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Filing # 137568137 E-Filed 10/29/2021 03:31:42 PM
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT, IN AND FOR OSCEOLA
COUNTY, FLORIDA
MAUREEN TRAVERS, as Personal
Representative of the Estate of Angel Pagan,
Jr., Deceased,
Plaintiff, CASE NO.: 2021-CA-1161
Vv.
LORETTA RAY BARBER, AMERICAN
HOMETOWN PUBLISHING, INC. d/b/a
OSCEOLA NEWS GAZETTE, SUN
PUBLICATIONS OF FLORIDA d/b/a
OSCEOLA NEWS GAZETTE, and
STIDHAM MEDIA GROUP HOLDINGS,
LLC d/b/a OSCEOLA NEWS GAZETTE,
Defendants.
/
DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT
Defendant, AMERICAN HOMETOWN PUBLISHING, INC., (hereinafter “AHP”), by
and through the undersigned counsel and pursuant to Fla. R. Civ. P. 1.510, hereby files its Motion
for Final Summary Judgment with Incorporated Memorandum of Law and in support thereof states
the following:
I, PROCEDURAL BACKGROUND
This case arises from a motor vehicle accident that occurred on May 8, 2019 in Osceola
County, Florida. On that date, Plaintiff Decedent, Angel Pagan, was struck by a motor vehicle
accident driven by Defendant Loretta Ray Barber. See Complaint attached hereto as Exhibit A.
Maureen Travelers, as Personal Representative of the Estate of Angel Pagan, Jr., Deceased,
has filed this wrongful death action and contends that Defendant AHP is vicariously liable for the
negligence of Ms. Barber because at the time of this incident, Ms. Barber was an agent, servant,
or employee of AHP. /d. at § 12.
In response to Plaintiffs allegations, none of which have been established by the record
evidence in this case, AHP now moves for summary judgement as Plaintiff cannot establish that
there was an employee-employer relationship between Ms. Barber and AHP. Nor can it be
established that AHP had any agency relationship with Ms. Barber at the time of this incident.
Il. UNDISPUTED FACTS PERTINENT TO SUMMARY JUDGMENT
On August 20, 2021, AHP sent discovery requests to Defendant Barber. Among the
requests were a set of Interrogatories. Those interrogatories contained several questions relating
to the alleged relationship between Ms. Barber and AHP.
On September 30, 2021, Ms. Barber furnished AHP with answers to the above-referenced
discovery requests, including answers to interrogatories. See Defendant Barber’s Answers to
Interrogatories attached hereto as Exhibit B.
In her answers to the interrogatories, Ms. Barber stated the following:
1. At the time of the incident, she was driving to Walmart to shop. (/d at No. 7).
2. Other than signing a contract with AHP, she has never spoken with anyone at AHP, (/d
at No. 8).
3. At the time of the incident, she was an independent contractor of AHP. (/d at No. 9)
4. At the time of the incident, she was not engaged in any activity for, or on behalf of, AHP.
Instead, she was on a personal mission to shop at Walmart. (/d at No. 10)
On July 4, 2018, Defendant Barber and AHP entered into an Independent Contract
Distribution Agreement. This agreement required Ms. Barber to periodically deliver newspapers
on behalf of AHP. This agreement specifically states that there is no employee-employer
relationship between the parties and that Ms. Barber is to be considered an Independent Contractor.
See Contract with Barber attached hereto as Exhibit C.
MEMORANDUM OF LAW IN SUPPORT OF SUMMARY JUDGMENT
A. SUMMARY JUDGMENT STANDARD
Rule 1.510(c) of the Florida Rules of Civil Procedure states that summary judgment is
proper where the materials admissible in evidence on file “show that there is no genuine issue as
to any material fact and that the moving party is entitled to judgment as a matter of law.” In Holl
v. Talcott, 191 So. 2d 40 (Fla. 1966), the Florida Supreme Court held that the burden to prove the
non-existence of genuine triable issues is on the moving party. If the party who has moved for
summary judgment sustains its initial burden of demonstrating the absence of a genuine issue of
material fact, the burden then shifts to the party against whom summary judgment is sought to
establish the existence of a genuine issue of material fact. Latour Auto Sales, Inc. v. Stromberg-
Carson Leasing Corp., 335 So. 2d 600, 601 (Fla. 3d DCA 1976).
Furthermore, in a vicariously liability action, “Where there are no factual disputes, whether
an employee is acting within the course and scope of his employment is a question of law.” Adams
v. Mitchell G. Hancock, Inc., 74 So. 3d 1113, 1114 (Fla. Sth DCA 2011) (citing Sussman v. Fla.
E. Coast Props., Inc., 557 So. 2d 74, 76 (Fla. 3d DCA 1990)). “The standard of review governing
a trial court's ruling on a motion for summary judgment posing a pure question of law is de
novo.” Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001). Further, “if there
is no genuine issue of material fact, a summary judgment is proper only if the moving party is
entitled to a judgment as a matter of law.” Est. of Githens ex rel. Seaman v. Bon Secours-Maria
Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Maynard v.
Household Fin. Corp. III, 861 So. 2d 1204, 1206 (Fla. 2d DCA 2003)).
B. PLAINTIFF CANNOT ESTABLISH THAT DEFENDANT BARBER WAS AN
EMPLOYEE OF AHP
It is well established law in Florida that an employer can be held vicariously liable for the
acts of its employees under the doctrine of Respondeat Superior. Samiian v. Johnson, 302 So.3d
966 (Fla. 1" DCA 2020). There are exceptions to this doctrine but one rule that must be complied
with is that the employee must have been acting within the course and scope of his employment
when the incident giving rise to the complaint occurs. City of Boynton Beach v. Weiss, 120 So.3d
606 (Fla. 4 DCA 2013).
In the present case, the facts are clear that Ms. Barber was not an employee of AHP. In
fact, Ms. Barber acknowledges that she was not an employee of AHP, but rather an independent
contractor. To substantiate this fact, there is a signed Independent Contract Distribution
Agreement between Ms. Barber and AHP that was operable on the date of this incident.
Plaintiff has not presented any evidence to substantiate her allegation that at the time of
this incident Ms. Barber was an employee, servant, or agent, of AHP. Without such evidence, the
only facts for the court to consider are Ms. Barber’s assertion that she was not an employee of
AHP, and the agreement between Ms. Barber and AHP.
C. PLAINTIFF CANNOT ESTABLISH THAT DEFENDANT BARBER WAS WITHIN
THE COURSE AND SCOPE OF HER EMPLOYEMENT WITH AHP WHEN THIS
INCIDENT OCCURRED
Even if the Court assumes that Ms. Barber was an employee of AHP at the time of this
incident (an assumption not supported by the facts), Plaintiff would still need to prove that Ms.
Barber was acting within the course and scope of her employment when this incident occurred.
Without such facts, a claim for vicarious liability cannot be established.
Florida courts have held that “An employer is vicariously liable for an employee's tortious
conduct where the conduct occurs within the scope of the employment.” Fields v. Devereux
Found., Inc., 244 So, 3d 1193, 1196 (Fla. 2d DCA 2018) (citing Garcia v. Duffy, 492 So. 2d 435,
438 (Fla. 2d DCA 1986)). An employee’s “[c]onduct is within the scope of employment if it
occurs substantially within authorized time and space limits, and it is activated at least in part by
a purpose to serve the master.” Hennagan v. Dep't of Highway Safety & Motor Vehicles, 467 So.
2d 748, 751 (Fla. Ist DCA 1985).
Here again, Plaintiff has presented no evidence to support an allegation that Ms. Barber
was within the course and scoped of her employment with AHP when this incident occurred. The
only evidence presented is that of Ms. Barber. She stated that at the time of this incident she was
on her way to Walmart to shop for personal items. The only possible thread that might be pulled
from that testimony is that prior to going to Walmart, Ms. Barber had picked up newspapers from
AHP to deliver them to customers at a later time.
However, “the law is well established that an employee driving to and from work is not
within the scope of employment so as to impose liability on the employer.” Hernandez v.
Tallahassee Med. Ctr., Inc., 896 So. 2d 839, 843 (Fla. 1st DCA 2005) (first citing Foremost
Dairies, Inc., of the S. v. Godwin, 158 Fla. 245, 26 So. 2d 773 (1946); and then citing Freeman v.
Manpower, Inc., 453 So. 2d 208, 209 (Fla. Ist DCA 1984)); see, e.g., Foremost Dairies, Inc., 26
So. 2d at 774 (holding that employee's negligent operation of the car was not attributable to the
employer because the employee was “on his way to work when the collision occurred”). This rule
is colloquially referred to as the “going and coming” rule. Swartz v. McDonald's Corp., 788 So.
2d 937, 942 (Fla. 2001) (“The 'going and coming' rule provides that injuries sustained while
traveling to or from work do not arise out of and in the course of employment and, therefore, are
not compensable.”).
Under the “going and coming” rule, even if Ms. Barber is considered an employee, she was
not within the course and scope of her employment with AHP at the time of this incident as she
had just picked up newspapers to deliver at a later time, and was on her way to conduct personal
business not related to her work for AHP.
Further, the fact that Ms. Barber was on her way to Walmart to purchase personal items
when this incident occurred is similar to the facts of Sussman y. Florida East Coast Properties,
Inc., 557 So.24 74 (Fla. 3 DCA 1990). In Sussman, Plaintiff was a waiting bus passenger who
was struck by the driver. Plaintiff sued the driver's employer. The trial court granted summary
judgment for the employer and the Third DCA affirmed the summary judgment stating that the
driver was outside the scope of the employer’s business when she detoured on her way to work to
purchase a cake for fellow employee’s birthday celebration. The driver's employer was thus
not vicariously liable for plaintiff's injuries.
Just like in Sussman, Ms. Barber was not acting within the course and scope of her
employment as she was on her way to conduct personal business. The analysis and decision in
Sussman are directly applicable to the present case, should the Court find that Ms. Barber was an
employee of AHP at the time of this incident.
D. CONCLUSION
The record in this case is clear, Plaintiff has failed to provide any evidence to show that
Ms. Barber was an employee of AHP at the time of this incident. The only evidence available
indicates that Ms. Barber was an independent contractor of AHP. Further, even ifthe Court accepts
that Ms. Barber was an employee of AHP at the time of this incident, the only evidence presented
thus far shows that Ms. Barber was not within the course and scope of her employment at the time.
WHEREFORE, Defendant, American Hometown Publishing, Inc., respectfully requests
this court to grant its Motion for Final Summary Judgment and to enter Final Summary Judgment
in favor of Defendant and against Plaintiff, for the reasons stated above.
CERTIFICATE OF SERVICE
IHEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via
the efiling portal to: Thomas P. Glenz, Esq., Dan Newlin Injury Attorneys;
glenz.pleadings@newlinlaw.com; 1408 North Westshore Blvd., Suite 400, Tampa, FL 33607;
Stacy A McCland, Esq., McCland Law P.A., stacy@meclandlaw.com,
ervice@meclandlaw.com; 22 West Monument Avenue, Suite 3A, Kissimmee, FL 34747;
Amanda L. Kidd, Esq., Boyd & Jenerette, P.A., efiling@boydjen.com; 201 North Hogan Street,
Suite 400, Jacksonville, FL 32202; this 29" day of October, 2021.
/s/ Luis F. Zavala, Esq.
Luis F. Zavala, Esq.
Florida Bar: 91247
Law Offices of Jack D. Evans
2420 Lakemont Ave., Suite 125
Orlando, FL 32814
Tel: 407-388-2904
Fax: 855-203-0311
Attorneys for Defendant AHP
Primary Email: Izavala@travelers.com
Secondary Email: jdeorlan@travelers.com
08/11/2021 02:15 PH 10:18772661419 FROM: 7862308823 Page: 4
Filing # 125400684 E-Filed 04/22/2021 10:24:30 AM
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR
OSCEOLA COUNTY, FLORIDA
CASE NO:
MAUREEN TRAVERS as Personal
Representative of the Estate of Angel Pagan, JURY TRIAL DEMANDED
Jr., deceased,
Plaintiff,
v.
LORETTA RAY BARBER, AMERICAN
HOMETOWN PUBLISHING, INC. d/b/a
OSCEOLA NEWS GAZETTE, SUN
PUBLICATIONS OF FLORIDA, INC. d/b/a
OSCEOLA NEWS GAZETTE, CHRIS A.
TIFFER, and STIDHAM MEDIA GROUP
HOLDINGS, LLC d/b/a OSCEOLA NEWS-
GAZETTE,
Defendants.
/
COMPLAINT
Plaintiff, MAUREEN TRAVERS as Personal Representative of the Estate of Angel
Pagan, Jr., deceased, by and through undersigned counsel, sues the Defendants, LORETTA RAY
BARBER, AMERICAN HOMETOWN PUBLISHING, INC. d/b/a OSCEOLA NEWS
GAZETTE, SUN PUBLICATIONS OF FLORIDA, INC. d/b/a OSCEOLA NEWS GAZETTE,
CHRIS A. TIFFER, and STIDHAM MEDIA GROUP HOLDINGS, LLC d/b/a OSCEOLA
NEWS-GAZETTE, and states as follows:
1 This is an action for wrongful death brought pursuant to Fla. Stat. Ch. 768 for
damages that exceed Thirty Thousand Dollars ($30,000.00) exclusive of interest, costs and
attorney’s fees.
Page 1 of 17
EXHIBIT A
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2. At all times material to this action, Plaintiff, MAUREEN TRAVERS, was the
duly appointed Personal Representative of the Estate of ANGEL PAGAN, JR. Said Estate is
pending in the Circuit Court for Osceola County, Florida, Probate Division File Number 2020-
CP-000490-PR. A copy of the Order Appointing Personal Representative is attached as Exhibit
“AN,
3 Pursuant to the Florida Wrongful Death Statute, this action is brought by the
Personal Representative of the Estate, ANGEL PAGAN, JR., on behalf of the Estate and all
survivors. The survivors are as follows:
. Maureen Travers, decedent's widow;
Nicole Sonia Pagan, Decedent’s daughter age 22;
J.C.P., Decedent’s minor son, age 16;
S.M.P., Decedent's minor daughter, age 16; and,
. Susan Pagan-Pina, Decedent’s sister.
4 At all times material to this action, Decedent plaintiff, ANGEL PAGAN, JR., was
a natural person residing in Kissimmee, Osceola County, Florida.
5, At all times material to this action, Defendant, LORETTA RAY BARBER, was a
natural person residing in Orlando, Orange County, Florida.
6. At all times material to this action, Defendant, AMERICAN HOMETOWN
PUBLISHING, INC., was a foreign for-profit corporation doing business as OSCEOLA NEWS
GAZETTE and doing business in Kissimmee, Osceola County, Florida.
7
At all times material to this action, Defendant, SUN PUBLICATIONS OF
FLORIDA, INC., was a foreign for-profit corporation doing business as OSCEOLA NEWS
GAZETTE and doing business in Kissimmee, Osceola County, Florida.
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8 At all times material to this action, Defendant, CHRIS A. TIFFER, was a natural
person residing in Kissimmee, Osceola County, Florida and owner of OSCEOLA NEWS
GAZETTE.
9 At all times material to this action, Defendant, STIDHAM MEDIA GROUP
HOLDINGS, LLC, was a Florida Limited Liability Company doing business as OSCEOLA
NEWS-GAZETTE and doing business in Kissimmee, Osceola County, Florida.
10. All other conditions precedent to the bringing of this action have been performed,
have occurred or have been waived.
ll. Venue is proper in Osceola County, Florida because the alleged incident occurred
in Kissimmee, Osceola County, Florida.
FACTS COMMON TO ALL COUNTS
12, On or about May 8, 2019, Deceased Plaintiff, ANGEL PAGAN, JR., was a
pedestrian crossing US Highway 192 within the designated crosswalk at the Simpson Road
intersection in Kissimmee, Osceola County, Florida.
13, At that time and place, Defendant, LORETTA RAY BARBER, was operating her
motor vehicle on US Highway 192 at the Simpson Road intersection in Kissimmee, Osceola
County, Florida.
14. At all times material hereto, the Defendant, LORETTA RAY BARBER, was an
agent, servant or employee of Defendant, AMERICAN HOMETOWN PUBLISHING, INC.
d/b/a OSCEOLA NEWS GAZETTE.
15. At all times material hereto, the Defendant, LORETTA RAY BARBER, was an
agent, servant or employee of Defendant, SUN PUBLICATIONS OF FLORIDA, INC. d/b/a
OSCEOLA NEWS GAZETTE.
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16. At all times material hereto, the Defendant, LORETTA RAY BARBER, was an
agent, servant or employee of Defendant, STIDHAM MEDIA GROUP HOLDINGS, LLC d/b/a
OSCEOLA NEWS-GAZETTE.
17. At that time and place, Defendant, LORETTA RAY BARBER, owed a duty to
the Deceased Plaintiff, ANGEL PAGAN, JR. to operate her vehicle in a safe manner.
18. At that time and place, Defendant, LORETTA RAY BARBER, negligently and
carelessly operated and/or maintained her vehicle so as to collide with Decedent, ANGEL
PAGAN, JR.
19. As a result of the collision caused by the negligence of Defendant, LORETTA
RAY BARBER, Plaintiff, ANGEL PAGAN, JR., sustained serious and permanent injuries that
resulted in his death.
COUNT I~ ACTION BY PLAINTIFF FOR NEGLIGENCE AGAINST
DEFENDANT, LORETTA RAY BARBER
20. Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal Representative
of the Estate of ANGEL PAGAN, JR., adopts and realleges Paragraphs 1 through 19 as fully set
forth herein.
21, Defendant, LORETTA RAY BARBER, was negligent and careless in the
operation of her motor vehicle as to collide with Decedent, ANGEL PAGAN, JR.
22. As a direct and proximate cause of Defendant, LORETTA RAY BARBER’s,
negligence, Decedent, ANGEL PAGAN JR., suffered serious and permanent injuries that
resulted in his death.
23, As a direct and proximate result of the negligence of the Defendant, LORETTA
RAY BARBER, as aforesaid, the survivors have suffered, and will continue to suffer the
following damages into the future; loss of the support and services of the Decedent, the
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replacement value of Decedent’s support and services, the loss of the Decedent’s companionship,
affection, and mental pain and suffering. Plaintiff, on behalf of the survivors, makes a claim for
these damages, and all other damages allowable by the Florida Wrongful Death Act.
24. As a direct and proximate result of the negligence of Defendant, LORETTA RAY
BARBER, the Estate of ANGEL PAGAN, JR. suffered, and will continue to suffer, the
following damages into the future; loss of net accumulations of Decedent’s Estate and the
medical and funeral expenses due to the Decedent’s injury and death. The Plaintiff, on behalf of
the Estate, claims all these damages and all other damages allowable by the Florida Wrongful
Death Act.
WHEREFORE, Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal
Representative of the Estate of ANGEL PAGAN, JR., demands judgment against the Defendant,
LORETTA RAY BARBER, and an award of all damages to which the Estate and the survivors
are legally entitled, including mental pain and suffering of the survivors, medical or funeral
expenses due to the Decedent’s injuries and death, loss of net accumulations and all other
damages set forth in Chapter 768 of the Florida Statutes, along with costs and attorney(s) fees as
might be allowable by law. Plaintiff demands a trial by jury on all issues triable as of right by a
jury.
COUNT II - ACTION BY PLAINTIFF FOR NEGLIGENCE AGAINST
DEFENDANT, AMERICAN HOMETOWN PUBLISHING, INC. d/b/a OSCEOLA NEWS
GAZETTE
25, Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal Representative
of the Estate of ANGEL PAGAN, JR., adopts and realleges Paragraphs 1 through 24 as fully set
forth herein.
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26. Prior to the date of accident, LORETTA RAY BARBER, agreed to deliver the
“Osceola News Gazette” newspaper for AMERICAN HOMETOWN PUBLISHING, INC. in
exchange for monetary compensation.
27. LORETTA RAY BARBER was paid directly by AMERICAN HOMETOWN
PUBLISHING, INC.
28, At all relevant times, LORETTA RAY BARBER, was an employee and/or agent
of AMERICAN HOMETOWN PUBLISHING, INC.
29, LORETTA RAY BARBER had supervisors who were responsible for ensuring
she adequately, appropriate, and timely delivered the Osceola News Gazette.
30. AMERICAN HOMETOWN PUBLISHING, INC. and its employees/agents
trained LORETTA RAY BARBER how to properly and appropriately deliver the Osceola News
Gazette to their customers.
31. LORETTA RAY BARBER reported directly to AMERICAN HOMETOWN
PUBLISHING, INC. and its employees/agents.
32. The newspaper delivered by LORETTA RAY BARBER contained the name,
trademark, logo, and markings of “Osceola News Gazette” and said newspapers were published
and produced by AMERICAN HOMETOWN PUBLISHING, INC.
33. AMERICAN HOMETOWN PUBLISHING, INC. had control, or the right of
control, over LORETTA RAY BARBER as their employee/agent, and the method in which its
newspapers were delivered to its customers which included, but not limited, to the following:
a Directing LORETTA RAY BARBER to pick up newspapers to be
delivered directly from the printing press owned and/or operated by AMERICAN
HOMETOWN PUBLISHING, INC.;
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b. Requiring LORETTA RAY BARBER to respond to text messages within
a time certain to pick up newspapers.
¢ Directing LORETTA RAY BARBER as to where on customers’ property
newspapers were to be delivered.
d Requiring LORETTA RAY BARBER to individually assemble
newspapers in a manner determined by AMERICAN HOMETOWN
PUBLISHING, INC.
e. Requiring LORETTA RAY BARBER to deliver newspapers twice per
week.
f. Unilaterally controlling and changing stops on LORETTA RAY
BARBER’ delivery route.
34, AMERICAN HOMETOWN PUBLISHING, INC., is vicariously liable for the
negligence of LORETTA RAY BARBER.
35. As a direct and proximate result of LORETTA RAY BARBER’s negligence,
Decedent, ANGEL PAGAN, JR., sustained serious and permanent injuries that resulted in his
death.
36. As a direct and proximate result of the negligence of the Defendant, LORETTA
RAY BARBER, as aforesaid, the survivors have suffered, and will continue to suffer the
following damages into the future; loss of the support and services of the Decedent, the
replacement value of Decedent’s support and services, the loss of the Decedent’s companionship,
affection, and mental pain and suffering. Plaintiff, on behalf of the survivors, makes a claim for
these damages, and all other damages allowable by the Florida Wrongful Death Act.
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37. As a direct and proximate result of the negligence of Defendant, LORETTA RAY
BARBER, the Estate of ANGEL PAGAN, JR. suffered, and will continue to suffer, the
following damages into the future; loss of net accumulations of Decedent’s Estate and the
medical and funeral expenses due to the Decedent’s injury and death. The Plaintiff, on behalf of
the Estate, claims all these damages and all other damages allowable by the Florida Wrongful
Death Act.
WHEREFORE, Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal
Representative of the Estate of ANGEL PAGAN, JR., demands judgment against the Defendant,
AMERICAN HOMETOWN PUBLISHING, INC. d/b/a OSCEOLA NEWS GAZETTE, and an
award of all damages to which the Estate and the survivors are legally entitled, including mental
pain and suffering of the survivors, medical or funeral expenses due to the Decedent's injuries
and death, loss of net accumulations and all other damages set forth in Chapter 768 of the Florida
Statutes, along with costs and attorney(s) fees as might be allowable by law. Plaintiff demands a
trial by jury on all issues triable as of right by a jury.
COUNT HI- ACTION BY PLAINTIFF FOR NEGLIGENCE AGAINST
DEFENDANT, SUN PUBLICATIONS OF FLORIDA, INC. d/b/a OSCEOLA NEWS
GAZETTE
38. Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal Representative
of the Estate of ANGEL PAGAN, JR., adopts and realleges Paragraphs | through 24 as fully set
forth herein.
39, Prior to the date of accident, LORETTA RAY BARBER, agreed to deliver the
“Osceola News Gazette” newspaper for SUN PUBLICATIONS OF FLORIDA, INC. in
exchange for monetary compensation.
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40. LORETTA RAY BARBER was paid directly by SUN PUBLICATIONS OF
FLORIDA, INC.
41. At all relevant times, LORETTA RAY BARBER, was an employee and/or agent
of SUN PUBLICATIONS OF FLORIDA, INC.
42, LORETTA RAY BARBER had supervisors who were responsible for ensuring
she adequately, appropriate, and timely delivered the Osceola News Gazette.
43. SUN PUBLICATIONS OF FLORIDA, INC. and its employees/agents trained
LORETTA RAY BARBER how to properly and appropriately deliver the Osceola News Gazette
to their customers.
44 LORETTA RAY BARBER reported directly to SUN PUBLICATIONS OF
FLORIDA, INC.
45, The newspaper delivered by LORETTA RAY BARBER contained the name,
trademark, logo, and markings of “Osceola News Gazette” and said newspapers were published
and produced by SUN PUBLICATIONS OF FLORIDA, INC.
46, SUN PUBLICATIONS OF FLORIDA, INC. had control, or the right of control,
over LORETTA RAY BARBER as their employee/agent, and the method in which its
newspapers were delivered to its customers which included, but not limited, to the following:
a Directing LORETTA RAY BARBER to pick up newspapers to be delivered
directly from the printing press owned and/or operated by SUN PUBLICATIONS OF
FLORIDA, INC.;
b. Requiring LORETTA RAY BARBER to respond to text messages within
a time certain to pick up newspapers.
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¢. Directing LORETTA RAY BARBER as to where on customers’ property
newspapers were to be delivered.
d Requiring LORETTA RAY BARBER to individually assemble
newspapers in a manner determined by SUN PUBLICATIONS OF FLORIDA,
INC,
€. Requiring LORETTA RAY BARBER to deliver newspapers twice per
week.
f. Unilaterally controlling and changing stops on LORETTA RAY
BARBER’s delivery route.
47, SUN PUBLICATIONS OF FLORIDA, INC. is vicariously liable for the
negligence of LORETTA RAY BARBER.
48, As a direct and proximate result of LORETTA RAY BARBER’s negligence,
Decedent, ANGEL PAGAN, JR., sustained serious and permanent injuries that resulted in his
death,
49, As a direct and proximate result of the negligence of the Defendant, LORETTA
RAY BARBER, as aforesaid, the survivors have suffered, and will continue to suffer the
following damages into the future; loss of the support and services of the Decedent, the
replacement value of Decedent’s support and services, the loss of the Decedent’s companionship,
affection, and mental pain and suffering. Plaintiff, on behalf of the survivors, makes a claim for
these damages, and al] other damages allowable by the Florida Wrongful Death Act.
50. As a direct and proximate result of the negligence of Defendant, LORETTA RAY
BARBER, the Estate of ANGEL PAGAN, JR. suffered, and will continue to suffer, the
following damages into the future; loss of net accumulations of Decedent’s Estate and the
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medical and funeral expenses due to the Decedent’s injury and death. The Plaintiff, on behalf of
the Estate, claims all these damages and all other damages allowable by the Florida Wrongful
Death Act.
WHEREFORE, Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal
Representative of the Estate of ANGEL PAGAN, JR., demands judgment against the Defendant,
SUN PUBLICATIONS OF FLORIDA, INC. d/b/a OSCEOLA NEWS GAZETTE, and an award
of all damages to which the Estate and the survivors are legally entitled, including mental pain
and suffering of the survivors, medical or funeral expenses due to the Decedent's injuries and
death, loss of net accumulations and all other damages set forth in Chapter 768 of the Florida
Statutes, along with costs and attorney(s) fees as might be allowable by law. Plaintiff demands a
trial by jury on all issues triable as of right by a jury.
COUNT TV - ACTION BY PLAINTIFF FOR NEGLIGENCE OF DEFENDANT, CHRIS
A, TIFFER AS OWNER OF OSCEOLA NEWS GAZETTE
Sl. Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal Representative
of the Estate of ANGEL PAGAN, JR., adopts and realleges Paragraphs 1 through 24 as fully set
forth herein.
52. Prior to the date of accident, LORETTA RAY BARBER, agreed to deliver the
“Osceola News Gazette” newspaper for CHRIS A. TIFFER as the owner of OSCEOLA NEWS
GAZETTE in exchange for monetary compensation.
53. LORETTA RAY BARBER was paid directly by CHRIS A. TIFFER.
S4. At all relevant times, LORETTA RAY BARBER, was an employee and/or agent
of CHRIS A. TIFFER.
55. LORETTA RAY BARBER had supervisors who were responsible for ensuring
she adequately, appropriate, and timely delivered the Osceola News Gazette.
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56. At all relevant times, LORETTA RAY BARBER, was an employee and/or agent
of CHRIS A. TIFFER.
57. LORETTA RAY BARBER had supervisors who were responsible for ensuring
she adequately, appropriate, and timely delivered the Osceola News Gazette.
58. CHRIS A. TIFFER and his employees/agents trained LORETTA RAY BARBER
how to properly and appropriately deliver the Osceola News Gazette to their customers.
59. LORETTA RAY BARBER reported directly to CHRIS A. TIFFER.
60. The newspaper delivered by LORETTA RAY BARBER contained the name,
trademark, logo, and markings of “Osceola News Gazette” and said newspapers were published
and produced by CHRIS A. TIFFER.
61. CHRIS A. TIFFER had control, or the right of control, over LORETTA RAY
BARBER as their employee/agent, and the method in which its newspapers were delivered to its
customers which included, but not limited, to the following:
a Directing LORETTA RAY BARBER to pick up newspapers to be delivered
directly from the printing press owned and/or operated by CHRIS A. TIFFER;
b. Requiring LORETTA RAY BARBER to respond to text messages within
a time certain to pick up newspapers.
c Directing LORETTA RAY BARBER as to where on customers’ property
newspapers were to be delivered.
d Requiring LORETTA RAY BARBER to individually assemble
newspapers in a manner determined by CHRIS A. TIFFER.
€. Requiring LORETTA RAY BARBER to deliver newspapers twice per
week.
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£. Unilaterally controlling and changing stops on LORETTA RAY
BARBER’s delivery route.
62. CHRIS A. TIFFER is vicariously liable for the negligence of LORETTA RAY
BARBER.
63, As a direct and proximate result of LORETTA RAY BARBER’s negligence,
Decedent, ANGEL PAGAN, JR., sustained serious and permanent injuries that resulted in his
death.
64 As a direct and proximate result of the negligence of the Defendant, LORETTA
RAY BARBER, as aforesaid, the survivors have suffered, and will continue to suffer the
following damages into the future; loss of the support and services of the Decedent, the
replacement value of Decedent’s support and services, the loss of the Decedent’s companionship,
affection, and mental pain and suffering. Plaintiff, on behalf of the survivors, makes a claim for
these damages, and all other damages allowable by the Florida Wrongful Death Act.
65, As a direct and proximate result of the negligence of Defendant, LORETTA RAY
BARBER, the Estate of ANGEL PAGAN, JR. suffered, and will continue to suffer, the
following damages into the future; loss of net accumulations of Decedent’s Estate and the
medical and funeral expenses due to the Decedent’s injury and death. The Plaintiff, on behalf of
the Estate, claims all these damages and all other damages allowable by the Florida Wrongful
Death Act.
WHEREFORE, Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal
Representative of the Estate of ANGEL PAGAN, JR., demands judgment against the Defendant,
CHRIS A. TIFFER, and an award of all damages to which the Estate and the survivors are
legally entitled, including mental pain and suffering of the survivors, medical or funeral expenses
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Preview
Filing # 137568137 E-Filed 10/29/2021 03:31:42 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA MAUREEN TRAVERS, as Personal Representative of the Estate of Angel Pagan, Jr., Deceased, Plaintiff, CASE NO.: 2021-CA-1161 Vv. LORETTA RAY BARBER, AMERICAN HOMETOWN PUBLISHING, INC. d/b/a OSCEOLA NEWS GAZETTE, SUN PUBLICATIONS OF FLORIDA d/b/a OSCEOLA NEWS GAZETTE, and STIDHAM MEDIA GROUP HOLDINGS, LLC d/b/a OSCEOLA NEWS GAZETTE, Defendants. / DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT Defendant, AMERICAN HOMETOWN PUBLISHING, INC., (hereinafter “AHP”), by and through the undersigned counsel and pursuant to Fla. R. Civ. P. 1.510, hereby files its Motion for Final Summary Judgment with Incorporated Memorandum of Law and in support thereof states the following: I, PROCEDURAL BACKGROUND This case arises from a motor vehicle accident that occurred on May 8, 2019 in Osceola County, Florida. On that date, Plaintiff Decedent, Angel Pagan, was struck by a motor vehicle accident driven by Defendant Loretta Ray Barber. See Complaint attached hereto as Exhibit A. Maureen Travelers, as Personal Representative of the Estate of Angel Pagan, Jr., Deceased, has filed this wrongful death action and contends that Defendant AHP is vicariously liable for the negligence of Ms. Barber because at the time of this incident, Ms. Barber was an agent, servant, or employee of AHP. /d. at § 12. In response to Plaintiffs allegations, none of which have been established by the record evidence in this case, AHP now moves for summary judgement as Plaintiff cannot establish that there was an employee-employer relationship between Ms. Barber and AHP. Nor can it be established that AHP had any agency relationship with Ms. Barber at the time of this incident. Il. UNDISPUTED FACTS PERTINENT TO SUMMARY JUDGMENT On August 20, 2021, AHP sent discovery requests to Defendant Barber. Among the requests were a set of Interrogatories. Those interrogatories contained several questions relating to the alleged relationship between Ms. Barber and AHP. On September 30, 2021, Ms. Barber furnished AHP with answers to the above-referenced discovery requests, including answers to interrogatories. See Defendant Barber’s Answers to Interrogatories attached hereto as Exhibit B. In her answers to the interrogatories, Ms. Barber stated the following: 1. At the time of the incident, she was driving to Walmart to shop. (/d at No. 7). 2. Other than signing a contract with AHP, she has never spoken with anyone at AHP, (/d at No. 8). 3. At the time of the incident, she was an independent contractor of AHP. (/d at No. 9) 4. At the time of the incident, she was not engaged in any activity for, or on behalf of, AHP. Instead, she was on a personal mission to shop at Walmart. (/d at No. 10) On July 4, 2018, Defendant Barber and AHP entered into an Independent Contract Distribution Agreement. This agreement required Ms. Barber to periodically deliver newspapers on behalf of AHP. This agreement specifically states that there is no employee-employer relationship between the parties and that Ms. Barber is to be considered an Independent Contractor. See Contract with Barber attached hereto as Exhibit C. MEMORANDUM OF LAW IN SUPPORT OF SUMMARY JUDGMENT A. SUMMARY JUDGMENT STANDARD Rule 1.510(c) of the Florida Rules of Civil Procedure states that summary judgment is proper where the materials admissible in evidence on file “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” In Holl v. Talcott, 191 So. 2d 40 (Fla. 1966), the Florida Supreme Court held that the burden to prove the non-existence of genuine triable issues is on the moving party. If the party who has moved for summary judgment sustains its initial burden of demonstrating the absence of a genuine issue of material fact, the burden then shifts to the party against whom summary judgment is sought to establish the existence of a genuine issue of material fact. Latour Auto Sales, Inc. v. Stromberg- Carson Leasing Corp., 335 So. 2d 600, 601 (Fla. 3d DCA 1976). Furthermore, in a vicariously liability action, “Where there are no factual disputes, whether an employee is acting within the course and scope of his employment is a question of law.” Adams v. Mitchell G. Hancock, Inc., 74 So. 3d 1113, 1114 (Fla. Sth DCA 2011) (citing Sussman v. Fla. E. Coast Props., Inc., 557 So. 2d 74, 76 (Fla. 3d DCA 1990)). “The standard of review governing a trial court's ruling on a motion for summary judgment posing a pure question of law is de novo.” Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001). Further, “if there is no genuine issue of material fact, a summary judgment is proper only if the moving party is entitled to a judgment as a matter of law.” Est. of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Maynard v. Household Fin. Corp. III, 861 So. 2d 1204, 1206 (Fla. 2d DCA 2003)). B. PLAINTIFF CANNOT ESTABLISH THAT DEFENDANT BARBER WAS AN EMPLOYEE OF AHP It is well established law in Florida that an employer can be held vicariously liable for the acts of its employees under the doctrine of Respondeat Superior. Samiian v. Johnson, 302 So.3d 966 (Fla. 1" DCA 2020). There are exceptions to this doctrine but one rule that must be complied with is that the employee must have been acting within the course and scope of his employment when the incident giving rise to the complaint occurs. City of Boynton Beach v. Weiss, 120 So.3d 606 (Fla. 4 DCA 2013). In the present case, the facts are clear that Ms. Barber was not an employee of AHP. In fact, Ms. Barber acknowledges that she was not an employee of AHP, but rather an independent contractor. To substantiate this fact, there is a signed Independent Contract Distribution Agreement between Ms. Barber and AHP that was operable on the date of this incident. Plaintiff has not presented any evidence to substantiate her allegation that at the time of this incident Ms. Barber was an employee, servant, or agent, of AHP. Without such evidence, the only facts for the court to consider are Ms. Barber’s assertion that she was not an employee of AHP, and the agreement between Ms. Barber and AHP. C. PLAINTIFF CANNOT ESTABLISH THAT DEFENDANT BARBER WAS WITHIN THE COURSE AND SCOPE OF HER EMPLOYEMENT WITH AHP WHEN THIS INCIDENT OCCURRED Even if the Court assumes that Ms. Barber was an employee of AHP at the time of this incident (an assumption not supported by the facts), Plaintiff would still need to prove that Ms. Barber was acting within the course and scope of her employment when this incident occurred. Without such facts, a claim for vicarious liability cannot be established. Florida courts have held that “An employer is vicariously liable for an employee's tortious conduct where the conduct occurs within the scope of the employment.” Fields v. Devereux Found., Inc., 244 So, 3d 1193, 1196 (Fla. 2d DCA 2018) (citing Garcia v. Duffy, 492 So. 2d 435, 438 (Fla. 2d DCA 1986)). An employee’s “[c]onduct is within the scope of employment if it occurs substantially within authorized time and space limits, and it is activated at least in part by a purpose to serve the master.” Hennagan v. Dep't of Highway Safety & Motor Vehicles, 467 So. 2d 748, 751 (Fla. Ist DCA 1985). Here again, Plaintiff has presented no evidence to support an allegation that Ms. Barber was within the course and scoped of her employment with AHP when this incident occurred. The only evidence presented is that of Ms. Barber. She stated that at the time of this incident she was on her way to Walmart to shop for personal items. The only possible thread that might be pulled from that testimony is that prior to going to Walmart, Ms. Barber had picked up newspapers from AHP to deliver them to customers at a later time. However, “the law is well established that an employee driving to and from work is not within the scope of employment so as to impose liability on the employer.” Hernandez v. Tallahassee Med. Ctr., Inc., 896 So. 2d 839, 843 (Fla. 1st DCA 2005) (first citing Foremost Dairies, Inc., of the S. v. Godwin, 158 Fla. 245, 26 So. 2d 773 (1946); and then citing Freeman v. Manpower, Inc., 453 So. 2d 208, 209 (Fla. Ist DCA 1984)); see, e.g., Foremost Dairies, Inc., 26 So. 2d at 774 (holding that employee's negligent operation of the car was not attributable to the employer because the employee was “on his way to work when the collision occurred”). This rule is colloquially referred to as the “going and coming” rule. Swartz v. McDonald's Corp., 788 So. 2d 937, 942 (Fla. 2001) (“The 'going and coming' rule provides that injuries sustained while traveling to or from work do not arise out of and in the course of employment and, therefore, are not compensable.”). Under the “going and coming” rule, even if Ms. Barber is considered an employee, she was not within the course and scope of her employment with AHP at the time of this incident as she had just picked up newspapers to deliver at a later time, and was on her way to conduct personal business not related to her work for AHP. Further, the fact that Ms. Barber was on her way to Walmart to purchase personal items when this incident occurred is similar to the facts of Sussman y. Florida East Coast Properties, Inc., 557 So.24 74 (Fla. 3 DCA 1990). In Sussman, Plaintiff was a waiting bus passenger who was struck by the driver. Plaintiff sued the driver's employer. The trial court granted summary judgment for the employer and the Third DCA affirmed the summary judgment stating that the driver was outside the scope of the employer’s business when she detoured on her way to work to purchase a cake for fellow employee’s birthday celebration. The driver's employer was thus not vicariously liable for plaintiff's injuries. Just like in Sussman, Ms. Barber was not acting within the course and scope of her employment as she was on her way to conduct personal business. The analysis and decision in Sussman are directly applicable to the present case, should the Court find that Ms. Barber was an employee of AHP at the time of this incident. D. CONCLUSION The record in this case is clear, Plaintiff has failed to provide any evidence to show that Ms. Barber was an employee of AHP at the time of this incident. The only evidence available indicates that Ms. Barber was an independent contractor of AHP. Further, even ifthe Court accepts that Ms. Barber was an employee of AHP at the time of this incident, the only evidence presented thus far shows that Ms. Barber was not within the course and scope of her employment at the time. WHEREFORE, Defendant, American Hometown Publishing, Inc., respectfully requests this court to grant its Motion for Final Summary Judgment and to enter Final Summary Judgment in favor of Defendant and against Plaintiff, for the reasons stated above. CERTIFICATE OF SERVICE IHEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via the efiling portal to: Thomas P. Glenz, Esq., Dan Newlin Injury Attorneys; glenz.pleadings@newlinlaw.com; 1408 North Westshore Blvd., Suite 400, Tampa, FL 33607; Stacy A McCland, Esq., McCland Law P.A., stacy@meclandlaw.com, ervice@meclandlaw.com; 22 West Monument Avenue, Suite 3A, Kissimmee, FL 34747; Amanda L. Kidd, Esq., Boyd & Jenerette, P.A., efiling@boydjen.com; 201 North Hogan Street, Suite 400, Jacksonville, FL 32202; this 29" day of October, 2021. /s/ Luis F. Zavala, Esq. Luis F. Zavala, Esq. Florida Bar: 91247 Law Offices of Jack D. Evans 2420 Lakemont Ave., Suite 125 Orlando, FL 32814 Tel: 407-388-2904 Fax: 855-203-0311 Attorneys for Defendant AHP Primary Email: Izavala@travelers.com Secondary Email: jdeorlan@travelers.com 08/11/2021 02:15 PH 10:18772661419 FROM: 7862308823 Page: 4 Filing # 125400684 E-Filed 04/22/2021 10:24:30 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO: MAUREEN TRAVERS as Personal Representative of the Estate of Angel Pagan, JURY TRIAL DEMANDED Jr., deceased, Plaintiff, v. LORETTA RAY BARBER, AMERICAN HOMETOWN PUBLISHING, INC. d/b/a OSCEOLA NEWS GAZETTE, SUN PUBLICATIONS OF FLORIDA, INC. d/b/a OSCEOLA NEWS GAZETTE, CHRIS A. TIFFER, and STIDHAM MEDIA GROUP HOLDINGS, LLC d/b/a OSCEOLA NEWS- GAZETTE, Defendants. / COMPLAINT Plaintiff, MAUREEN TRAVERS as Personal Representative of the Estate of Angel Pagan, Jr., deceased, by and through undersigned counsel, sues the Defendants, LORETTA RAY BARBER, AMERICAN HOMETOWN PUBLISHING, INC. d/b/a OSCEOLA NEWS GAZETTE, SUN PUBLICATIONS OF FLORIDA, INC. d/b/a OSCEOLA NEWS GAZETTE, CHRIS A. TIFFER, and STIDHAM MEDIA GROUP HOLDINGS, LLC d/b/a OSCEOLA NEWS-GAZETTE, and states as follows: 1 This is an action for wrongful death brought pursuant to Fla. Stat. Ch. 768 for damages that exceed Thirty Thousand Dollars ($30,000.00) exclusive of interest, costs and attorney’s fees. Page 1 of 17 EXHIBIT A PAGE 4/23 * RCVD AT 8/11/2021 5:16:08 PM [Eastern Daylight Time] * SVR: TENFAXP3/10 * DNIS:3106 * CSID:VFD113M6N13 * ANI:7862308823 * DURATION (mm-ss):10-25 08/11/2021 02:15 PH 10:18772661419 FROM: 7862308823 Page: 5 2. At all times material to this action, Plaintiff, MAUREEN TRAVERS, was the duly appointed Personal Representative of the Estate of ANGEL PAGAN, JR. Said Estate is pending in the Circuit Court for Osceola County, Florida, Probate Division File Number 2020- CP-000490-PR. A copy of the Order Appointing Personal Representative is attached as Exhibit “AN, 3 Pursuant to the Florida Wrongful Death Statute, this action is brought by the Personal Representative of the Estate, ANGEL PAGAN, JR., on behalf of the Estate and all survivors. The survivors are as follows: . Maureen Travers, decedent's widow; Nicole Sonia Pagan, Decedent’s daughter age 22; J.C.P., Decedent’s minor son, age 16; S.M.P., Decedent's minor daughter, age 16; and, . Susan Pagan-Pina, Decedent’s sister. 4 At all times material to this action, Decedent plaintiff, ANGEL PAGAN, JR., was a natural person residing in Kissimmee, Osceola County, Florida. 5, At all times material to this action, Defendant, LORETTA RAY BARBER, was a natural person residing in Orlando, Orange County, Florida. 6. At all times material to this action, Defendant, AMERICAN HOMETOWN PUBLISHING, INC., was a foreign for-profit corporation doing business as OSCEOLA NEWS GAZETTE and doing business in Kissimmee, Osceola County, Florida. 7 At all times material to this action, Defendant, SUN PUBLICATIONS OF FLORIDA, INC., was a foreign for-profit corporation doing business as OSCEOLA NEWS GAZETTE and doing business in Kissimmee, Osceola County, Florida. Page 2 of 17 PAGE 5/23 * RCVD AT 8/11/2021 5:16:08 PM [Eastern Daylight Time] * SVR: TENFAXP3/10 * DNIS:3106 * CSID:VFD113M6N13 * ANI:7862308823 * DURATION (mm-ss):10-25 08/11/2021 02:15 PH 10:18772661419 FROM: 7862308823 Page: 6 8 At all times material to this action, Defendant, CHRIS A. TIFFER, was a natural person residing in Kissimmee, Osceola County, Florida and owner of OSCEOLA NEWS GAZETTE. 9 At all times material to this action, Defendant, STIDHAM MEDIA GROUP HOLDINGS, LLC, was a Florida Limited Liability Company doing business as OSCEOLA NEWS-GAZETTE and doing business in Kissimmee, Osceola County, Florida. 10. All other conditions precedent to the bringing of this action have been performed, have occurred or have been waived. ll. Venue is proper in Osceola County, Florida because the alleged incident occurred in Kissimmee, Osceola County, Florida. FACTS COMMON TO ALL COUNTS 12, On or about May 8, 2019, Deceased Plaintiff, ANGEL PAGAN, JR., was a pedestrian crossing US Highway 192 within the designated crosswalk at the Simpson Road intersection in Kissimmee, Osceola County, Florida. 13, At that time and place, Defendant, LORETTA RAY BARBER, was operating her motor vehicle on US Highway 192 at the Simpson Road intersection in Kissimmee, Osceola County, Florida. 14. At all times material hereto, the Defendant, LORETTA RAY BARBER, was an agent, servant or employee of Defendant, AMERICAN HOMETOWN PUBLISHING, INC. d/b/a OSCEOLA NEWS GAZETTE. 15. At all times material hereto, the Defendant, LORETTA RAY BARBER, was an agent, servant or employee of Defendant, SUN PUBLICATIONS OF FLORIDA, INC. d/b/a OSCEOLA NEWS GAZETTE. Page 3 of 17 PAGE 6/23 * RCVD AT 8/11/2021 5:16:08 PM [Eastern Daylight Time] * SVR: TENFAXP3/10 * DNIS:3106 * CSID:VFD113M6N13 * ANI:7862308823 * DURATION (mm-ss):10-25 08/11/2021 02:15 PH 10:18772661419 FROM: 7862308823 Page: 7 16. At all times material hereto, the Defendant, LORETTA RAY BARBER, was an agent, servant or employee of Defendant, STIDHAM MEDIA GROUP HOLDINGS, LLC d/b/a OSCEOLA NEWS-GAZETTE. 17. At that time and place, Defendant, LORETTA RAY BARBER, owed a duty to the Deceased Plaintiff, ANGEL PAGAN, JR. to operate her vehicle in a safe manner. 18. At that time and place, Defendant, LORETTA RAY BARBER, negligently and carelessly operated and/or maintained her vehicle so as to collide with Decedent, ANGEL PAGAN, JR. 19. As a result of the collision caused by the negligence of Defendant, LORETTA RAY BARBER, Plaintiff, ANGEL PAGAN, JR., sustained serious and permanent injuries that resulted in his death. COUNT I~ ACTION BY PLAINTIFF FOR NEGLIGENCE AGAINST DEFENDANT, LORETTA RAY BARBER 20. Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal Representative of the Estate of ANGEL PAGAN, JR., adopts and realleges Paragraphs 1 through 19 as fully set forth herein. 21, Defendant, LORETTA RAY BARBER, was negligent and careless in the operation of her motor vehicle as to collide with Decedent, ANGEL PAGAN, JR. 22. As a direct and proximate cause of Defendant, LORETTA RAY BARBER’s, negligence, Decedent, ANGEL PAGAN JR., suffered serious and permanent injuries that resulted in his death. 23, As a direct and proximate result of the negligence of the Defendant, LORETTA RAY BARBER, as aforesaid, the survivors have suffered, and will continue to suffer the following damages into the future; loss of the support and services of the Decedent, the Page 4 of 17 PAGE 7/23 * RCVD AT 8/11/2021 5:16:08 PM [Eastern Daylight Time] * SVR: TENFAXP3/10 * DNIS:3106 * CSID:VFD113M6N13 * ANI:7862308823 * DURATION (mm-ss):10-25 08/11/2021 02:15 PH 10:18772661419 FROM: 7862308823 Page: 8 replacement value of Decedent’s support and services, the loss of the Decedent’s companionship, affection, and mental pain and suffering. Plaintiff, on behalf of the survivors, makes a claim for these damages, and all other damages allowable by the Florida Wrongful Death Act. 24. As a direct and proximate result of the negligence of Defendant, LORETTA RAY BARBER, the Estate of ANGEL PAGAN, JR. suffered, and will continue to suffer, the following damages into the future; loss of net accumulations of Decedent’s Estate and the medical and funeral expenses due to the Decedent’s injury and death. The Plaintiff, on behalf of the Estate, claims all these damages and all other damages allowable by the Florida Wrongful Death Act. WHEREFORE, Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal Representative of the Estate of ANGEL PAGAN, JR., demands judgment against the Defendant, LORETTA RAY BARBER, and an award of all damages to which the Estate and the survivors are legally entitled, including mental pain and suffering of the survivors, medical or funeral expenses due to the Decedent’s injuries and death, loss of net accumulations and all other damages set forth in Chapter 768 of the Florida Statutes, along with costs and attorney(s) fees as might be allowable by law. Plaintiff demands a trial by jury on all issues triable as of right by a jury. COUNT II - ACTION BY PLAINTIFF FOR NEGLIGENCE AGAINST DEFENDANT, AMERICAN HOMETOWN PUBLISHING, INC. d/b/a OSCEOLA NEWS GAZETTE 25, Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal Representative of the Estate of ANGEL PAGAN, JR., adopts and realleges Paragraphs 1 through 24 as fully set forth herein. Page 5 of 17 PAGE 8/23 * RCVD AT 8/11/2021 5:16:08 PM [Eastern Daylight Time] * SVR: TENFAXP3/10 * DNIS:3106 * CSID:VFD113M6N13 * ANI:7862308823 * DURATION (mm-ss):10-25 08/11/2021 02:15 PH 10:18772661419 FROM: 7862308823 Page: 9 26. Prior to the date of accident, LORETTA RAY BARBER, agreed to deliver the “Osceola News Gazette” newspaper for AMERICAN HOMETOWN PUBLISHING, INC. in exchange for monetary compensation. 27. LORETTA RAY BARBER was paid directly by AMERICAN HOMETOWN PUBLISHING, INC. 28, At all relevant times, LORETTA RAY BARBER, was an employee and/or agent of AMERICAN HOMETOWN PUBLISHING, INC. 29, LORETTA RAY BARBER had supervisors who were responsible for ensuring she adequately, appropriate, and timely delivered the Osceola News Gazette. 30. AMERICAN HOMETOWN PUBLISHING, INC. and its employees/agents trained LORETTA RAY BARBER how to properly and appropriately deliver the Osceola News Gazette to their customers. 31. LORETTA RAY BARBER reported directly to AMERICAN HOMETOWN PUBLISHING, INC. and its employees/agents. 32. The newspaper delivered by LORETTA RAY BARBER contained the name, trademark, logo, and markings of “Osceola News Gazette” and said newspapers were published and produced by AMERICAN HOMETOWN PUBLISHING, INC. 33. AMERICAN HOMETOWN PUBLISHING, INC. had control, or the right of control, over LORETTA RAY BARBER as their employee/agent, and the method in which its newspapers were delivered to its customers which included, but not limited, to the following: a Directing LORETTA RAY BARBER to pick up newspapers to be delivered directly from the printing press owned and/or operated by AMERICAN HOMETOWN PUBLISHING, INC.; Page 6 of 17 PAGE 9/23 * RCVD AT 8/11/2021 5:16:08 PM [Eastern Daylight Time] * SVR: TENFAXP3/10 * DNIS:3106 * CSID:VFD113M6N13 * ANI:7862308823 * DURATION (mm-ss):10-25 08/11/2021 02:15 PH 10:18772661419 FROM: 7862308823 Page: 10 b. Requiring LORETTA RAY BARBER to respond to text messages within a time certain to pick up newspapers. ¢ Directing LORETTA RAY BARBER as to where on customers’ property newspapers were to be delivered. d Requiring LORETTA RAY BARBER to individually assemble newspapers in a manner determined by AMERICAN HOMETOWN PUBLISHING, INC. e. Requiring LORETTA RAY BARBER to deliver newspapers twice per week. f. Unilaterally controlling and changing stops on LORETTA RAY BARBER’ delivery route. 34, AMERICAN HOMETOWN PUBLISHING, INC., is vicariously liable for the negligence of LORETTA RAY BARBER. 35. As a direct and proximate result of LORETTA RAY BARBER’s negligence, Decedent, ANGEL PAGAN, JR., sustained serious and permanent injuries that resulted in his death. 36. As a direct and proximate result of the negligence of the Defendant, LORETTA RAY BARBER, as aforesaid, the survivors have suffered, and will continue to suffer the following damages into the future; loss of the support and services of the Decedent, the replacement value of Decedent’s support and services, the loss of the Decedent’s companionship, affection, and mental pain and suffering. Plaintiff, on behalf of the survivors, makes a claim for these damages, and all other damages allowable by the Florida Wrongful Death Act. Page 7 of 17 PAGE 10/23 * RCVD AT 8/11/2021 5:16:08 PM [Eastern Daylight Time] * SVR: TENFAXP3/10 * DNIS:3106* CSID: VFD113M6N13 * ANI:7862308823 * DURATION (mm-ss):10-25 08/11/2021 02:15 PH 10:18772661419 FROM: 7862308823 Page: 11 37. As a direct and proximate result of the negligence of Defendant, LORETTA RAY BARBER, the Estate of ANGEL PAGAN, JR. suffered, and will continue to suffer, the following damages into the future; loss of net accumulations of Decedent’s Estate and the medical and funeral expenses due to the Decedent’s injury and death. The Plaintiff, on behalf of the Estate, claims all these damages and all other damages allowable by the Florida Wrongful Death Act. WHEREFORE, Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal Representative of the Estate of ANGEL PAGAN, JR., demands judgment against the Defendant, AMERICAN HOMETOWN PUBLISHING, INC. d/b/a OSCEOLA NEWS GAZETTE, and an award of all damages to which the Estate and the survivors are legally entitled, including mental pain and suffering of the survivors, medical or funeral expenses due to the Decedent's injuries and death, loss of net accumulations and all other damages set forth in Chapter 768 of the Florida Statutes, along with costs and attorney(s) fees as might be allowable by law. Plaintiff demands a trial by jury on all issues triable as of right by a jury. COUNT HI- ACTION BY PLAINTIFF FOR NEGLIGENCE AGAINST DEFENDANT, SUN PUBLICATIONS OF FLORIDA, INC. d/b/a OSCEOLA NEWS GAZETTE 38. Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal Representative of the Estate of ANGEL PAGAN, JR., adopts and realleges Paragraphs | through 24 as fully set forth herein. 39, Prior to the date of accident, LORETTA RAY BARBER, agreed to deliver the “Osceola News Gazette” newspaper for SUN PUBLICATIONS OF FLORIDA, INC. in exchange for monetary compensation. Page 8 of 17 PAGE 11/23 * RCVD AT 8/11/2021 5:16:08 PM [Eastern Daylight Time] * SVR: TENFAXP3/10 * DNIS:3106 * CSID:VFD113M6N13 * ANI:7862308823 * DURATION (mm-ss):10-25 08/11/2021 02:15 PH 10:18772661419 FROM: 7862308823 Page: 12 40. LORETTA RAY BARBER was paid directly by SUN PUBLICATIONS OF FLORIDA, INC. 41. At all relevant times, LORETTA RAY BARBER, was an employee and/or agent of SUN PUBLICATIONS OF FLORIDA, INC. 42, LORETTA RAY BARBER had supervisors who were responsible for ensuring she adequately, appropriate, and timely delivered the Osceola News Gazette. 43. SUN PUBLICATIONS OF FLORIDA, INC. and its employees/agents trained LORETTA RAY BARBER how to properly and appropriately deliver the Osceola News Gazette to their customers. 44 LORETTA RAY BARBER reported directly to SUN PUBLICATIONS OF FLORIDA, INC. 45, The newspaper delivered by LORETTA RAY BARBER contained the name, trademark, logo, and markings of “Osceola News Gazette” and said newspapers were published and produced by SUN PUBLICATIONS OF FLORIDA, INC. 46, SUN PUBLICATIONS OF FLORIDA, INC. had control, or the right of control, over LORETTA RAY BARBER as their employee/agent, and the method in which its newspapers were delivered to its customers which included, but not limited, to the following: a Directing LORETTA RAY BARBER to pick up newspapers to be delivered directly from the printing press owned and/or operated by SUN PUBLICATIONS OF FLORIDA, INC.; b. Requiring LORETTA RAY BARBER to respond to text messages within a time certain to pick up newspapers. Page 9 of 17 PAGE 12/23 * RCVD AT 8/11/2021 5:16:08 PM [Eastern Daylight Time] * SVR: TENFAXP3/10 * DNIS:3106* CSID: VFD113M6N13 * ANI:7862308823 * DURATION (mm-ss):10-25 08/11/2021 02:15 PH 10:18772661419 FROM: 7862308823 Page: 13 ¢. Directing LORETTA RAY BARBER as to where on customers’ property newspapers were to be delivered. d Requiring LORETTA RAY BARBER to individually assemble newspapers in a manner determined by SUN PUBLICATIONS OF FLORIDA, INC, €. Requiring LORETTA RAY BARBER to deliver newspapers twice per week. f. Unilaterally controlling and changing stops on LORETTA RAY BARBER’s delivery route. 47, SUN PUBLICATIONS OF FLORIDA, INC. is vicariously liable for the negligence of LORETTA RAY BARBER. 48, As a direct and proximate result of LORETTA RAY BARBER’s negligence, Decedent, ANGEL PAGAN, JR., sustained serious and permanent injuries that resulted in his death, 49, As a direct and proximate result of the negligence of the Defendant, LORETTA RAY BARBER, as aforesaid, the survivors have suffered, and will continue to suffer the following damages into the future; loss of the support and services of the Decedent, the replacement value of Decedent’s support and services, the loss of the Decedent’s companionship, affection, and mental pain and suffering. Plaintiff, on behalf of the survivors, makes a claim for these damages, and al] other damages allowable by the Florida Wrongful Death Act. 50. As a direct and proximate result of the negligence of Defendant, LORETTA RAY BARBER, the Estate of ANGEL PAGAN, JR. suffered, and will continue to suffer, the following damages into the future; loss of net accumulations of Decedent’s Estate and the Page 10 of 17 PAGE 13/23 * RCVD AT 8/11/2021 5:16:08 PM [Eastern Daylight Time] * SVR: TENFAXP3/10 * DNIS:3106* CSID: VFD113M6N13 * ANI:7862308823 * DURATION (mm-ss):10-25 08/11/2021 02:15 PH 10:18772661419 FROM: 7862308823 Page: 14 medical and funeral expenses due to the Decedent’s injury and death. The Plaintiff, on behalf of the Estate, claims all these damages and all other damages allowable by the Florida Wrongful Death Act. WHEREFORE, Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal Representative of the Estate of ANGEL PAGAN, JR., demands judgment against the Defendant, SUN PUBLICATIONS OF FLORIDA, INC. d/b/a OSCEOLA NEWS GAZETTE, and an award of all damages to which the Estate and the survivors are legally entitled, including mental pain and suffering of the survivors, medical or funeral expenses due to the Decedent's injuries and death, loss of net accumulations and all other damages set forth in Chapter 768 of the Florida Statutes, along with costs and attorney(s) fees as might be allowable by law. Plaintiff demands a trial by jury on all issues triable as of right by a jury. COUNT TV - ACTION BY PLAINTIFF FOR NEGLIGENCE OF DEFENDANT, CHRIS A, TIFFER AS OWNER OF OSCEOLA NEWS GAZETTE Sl. Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal Representative of the Estate of ANGEL PAGAN, JR., adopts and realleges Paragraphs 1 through 24 as fully set forth herein. 52. Prior to the date of accident, LORETTA RAY BARBER, agreed to deliver the “Osceola News Gazette” newspaper for CHRIS A. TIFFER as the owner of OSCEOLA NEWS GAZETTE in exchange for monetary compensation. 53. LORETTA RAY BARBER was paid directly by CHRIS A. TIFFER. S4. At all relevant times, LORETTA RAY BARBER, was an employee and/or agent of CHRIS A. TIFFER. 55. LORETTA RAY BARBER had supervisors who were responsible for ensuring she adequately, appropriate, and timely delivered the Osceola News Gazette. Page 11 of 17 PAGE 14/23 * RCVD AT 8/11/2021 5:16:08 PM [Eastern Daylight Time] * SVR: TENFAXP3/10 * DNIS:3106* CSID: VFD113M6N13 * ANI:7862308823 * DURATION (mm-ss):10-25 08/11/2021 02:15 PH 10:18772661419 FROM: 7862308823 Page: 15 56. At all relevant times, LORETTA RAY BARBER, was an employee and/or agent of CHRIS A. TIFFER. 57. LORETTA RAY BARBER had supervisors who were responsible for ensuring she adequately, appropriate, and timely delivered the Osceola News Gazette. 58. CHRIS A. TIFFER and his employees/agents trained LORETTA RAY BARBER how to properly and appropriately deliver the Osceola News Gazette to their customers. 59. LORETTA RAY BARBER reported directly to CHRIS A. TIFFER. 60. The newspaper delivered by LORETTA RAY BARBER contained the name, trademark, logo, and markings of “Osceola News Gazette” and said newspapers were published and produced by CHRIS A. TIFFER. 61. CHRIS A. TIFFER had control, or the right of control, over LORETTA RAY BARBER as their employee/agent, and the method in which its newspapers were delivered to its customers which included, but not limited, to the following: a Directing LORETTA RAY BARBER to pick up newspapers to be delivered directly from the printing press owned and/or operated by CHRIS A. TIFFER; b. Requiring LORETTA RAY BARBER to respond to text messages within a time certain to pick up newspapers. c Directing LORETTA RAY BARBER as to where on customers’ property newspapers were to be delivered. d Requiring LORETTA RAY BARBER to individually assemble newspapers in a manner determined by CHRIS A. TIFFER. €. Requiring LORETTA RAY BARBER to deliver newspapers twice per week. Page 12 of 17 PAGE 15/23 * RCVD AT 8/11/2021 5:16:08 PM [Eastern Daylight Time] * SVR: TENFAXP3/10 * DNIS:3106* CSID: VFD113M6N13 * ANI:7862308823 * DURATION (mm-ss):10-25 08/11/2021 02:15 PH 10:18772661419 FROM: 7862308823 Page: 16 £. Unilaterally controlling and changing stops on LORETTA RAY BARBER’s delivery route. 62. CHRIS A. TIFFER is vicariously liable for the negligence of LORETTA RAY BARBER. 63, As a direct and proximate result of LORETTA RAY BARBER’s negligence, Decedent, ANGEL PAGAN, JR., sustained serious and permanent injuries that resulted in his death. 64 As a direct and proximate result of the negligence of the Defendant, LORETTA RAY BARBER, as aforesaid, the survivors have suffered, and will continue to suffer the following damages into the future; loss of the support and services of the Decedent, the replacement value of Decedent’s support and services, the loss of the Decedent’s companionship, affection, and mental pain and suffering. Plaintiff, on behalf of the survivors, makes a claim for these damages, and all other damages allowable by the Florida Wrongful Death Act. 65, As a direct and proximate result of the negligence of Defendant, LORETTA RAY BARBER, the Estate of ANGEL PAGAN, JR. suffered, and will continue to suffer, the following damages into the future; loss of net accumulations of Decedent’s Estate and the medical and funeral expenses due to the Decedent’s injury and death. The Plaintiff, on behalf of the Estate, claims all these damages and all other damages allowable by the Florida Wrongful Death Act. WHEREFORE, Plaintiff, MAUREEN TRAVERS, as the duly appointed Personal Representative of the Estate of ANGEL PAGAN, JR., demands judgment against the Defendant, CHRIS A. TIFFER, and an award of all damages to which the Estate and the survivors are legally entitled, including mental pain and suffering of the survivors, medical or funeral expenses Page 13 of 17 PAGE 16/23 * RCVD AT 8/11/2021 5:16:08 PM [Eastern Daylight Time] * SVR: TENFAXP3/10 * DNIS:3106* CSID: VFD113M6N13 * ANI:7862308823 *