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Filing # 139180488 E-Filed 11/24/2021 04:16:53 PM
IN AND FOR THE CIRCUIT COURT OF
INDIAN RIVER COUNTY, FL
JOHN GOLDEN,
Plaintiff,
Vv.
CASE NO: 2021 CA 000732
PROGRESSIVE AMERICAN CIVIL DIVISION
INSURANCE COMPANY,
Defendant.
ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW, the Defendant, PROGRESSIVE AMERICAN INSURANCE
COMPANY, by and through undersigned counsel, and in response to the Plaintiffs Complaint,
states:
1 Admit for jurisdictional purposes only, otherwise denied.
2 Without knowledge, therefore denied.
3 Admit.
4 Admit an accident was reported on or about that date near the location cited,
otherwise, without knowledge, therefore denied.
5 Denied.
6. Admit existence of an insurance policy, which speaks for itself; otherwise denied.
7
Admit existence of an insurance policy, which speaks for itself; otherwise denied.
8 Denied.
9. Each and every allegation not specifically admitted is hereby denied and strict
proof thereof is demanded.
CASE NO: 2021 CA 000732
AFFIRMATIVE DEFENSES
1 The Plaintiff is the sole legal cause of the injuries and damages alleged, and
therefore, Plaintiff is barred from recovery as a matter of law. The Plaintiff so negligently
conducted her/him/themself(ves) so as to cause and/or contribute to Plaintiff own alleged losses,
injuries or damages, and therefore, the Plaintiff's recovery is barred in its entirety and/or
diminished in accordance with Plaintiff's own negligence. This defense includes, but is not limited
to, the seat belt defense, since at all times material hereto, the Plaintiff failed to use an available
and operational shoulder restraint and/or seatbelt, and as a proximate result of the Plaintiff's failure
to do so, was the cause of the injuries, losses and damages alleged, or alternatively, aggravated
and/or exacerbated the injuries, damages and losses alleged. Accordingly, recovery is barred in
its entirety or diminished based on Plaintiff's failure to use said operational and available shoulder
restraint and/or operational and available seatbelt.
2 Pursuant to Section 768.76, any judgment against Defendant may not include the
value of any benefits received by or on behalf of the Plaintiff from any collateral sources as a result
of the subject motor vehicle accident.
3 Defendant states that the Plaintiff failed to mitigate damages, if any, and therefore,
is not entitled to recovery of any damages which could have been mitigated.
4 The Plaintiff failed to meet the threshold requirements of the Florida Motor Vehicle
No Fault Law, and therefore, recovery is barred in its entirety and/or diminished accordingly.
5 Defendant is entitled to immunity from liability for the amount of any deductible
selected by Plaintiff or by which Plaintiffis bound pursuant to any applicable automobile insurance
agreement providing personal injury protection coverage since the Plaintiff has not suffered a
threshold breaking injury.
CASE NO: 2021 CA 000732
6. This action is subject to Section 768.81 Florida Statutes, and any liability found on
the part of Defendant shall be apportioned on the basis of this Defendant's percentage of fault and
not on the basis of the doctrine of joint and several liability. Further, any contributory fault
chargeable to the Plaintiff diminishes proportionately the amount awarded as economic and
noneconomic damages for an injury attributable to the Plaintiff's contributory fault.
7
Pursuant to Section 627.736, any judgment against Defendant shall not include
damages for personal injury protection benefits paid or payable to or on behalf of the Plaintiff as
result of the subject motor vehicle accident.
8 Defendant is entitled to any and all Medicare/Medicaid insurance contractual
adjustments and/or write-offs and only that sum should be presented to the jury as the actual
damage incurred. Goble v Frohman 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v.
Lasky, 868 So 2d 547 (Fla. 4th DCA 2003).
9. Defendant would affirmatively aver that the Plaintiff's treating experts, providers
and/or facilities submission of medical bills to the PIP insurer violated F.S. 627.736(5) (b) 1.e, and
as such, Defendant is liable only to the extent that the PIP carrier would be responsible for
reasonable and necessary charges for medical care incurred as a result of injuries sustained in the
accident at issue, exclusive of any upcoding charges submitted by said expert, facility or provider.
10. Plaintiff has failed to mitigate damages, including but not limited to failing to
comply with treatment plans, failure to request submission of all payable medical bills to Plaintiff's
health insurer (and instead, executing a letter of protection to Plaintiff's medical provider ), thus,
depriving Defendant of the contractual discount available as a third party beneficiary of the
contract between the Plaintiff and Provider. Goble v Frohman, 901 So 2d 830 (Fla. 2005);
Thyssenkrupp Elevator Corp v. Lasky, 868 So 2d 547 (Fla. 4th DCA 2003); Fla. Stat. 641.3154.
CASE NO: 2021 CA 000732
11. Plaintiff is insured with health insurance coverage which inures to the benefit of
Defendant in that Plaintiff's providers must submit all bills for services rendered, to the Plaintiff's
Health Insurer and the Plaintiff's providers must accept the contracted amount in full payment of
all charges for treatment rendered. Thus; Defendant is entitled to the benefit of the contracted
difference. Fla. Stat 641.3154.
12. Defendant is entitled to the protections afforded by any applicable hospital lien
law(s).
13. Plaintiffs claim is subject to the provisions of Section 627.727 (8) regarding
attorney's fees, and therefore, the Plaintiff is not entitled to said attorney's fees as the allegations
do not concern a dispute over whether or not the policy provides coverage for
uninsured/underinsured motorists insurance.
14. As to all of the allegations, Defendant's liability, if any, is based solely on having
issued a policy of insurance to the Plaintiff, and therefore, its liability, if any, is limited to all of
the terms, conditions, exclusions and limitations set forth within said policy of insurance and the
terms of Section 627.727, Florida Statutes.
15. UM/UIM benefits are not available above the stated policy limits as shown the
applicable declarations page, and Plaintiff is not entitled to recover up to the stated policy limits
unless all elements of the case are proven.
16. In the event Plaintiff is determined to be entitled to uninsured/underinsured motorist
benefits for this accident, Defendant's liability is only excess over any other UM/UIM coverage
found to be applicable.
17. Defendant would affirmatively aver that at the time and place set forth in the
Complaint, the Plaintiff negligently operated or maintained Plaintiffs automobile so as to
CASE NO: 2021 CA 000732
proximately cause or contribute to the cause of the injuries complained of. Accordingly, either the
Plaintiff may not recover at all, or alternatively, the Plaintiff's recovery must be reduced to the
extent that Plaintiff own negligent conduct contributed to the injuries complained of.
18. Plaintiff is not entitled to a duplication of benefits, and therefore, the provisions of
Section 627.727 (1) are applicable. Additionally, Defendant is entitled to a setoff in the gross
amount of coverage paid by the tortfeasor.
19. Defendant reserves the right to amend these defenses.
WHEREFORE, the Defendant, PROGRESSIVE AMERICAN INSURANCE
COMPANY, having fully responded to the allegations in this cause, demands the same be
dismissed with prejudice to and at the cost of the Plaintiff, and further demands a trial by jury of
all issues so triable as of right.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been
furnished via E-Mail on November 24, 2021 to Douglas William Tuttle, Esq., Tuttle Law, P.A.,
Attorney for Plaintiff, John Golden,
dtuttle@verobeachinjurylaw.com;jlarsen@verobeachinjurylaw.com;mholleran@verobeachinjury
law.com;dlarsen@verobeachinjurylaw.com, (772) 563-0032/(772) 563-2134 (F).
Law Office of Vivian M. Knapp
Attorneys for Defendant
1641 Worthington Road, Suite 110
West Palm Beach, FL 33409
(561) 402-8124 (Asst.)/(561) 402-8098 (Direct)
Fax: (866) 841-8921
SERVICE DESIGNATIONS:
Primary: WestPalmHC@Progressive.com
Secondary SHopkin4@Progressive.com
ZO
B
: SHERI L. HOPKINS, ESQUIRE
Florida Bar No0708461
“Salaried Employees of Progressive Casualty Insurance Company”
CASE NO: 2021 CA 000732
Preview
Filing # 139180488 E-Filed 11/24/2021 04:16:53 PM IN AND FOR THE CIRCUIT COURT OF INDIAN RIVER COUNTY, FL JOHN GOLDEN, Plaintiff, Vv. CASE NO: 2021 CA 000732 PROGRESSIVE AMERICAN CIVIL DIVISION INSURANCE COMPANY, Defendant. ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, by and through undersigned counsel, and in response to the Plaintiffs Complaint, states: 1 Admit for jurisdictional purposes only, otherwise denied. 2 Without knowledge, therefore denied. 3 Admit. 4 Admit an accident was reported on or about that date near the location cited, otherwise, without knowledge, therefore denied. 5 Denied. 6. Admit existence of an insurance policy, which speaks for itself; otherwise denied. 7 Admit existence of an insurance policy, which speaks for itself; otherwise denied. 8 Denied. 9. Each and every allegation not specifically admitted is hereby denied and strict proof thereof is demanded. CASE NO: 2021 CA 000732 AFFIRMATIVE DEFENSES 1 The Plaintiff is the sole legal cause of the injuries and damages alleged, and therefore, Plaintiff is barred from recovery as a matter of law. The Plaintiff so negligently conducted her/him/themself(ves) so as to cause and/or contribute to Plaintiff own alleged losses, injuries or damages, and therefore, the Plaintiff's recovery is barred in its entirety and/or diminished in accordance with Plaintiff's own negligence. This defense includes, but is not limited to, the seat belt defense, since at all times material hereto, the Plaintiff failed to use an available and operational shoulder restraint and/or seatbelt, and as a proximate result of the Plaintiff's failure to do so, was the cause of the injuries, losses and damages alleged, or alternatively, aggravated and/or exacerbated the injuries, damages and losses alleged. Accordingly, recovery is barred in its entirety or diminished based on Plaintiff's failure to use said operational and available shoulder restraint and/or operational and available seatbelt. 2 Pursuant to Section 768.76, any judgment against Defendant may not include the value of any benefits received by or on behalf of the Plaintiff from any collateral sources as a result of the subject motor vehicle accident. 3 Defendant states that the Plaintiff failed to mitigate damages, if any, and therefore, is not entitled to recovery of any damages which could have been mitigated. 4 The Plaintiff failed to meet the threshold requirements of the Florida Motor Vehicle No Fault Law, and therefore, recovery is barred in its entirety and/or diminished accordingly. 5 Defendant is entitled to immunity from liability for the amount of any deductible selected by Plaintiff or by which Plaintiffis bound pursuant to any applicable automobile insurance agreement providing personal injury protection coverage since the Plaintiff has not suffered a threshold breaking injury. CASE NO: 2021 CA 000732 6. This action is subject to Section 768.81 Florida Statutes, and any liability found on the part of Defendant shall be apportioned on the basis of this Defendant's percentage of fault and not on the basis of the doctrine of joint and several liability. Further, any contributory fault chargeable to the Plaintiff diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the Plaintiff's contributory fault. 7 Pursuant to Section 627.736, any judgment against Defendant shall not include damages for personal injury protection benefits paid or payable to or on behalf of the Plaintiff as result of the subject motor vehicle accident. 8 Defendant is entitled to any and all Medicare/Medicaid insurance contractual adjustments and/or write-offs and only that sum should be presented to the jury as the actual damage incurred. Goble v Frohman 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v. Lasky, 868 So 2d 547 (Fla. 4th DCA 2003). 9. Defendant would affirmatively aver that the Plaintiff's treating experts, providers and/or facilities submission of medical bills to the PIP insurer violated F.S. 627.736(5) (b) 1.e, and as such, Defendant is liable only to the extent that the PIP carrier would be responsible for reasonable and necessary charges for medical care incurred as a result of injuries sustained in the accident at issue, exclusive of any upcoding charges submitted by said expert, facility or provider. 10. Plaintiff has failed to mitigate damages, including but not limited to failing to comply with treatment plans, failure to request submission of all payable medical bills to Plaintiff's health insurer (and instead, executing a letter of protection to Plaintiff's medical provider ), thus, depriving Defendant of the contractual discount available as a third party beneficiary of the contract between the Plaintiff and Provider. Goble v Frohman, 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v. Lasky, 868 So 2d 547 (Fla. 4th DCA 2003); Fla. Stat. 641.3154. CASE NO: 2021 CA 000732 11. Plaintiff is insured with health insurance coverage which inures to the benefit of Defendant in that Plaintiff's providers must submit all bills for services rendered, to the Plaintiff's Health Insurer and the Plaintiff's providers must accept the contracted amount in full payment of all charges for treatment rendered. Thus; Defendant is entitled to the benefit of the contracted difference. Fla. Stat 641.3154. 12. Defendant is entitled to the protections afforded by any applicable hospital lien law(s). 13. Plaintiffs claim is subject to the provisions of Section 627.727 (8) regarding attorney's fees, and therefore, the Plaintiff is not entitled to said attorney's fees as the allegations do not concern a dispute over whether or not the policy provides coverage for uninsured/underinsured motorists insurance. 14. As to all of the allegations, Defendant's liability, if any, is based solely on having issued a policy of insurance to the Plaintiff, and therefore, its liability, if any, is limited to all of the terms, conditions, exclusions and limitations set forth within said policy of insurance and the terms of Section 627.727, Florida Statutes. 15. UM/UIM benefits are not available above the stated policy limits as shown the applicable declarations page, and Plaintiff is not entitled to recover up to the stated policy limits unless all elements of the case are proven. 16. In the event Plaintiff is determined to be entitled to uninsured/underinsured motorist benefits for this accident, Defendant's liability is only excess over any other UM/UIM coverage found to be applicable. 17. Defendant would affirmatively aver that at the time and place set forth in the Complaint, the Plaintiff negligently operated or maintained Plaintiffs automobile so as to CASE NO: 2021 CA 000732 proximately cause or contribute to the cause of the injuries complained of. Accordingly, either the Plaintiff may not recover at all, or alternatively, the Plaintiff's recovery must be reduced to the extent that Plaintiff own negligent conduct contributed to the injuries complained of. 18. Plaintiff is not entitled to a duplication of benefits, and therefore, the provisions of Section 627.727 (1) are applicable. Additionally, Defendant is entitled to a setoff in the gross amount of coverage paid by the tortfeasor. 19. Defendant reserves the right to amend these defenses. WHEREFORE, the Defendant, PROGRESSIVE AMERICAN INSURANCE COMPANY, having fully responded to the allegations in this cause, demands the same be dismissed with prejudice to and at the cost of the Plaintiff, and further demands a trial by jury of all issues so triable as of right. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been furnished via E-Mail on November 24, 2021 to Douglas William Tuttle, Esq., Tuttle Law, P.A., Attorney for Plaintiff, John Golden, dtuttle@verobeachinjurylaw.com;jlarsen@verobeachinjurylaw.com;mholleran@verobeachinjury law.com;dlarsen@verobeachinjurylaw.com, (772) 563-0032/(772) 563-2134 (F). Law Office of Vivian M. Knapp Attorneys for Defendant 1641 Worthington Road, Suite 110 West Palm Beach, FL 33409 (561) 402-8124 (Asst.)/(561) 402-8098 (Direct) Fax: (866) 841-8921 SERVICE DESIGNATIONS: Primary: WestPalmHC@Progressive.com Secondary SHopkin4@Progressive.com ZO B : SHERI L. HOPKINS, ESQUIRE Florida Bar No0708461 “Salaried Employees of Progressive Casualty Insurance Company” CASE NO: 2021 CA 000732