemental Request for Admissions dated July 6,2023, and states as follows:
1) Please admit Defendant Joseph Bernard Wezkiewicz, Jr., received
correspondence from Plaintiffs' counsel dated July 30,2020, a copy of which is attached as
.,
Exhibit "A.
The Defendant does not recall whether he did, or did not, receive said
correspondence. As such, the Defendant is unable to admit or deny said paragraph.
2) Please admit that the letter included specific instructions to preserve "any
that may have contributed to the above referenced loss."
instrumentality
The Defendant does not recall whether he did, or did not, receive said
correspondence. As such, the Defendant is unable to admit or deny said paragraph.
3) Please admit that Defendant Bernard Joseph Wezkiewicz Jr's liability
carrier,
State Farm Mutual Automobile Insurance Company, received correspondencefrom Plaintiffs'
counsel dated July 30,2020, a copy ofwhich is attached as Exhibit
Admit.
EXHIBIT "A"
CASE NO.: CACE 21-016648 (14)
4) Please admit that the letter to State Farm Mutual Automobile Insurance Company
contained specificinstructions to preserve "any instrumentality (includingvehicles involved in
the accident)that may have contributed to the loss" for inspectionby representatives of the
Plaintiffs.
Admit.
5) Please admit that on July 31, 2020, Defendant's carrier State Farm Mutual
Automobile Insurance Company acknowledged in writing receipt of the Plaintiffs
correspondence as demonstrated by Exhibit "C" which was sent by State Farm Mutual
Wesley Doussou
Automobile Company claims specialist to Plaintiffs' counsel.
Admit.
6) Please admit that Defendant's vehicle was sold on August 25, 2020, as
demonstrated by Exhibit "D."
Admit.
7) Please admit that neither Defendant JOSEPH BERNARD WEZKIEWICZ JR.,
preserved the black box data from the 2018
nor his agents or representatives, 330i, VIN BMW
number WBABB9?54JNU96893, priorto the sale of the vehicle.
Admit.
8) Please admit that Defendant's liability carrier,State Farm Mutual Automobile
Insurance Company, did not preserve the black box data from the 2018 BMW
330i, VIN number
WBABB9?54JNU96893, priorto the sale of the vehicle.
Admit.
9) Please admit that Defendant's liabilitycarrier,State Farm Mutual Automobile
Insurance Company, is aware that disposingof evidence after a preservationletter has been sent
and received may have an adverse effect on their insureds' claims and/or defenses.
Admit.
10) Please admit that no notice of the Defendant's vehicle being sold was ever
provided to Plaintiffs or their counsel
priorto being sold,denying Plaintiffs and/or their counsel
an opportunityto inspectthe vehicle.
Admit.
EXHIBIT "A"
CASE NO.: CACE 21-016648 (14)
11) Please admit that relevant crash data from the July 26,2020, collision may have
been obtained from the black box in the Defendant's 2018 BMW
330i, VIN number
WBABB9?54JNU96893, had a black box data download been performed.
Denied.
12) Please admit that relevant data may have been obtained from the Defendant's
2018 BMW 330i, VIN number WBABB9?54JNU96893, had a physicalvehicle inspectionbeen
performed.
Denied.
I HEREBY CERTIFY that on August 4,2023, the foregoingwas electronically
filed with
the Florida Courts E-Filing Portal and that as a registeredparticipantof the Portal I have
effectuated service through the Portal in compliance with Rule 2.516, Fla. R. Jud. Admin., on
.Karl W. Labertew, B.C.S.
klabertew@rubensteinlaw.com, lbosch@rubensteinlaw.com,
eservice@rubensteinlaw.com,Rubenstein Law, P.A., 9130 S. Dadeland Blvd., PH, Miami, FL
33156 and Ryan G. Myers, Esq., Williams, Leininger& Cosby, P.A.,
11300 US Highway One, Suite 300, North Palm Beach, FL 33408.
NICHOLAS J. RYAN & ASSOCIATES
110 S. E. 6th Street, Suite 2100
Fort Lauderdale, FL 33301
Telephone:(954) 627-9401
E-mail for service (FL R. Jud. Admin. 2.516):
adele.blackmore@statefarm.com
Adele M. Blackmore, Esq.
Florida Bar No.: 475149
Attorney for Defendant Joseph Bernard
Wezkiewicz, Jr.
&
Attorneys and Staff of Nicholas J. Ryan Associates are Employees
of the Law Department of State Farm Mutual Automobile Insurance
Company
EXHIBIT "A"
Filing# 161142584 E-Filed 11/14/2022 11:27:56 AM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
ADRIANA HINCAPIE AND NICOLAS CASE NO.: CACE 21-016648 (14)
HINCAPIE,
Plaintiffs,
VS.
JOSEPH BERNARD WEZKIEWICZ,
JR.,
JOSEPH BERNARD WEZKIEWICZ, III,
and STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY, a Foreign Corporation,
Defendants.
i
DEFENDANTS' ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS'
FIRST AMENDED COMPLAINT
COME NOW, the Defendants, JOSEPH BERNARD WEZKIEWICZ, JR. and
JOSEPH BERNARD WEZKIEWICZ, JR., (hereinafter"Defendants"),by and through their
undersigned attorneys, and file their Answer to the Plaintiffs', ADRIANA HINCAPIE AND
NICOLAS HINCAPIE, First Amended Complaint as follows:
1. The Defendants admit paragraphs 2a, 2b, 2e, 3,4 and 5 ofthe Plaintiffs' Complaint.
2. The Defendants deny paragraphs 1,2f,and 6 through 21 of the Plaintiffs' Complaint
and request strict proo f thereof at time of trial.
3. The Defendants are without sufficient knowledge to admit or deny paragraphs 2c
and 2d of the Plaintiffs' Complaint and request strict proof thereof at time of trial.
4. Since Counts VII and VIII (paragraphs22 through 33) of the Plaintiffs' Complaint
do not set forth a claim againstthe Defendants, said paragraphs are neither admitted nor denied by
EXHIBIT "B"
the Defendants. However, as to those by inference any
paragraphs attributing acts and/or
omissions of the Defendants, said allegations denied.
are specifically
5. The Defendants deny each and every allegationnot specifically
admitted herein and
requests strict proof thereof at time of trial.
AFFIRMATIVE DEFENSES
6. The Plaintiff,NICOLAS HINCAPIE was under an
(hereinafter"Plaintiff'),
that duty, he negligently
affirmative duty to exercise reasonable care, and notwithstanding and
carelesslyconducted himself on the roadway so that his conduct was the sole and proximate cause
cause of the events that the Plaintiffs
and/or contributing now complains. As such, the Plaintiffs'
recovery, if any, should be defeated and/or proportionately
reduced as a result of the Plaintiffs'
own acts and/or omissions.
7. The Plaintiffs failed to mitigatetheir damages, and as such, cannot recover for those
damages which could have been avoided through the use of the Plaintiffs' reasonable care.
8. Any injuriesor damages of the Plaintiffs,if any, were the result of the negligence
rathe
Preview
Filing# 180136059 E-Filed 08/21/2023 02:53:09 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA ADRIANA HINCAPIE and, CASE NO.: CACE 21-016648 NICOLAS HINCAPIE, CIVIL DIVISION Plaintiffs, VS. JOSEPH BERNARD WEZKIEWICZ, JR., and JOSEPH BERNARD WEZKIEWICZ III, Defendants. PLAINTIFFS' MOTION FOR SANCTIONS AGAINST THE DEFENDANTS FOR SPOLIATION OF EVIDENCE Plaintiffs ADRIANA HINCAPIE and NICOLAS HINCAPIE, by and through undersigned counsel, hereby moves for the entry o f an Order grantingPlainti ff' s Motion for Sanctions againstthe Defendants, JOSEPH BERNARD WEZKIEWICZ, JR., and JOSEPH BERNARD WEZKIEWICZ, of evidence based III,for the spoliation on their failure to preserve critical evidence in this litigation. In support thereof,Plaintiffs state the following: SUMMARY OF FACTS 1. On July 26,2020, a motor vehicle collision occurred between Defendant JOSEPH BERNARD WEZKIEWICZ, III, who was operating a 2018 BMW, and the Plaintiffs, who were operating their vehicle westbound on Interstate 595 in Broward County, Florida. 2. At the time of the collision, Defendant JOSEPH BERNARD WEZKIEWICZ, III, was under the age o f 18. Defendant JOSEPH BERNARD *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/21/2023 02:53:09 PM.**** WEZKIEWICZ, JR., was the owner of the 2018 BMW that the defendant driver was operating and in addition had signed the driver's license application for Defendant JOSEPH BERNARD WEZKIEWICZ, III, the defendant driver. 3. The collision between the vehicles was a rear impact to Plaintiffs' vehicle by the front end of Defendants' BMW, which has been conclusively demonstrated by photographic evidence as well as testimony by Plaintiffs. 4. On July 30, 2020, Defendant JOSEPH BERNARD WEZKIEWICZ, Jr., was placed on notice by Plaintiffs' counsel of the need to preserve all evidence involving the crash of July 26, 2020, including "any instrumentality that may have contributed to the above referenced loss." (Exhibit "A" Defendant Joseph Bernard Wezkiewicz, Jr's Response to Plaintiff' Supplemental Request for Admissions) 5. On July 30, 3030, Defendants' insurance carrier, State Farm Mutual Automobile Insurance Company, was placed on notice by Plaintiffs' counsel and directed to preserve "any instrumentality including the vehicles involved in the accident that may have contributed to the loss." (Exhibit "A") 6. Defendants admit their insurance carrier received the correspondence dated July 30,2020, and that the letter specifically directed them to retain the defendants' vehicle. (Exhibit "A") 7. Despite the letters received by the Defendant and their carrier, Defendants' carrier did not make the vehicle available for inspection,and in fact,sold the vehicle for scrap on August 25,2020. Neither Defendants or their insurance carrier advised Plaintiffs or their counsel the vehicle was being sold,nor did they preserve the black box data from the vehicle, despite State Farm Mutual Automobile Insurance Company being aware that black box data is commonly used to determine causes of crashes and knows that the failure to preserve the data could have a deleterious impact on their insureds claim. (Exhibit "A") 8. In Defendant's answer to the Plaintiff's Complaint dated November 14, 2022, Defendants denied causing the collision between the two vehicles,and further,in Affirmative Defense number Eight,allegedthat the cause of the collision was a "black Range Rover" which caused the collision. (Exhibit "B" Defendants Answer and Affirmative Defenses) 9. In Defendant JOSEPH BERNARD WEZKIEWICZ, IIIs answer to Interrogatorynumber 5, dated November 11,2021, Defendant stated the following: "A black Range Rover improperly cut me off/merged into my lane causing my right/passengerside front to make contact with the left/driver' s rear o f the Range Rover. As a result of the contact with the Range Rover, I lost control of ., my vehicle and only recall crashing into the I-595 barrier wall... (Exhibit "C" Defendant's Responses to Plaintiff's Interrogatories, November 11,2021). 10. On October 13, 2022, Defendant JOSEPH BERNARD WEZKIEWICZ, III, was placed under oath in his deposition. When asked to describe how the collision occurred, he stated the following: "I saw briefly a black Range Rover on the right side of my car on the passenger's side. And I remember him driving very fast and him merging into the lane like into my lane and the back left of of his car hit me in the front right of this car, the driver's side left my car. He made contact with me. And after that my airbags went off, and I don't remember the rest." (Exhibit Deposition of Defendant Joseph Bernard Wezkiewicz, III, October 13, 2022, Pp. 28). 11. On March 3, 2023, Defendant JOSEPH BERNARD WEZKIEWICZ, Jr., was placed under oath in his deposition. He testified that he went to the scene after he was notified by his son o f the collision, and when asked about the damage he observed to his vehicle from the collision, he stated that he observed damage on "the side and front. I believe it was on the passenger side." (Exhibit "E" Deposition of Joseph Bernard Wezkiewicz, Jr., March 3,2023, Pp. 16). 12. Defendant's responses to Request for Admission numbers 11 and 12 in Exhibit "A" notwithstanding, the data obtained from the Defendant's black box in the 2018 BMW would have provided relevant information, along with the relevant vehicle inspection. The data obtained from the vehicle inspection would have indicated whether there was one impact, or multiple impacts as Defendants claim. 13. On August 4, 2023, Rodney Pack, ACTAR, a traffic reconstruction expert retained by Plaintiffs, produced a report on the July 26, 2020, collision between the two cars. Through his investigation,Mr. Pack was able to locate the Defendant's vehicle via an internet search and was able to demonstrate that it had been sold on August 25,2020, less than a month after the collision, and after Plaintiffs had put both the Defendants and their insurance carrier on notice to retain it. 14. On the Copart website where the Defendants' vehicle was listed and sold, Mr. Pack was able to identify the Defendants' vehicle based on the VIN. The listed vehicle had numerous photographs showing significant damage to the front o f the vehicle. It should be noted that Mr. Pack noted "no photographic evidence which would support Mr. Wezkiewicz's claim that he first contacted a 'black Range Rover' with his 'right/passenger side front' of his vehicle," and that there was a "singular PDOF (Principle Direction of Force) entering the BMW directly from the front of the vehicle and extending rearward." (Exhibit "F" Report of Rodney Pack, ACTAR, August 4,2023.) 15. Mr. Pack further stated that had the electronic data been preserved, "it could allow for a much more detailed reconstruction and could provide enough data to confirm or deny the involvement of the black Range Rover." Mr. Pack stated the electronic data would have also "included the speed of the BMW, braking efforts and possibly steering effort at the time of the crash." 16. It is very important to note also, as stated above, that Defendant stated his airbags deployed immediately after contact with the black Range Rover. As Mr. Pack stated in his report, "[tlhe actual deployment of airbag(s) is the triggering event for these airbag modules to permanently store the crash related electronic data and requires the full replacement of these modules before returning the vehicle to service." 17. In other words, based on Defendant JOSEPH BERNARD WEZKIEWICZ, ., III's testimony, the deployment of those airbags "right away after impact with the Range Rover would have written that data permanently to the airbag module, and it would have been available for all parties to review, including the Plaintiffs. To put it in plain English, if the crash had occurred exactly how the Defendant stated it did, the data would have been present for all to see, to demonstrate the black Range Rover was the proximate cause of the collision. The intentional destruction of that evidence by Defendants leaves only one conclusion. 18. Defendant JOSEPH BERNARD WEZKIEWICZ, III, claims he was struck hard enough by a "black Range Rover" to cause him to lose control of his vehicle, cause air bags to deploy, and strike the barrier, all prior to colliding with Plaintiffs' vehicle. As it stands now, Plaintiffs are without valuable data, which was in the exclusive control of the Defendants, to establish an essential part of their claim, that being the negligence of the Defendants. 19. Because the vehicle was not preserved,the Plaintiffs will be hindered from proving a prima facie case of negligenceand are therefore entitled to sanctions rangingfrom the striking the Defendants pleadings, to givingthe jury an adverse inference instruction to the burden ofproof. shifting 20. The Defendants failure to preserve the vehicle for inspectionand retrieval of the black box data, even after admittingthey were placed on notice of the need to preserve it,clearlydemonstrates the Defendants were aware of the significance of the vehicle and data, and made a knowing decision to destroyit,making it unavailable for the Plaintiffs in pursuing their claims. Memorandum of Law Florida law requires a party to preserve evidence when there is merely a "reasonable anticipation League of Women Voters of Fla. of litigation." v. Detzer, 171 So.3d 363, 391 (Fla.2015). See also Hagopian v. Publix Supermarkets, Inc.,1%8 So.2d 1088 (Fla.4th DCA 2001). Even absent a legalduty,spoliationof evidence results in an adverse inference againstthe party that discarded or destroyedthe evidence. Id. at 391. Florida courts may also impose sanctions,includingstriking againsta pleadings, lost,misplaced, or destroyed evidence, and a jury could infer party that intentionally under such circumstances that the evidence would have contained indications of liability. Martino v. Wal-Mart Stores, Inc. 835 So.2d 1251 (Fla.4th DCA 2003). The Fourth District Court of Appeals held "an adverse inference may arise in any situation where self-damagingevidence potentially is in the possessionof a party and that party either loses or destroysthe evidence." Golden Yachts, Inc. v. Hall, 910 So.2d 777,781 (Fla. 4th DCA 2006) citingMartino. In the instant case, as detailed above, the Defendants were in possession of the vehicle involved in the collision and were put on notice within a week by the Plaintiffs, through their attorney, to preserve the vehicle for inspectionby Plaintiffs. Despite admittingthey were notified,Defendants in essence "destroyed"the evidence by selling the vehicle,not even botheringto notifyPlaintiffs or Plaintiffs' counsel the vehicle was being sold, and thus deprivingPlaintiffs of crucial evidence in this case. While in many rear end collision cases the vehicle does not matter as defendants in this case the Defendants' vehicle has become crucial evidence. do not deny liability, Defendants have asserted they are not at fault for the collision,blamed a "black Range Rover" under oath as the cause of the crash,then testified, and penaltyof perjury,that there was a preliminarycrash with a different vehicle,which set this chain of events into motion. In such a situation,the evidence from the Defendants' vehicle plays an incrediblyimportant role and through Defendants' actions, this evidence has been destroyed. The Defendants made the conscious decision to destroythe evidence in this case. The only logicalconclusion that can be made is that the vehicle and its electronic data was damaging to the Defendants' claims and helpfulto prove the Plaintiffs' claims. Thus, disposing of the evidence served Defendants' intent ofhindering the Plaintiffs in the prosecutionof the present action. It can be reasonablyinferred that the destroyed evidence would have contained indications of Defendants' liability, resultingin the Plaintiffs' and subsequent medical treatment. injuries Defendants did not have the unilateral rightto act as judge and jury when they to be relevant allowed the destruction of evidence reasonablyanticipated to this matter. Defendants did not have the unilateral rightto make their own determination of what evidence was relevant and destroythe only piece of evidence in this case which was within their control, and key to the claims they are making regardingliability. Florida law does not allow a Defendant to decide what is reasonable to preserve and what is not reasonable to preserve. Defendants' actions are in clear violation of Florida law noted above. Defendants should be sanctioned for their intentional destruction of critical evidence in this case. Remedies Under Florida Law In Florida, sanctions imposed for lost or destroyed evidence are analogous to Federal procedure, not substantive state law. Federal Insurance Company v. Allister Manufacturing Company, 622 So.2d 1348 (Fla.4th DCA 1993).In Florida, courts have the optionof imposing one of the three followingremedies when evidence is lost or destroyed by a party: 1. Giving a jury instruction that an adverse inference may be drawn that the withheld evidence would be unfavorable to the party to failing produce it; 2. Shiftingthe burden ofproof to the offending party, requiringthat party to prove by the greater weight of the evidence that it was not negligent;and 3. Strikingthe offendingparty'spleadings.1 Options #1 and #2 have been codified in Florida Standard Jury Instruction 301.11: 1 a. Adverse inference. If you find that: (Name of party) [lost] [destroyed] [mutilated] [altered] [concealed] or otherwise caused the (describe evidence) to be unavailable, while it was within [his] [her] [its] possession,custody, or control; and the (describeevidence) would have been material in deciding the disputed issues in this case; then you may, but are not required to, infer that this evidence would have been unfavorable to (name of party). You may consider this, together with the other evidence, in determining the issues of the case. NOTES ON USE FOR 301.11a 1. This instruction is not intended to limit the trial court's discretion to impose additional or other sanctions or remedies againsta party for either inadvertent or intentional conduct in the loss,destruction, mutilation, alteration, of evidence material concealment, or other disposition to a case. See, e.g, Golden Fachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla.4th DCA 2006); Am. Hosp. Mgmt. Co. ofMinnesota v. Hettiger,904 So. ld 547 (Fla. 4th DCA 2005); Jost v Lakeland Reg. Med. Ctr., 844 So. 2d 656 (Fla.2d DCA 2003); Nationwide LiftTrucks, Inc. v. DCA 2002); Torres v. Matsushita Elec. Corp., 762 Smith, 832 So. 2d 824 (Fla. 4th So. 2d 1014 (Fla. 5th DCA 2000); and Sponco Mfg, Inc. v. AIcover, 656 So. 2d 629 (Fla.3d DCA 1995). 2. The inference addressed in this instruction does not rise to the level of a presumption.Pub. Health Tr. of Dade Cty. v. Falcin, 507 So. 2d 596 (Fla.1987), and Instruction 301.11b. 3. This instruction may require modification in the event a factual dispute exists as to which party or person is responsible for the loss of any evidence. b. Burden shifting presumption. The court has determined that (name of party) had a duty to [maintain (describe missing evidence)] [keep a record of (describe subject matter as to which party had record keeping duty)].(Name of party) did not [maintain (describe missing evidence)] [or] [keep a record of (describesubjectmatter as to which party had recordkeeping duty)].Because (name of party) did not [maintain (describe missing Florida courts relyon the followingfactors to determine the appropriate remedy: a)The willfulness or bad faith,if any, of the party responsiblefor the loss of the evidence; b)The extent of prejudicesuffered by the other party; and c)What is requiredto cure the prejudice. Sponco A(&, Inc v. Alcover, 656 So.2d 629 (Fla.3rd DCA 1995). In balancingthese factors,courts attempt to fashion a solution which is less than the ultimate sanction (ifpossible)but still gives the partiesa fair trial on the merits. The Defendants herein had: 1. direct knowledge of the injuries; 2. exclusive possession of the evidence; 3. would arise; belief that litigation 4. knowledge that the evidence would support Plaintiffs' allegations and claims and for injuries; 5. exhibited a willful disregard for the rights of Plaintiffs by intentionally disposing of the evidence. Plaintiffs are severely prejudiced as the only completely unbiased evidence showing fault has been intentionally disposed of by the Defendants. There is no way of this evidence. Thus, there recreating is no adequate remedy available to cure the actual destruction of evidence. evidence)] [or] [keep a record of (describe subject matter as to which party had a record keeping duty)], you should find that (name of invoking party)established [his] [her] (describeapplicable claim or defense) unless (name ofparty) proves otherwise by the greater weight of the evidence. NOTES ON USE FOR 301.11b 1. This instruction appliesonly when the court has determined that there was a duty to maintain or preserve the missing evidence at issue and the party invoking the presumption has established to the satisfaction of the court that the absenceof the missing evidence hinders the other party'sabilityto establish its claim or defense. See Pub. Health Tr. of Dade Cty. v. Valcin, 507 So. 2d 596 (Fla.1987). 2. This instruction may require modification in the event a factual dispute exists as to which party or person is responsiblefor the loss of any evidence. A. Inference of Negligence One remedy this Court could employ is to instruct the jury that it is permittedto infer that the disposed of evidence would have been unfavorable to Defendants. In circumstances where critical missing evidence was under the sole control of the party againstwhom the evidence might have been used to effect,an adverse inference instruction may be necessary to achieve fairness in the jury'sdetermination of the case. American Mgmt. Company ofMinnesota Hospitality v. Hettiger,904 So.2d 547 (Fla.4thDCA 2005). This is true where the party failingto preserve the evidence argues that the thing lost was not as representedby the injuredparty, or that the injuredparty should not prevailbecause of the failure to present the evidence foreclosedby the loss of the item. Id at 500 - 501. In Hettiger, a repairman was injured on ladder provided to him by the hotel operator. The hotel The repairman sued the destroyedthe ladder on the day of the injury. hotel for negligence.The hotel argued that it had no notice that a claim was imminent, such as a letter from plaintiff advisingof a claim and identifying the evidence to be preserved. The trial court gave the jury a jury instruction as to a rebuttable presumption o f negligence. The Fourth District found the trial court's instruction In inappropriate. its place,the Court instructed trial judges to implement a jury instruction that resembled a jury instruction given in Palmas v Bambu. S.A. v. El DuPont de Nemours & Co., 881 So.2d 565 (Fla.3rd DCA 2004) which read: You have heard testimony about potentialevidence which the party having custodyfailedto produce. Plaintiffs have argued that this evidence was in defendant's control and would have proven facts material to the issue of negligence. Ifyou?#ndthat this evidence was then within defendant'scontrol, that defendant could have preserved this evidence so that it was available for the parties in preparing for the trial in this case, and that this evidence would have been material in deciding the facts in disputein this case, then you are permitted,but are not required,to inferthat the evidence would have been unfavorableto defendant.Any inferenceyou decide to make should be based on all of the factsand circumstances in this case. in Adamson v. R.J Reynolds Tobacco Company, 325 More recently, So. 3d 887 (Fla DCA 2021),the courts have continued this position.After bringinga claim for his wife's 4tl? death againstthe defendant tobacco company, the court found that the husband's admitted destruction of the decedent's medical records allowed pre-suit for "an adverse inference instruction...to achieve justicein the jury'sdetermination of the case." Adamson, Id. at 897, He#inger, supra at 551. citing In the present case, the Defendant is asserting that the black Range Rover and should be an "empty chair,"based solelyon the testimonyof Defendants. This issue is exactlywhat a proper post-incident ofthe vehicle would have revealed. Thus, like Hettinger,the inspection Plaintiffs would be entitled to, at the least,an adverse injuryjury instruction. However, that will not cure the harm that has been done here. More importantly, unlike in He#inger, the Defendants did have notice of the claim, less than a week after the incident and more than three weeks priorto the destruction of the evidence. B. Valcin Presumption of Negligence Under the Fakin Doctrine, Florida courts have adopted a rebuttable presumption of negligence upon a defendant whose negligence causes essential evidence to be lost or missing,and such absence or inadequacy hinders the plaintiff's to establish ability its prima facie case. Public Health Trust of Dade County v. Valcin, 507 So.2d 596 (Fla. 1987); AnesthesiolozyCritical Care & Pain Management Consultants, P.A. v. Kretzer, %01 Sold 346 (Fla.4th DCA 2001). The doctrine is applicableto those cases in which either primary or secondary evidence is lost,destroyed,or not maintained. Id at 349 citingRockwell Int7 Corp. v. Menzies, 561 So.2d 677, 681 (Fla.3rd DCA 1990).The purpose of a rebuttable presumption is to respectivepositionsin regardto the evidence and to equalizethe parties' allow the plaintiff to proceed when evidence within the knowledge or control of an adversary is not made available to the party which has the burden of proof. Fakin at 599. It is importantto point out two (2) aspects of the Falcin doctrine. First,it does not requirea showing malice or intent on the part of defendant. Second, it does not requirea showing of complete destruction ofplaintiff's to establish ability its prima facie case, only that such inadequacy "hinders" plaintiff's to establish ability its prima facie case. Falcin at 599. In the instant case, the Plaintiffs are hindered by the disposalof the vehicle, thereby destroyingthe evidence. There is no way to recreate the destroyedevidence which would confirm Plaintiffs' allegationsand claims. The Florida Supreme Court recentlyexpanded the scope of Martino and Fakin in League of H/omen Foters ofFloridav. Detzner, 172 So.3d 363 (Fla.2015).In a constitutional plan,the Detzner defendant failed challengeto a redistricting to preserve evidence relating to the challengedredistricting over the planwas inevitable. plandespiteknowledge that litigation Id at 390 - 391. However, that defendant did not receive a specific request to preserve the destroyedevidence, nor did it have a legalduty to preserve the evidence. Id. Nevertheless,the Florida Supreme Court held that "[elvenin the absence of a legalduty,though,the spoliation of evidence results in an adverse inference againstthe party that discarded or destroyedthe Martino and Golden Yachts. evidence." Id. citing As the Florida a result, Supreme Court held that the trial court was justified in drawing an adverse inference againstthe defendant due to the failure to preserve the evidence even without a request to preserve same. Id. In the instant matter, Defendants had notice of Plaintiffs injuries and anticipated by their litigation, own admissions, certainlymandating the preservationof the subject vehicle. Accordingly,this Court should instruct the jury on a presumption of negligence. C. Striking Pleadings Courts have also stricken an offendingparty'spleadingsfor the inadvertent loss of evidence when the opposing party demonstrates that its case is fatallyprejudicedby its to examine the inability lost evidence. Aldrich v. Roche BiomedicalLaboratories. Inc., 737 So.2d 1124 (Fla.5th DCA 1999) citingSponco Mfg., Inc. v. Alcover, 656 So.2d 629 (Fla. 3rd DCA 1995). Even in the absence ofwillfulness or bad faith,a court may implement the ultimate sanction of dismissal when primary physicalevidence is use unavailable for the plaintiffs and the plaintiff has demonstrated an inability to proceed without the evidence. DePuy. Inc. v. Eckes, 427 So.2d 306 (Fla.3rd DCA 1983) (itis irrelevant whether the evidence was destroyedin bad faith or lost accidentally; defendant's answer was appropriate striking where evidence is use and the plaintiff unavailable for the plaintiffs has demonstrated an Rockwell International Corporation v. Menzies. 56 to proceed without it); inability 1 So.2d 677 (Fla.3rd DCA 1 990) (even absent a findingof bad faith,strikingdefendant's pleading where defendant lost two bolts was not only warranted but consistent with Valcin since Falcin dealt with the loss ofmedical records,considered to be secondary evidence);Sponco Mtk?, Inc. v. Alcover, 656 So.2d 629 (Fla. 3rd DCA 1995) (a determination of willful destruction was not imperativewhere expert convinced the the testimonyofplaintiffs trial no longerable to proceed court that,in the absence ofthe crucial evidence, the plaintiffwas againstthe defendant). In the instant case the Defendants unequivocallydisposedof the vehicle,which was of critical importance to the Plaintiffs' case. and Despite knowledge of Plaintiffs' injuries anticipating failed to preserve the vehicle. Due a claim, Defendant intentionally to their intentional acts of destroying evidence, this Court should consider strikingDefendants' pleadingsin their entirety. WHEREFORE, Plaintiffs ADRIANA HINCAPIE and NICOLAS HINCAPIE respectfully request this Court for the entry of an Order sanctioningthe Defendants, JOSEPH BERNARD WEZKIEWICZ, JR., and JOSEPH BERNARD WEZKIEWICZ, III,by: 1. Giving a jury instruction that an adverse inference may be drawn that the destroyed evidence would be unfavorable to the party failingto produce it; 2. Shiftingthe burden of proof to the offendingparties, requiringthose partiesto prove by the greater weight of the evidence that they were not negligent; 3. Strikingthe Defendants' pleadings,including their Answer and Affirmative Defenses; 4. the Defendants and any of their own witnesses from testifying Prohibiting that any unknown vehicle, specificallythe "black Range Rover" or any other unknown vehicle, was the proximate cause of the collision between the Plaintiffs' and the Defendant; and 5. Any and all other relief deemed appropriatedue to Defendants' conduct. (CERTIFICATE OF SERVICE ON FOLLOWING PAGE) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 21 St day o f August 2023, I filed electronically the foregoingwith the Clerk of Courts via the Florida Courts E-filingPortal,which will send notification o f electronic filingto all counsel o f record. RUBENSTEIN LAW, PA. Attorneys for Plaintiff 9130 S Dadeland Blvd Miami, Florida 33156 Phone: (305) 661-6000 Fax: (305) 670-7555 Email: klabertew@rubensteinlaw.com mdavila@rubensteinlaw.com eservice@rubensteinlaw.com By. /s/ Karl W. Labertew KARL W. LABERTEW, B.C.S. Florida Bar No.: 0615234 Filing# 178944484 E-Filed 08/04/2023 11:36:00 AM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA ADRIANA HINCAPIE AND NICOLAS CASE NO.: CACE 21-016648 (14) HINCAPIE, Plaintiffs, VS. JOSEPH BERNARD WEZKIEWICZ, JR., AND JOSEPH BERNARD WEZKIEWICZ, III, Defendant. DEFENDANT'S, JOSEPH BERNARD WEZKIEWICZ, JR., RESPONSE TO PLAINTIFFS' SUPPLEMENTAL REOUEST FOR ADMISSIONS COMES NOW, the Defendant, JOSEPH BERNARD WEZKIEWICZ, JR. (hereinafter "Defendant"),by and through his undersigned counsel, and files his Response to the Plaintiffs' Supplemental Request for Admissions dated July 6,2023, and states as follows: 1) Please admit Defendant Joseph Bernard Wezkiewicz, Jr., received correspondence from Plaintiffs' counsel dated July 30,2020, a copy of which is attached as ., Exhibit "A. The Defendant does not recall whether he did, or did not, receive said correspondence. As such, the Defendant is unable to admit or deny said paragraph. 2) Please admit that the letter included specific instructions to preserve "any that may have contributed to the above referenced loss." instrumentality The Defendant does not recall whether he did, or did not, receive said correspondence. As such, the Defendant is unable to admit or deny said paragraph. 3) Please admit that Defendant Bernard Joseph Wezkiewicz Jr's liability carrier, State Farm Mutual Automobile Insurance Company, received correspondencefrom Plaintiffs' counsel dated July 30,2020, a copy ofwhich is attached as Exhibit Admit. EXHIBIT "A" CASE NO.: CACE 21-016648 (14) 4) Please admit that the letter to State Farm Mutual Automobile Insurance Company contained specificinstructions to preserve "any instrumentality (includingvehicles involved in the accident)that may have contributed to the loss" for inspectionby representatives of the Plaintiffs. Admit. 5) Please admit that on July 31, 2020, Defendant's carrier State Farm Mutual Automobile Insurance Company acknowledged in writing receipt of the Plaintiffs correspondence as demonstrated by Exhibit "C" which was sent by State Farm Mutual Wesley Doussou Automobile Company claims specialist to Plaintiffs' counsel. Admit. 6) Please admit that Defendant's vehicle was sold on August 25, 2020, as demonstrated by Exhibit "D." Admit. 7) Please admit that neither Defendant JOSEPH BERNARD WEZKIEWICZ JR., preserved the black box data from the 2018 nor his agents or representatives, 330i, VIN BMW number WBABB9?54JNU96893, priorto the sale of the vehicle. Admit. 8) Please admit that Defendant's liability carrier,State Farm Mutual Automobile Insurance Company, did not preserve the black box data from the 2018 BMW 330i, VIN number WBABB9?54JNU96893, priorto the sale of the vehicle. Admit. 9) Please admit that Defendant's liabilitycarrier,State Farm Mutual Automobile Insurance Company, is aware that disposingof evidence after a preservationletter has been sent and received may have an adverse effect on their insureds' claims and/or defenses. Admit. 10) Please admit that no notice of the Defendant's vehicle being sold was ever provided to Plaintiffs or their counsel priorto being sold,denying Plaintiffs and/or their counsel an opportunityto inspectthe vehicle. Admit. EXHIBIT "A" CASE NO.: CACE 21-016648 (14) 11) Please admit that relevant crash data from the July 26,2020, collision may have been obtained from the black box in the Defendant's 2018 BMW 330i, VIN number WBABB9?54JNU96893, had a black box data download been performed. Denied. 12) Please admit that relevant data may have been obtained from the Defendant's 2018 BMW 330i, VIN number WBABB9?54JNU96893, had a physicalvehicle inspectionbeen performed. Denied. I HEREBY CERTIFY that on August 4,2023, the foregoingwas electronically filed with the Florida Courts E-Filing Portal and that as a registeredparticipantof the Portal I have effectuated service through the Portal in compliance with Rule 2.516, Fla. R. Jud. Admin., on .Karl W. Labertew, B.C.S. klabertew@rubensteinlaw.com, lbosch@rubensteinlaw.com, eservice@rubensteinlaw.com,Rubenstein Law, P.A., 9130 S. Dadeland Blvd., PH, Miami, FL 33156 and Ryan G. Myers, Esq., Williams, Leininger& Cosby, P.A., 11300 US Highway One, Suite 300, North Palm Beach, FL 33408. NICHOLAS J. RYAN & ASSOCIATES 110 S. E. 6th Street, Suite 2100 Fort Lauderdale, FL 33301 Telephone:(954) 627-9401 E-mail for service (FL R. Jud. Admin. 2.516): adele.blackmore@statefarm.com Adele M. Blackmore, Esq. Florida Bar No.: 475149 Attorney for Defendant Joseph Bernard Wezkiewicz, Jr. & Attorneys and Staff of Nicholas J. Ryan Associates are Employees of the Law Department of State Farm Mutual Automobile Insurance Company EXHIBIT "A" Filing# 161142584 E-Filed 11/14/2022 11:27:56 AM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA ADRIANA HINCAPIE AND NICOLAS CASE NO.: CACE 21-016648 (14) HINCAPIE, Plaintiffs, VS. JOSEPH BERNARD WEZKIEWICZ, JR., JOSEPH BERNARD WEZKIEWICZ, III, and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Foreign Corporation, Defendants. i DEFENDANTS' ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS' FIRST AMENDED COMPLAINT COME NOW, the Defendants, JOSEPH BERNARD WEZKIEWICZ, JR. and JOSEPH BERNARD WEZKIEWICZ, JR., (hereinafter"Defendants"),by and through their undersigned attorneys, and file their Answer to the Plaintiffs', ADRIANA HINCAPIE AND NICOLAS HINCAPIE, First Amended Complaint as follows: 1. The Defendants admit paragraphs 2a, 2b, 2e, 3,4 and 5 ofthe Plaintiffs' Complaint. 2. The Defendants deny paragraphs 1,2f,and 6 through 21 of the Plaintiffs' Complaint and request strict proo f thereof at time of trial. 3. The Defendants are without sufficient knowledge to admit or deny paragraphs 2c and 2d of the Plaintiffs' Complaint and request strict proof thereof at time of trial. 4. Since Counts VII and VIII (paragraphs22 through 33) of the Plaintiffs' Complaint do not set forth a claim againstthe Defendants, said paragraphs are neither admitted nor denied by EXHIBIT "B" the Defendants. However, as to those by inference any paragraphs attributing acts and/or omissions of the Defendants, said allegations denied. are specifically 5. The Defendants deny each and every allegationnot specifically admitted herein and requests strict proof thereof at time of trial. AFFIRMATIVE DEFENSES 6. The Plaintiff,NICOLAS HINCAPIE was under an (hereinafter"Plaintiff'), that duty, he negligently affirmative duty to exercise reasonable care, and notwithstanding and carelesslyconducted himself on the roadway so that his conduct was the sole and proximate cause cause of the events that the Plaintiffs and/or contributing now complains. As such, the Plaintiffs' recovery, if any, should be defeated and/or proportionately reduced as a result of the Plaintiffs' own acts and/or omissions. 7. The Plaintiffs failed to mitigatetheir damages, and as such, cannot recover for those damages which could have been avoided through the use of the Plaintiffs' reasonable care. 8. Any injuriesor damages of the Plaintiffs,if any, were the result of the negligence rathe