Preview
Filing # 145212182 E-Filed 03/07/2022 03:44:14 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO: 2020 CA 156
CANDY LYNN MOSES,
Plaintiff,
vs.
ANTONIO LAMAR STAFFORD and
GOURMET FOODS INTERNATIONAL
LAKELAND, INC.
Defendants.
/
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY
COMES NOW, Plaintiff, CANDY LYNN MOSES, by and through her undersigned
counsel and pursuant to Fla. R. Civ. P. 1.510, hereby moves this court for an Order granting
Partial Summary Judgment on the issue of liability as follows:
1. There is no genuine issue of material fact.
2. The Plaintiff is entitled to summary judgment on the issue of liability as a matter
of law.
3. The material evidence is undisputed.
4. This case involves an automobile crash that resulted in a collision which occurred
on Neptune Road near the intersection of Henry Partin Road in Kissimmee, Osceola County,
Florida on December 21, 2018.
5. There is no evidence that the Plaintiff caused or contributed to the crash or to her
damages.
6. The Defendant has filed Affirmative Defenses to this action. (Defendant’s
Answer and Affirmative Defenses are attached hereto as Exhibit “A.”)
7. With respect to certain defenses, there are no genuine issues of material fact and
the Court is entitled to rule on these issues as a matter of law.
8. Specifically, asserted as affirmative defenses are the following positions raised by
the Defendant:
Affirmative Defense #6: To the extent that these defendants are liable for any
injury or damage to plaintiff, their liability is limited to their proportionate share
of fault pursuant to F.S. §768.81(3) and other persons, firms, or entities not parties
to this action are responsible for their respective percentage(s) of fault. Although
these defendants cannot presently name any such “Fabre” defendants, defendants
reserve their right to do so as permitted by Florida case law.
9. As to Affirmative Defense #6, this assertion is factually impossible in that
Defendant, in raising this defense, has failed to adequately specify the identity, name, or the
extent such Fabre defendants contributed to this crash.
10. Moreover, there is no evidence that the Plaintiff caused or contributed to the crash
in question; therefore, summary judgment is appropriate on the issue of liability and/or
comparative negligence of the Plaintiff.
11. To date, the records in this matter conclusively established the absence of any
genuine issue of material fact as to the Defendant’s negligence in causing an automobile
collision, and established that the Plaintiff is entitled to judgment as a matter of law as to
Defendant’s comparative fault affirmative defenses and Messmer Defendant affirmative
defenses.
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STATEMENT OF FACTS
This action is based upon an automobile collision which occurred on Neptune Road near
the intersection of Henry Partin Road in Kissimmee, Osceola County, Florida. On December 21,
2018, at approximately 9:59 A.M., Plaintiff, Candy Lynn Moses, was operating a motor vehicle
traveling westbound on Neptune Road west of Henry Partin Road and stopped for traffic. At that
time the Defendant, Antonio Lamar Stafford, was traveling westbound on Neptune Road west of
Henry Partin Road behind Plaintiff’s vehicle when he lost control of his vehicle and collided
with the rear end of Mrs. Moses’ vehicle. As a result of this collision, Plaintiff was injured and
transported by ambulance to the hospital. (Antonio Lamar Stafford’s deposition transcript is
attached hereto as Exhibit “B”).
Antonio Lamar Stafford, at his deposition taken on January 10, 2022 testified to the
following:
Plaintiff’s Counsel: How would you describe the traffic conditions that day at Neptune
Road?
Defendant Stafford: It was – it wasn’t – it was backed up. It was not more stop-and-go,
kind – yeah, more or less stop-and-go but I didn’t, you know, I was traveling too close.
Plaintiff’s Counsel: Traveling too close to whom?
Defendant Stafford: The vehicle in front of me.
Plaintiff’s Counsel: Had you not been traveling too close to the vehicle in front of you,
could you avoid the crash?
Defendant Stafford: Yes. And I noticed after crash, like the traffic pattern had changed
because I want to say a week before or maybe two weeks before that, traveling that road
there was no – they put a traffic – a temporary traffic stoplight up, and that wasn’t up
there a week before.
(Depo. Stafford, pg. 33:12-15)
***
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Plaintiff’s Counsel: Near the location of the crash site, were there any puddles of water?
Defendant Stafford. Yes
Plaintiff’s Counsel: Puddles of water on the road?
Defendant Stafford: Yes, the road was damp, wet, what have you.
Plaintiff’s Counsel: When your vehicle crashed into my client’s vehicle, was her vehicle
moving?
Defendant Stafford: She – she broke – she hit her brakes and I hit my brakes and I slid
into her.
(Depo. Stafford, pg. 40:5-13)
***
Plaintiff’s Counsel: How much time between her hitting her brakes and you hitting your
brakes before the collision occurred?
Defendant Stafford: It took a matter of seconds.
Plaintiff’s Counsel: What was the distance between the front of your car and the back of
her car when you first saw her pushing on her brakes before the crash?
Defendant Stafford: I would say a half a car length. I’m not precise on that type of
distance or I’m – you’re supposed to keep like a couple of car lengths in between you
driving the truck, so it was maybe a half a car length.
(Depo. Stafford, pg. 40:20-25 through pg. 41:1-4)
***
Plaintiff’s Counsel: And why did you have half a car length distance between the front of
your car and the back of my client’s car at the time of the crash and not two car lengths?
Defendant Stafford: It was the flow of traffic.
Plaintiff’s Counsel Would you agree that someone driving a vehicle should keep a safe
distance between their car and the car in front of them?
Defendant Stafford: Yes, I agree.
(Depo. Stafford, pg. 41:12-19)
***
Plaintiff’s Counsel Could you have done anything to avoid the crash?
Defendant Stafford: Yes
Plaintiff’s Counsel: What?
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Defendant Stafford: All I had to do was pull to the left. It’s a “coulda, woulda, shoulda”
situation; I could have pulled to the left and I could have avoided her, I – I would have
avoided her.
Plaintiff’s Counsel: If you had two car lengths distance between your vehicles, could you
have avoided the crash?
Defendant Stafford: Yes
Plaintiff’s Counsel: If you had one car length distance between both of you, could you
have avoided the crash?
Defendant Stafford: Yes
(Depo. Stafford, pg. 42:5-17)
MEMORANDUM OF LAW
DEFENDANT DRIVER’S NEGLIGENCE AND MESSMER DEFENSE
It is not “any” act that supports a Messmer defense but rather, a tortious act or omission,
negligence, that causes or contributes to the accident that gives rise to the defense. The burden of
proof is on the defendant wishing to rely on the defense. There is no evidence or disputed
material issues of fact that the Plaintiff was negligent. Therefore, there is nothing for the jury to
consider, the Messmer defense is without merit and Plaintiff’s Motion for Summary Judgment
should be granted.
The law in Florida is clear on the non-party Messmer affirmative defense. First, there are
two important pleading elements. In Nash v. Wells Fargo Guard Service, Inc. 678 So.2d 1262
(Fla. 1996), the Florida Supreme Court clearly held “that in order to include a non-party on the
verdict form pursuant to Fabre, the defendant must plead as an affirmative defense [1] the
negligence of the non-party and [2] specifically identify the non-party.” Id.
The allegations of negligence must meet the standard of notice pleading with ultimate
facts, not just a conclusion that the non-party was negligent in some unexplained way. Bogosian
v. State Farm Mutual Automobile Insurance Co., 817 So.2d 968 (Fla. 3d DCA 1998). Pleading
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negligence means alleging ultimate facts that, if proven, could constitute all elements of
negligence -- duty, breach of duty, damages, and causation. Prosser and Keeton on Torts, Fifth
Edition, Chapter 5, page 164-65.
Defendants would not be excused from these requirements of notice pleading in their
answer even if the plaintiff knew or should have known of the possible fault of a non-party. Id.
See also Gonzalez v. Veloso, 702 So. 2d 1366, 1367 (Fla. 3d DCA 1997).
Even where a defendant’s affirmative defense does sufficiently plead the identity of a
non-party joint tortfeasor and sufficiently alleges ultimate facts that would constitute that non-
party’s negligence, summary judgment should be granted to the plaintiff on that affirmative
defense where there is no evidence in the record of the non-party’s negligence.
Controlling case law “requires that, to include a non-party on a verdict form, defendants
seeking to raise third-party liability must not only plead the non-party’s negligence as an
affirmative defense, but must also specifically identify the non-party and prove the non-party’s
fault in causing the accident.” Thomas v. Daniel, 736 So.2d 100, 101 (Fla. 1st DCA 1999)
(emphasis added). “...There must be evidence of the non-party’s fault before the issue can go to
the jury.” Lagueux v. Unino Carbide Corp., 861 So.2d 87 (Fla. 4th DCA 2003) (citations
omitted).
In Clark v. Polk County, 753 So.2d 138 (Fla. 2d DCA 2000), the defendant in a traffic
collision case pled the negligence of non-parties in knocking down a stop sign which the
defendant ran prior to the collision that injured the plaintiff. In reversing the judgment in favor of
the defendant after the trial court allowed the non-party to be placed on the verdict form, the
appellate court noted that the defendant had failed in its burden of establishing negligence on the
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part of the non-party, as opposed to proving the simple fact of the stop sign being run over. The
court held:
Rather, the evidence was insufficient because it did not demonstrate that the
destruction of the stop sign was tortious at all. Outside the relatively rare
circumstances implicating the principle of res ipsa loquitor, it is well-settled that
the mere occurrence of a mishap does not prove that the mishap resulted from
tortious conduct. Here, the County proved only that a motorist drove over the stop
sign. Its evidence left open the question of why -- did the motorist act tortuously?
Or was he or she forced off the road by another vehicle? Or did he or she swerve
to avoid striking a person, animal or object in the road? Without evidence on
those questions, there simply is no Fabre issue for the jury to consider. Id. at 143.
A defendant who alleges the fault of a non-party must do more than simply establish that
the non-party performed some acts, which resulted factually in contributing to the accident. A
defendant pleading the fault of non-parties must establish evidence that the non-party’s
involvement in the accident was a result of actionable negligence. The mere occurrence of the
accident is not enough, and even a causal connection between the non-party’s actions and the
accident is not enough. Bare argument of defense counsel that a certain act occurred and was
negligent is not enough. There must be proof of conduct which was unreasonable.
Defendants, ANTONIO LAMAR STAFFORD and GOURMET FOODS
INTERNATIONAL LAKELAND, INC., have failed to specifically name any third party that it
alleges caused or contributed to the crash. Notwithstanding, there is no evidence that any third
party was negligent and even if they were, their actions do not relieve the Defendants of their
duty of care and duty to avoid crashing into the Plaintiff’s vehicle. For a third party to appear on
a verdict form as a Fabre defendant, there has to be evidence of negligence to impose liability,
the Defendants have the burden to produce said evidence to avail itself of the defense. The
Defendants have not presented any such evidence and no such record evidence exists in this case
for a jury to consider.
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WHEREFORE, the Defendants, ANTONIO LAMAR STAFFORD and GOURMET
FOODS INTERNATIONAL LAKELAND, INC., having failed to provide any evidence or facts,
disputed or otherwise, of either Plaintiff’s own comparative negligence, or a third party’s
negligence, the Plaintiff is entitled to judgment as a matter of law. This motion should be granted
and summary judgment entered in favor of Plaintiff and against Defendants, ANTONIO
LAMAR STAFFORD and GOURMET FOODS INTERNATIONAL LAKELAND, INC.,
finding that the Defendendants were the sole proximate cause of the crash and in favor of
Plaintiff on Defendant’s comparative negligence and Messmer Affirmative defenses.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 7, 2022, I electronically filed the foregoing with
the Clerk of the Courts by using the Florida Courts eFiling Portal. I further certify that Pursuant
to Rule 2.516(b)(1) I forwarded the foregoing this same day via: X Email, □ U.S. Mail – postage
paid, □ facsimile transmission, to: Deborah L. Moskowitz, Esquire, Quintairos, Prieto, Wood &
Boyer, P.A., 255 South Orange Avenue, Suite 900, Orlando, FL, 32801,
Dmoskowitz@qpwblaw.com; holly.anderson@qpwblaw.com.
/s/ Felipe Mavromatis
Felipe Mavromatis, Esq.
Florida Bar No. 118331
MORGAN & MORGAN, P.A.
198 Broadway
Kissimmee, FL 34741
Telephone Phone: (407) 452-6990
Facsimile: (407) 452-1627
Primary email: fmavromatis@forthepeople.com
Secondary email: xmartinez@forthepeople.com
Tertiary email: adasilva@forthepeople.com
Attorneys for Plaintiff
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Filing # 104070776 E-Filed 02/28/2020 10:44:45 AM EXHIBIT "A"
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO: 2020 CA 156
JURY TRIAL DEMANDED
CANDY LYNN MOSES,
Plaintiff,
v.
ANTONIO LAMAR STAFFORD and
GOURMET FOODS INTERNATIONAL
LAKELAND, INC.,
Defendants.
DEFENDANTS STAFFORD AND GOURMET’s ANSWER AND AFFIRMATIVE
DEFENSES TO THE FIRST COMPLAINT FILED BY PLAINTIFF - MOSES
Defendants, ANTONIO LAMAR STAFFORD (“STAFFORD”) and GOURMET
FOODS INTERNATIONAL LAKELAND, INC. (“GOURMET”) (collectively
“DEFENDANTS’”), by and through their undersigned counsel, and pursuant to the Florida Rules
of Civil Procedure, hereby file and serve this Answer and Affirmative Defenses to the Plaintiff —
CANDY LYNN MOSES’ First Complaint as follows:
1. Admitted for jurisdictional purposes only, denied otherwise.
2. Without knowledge.
3. Admitted.
4. Admitted.
5. Admitted for venue and jurisdiction only, denied otherwise.
6. Without knowledge.
7. Admitted.
8. Admitted.
9. Denied.
10. Denied as stated.
11. Denied.
12. Denied.
ANY ALLEGATION OF MATERIAL FACT NOT
SPECIFICALLY ADMITTED ABOVE IS DENIED, OR
THESE DEFENDANTS ARE WITHOUT KNOWLEDGE OF
AND DENY SAME, AND DEMAND STRICT PROOF
THEREOF AT TIME OF TRIAL
AFFIRMATIVE DEFENSES
1. Plaintiff unreasonably failed to mitigate her damages, if any.
2. The damages, if any, to plaintiff is due to events, conditions or occurrences that are
unrelated to any act or omission on the part of these defendants.
3. Some or all of the injuries claimed by plaintiff are not permanent injuries and otherwise fail
to meet the “threshold” requirements of Florida’s No-Fault Law. Accordingly, plaintiff’s
recovery, if any, is limited thereunder and thereby.
4. Plaintiff’s damages are due to an intervening, superseding and efficient cause, unrelated to
any act or omission on the part of these defendants and, as such, there is no liability on the
part of these defendants for any of said damages.
5. Plaintiff has received or is entitled to receive benefits, including collateral source benefits,
such as but not limited to personal injury protection (PIP) benefits, medical payments
benefits, insurance benefits, governmental and charitable benefits, and/or reductions, write-
offs or adjustments taken to their medical bills by insurers, health care providers, or any
other person, firm or entity. Defendants are entitled to a setoff or credit for all such benefits
received directly or indirectly by the plaintiff.
6. To the extent that these defendants are liable for any injury or damage to plaintiff, their
liability is limited to their proportionate share of fault pursuant to F.S. §768.81(3) and other
persons, firms or entities not parties to this action are responsible for their respective
percentage(s) of fault. Although these defendants cannot presently name any such “Fabre”
defendants, defendants reserve the right to do so as permitted by Florida case law.
7. Pursuant to the Patient Protection and Affordable Care Act (“PPACA”) Plaintiff is required
to obtain health insurance. As for any expenses covered by any insurance obtained pursuant
to the PPACA, Plaintiff may only recover the amounts paid by her and/or on her behalf.
Defendants are entitled to a setoff or credit for all amounts reduced, written off, adjusted or
otherwise waived by any insurer, governmental agency, health care provider or any other
person, firm or entity pursuant to insurance obtained pursuant to the PPACA.
8. In the event that Plaintiff failed to obtain insurance coverage, as mandated by and under the
PPACA, thereby leaving Plaintiff voluntarily uninsured, Plaintiff failed to mitigate her
damages. Accordingly, Plaintiff may not recover any damages for past, present or future
medical expenses beyond those that would have been paid by health insurance available to
plaintiff pursuant to the PPACA, had she elected to obtain such coverage jointly or
individually, as required by law.
9. In the event that Plaintiff has obtained insurance coverage, as mandated by and under the
PPACA, Plaintiff is only permitted to recover as future medical or medical-related damages
the amount of the insurance premiums necessary to maintain such coverage in the future,
and any co-payments required pursuant to said coverage.
JURY TRIAL DEMAND
Defendants demand a trial by jury of all issues so triable.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing document has been
served through the Florida courts E-Portal system, which will provide the foregoing by e-mail to:
Felipe Mavromatis, Esquire, Attorneys for Plaintiff, Morgan & Morgan, PA, 198 Broadway
Avenue, Kissimmee, FL 34741 fmavromatis@forthepeople.com;
svandervelde@forthepeople.com on this 28th day of February, 2020.
LAW OFFICE OF JACK D. EVANS
/s/ALEXANDRA C. STEELE
______________________________
Alexandra C. Steele, Esq.
Fla. Bar No. 29595
2420 Lakemont Ave., Suite 125
Orlando, Florida 32814
(407) 388-2679
(855) 203-0311
Attorney for Gourmet Foods International
ASteeled@travelers.com
jdeorlan@travelers.com
rklopez@travelers.com
EXHIBIT "B"
1 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
2
CASE NO.: 2020-CA-877-AN
3
SAMANTHA LANG,
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Plaintiff,
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_vs-—
6
ANTONIO LAMAR STAFFORD
7 AND GOURMET FOODS
INTERNATIONAL,
8 LAKELAND, INC.,
i) Defendants.
YA
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12 REMOTE DEPOSITION OF ANTONIO LAMAR STAFFORD
13 Taken on Behalf of the Defendant
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15 DATE TAKEN: Monday, January 10, 2022
16 TIME: 1:05 p.m. - 2:43 p.m. EST
17 PLACE: Videoconference
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Stenographically Reported by:
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Donna R. Keller, RPR, CRR
•1• • • • • • • • • • • • • •APPEARANCES
•2• • • • • (All attendees appeared via video-conference.)
•3• •Counsel for the Plaintiff:
•4• • • • • • •FELIPE MAVROMATIS, ESQUIRE
• • • • • • • •Morgan & Morgan, P.A.
•5• • • • • • •198 Broadway
• • • • • • • •Kissimmee, Florida 34741
•6• • • • • • •fmavromatis@forthepeople.com
•7• •Counsel for the Defendant:
•8• • • • • • •SONIA H. MCDOWELL, ESQUIRE
• • • • • • • •Quintairos, Prieto, Wood & Boyer, P.A.
•9• • • • • • •255 South Orange Avenue
• • • • • • • •Orlando, Florida• 32801
10• • • • • • •sonia.mcdowell@qpwblaw.com
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•1• • • • • • • • • • • • • •I N D E X
•2• •DEPOSITION OF ANTONIO LAMAR STAFFORD• • • • • • •PAGE
•3• •DIRECT EXAMINATION BY MR. MAVROMATIS• • • • • • • 4
•4• •CROSS-EXAMINATION BY MS. McDOWELL• • • • • • • • •54
•5• •REDIRECT EXAMINATION BY MR. MAVROMATIS• • • • • • 55
•6• •CERTIFICATE OF OATH• • • • • • • • • • • • • • • •58
•7• •CERTIFICATE OF REPORTER• • • • • • • • • • • • • •59
•8• •WITNESS LETTER• • • • • • • • • • • • • • • • • • 60
•9• •ERRATA SHEET• • • • • • • • • • • • • • • • • • • 61
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12• • • • • • • • • • • •PLAINTIFF’S EXHIBITS
13• •NO.• •DESCRIPTION• • • • • • • • • • • • • • • • PAGE
14• • • • • • • • • • • • • *****NONE*****
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• • • • • • • • • • • • •DEFENDANT’S EXHIBITS
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• • •NO.• •DESCRIPTION• • • • • • • • • • • • • • • • PAGE
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• • • • • • • • • • • • • • *****NONE*****
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•1• • • • • • • • • • • • • •PROCEEDINGS
•2• • • • • • •THE REPORTER:• The attorneys participating in this
•3• • • • deposition acknowledge that I am not present with the
•4• • • • witness and that I will be reporting this proceeding
•5• • • • and administering the oath remotely.• Counsel, please
•6• • • • indicate your agreement on the record.
•7• • • • • • •MR. MAVROMATIS:• Counsel for plaintiff.• I agree.
•8• • • • • • •MS. McDOWELL:• Counsel for the defendants.• No
•9• • • • objection.
10• • • • • • •THE REPORTER:• Mr. Stafford, please raise your
11• • • • right hand.• Do you swear or affirm the testimony you
12• • • • are about to give will be the truth, the whole truth
13• • • • and nothing but the truth?
14• • • • • • •THE WITNESS:• Yes.
15• • • • • • •THE REPORTER:• Thank you.
16• • • • • • • • • • • • DIRECT EXAMINATION
17• •BY MR. MAVROMATIS:
18• • • • Q• • Good afternoon, sir.
19• • • • A• • Good afternoon.
20• • • • Q• • My name is Felipe Mavromatis and I represent the
21• •plaintiffs in this matter, Ms. Candy Moses, Ms. Kaitlyn
22• •Falotico and Ms. Samantha Lang, and we’re here to take your
23• •deposition today for a car crash that took place back in
24• •2018.• Have you ever had your deposition taken before?
25• • • • A• • No.
•1• • • • Q• • I’m going to explain some of the ground rules
•2• •regarding your deposition just to facilitate this moving
•3• •smoothly.• Number one, just like you’re doing now, please
•4• •respond verbally to all of my questions.• The reason for
•5• •that is we have a court reporter with us who has to type up
•6• •everything all of us are saying, so if you could just do
•7• •like you’re doing, just say yes, no, or whatever answer you
•8• •have for us.• Okay?
•9• • • • A• • Okay.
10• • • • Q• • If you need a break at any moment, just let me
11• •know.• All right?
12• • • • A• • No problem.• All right.
13• • • • Q• • And then I know we’re doing this through Zoom
14• •rather than live.• Sometimes there’s a delay.• If I cut you
15• •off, I’m not trying to be nasty towards you but sometimes
16• •there’s a delay in Zoom, so I apologize in advance for that.
17• •All right?
18• • • • A• • Okay.
19• • • • Q• • If you have anything else to say that I didn’t
20• •allow you to finish answering, just let me know and we’ll
21• •reask the question.• And same thing; if you don’t understand
22• •my question, I will do my best to rephrase it.• Okay?
23• • • • A• • Okay.
24• • • • Q• • Are you currently -- well, may I have your full
25• •name for the record, please?
•1• • • • A• • Antonio Lamar Stafford.
•2• • • • Q• • Mr. Stafford, what is your residential address?
•3• • • • A• • 6035 Norton Road, lot number 26, Lakeland, Florida
•4• •33809.
•5• • • • Q• • Do you have any plans to relocate from that
•6• •address in the next six months to a year?
•7• • • • A• • No.
•8• • • • Q• • Do you have a valid driver’s license?
•9• • • • A• • Yes.
10• • • • Q• • Is that a Florida license?
11• • • • A• • Yes.
12• • • • Q• • Has your Florida license ever been suspended or
13• •revoked for any reason?
14• • • • A• • Yes.
15• • • • Q• • Was it suspended or revoked?
16• • • • A• • It was suspended.
17• • • • Q• • What year was it suspended?
18• • • • A• • 2002 or 2003.• I’m not sure.
19• • • • Q• • Okay.• Why was it suspended?
20• • • • A• • I had 12 points on my license for a CDL.
21• • • • Q• • Okay.• So you had a commercial driver’s license in
22• •the past?
23• • • • A• • Yes.
24• • • • Q• • Do you still have a CDL?
25• • • • A• • Yes.
•1• • • • Q• • So do you -- how did you get those 12 points on
•2• •your CDL?
•3• • • • A• • It was a combination of tickets.
•4• • • • Q• • Tickets for what?
•5• • • • A• • Speeding.• Mainly it was speeding tickets, and I
•6• •believe one was a failure to move over for a -- was it a --
•7• •it was failing to move over.• I wasn’t going slow enough to
•8• •move over for the state trooper who was parked on the side
•9• •who had a car pulled over.
10• • • • Q• • After 2002, 2003, have you ever had your Florida
11• •driver’s license suspended or revoked for any reason?
12• • • • A• • No.
13• • • • Q• • Have you ever had a driver’s license outside of
14• •the state of Florida?
15• • • • A• • Yes.
16• • • • Q• • What state?
17• • • • A• • Colorado.
18• • • • Q• • When did you get your Florida license?
19• • • • A• • 2003, 2002, 2003.
20• • • • Q• • Have you had a Florida license from that time or
21• •did you get the Colorado driver’s license after 2003?
22• • • • A• • I’ve had both, ’cause I moved back and forth from
23• •Colorado to Florida.
24• • • • Q• • Right now, your active license, is that a Colorado
25• •or Florida license?
•1• • • • A• • Florida license.
•2• • • • Q• • And then same thing, has your Colorado driver’s
•3• •license ever been suspended or revoked for any reason?
•4• • • • A• • No.
•5• • • • Q• • Have you ever been convicted of a felony?
•6• • • • A• • No.
•7• • • • Q• • Have you ever been convicted of a crime of
•8• •dishonesty such as theft, forgery, fraud or lying?
•9• • • • A• • No.
10• • • • Q• • Have you ever been arrested?
11• • • • A• • Yes.
12• • • • Q• • How long ago?
13• • • • A• • 24 years ago.
14• • • • Q• • Did that result in any convictions?
15• • • • A• • No.
16• • • • Q• • And just real brief, what were you arrested for?
17• • • • A• • It was a domestic violence between me and my
18• •ex-girlfriend.
19• • • • Q• • Are you currently employed?
20• • • • A• • Yes.
21• • • • Q• • Where do you work?
22• • • • A• • Gourmet Foods International.
23• • • • Q• • When did you first start working for Gourmet Foods
24• •International?
25• • • • A• • 2015.
•1• • • • Q• • Have you worked consecutively from the date of
•2• •hire to the present date at Gourmet Foods International?
•3• • • • A• • Yes.
•4• • • • Q• • Have you held any other jobs between that period
•5• •of time from 2015 to the present day?
•6• • • • A• • No.
•7• • • • Q• • What’s your position with Gourmet Foods
•8• •International?
•9• • • • A• • Currently delivery driver.
10• • • • Q• • Back in December 2018, what was your position?
11• • • • A• • Delivery driver.
12• • • • Q• • And are you a W-2 employee meaning or are you an
13• •independent contractor, if you know?
14• • • • A• • No.
15• • • • Q• • All right.• Let me ask you this way.• Are you a
16• •salaried employee?
17• • • • A• • Yes.
18• • • • Q• • And then on the date of the crash that we’re here
19• •for today which was back in December 2018, were you working
20• •for Gourmet Foods International?
21• • • • A• • Yes.
22• • • • Q• • As a delivery driver, right?
23• • • • A• • Yes.
24• • • • Q• • So do you have a set work schedule with Gourmet
25• •Foods?
•1• • • • A• • Can you rephrase that question?
•2• • • • Q• • Yeah.• Do you work like a 9:00 to 5:00?• For
•3• •example, do you have set hours or is your schedule flexible?
•4• • • • A• • It’s set hours, pretty much.• When I say set
•5• •hours, it could be between 3:00 a.m. in the morning till
•6• •12:00 -- 12:00 p.m. or 5:00.• It depends what time you come
•7• •in.
•8• • • • Q• • Okay.• So I’m going to take you back a few years,
•9• •back to 2018.• What was your work schedule back in December
10• •2018?
11• • • • A• • 3:00 -- let me see.• I want to say 4:00 a.m.
12• • • • Q• • So you would start work at 4:00 a.m.?
13• • • • A• • Yes.
14• • • • Q• • And then what time would you go to?
15• • • • A• • 1:00, 2:00 -- 1:00, maybe 2:00 o’clock.
16• • • • Q• • In the afternoon?
17• • • • A• • Yes.
18• • • • Q• • And was that a Monday-to-Friday job back in 2018?
19• • • • A• • That particular day, it was just -- I think it was
20• •4:00 o’clock.
21• • • • Q• • Okay.• So you started working at 4:00 a.m. on
22• •December 21st, 2018; is that right?
23• • • • A• • Yes.
24• • • • Q• • And when you start working in the day, do you
25• •start from your home or do you go to like a central location
•1• •to pick up a truck, or how does that work?
•2• • • • A• • You wake up 3:00 o’clock and -- in the a.m. and
•3• •you go to the warehouse.
•4• • • • Q• • And so, in other words, your truck as a delivery
•5• •driver, whatever vehicle you would use, that would be
•6• •located at the warehouse, not your home; is that correct?
•7• • • • A• • Correct, at the warehouse.
•8• • • • Q• • Would you ever bring your vehicle home for the
•9• •night?
10• • • • A• • No, never.
11• • • • Q• • Where was the warehouse located?
12• • • • A• • It’s located in Lakeland, Florida.
13• • • • Q• • Do you know the exact address?
14• • • • A• • Yes.
15• • • • Q• • What is it?
16• • • • A• • The exact address is 3000 -- 3000 State Road 33,
17• •Lakeland, Florida.
18• • • • Q• • So as a delivery driver for Gourmet Foods, back in
19• •December 2018, did you have a set route or would it change
20• •weekly, daily or whatever other schedule?
21• • • • A• • That was a daily route.• I -- I’ve done that route
22• •before.
23• • • • Q• • Okay.• Explain to me what the route entailed.
24• •What was the route?• So you’d pick up your truck at the
25• •warehouse and then do you have set points that you have to
•1• •stop?
•2• • • • A• • It’s set stores in a particular order.
•3• • • • Q• • What was that order of stores -- I’m sorry. I
•4• •didn’t mean to cut you off.
•5• • • • A• • It would range from Kissimmee, St. Cloud,
•6• •Poinciana.
•7• • • • Q• • Do you still work the same route or do you have a
•8• •different route now?
•9• • • • A• • Same route.
10• • • • Q• • All right.• So walk me store by store along your
11• •route, starting with the first delivery of the day.
12• • • • A• • First delivery of the day is Publix store 77 --
13• •770.• Second store, 1195.
14• • • • Q• • Hold on one second.• Let me write this down.• So
15• •Publix store 77?
16• • • • A• • 770.
17• • • • Q• • Okay.• Do you know the address for that?
18• • • • A• • No, I do not.• I could give you store numbers. I
19• •don’t know the correct address for any store --
20• • • • Q• • Okay.
21• • • • A• • -- right off the --
22• • • • Q• • No problem.• So that’s the first store.• What’s
23• •the second store?
24• • • • A• • 1195.
25• • • • Q• • Is that Publix as well?
•1• • • • A• • Yes, all Publix.
•2• • • • Q• • All Publix.• Got it.• What’s the third store?
•3• • • • A• • 879.
•4• • • • Q• • Publix 879.• All right.• What’s the fourth store?
•5• • • • A• • Publix 551.
•6• • • • Q• • Okay.• Anything else?
•7• • • • A• • Yes.• I -- do you want the whole route?
•8• • • • Q• • The whole route, yeah.
•9• • • • A• • Okay.• 551, 1607.
10• • • • Q• • Publix 1607.• All right.
11• • • • A• • 70 -- 707.
12• • • • Q• • 707.• Okay.
13• • • • A• • Publix 515.
14• • • • Q• • 515.• Okay.
15• • • • A• • I’m sorry.• Not 515 -- not 515.• I’m sorry.• 1502.
16• •I’m sorry.• 1502, 1408.
17• • • • Q• • Okay.• 1408.• Uh-huh.
18• • • • A• • 235.
19• • • • Q• • All right.
20• • • • A• • 1216.
21• • • • Q• • Okay.
22• • • • A• • 1045.
23• • • • Q• • Okay.
24• • • • A• • And coming back, 1179.
25• • • • Q• • Okay.
•1• • • • A• • 1181.
•2• • • • Q• • Got it.
•3• • • • A• • And 758.
•4• • • • Q• • All right.• Thank you.• Do you do all of these
•5• •stores in one day?
•6• • • • A• • Yes.
•7• • • • Q• • So -- I’m just going to go through some of these.
•8• •What time do you have to be at Publix 770?
•9• • • • A• • 770, I can get there between -- the window is 4:00
10• •to 10:00.• I normally get there 4:00 o’clock --
11• • • • Q• • That’s 4:00 to 10:00 a.m.?
12• • • • A• • Yes.
13• • • • Q• • So how long do you spend at that location?
14• • • • A• • Ten minutes.
15• • • • Q• • What do you deliver there?
16• • • • A• • Cheese and crackers and chips.
17• • • • Q• • So who loads up your truck in the morning?
18• • • • A• • We have a warehouse for that.
19• • • • Q• • So you don’t do that?• That’s not your
20• •responsibility?
21• • • • A• • No.
22• • • • Q• • All right.• So when you leave the warehouse, is
23• •the truck fully loaded every day?
24• • • • A• • Yes.
25• • • • Q• • What -- do you drive the same truck every day?
•1• • • • A• • Yes, at that -- on that day from I have -- since
•2• •2008 I have switched one truck, that is, I had truck GFI 734
•3• •at the time of the accident and the truck I drive now is GFI
•4• •750.
•5• • • • Q• • Okay.• So at the time of the crash back in
•6• •December 2018, you were driving a GFI what?
•7• • • • A• • 734.
•8• • • • Q• • What does that stand for, GFI 734?
•9• • • • A• • Gourmet Foods International.
10• • • • Q• • So the number of the truck is 734?
11• • • • A• • Yes.
12• • • • Q• • So do you recall what make and model the truck
13• •was?
14• • • • A• • Not right offhand, I don’t remember what truck.
15• •It’s -- I want to say it was a Freightliner.
16• • • • Q• • So I have here on the police report, it says it’s
17• •a 2014 Freightliner, the color is black.• Is that right?
18• • • • A• • Correct.
19• • • • Q• • On the date of the crash, was that the first time
20• •that you had used that truck or were you familiar with the
21• •truck?
22• • • • A• • Familiar with the truck.
23• • • • Q• • When did you first start using that truck, GFI
24• •734?
25• • • • A• • Back in 2015 or 2016 when I first was assigned to
•1• •that truck.
•2• • • • Q• • Do you know if anybody else used that truck or was
•3• •that exclusively assigned to you at the time of the crash?
•4• • • • A• • It was exclusively assigned to me.
•5• • • • Q• • Who was responsible for the vehicle maintenance
•6• •such as oil changes, changing the brakes, that type of
•7• •stuff?
•8• • • • A• • I believe Penske Truck ’cause that’s who we do --
•9• •get our trucks from.• It was that -- I believe that’s Penske
10• •Truck -- Truck Service, Penske in Lakeland, Florida.
11• • • • Q• • Sorry about that.• Did you say Penske, Lakeland,
12• •Florida?
13• • • • A• • Yes.
14• • • • Q• • Do you know which Penske?
15• • • • A• • I believe it’s Penske -- all I can tell you is
16• •Penske, Lakeland, Florida.
17• • • • Q• • Do you know of any intersections or any roads
18• •where the Penske was located?
19• • • • A• • I believe it’s off I-4 and Kathleen Road, Exit 28
20• •or 26.• I’m not -- I’m not positive on the exit but it’s
21• •Kathleen Road.
22• • • • Q• • Would you ever take the vehicle to be serviced
23• •yourself or somebody from the warehouse would do it
24• •themselves?
25• • • • • • •MS. McDOWELL:• Objection; compound.
•1• • • • Q• • You can still answer.
•2• • • • A• • Say -- can you repeat the question?
•3• • • • Q• • Absolutely.• Would you take the vehicle to the
•4• •service center yourself?
•5• • • • A• • No.
•6• • • • Q• • To your knowledge, who would take the vehicle to
•7• •get maintenance, to get serviced?
•8• • • • A• • Penske has their own maintenance that would come
•9• •pick the trucks up.
10• • • • Q• • Okay.• To your knowledge, when was the vehicle
11• •last serviced by Penske prior to December 21st, 2018?
12• • • • A• • I do not know.
13• • • • Q• • At the time of the crash, were you aware of any
14• •maintenance issues, any service problems with the vehicle?
15• • • • A• • No, none to my knowledge.
16• • • • Q• • All right.• So I’m going to go back a little bit.
17• •We were talking about your delivery route.• So you could be
18• •at the first store anywhere from 4:00 to 10:00 a.m. but you
19• •try to get there at 4:00 a.m.• Is there a second -- as far
20• •as the second store goes, is there a time that you had to be
21• •there by?
22• • • • A• • No, there’s no certain amount.• There’s no amount
23• •of time.• I just normally would run it in that particular
24• •order, and each store takes about 10 -- 10 to 15 minutes at
25• •tops.
•1• • • • Q• • And in every store are you delivering the same
•2• •goods or are there different goods within your vehicle? I
•3• •know you said cheese, crackers and chips.
•4• • • • A• • That’s basically the same -- same amount.• It’s
•5• •just -- it’s the same amount -- same product, just a
•6• •different amount of product.• I can take five cases to one
•7• •stop, 10 cases to the next.• It just varied on what they
•8• •ordered.
•9• • • • Q• • Okay.• The truck that you were driving at the time
10• •of the crash, so you said it’s a Freightliner.• Can you
11• •describe the body of the truck?• Not the semi part of it but
12• •the -- is it -- would you consider it a box truck?• Is it a
13• •tractor-trailer?
14• • • • A• • It’s a box truck, no tractor-trailer.
15• • • • Q• • Did you need a commercial driver’s license to
16• •operate that vehicle?
17• • • • A• • Yes.
18• • • • Q• • Do you know what class of a box truck that was?
19• • • • A• • I’m not sure.
20• • • • Q• • Does Gourmet Foods provide you any training on
21• •driving the box truck?
22• • • • • • •MS. McDOWELL:• Objection; form.
23• • • • A• • Did they provide --
24• • • • • • •MR. MAVROMATIS:• I’m sorry?
25• • • • • • •MS. McDOWELL:• Go ahead.
•1• • • • A• • Can I continue?
•2• • • • Q• • Yes.
•3• • • • • • •MS. McDOWELL:• Go ahead.
•4• • • • A• • Okay.• Can you repeat the question?
•5• •BY MR. MAVROMATIS:
•6• • • • Q• • Does Gourmet Foods International provide you with
•7• •any training on operating the GFI 734 truck?
•8• • • • A• • They provide sometimes videos for drivers,
•9• •defensive driving class -- defense driving videos to driving
10• •videos, yes, they do.
11• • • • Q• • Did you have to take any tests or certification
12• •courses through Gourmet Foods International to use the -- to
13• •operate the truck?
14• • • • A• • I believe you’re given those videos and classes
15• •when you first start.• It’s part of your -- how do I say?
16• •What’s the word I’m looking for?• It’s part of your hiring
17• •process when you get -- when you’re getting hired to watch
18• •those type of videos.
19• • • • Q• • Okay.• So let’s talk a little bit about the hiring
20• •process.• As a delivery driver, what is the -- were you
21• •first hired as a delivery driver with Gourmet Foods?
22• • • • A• • Yes.
23• • • • Q• • Okay.• Explain to me the -- the hiring or the
24• •onboarding process.• Do you have to take any tests or any
25• •exams to become a delivery driver through Gourmet Foods?
•1• • • • A• • I believe you have -- like I said, they show you
•2• •your videos and you -- you run through the -- I’m not
•3• •understanding the question as far as...
•4• • • • Q• • Sure.• Let me try to rephrase it this way.
•5• •Does -- when Gourmet Foods hires you to drive a delivery
•6• •truck, do they ask -- they show you a video, correct?
•7• • • • A• • Yes.
•8• • • • Q• • Do they want you to take any tests, either written
•9• •or in person, driving tests as a condition of working for
10• •Gourmet Foods?
11• • • • A• • I believe so but I’m not positive.• I’m not -- I
12• •don’t -- no, I don’t think so.• There’s nothing like that.
13• • • • Q• • Okay.• So all they do is, from your recollection
14• •of when you first started with Gourmet Foods, you saw a
15• •video; is that right?
16• • • • A• • Yes.
17• • • • Q• • How long was that video, if you recall?
18• • • • A• • I believe it was maybe 30 minutes to an hour.
19• • • • Q• • Is that a yearly video you had to watch or is that
20• •a one-time thing that you watched when you first joined
21• •Gourmet Foods?
22• • • • A• • At the time, I want to say it was a one-time
23• •thing, but I’m not sure how they do it now.
24• • • • Q• • Okay.• So you’ve been employed by Gourmet Foods, I
25• •think you said about five or six years.• Have you seen that
•1• •video since you first joined Gourmet Foods?
•2• • • • A• • I -- yes, I saw that video a second time after my
•3• •accident.
•4• • • • Q• • So you saw it once before the accident and then
•5• •second after the crash; is that right?
•6• • • • A• • Correct.
•7• • • • Q• • And any other times you’ve seen that video?
•8• • • • A• • No.
•9• • • • Q• • And what was the contents?• What was that video
10• •about, that 30-minute-to-one-hour video?
11• • • • A• • It ranged from your job description to what you
12• •had to -- what your job detail was, and it ran over your --
13• •the truck issues, whether -- when I say issues, what -- your
14• •truck from your pre-trip to your post-trip to just your
15• •regular, normally what -- what were you going to be doing
16• •for that day or what your job title detailed as far as being
17• •a delivery driver.
18• • • • Q• • And then prior to December 2018, did you ever
19• •watch any defensive driving videos or take any defensive
20• •driving courses through Gourmet Foods International?
21• • • • A• • I believe when I first started, we were -- we had
22• •to watch those videos.
23• • • • Q• • Was it the same 30-minute-to-one-hour video or was
24• •it a separate video?
25• • • • A• • I believe it was a separate one.
•1• • • • Q• • Okay.• And then in the five to six years that
•2• •you’ve been with Gourmet Foods, how many times have you
•3• •watched that defensive driving video?
•4• • • • A• • Twice.
•5• • • • Q• • The first time was when you started with Gourmet
•6• •Foods; is that correct?
•7• • • • A• • Correct.
•8• • • • Q• • When was the second time?
•9• • • • A• • After the 2018 accident.
10• • • • Q• • And did you have to take any written exams after
11• •the 2018 crash saying that you watched the video or passed
12• •the test or anything like that?
13• • • • A• • No, they make you sign off on a sheet that says
14• •you watched it.• No written exam, though.
15• • • • Q• • Do you recall ever signing off on a sheet saying
16• •that you watched the defensive driver video?
17• • • • A• • Yes.
18• • • • Q• • Did you keep a copy of that or did they ever give
19• •you a copy of that sheet?
20• • • • • • •MS. McDOWELL:• Objection; form, compound.
21• • • • Q• • Did they ever give you -- they being Gourmet
22• •Foods, did Gourmet Foods ever give you a copy of the
23• •sign-off sheet after watching the video?
24• • • • A• • No, I never received a copy.
25• • • • Q• • When you first started with Gourmet Foods, did you
•1• •ever have to sit with another driver at Gourmet Foods to
•2• •show you how to operate one of their trucks?
•3• • • • A• • I believe the first two -- two to three months,
•4• •I -- I remember driving with other drivers, riding with
•5• •other drivers, yes, when I first started back in 2015.
•6• • • • Q• • Were you observing them driving or were they
•7• •observing you driving?
•8• • • • A• • I was doing the observing.
•9• • • • Q• • As part of your onboarding process, the hiring
10• •process, did you have -- did any employee from Gourmet Foods
11• •or somebody working on their behalf ever observe you driving
12• •your box truck or any other vehicle?
13• • • • A• • Yes.
14• • • • Q• • When was that?
15• • • • A• • When I -- back in 2015 when I first started.
16• • • • Q• • And what was the purpose of that observation?
17• • • • A• • I was being trained.
18• • • • Q• • And explain to me the training process that
19• •Gourmet Foods does with new delivery drivers.
20• • • • A• • You basically -- they basically show you the job
21• •as far as your check-in procedure at your Publixes, the
22• •return procedures of product that doesn’t go to certain
23• •stores.• And they observe you driving, your speed limit.
24• •They observe you checking your miles per hour, your -- they
25• •observe your -- your height, make sure you don’t go under
•1• •bridges that you’re not supposed to or no -- no-truck zones.
•2• • • • Q• • Okay.• Is that a one-time training process just
•3• •when you first started or is that a yearly process?
•4• • • • A• • That’s one-time training.
•5• • • • Q• • Am I correct in saying that from after the
•6• •first -- after the first time you were hired in 2015 there
•7• •was no other trainings until 2018 after the crash; is that
•8• •right?• Any other trainings by Gourmet Foods?
•9• • • • A• • Correct.• That’s all the training.
10• • • • Q• • Were you given an employee handbook when you first
11• •started with Gourmet Foods?
12• • • • A• • Yes.
13• • • • Q• • Do you still have a copy of that handbook?
14• • • • A• • I’m not sure where I put it, placed it.
15• • • • Q• • Do you think you could find it if it’s available?
16• • • • A• • No, I don’t have any clue where I may have placed
17• •it.
18• • • • Q• • What was in the employee handbook, if you recall?
19• • • • A• • I would say your -- it would tell you about your
20• •PTO.• I think what they -- they may have went from your
21• •handbook to a more digital, electronic what your PTO is, the
22• •company policies and your job -- details of your job.
23• •That’s about all I can think of.
24• • • • Q• • Okay.• All right.• Did the employee handbook
25• •outline any defensive driving information?
•1• • • • A• • Not that I’m aware of.
•2• • • • Q• • You talked about when you first joined, when you
•3• •were first hired by Gourmet Foods International about them
•4• •observing your speed limit.• Are you aware of any devices
•5• •within the box truck that would track the speed limit when
•6• •you’re driving the motor vehicle?
•7• • • • A• • At that time, that particular truck, 734, I’m not
•8• •sure, but I know that my vehicle now, 735, tracks your
•9• •speed, your speed and -- and it -- yeah, it -- the truck --
10• •tractor I have now does.
Preview
Filing # 145212182 E-Filed 03/07/2022 03:44:14 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO: 2020 CA 156 CANDY LYNN MOSES, Plaintiff, vs. ANTONIO LAMAR STAFFORD and GOURMET FOODS INTERNATIONAL LAKELAND, INC. Defendants. / PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON LIABILITY COMES NOW, Plaintiff, CANDY LYNN MOSES, by and through her undersigned counsel and pursuant to Fla. R. Civ. P. 1.510, hereby moves this court for an Order granting Partial Summary Judgment on the issue of liability as follows: 1. There is no genuine issue of material fact. 2. The Plaintiff is entitled to summary judgment on the issue of liability as a matter of law. 3. The material evidence is undisputed. 4. This case involves an automobile crash that resulted in a collision which occurred on Neptune Road near the intersection of Henry Partin Road in Kissimmee, Osceola County, Florida on December 21, 2018. 5. There is no evidence that the Plaintiff caused or contributed to the crash or to her damages. 6. The Defendant has filed Affirmative Defenses to this action. (Defendant’s Answer and Affirmative Defenses are attached hereto as Exhibit “A.”) 7. With respect to certain defenses, there are no genuine issues of material fact and the Court is entitled to rule on these issues as a matter of law. 8. Specifically, asserted as affirmative defenses are the following positions raised by the Defendant: Affirmative Defense #6: To the extent that these defendants are liable for any injury or damage to plaintiff, their liability is limited to their proportionate share of fault pursuant to F.S. §768.81(3) and other persons, firms, or entities not parties to this action are responsible for their respective percentage(s) of fault. Although these defendants cannot presently name any such “Fabre” defendants, defendants reserve their right to do so as permitted by Florida case law. 9. As to Affirmative Defense #6, this assertion is factually impossible in that Defendant, in raising this defense, has failed to adequately specify the identity, name, or the extent such Fabre defendants contributed to this crash. 10. Moreover, there is no evidence that the Plaintiff caused or contributed to the crash in question; therefore, summary judgment is appropriate on the issue of liability and/or comparative negligence of the Plaintiff. 11. To date, the records in this matter conclusively established the absence of any genuine issue of material fact as to the Defendant’s negligence in causing an automobile collision, and established that the Plaintiff is entitled to judgment as a matter of law as to Defendant’s comparative fault affirmative defenses and Messmer Defendant affirmative defenses. 2 STATEMENT OF FACTS This action is based upon an automobile collision which occurred on Neptune Road near the intersection of Henry Partin Road in Kissimmee, Osceola County, Florida. On December 21, 2018, at approximately 9:59 A.M., Plaintiff, Candy Lynn Moses, was operating a motor vehicle traveling westbound on Neptune Road west of Henry Partin Road and stopped for traffic. At that time the Defendant, Antonio Lamar Stafford, was traveling westbound on Neptune Road west of Henry Partin Road behind Plaintiff’s vehicle when he lost control of his vehicle and collided with the rear end of Mrs. Moses’ vehicle. As a result of this collision, Plaintiff was injured and transported by ambulance to the hospital. (Antonio Lamar Stafford’s deposition transcript is attached hereto as Exhibit “B”). Antonio Lamar Stafford, at his deposition taken on January 10, 2022 testified to the following: Plaintiff’s Counsel: How would you describe the traffic conditions that day at Neptune Road? Defendant Stafford: It was – it wasn’t – it was backed up. It was not more stop-and-go, kind – yeah, more or less stop-and-go but I didn’t, you know, I was traveling too close. Plaintiff’s Counsel: Traveling too close to whom? Defendant Stafford: The vehicle in front of me. Plaintiff’s Counsel: Had you not been traveling too close to the vehicle in front of you, could you avoid the crash? Defendant Stafford: Yes. And I noticed after crash, like the traffic pattern had changed because I want to say a week before or maybe two weeks before that, traveling that road there was no – they put a traffic – a temporary traffic stoplight up, and that wasn’t up there a week before. (Depo. Stafford, pg. 33:12-15) *** 3 Plaintiff’s Counsel: Near the location of the crash site, were there any puddles of water? Defendant Stafford. Yes Plaintiff’s Counsel: Puddles of water on the road? Defendant Stafford: Yes, the road was damp, wet, what have you. Plaintiff’s Counsel: When your vehicle crashed into my client’s vehicle, was her vehicle moving? Defendant Stafford: She – she broke – she hit her brakes and I hit my brakes and I slid into her. (Depo. Stafford, pg. 40:5-13) *** Plaintiff’s Counsel: How much time between her hitting her brakes and you hitting your brakes before the collision occurred? Defendant Stafford: It took a matter of seconds. Plaintiff’s Counsel: What was the distance between the front of your car and the back of her car when you first saw her pushing on her brakes before the crash? Defendant Stafford: I would say a half a car length. I’m not precise on that type of distance or I’m – you’re supposed to keep like a couple of car lengths in between you driving the truck, so it was maybe a half a car length. (Depo. Stafford, pg. 40:20-25 through pg. 41:1-4) *** Plaintiff’s Counsel: And why did you have half a car length distance between the front of your car and the back of my client’s car at the time of the crash and not two car lengths? Defendant Stafford: It was the flow of traffic. Plaintiff’s Counsel Would you agree that someone driving a vehicle should keep a safe distance between their car and the car in front of them? Defendant Stafford: Yes, I agree. (Depo. Stafford, pg. 41:12-19) *** Plaintiff’s Counsel Could you have done anything to avoid the crash? Defendant Stafford: Yes Plaintiff’s Counsel: What? 4 Defendant Stafford: All I had to do was pull to the left. It’s a “coulda, woulda, shoulda” situation; I could have pulled to the left and I could have avoided her, I – I would have avoided her. Plaintiff’s Counsel: If you had two car lengths distance between your vehicles, could you have avoided the crash? Defendant Stafford: Yes Plaintiff’s Counsel: If you had one car length distance between both of you, could you have avoided the crash? Defendant Stafford: Yes (Depo. Stafford, pg. 42:5-17) MEMORANDUM OF LAW DEFENDANT DRIVER’S NEGLIGENCE AND MESSMER DEFENSE It is not “any” act that supports a Messmer defense but rather, a tortious act or omission, negligence, that causes or contributes to the accident that gives rise to the defense. The burden of proof is on the defendant wishing to rely on the defense. There is no evidence or disputed material issues of fact that the Plaintiff was negligent. Therefore, there is nothing for the jury to consider, the Messmer defense is without merit and Plaintiff’s Motion for Summary Judgment should be granted. The law in Florida is clear on the non-party Messmer affirmative defense. First, there are two important pleading elements. In Nash v. Wells Fargo Guard Service, Inc. 678 So.2d 1262 (Fla. 1996), the Florida Supreme Court clearly held “that in order to include a non-party on the verdict form pursuant to Fabre, the defendant must plead as an affirmative defense [1] the negligence of the non-party and [2] specifically identify the non-party.” Id. The allegations of negligence must meet the standard of notice pleading with ultimate facts, not just a conclusion that the non-party was negligent in some unexplained way. Bogosian v. State Farm Mutual Automobile Insurance Co., 817 So.2d 968 (Fla. 3d DCA 1998). Pleading 5 negligence means alleging ultimate facts that, if proven, could constitute all elements of negligence -- duty, breach of duty, damages, and causation. Prosser and Keeton on Torts, Fifth Edition, Chapter 5, page 164-65. Defendants would not be excused from these requirements of notice pleading in their answer even if the plaintiff knew or should have known of the possible fault of a non-party. Id. See also Gonzalez v. Veloso, 702 So. 2d 1366, 1367 (Fla. 3d DCA 1997). Even where a defendant’s affirmative defense does sufficiently plead the identity of a non-party joint tortfeasor and sufficiently alleges ultimate facts that would constitute that non- party’s negligence, summary judgment should be granted to the plaintiff on that affirmative defense where there is no evidence in the record of the non-party’s negligence. Controlling case law “requires that, to include a non-party on a verdict form, defendants seeking to raise third-party liability must not only plead the non-party’s negligence as an affirmative defense, but must also specifically identify the non-party and prove the non-party’s fault in causing the accident.” Thomas v. Daniel, 736 So.2d 100, 101 (Fla. 1st DCA 1999) (emphasis added). “...There must be evidence of the non-party’s fault before the issue can go to the jury.” Lagueux v. Unino Carbide Corp., 861 So.2d 87 (Fla. 4th DCA 2003) (citations omitted). In Clark v. Polk County, 753 So.2d 138 (Fla. 2d DCA 2000), the defendant in a traffic collision case pled the negligence of non-parties in knocking down a stop sign which the defendant ran prior to the collision that injured the plaintiff. In reversing the judgment in favor of the defendant after the trial court allowed the non-party to be placed on the verdict form, the appellate court noted that the defendant had failed in its burden of establishing negligence on the 6 part of the non-party, as opposed to proving the simple fact of the stop sign being run over. The court held: Rather, the evidence was insufficient because it did not demonstrate that the destruction of the stop sign was tortious at all. Outside the relatively rare circumstances implicating the principle of res ipsa loquitor, it is well-settled that the mere occurrence of a mishap does not prove that the mishap resulted from tortious conduct. Here, the County proved only that a motorist drove over the stop sign. Its evidence left open the question of why -- did the motorist act tortuously? Or was he or she forced off the road by another vehicle? Or did he or she swerve to avoid striking a person, animal or object in the road? Without evidence on those questions, there simply is no Fabre issue for the jury to consider. Id. at 143. A defendant who alleges the fault of a non-party must do more than simply establish that the non-party performed some acts, which resulted factually in contributing to the accident. A defendant pleading the fault of non-parties must establish evidence that the non-party’s involvement in the accident was a result of actionable negligence. The mere occurrence of the accident is not enough, and even a causal connection between the non-party’s actions and the accident is not enough. Bare argument of defense counsel that a certain act occurred and was negligent is not enough. There must be proof of conduct which was unreasonable. Defendants, ANTONIO LAMAR STAFFORD and GOURMET FOODS INTERNATIONAL LAKELAND, INC., have failed to specifically name any third party that it alleges caused or contributed to the crash. Notwithstanding, there is no evidence that any third party was negligent and even if they were, their actions do not relieve the Defendants of their duty of care and duty to avoid crashing into the Plaintiff’s vehicle. For a third party to appear on a verdict form as a Fabre defendant, there has to be evidence of negligence to impose liability, the Defendants have the burden to produce said evidence to avail itself of the defense. The Defendants have not presented any such evidence and no such record evidence exists in this case for a jury to consider. 7 WHEREFORE, the Defendants, ANTONIO LAMAR STAFFORD and GOURMET FOODS INTERNATIONAL LAKELAND, INC., having failed to provide any evidence or facts, disputed or otherwise, of either Plaintiff’s own comparative negligence, or a third party’s negligence, the Plaintiff is entitled to judgment as a matter of law. This motion should be granted and summary judgment entered in favor of Plaintiff and against Defendants, ANTONIO LAMAR STAFFORD and GOURMET FOODS INTERNATIONAL LAKELAND, INC., finding that the Defendendants were the sole proximate cause of the crash and in favor of Plaintiff on Defendant’s comparative negligence and Messmer Affirmative defenses. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 7, 2022, I electronically filed the foregoing with the Clerk of the Courts by using the Florida Courts eFiling Portal. I further certify that Pursuant to Rule 2.516(b)(1) I forwarded the foregoing this same day via: X Email, □ U.S. Mail – postage paid, □ facsimile transmission, to: Deborah L. Moskowitz, Esquire, Quintairos, Prieto, Wood & Boyer, P.A., 255 South Orange Avenue, Suite 900, Orlando, FL, 32801, Dmoskowitz@qpwblaw.com; holly.anderson@qpwblaw.com. /s/ Felipe Mavromatis Felipe Mavromatis, Esq. Florida Bar No. 118331 MORGAN & MORGAN, P.A. 198 Broadway Kissimmee, FL 34741 Telephone Phone: (407) 452-6990 Facsimile: (407) 452-1627 Primary email: fmavromatis@forthepeople.com Secondary email: xmartinez@forthepeople.com Tertiary email: adasilva@forthepeople.com Attorneys for Plaintiff 8 Filing # 104070776 E-Filed 02/28/2020 10:44:45 AM EXHIBIT "A" IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO: 2020 CA 156 JURY TRIAL DEMANDED CANDY LYNN MOSES, Plaintiff, v. ANTONIO LAMAR STAFFORD and GOURMET FOODS INTERNATIONAL LAKELAND, INC., Defendants. DEFENDANTS STAFFORD AND GOURMET’s ANSWER AND AFFIRMATIVE DEFENSES TO THE FIRST COMPLAINT FILED BY PLAINTIFF - MOSES Defendants, ANTONIO LAMAR STAFFORD (“STAFFORD”) and GOURMET FOODS INTERNATIONAL LAKELAND, INC. (“GOURMET”) (collectively “DEFENDANTS’”), by and through their undersigned counsel, and pursuant to the Florida Rules of Civil Procedure, hereby file and serve this Answer and Affirmative Defenses to the Plaintiff — CANDY LYNN MOSES’ First Complaint as follows: 1. Admitted for jurisdictional purposes only, denied otherwise. 2. Without knowledge. 3. Admitted. 4. Admitted. 5. Admitted for venue and jurisdiction only, denied otherwise. 6. Without knowledge. 7. Admitted. 8. Admitted. 9. Denied. 10. Denied as stated. 11. Denied. 12. Denied. ANY ALLEGATION OF MATERIAL FACT NOT SPECIFICALLY ADMITTED ABOVE IS DENIED, OR THESE DEFENDANTS ARE WITHOUT KNOWLEDGE OF AND DENY SAME, AND DEMAND STRICT PROOF THEREOF AT TIME OF TRIAL AFFIRMATIVE DEFENSES 1. Plaintiff unreasonably failed to mitigate her damages, if any. 2. The damages, if any, to plaintiff is due to events, conditions or occurrences that are unrelated to any act or omission on the part of these defendants. 3. Some or all of the injuries claimed by plaintiff are not permanent injuries and otherwise fail to meet the “threshold” requirements of Florida’s No-Fault Law. Accordingly, plaintiff’s recovery, if any, is limited thereunder and thereby. 4. Plaintiff’s damages are due to an intervening, superseding and efficient cause, unrelated to any act or omission on the part of these defendants and, as such, there is no liability on the part of these defendants for any of said damages. 5. Plaintiff has received or is entitled to receive benefits, including collateral source benefits, such as but not limited to personal injury protection (PIP) benefits, medical payments benefits, insurance benefits, governmental and charitable benefits, and/or reductions, write- offs or adjustments taken to their medical bills by insurers, health care providers, or any other person, firm or entity. Defendants are entitled to a setoff or credit for all such benefits received directly or indirectly by the plaintiff. 6. To the extent that these defendants are liable for any injury or damage to plaintiff, their liability is limited to their proportionate share of fault pursuant to F.S. §768.81(3) and other persons, firms or entities not parties to this action are responsible for their respective percentage(s) of fault. Although these defendants cannot presently name any such “Fabre” defendants, defendants reserve the right to do so as permitted by Florida case law. 7. Pursuant to the Patient Protection and Affordable Care Act (“PPACA”) Plaintiff is required to obtain health insurance. As for any expenses covered by any insurance obtained pursuant to the PPACA, Plaintiff may only recover the amounts paid by her and/or on her behalf. Defendants are entitled to a setoff or credit for all amounts reduced, written off, adjusted or otherwise waived by any insurer, governmental agency, health care provider or any other person, firm or entity pursuant to insurance obtained pursuant to the PPACA. 8. In the event that Plaintiff failed to obtain insurance coverage, as mandated by and under the PPACA, thereby leaving Plaintiff voluntarily uninsured, Plaintiff failed to mitigate her damages. Accordingly, Plaintiff may not recover any damages for past, present or future medical expenses beyond those that would have been paid by health insurance available to plaintiff pursuant to the PPACA, had she elected to obtain such coverage jointly or individually, as required by law. 9. In the event that Plaintiff has obtained insurance coverage, as mandated by and under the PPACA, Plaintiff is only permitted to recover as future medical or medical-related damages the amount of the insurance premiums necessary to maintain such coverage in the future, and any co-payments required pursuant to said coverage. JURY TRIAL DEMAND Defendants demand a trial by jury of all issues so triable. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing document has been served through the Florida courts E-Portal system, which will provide the foregoing by e-mail to: Felipe Mavromatis, Esquire, Attorneys for Plaintiff, Morgan & Morgan, PA, 198 Broadway Avenue, Kissimmee, FL 34741 fmavromatis@forthepeople.com; svandervelde@forthepeople.com on this 28th day of February, 2020. LAW OFFICE OF JACK D. EVANS /s/ALEXANDRA C. STEELE ______________________________ Alexandra C. Steele, Esq. Fla. Bar No. 29595 2420 Lakemont Ave., Suite 125 Orlando, Florida 32814 (407) 388-2679 (855) 203-0311 Attorney for Gourmet Foods International ASteeled@travelers.com jdeorlan@travelers.com rklopez@travelers.com EXHIBIT "B" 1 IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA 2 CASE NO.: 2020-CA-877-AN 3 SAMANTHA LANG, 4 Plaintiff, 5 _vs-— 6 ANTONIO LAMAR STAFFORD 7 AND GOURMET FOODS INTERNATIONAL, 8 LAKELAND, INC., i) Defendants. YA 10 11 12 REMOTE DEPOSITION OF ANTONIO LAMAR STAFFORD 13 Taken on Behalf of the Defendant 14 15 DATE TAKEN: Monday, January 10, 2022 16 TIME: 1:05 p.m. - 2:43 p.m. EST 17 PLACE: Videoconference 18 19 20 21 22 23 24 Stenographically Reported by: 25 Donna R. Keller, RPR, CRR •1• • • • • • • • • • • • • •APPEARANCES •2• • • • • (All attendees appeared via video-conference.) •3• •Counsel for the Plaintiff: •4• • • • • • •FELIPE MAVROMATIS, ESQUIRE • • • • • • • •Morgan & Morgan, P.A. •5• • • • • • •198 Broadway • • • • • • • •Kissimmee, Florida 34741 •6• • • • • • •fmavromatis@forthepeople.com •7• •Counsel for the Defendant: •8• • • • • • •SONIA H. MCDOWELL, ESQUIRE • • • • • • • •Quintairos, Prieto, Wood & Boyer, P.A. •9• • • • • • •255 South Orange Avenue • • • • • • • •Orlando, Florida• 32801 10• • • • • • •sonia.mcdowell@qpwblaw.com 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 •1• • • • • • • • • • • • • •I N D E X •2• •DEPOSITION OF ANTONIO LAMAR STAFFORD• • • • • • •PAGE •3• •DIRECT EXAMINATION BY MR. MAVROMATIS• • • • • • • 4 •4• •CROSS-EXAMINATION BY MS. McDOWELL• • • • • • • • •54 •5• •REDIRECT EXAMINATION BY MR. MAVROMATIS• • • • • • 55 •6• •CERTIFICATE OF OATH• • • • • • • • • • • • • • • •58 •7• •CERTIFICATE OF REPORTER• • • • • • • • • • • • • •59 •8• •WITNESS LETTER• • • • • • • • • • • • • • • • • • 60 •9• •ERRATA SHEET• • • • • • • • • • • • • • • • • • • 61 10 11 12• • • • • • • • • • • •PLAINTIFF’S EXHIBITS 13• •NO.• •DESCRIPTION• • • • • • • • • • • • • • • • PAGE 14• • • • • • • • • • • • • *****NONE***** 15 • • • • • • • • • • • • •DEFENDANT’S EXHIBITS 16 • • •NO.• •DESCRIPTION• • • • • • • • • • • • • • • • PAGE 17 • • • • • • • • • • • • • • *****NONE***** 18 19 20 21 22 23 24 25 •1• • • • • • • • • • • • • •PROCEEDINGS •2• • • • • • •THE REPORTER:• The attorneys participating in this •3• • • • deposition acknowledge that I am not present with the •4• • • • witness and that I will be reporting this proceeding •5• • • • and administering the oath remotely.• Counsel, please •6• • • • indicate your agreement on the record. •7• • • • • • •MR. MAVROMATIS:• Counsel for plaintiff.• I agree. •8• • • • • • •MS. McDOWELL:• Counsel for the defendants.• No •9• • • • objection. 10• • • • • • •THE REPORTER:• Mr. Stafford, please raise your 11• • • • right hand.• Do you swear or affirm the testimony you 12• • • • are about to give will be the truth, the whole truth 13• • • • and nothing but the truth? 14• • • • • • •THE WITNESS:• Yes. 15• • • • • • •THE REPORTER:• Thank you. 16• • • • • • • • • • • • DIRECT EXAMINATION 17• •BY MR. MAVROMATIS: 18• • • • Q• • Good afternoon, sir. 19• • • • A• • Good afternoon. 20• • • • Q• • My name is Felipe Mavromatis and I represent the 21• •plaintiffs in this matter, Ms. Candy Moses, Ms. Kaitlyn 22• •Falotico and Ms. Samantha Lang, and we’re here to take your 23• •deposition today for a car crash that took place back in 24• •2018.• Have you ever had your deposition taken before? 25• • • • A• • No. •1• • • • Q• • I’m going to explain some of the ground rules •2• •regarding your deposition just to facilitate this moving •3• •smoothly.• Number one, just like you’re doing now, please •4• •respond verbally to all of my questions.• The reason for •5• •that is we have a court reporter with us who has to type up •6• •everything all of us are saying, so if you could just do •7• •like you’re doing, just say yes, no, or whatever answer you •8• •have for us.• Okay? •9• • • • A• • Okay. 10• • • • Q• • If you need a break at any moment, just let me 11• •know.• All right? 12• • • • A• • No problem.• All right. 13• • • • Q• • And then I know we’re doing this through Zoom 14• •rather than live.• Sometimes there’s a delay.• If I cut you 15• •off, I’m not trying to be nasty towards you but sometimes 16• •there’s a delay in Zoom, so I apologize in advance for that. 17• •All right? 18• • • • A• • Okay. 19• • • • Q• • If you have anything else to say that I didn’t 20• •allow you to finish answering, just let me know and we’ll 21• •reask the question.• And same thing; if you don’t understand 22• •my question, I will do my best to rephrase it.• Okay? 23• • • • A• • Okay. 24• • • • Q• • Are you currently -- well, may I have your full 25• •name for the record, please? •1• • • • A• • Antonio Lamar Stafford. •2• • • • Q• • Mr. Stafford, what is your residential address? •3• • • • A• • 6035 Norton Road, lot number 26, Lakeland, Florida •4• •33809. •5• • • • Q• • Do you have any plans to relocate from that •6• •address in the next six months to a year? •7• • • • A• • No. •8• • • • Q• • Do you have a valid driver’s license? •9• • • • A• • Yes. 10• • • • Q• • Is that a Florida license? 11• • • • A• • Yes. 12• • • • Q• • Has your Florida license ever been suspended or 13• •revoked for any reason? 14• • • • A• • Yes. 15• • • • Q• • Was it suspended or revoked? 16• • • • A• • It was suspended. 17• • • • Q• • What year was it suspended? 18• • • • A• • 2002 or 2003.• I’m not sure. 19• • • • Q• • Okay.• Why was it suspended? 20• • • • A• • I had 12 points on my license for a CDL. 21• • • • Q• • Okay.• So you had a commercial driver’s license in 22• •the past? 23• • • • A• • Yes. 24• • • • Q• • Do you still have a CDL? 25• • • • A• • Yes. •1• • • • Q• • So do you -- how did you get those 12 points on •2• •your CDL? •3• • • • A• • It was a combination of tickets. •4• • • • Q• • Tickets for what? •5• • • • A• • Speeding.• Mainly it was speeding tickets, and I •6• •believe one was a failure to move over for a -- was it a -- •7• •it was failing to move over.• I wasn’t going slow enough to •8• •move over for the state trooper who was parked on the side •9• •who had a car pulled over. 10• • • • Q• • After 2002, 2003, have you ever had your Florida 11• •driver’s license suspended or revoked for any reason? 12• • • • A• • No. 13• • • • Q• • Have you ever had a driver’s license outside of 14• •the state of Florida? 15• • • • A• • Yes. 16• • • • Q• • What state? 17• • • • A• • Colorado. 18• • • • Q• • When did you get your Florida license? 19• • • • A• • 2003, 2002, 2003. 20• • • • Q• • Have you had a Florida license from that time or 21• •did you get the Colorado driver’s license after 2003? 22• • • • A• • I’ve had both, ’cause I moved back and forth from 23• •Colorado to Florida. 24• • • • Q• • Right now, your active license, is that a Colorado 25• •or Florida license? •1• • • • A• • Florida license. •2• • • • Q• • And then same thing, has your Colorado driver’s •3• •license ever been suspended or revoked for any reason? •4• • • • A• • No. •5• • • • Q• • Have you ever been convicted of a felony? •6• • • • A• • No. •7• • • • Q• • Have you ever been convicted of a crime of •8• •dishonesty such as theft, forgery, fraud or lying? •9• • • • A• • No. 10• • • • Q• • Have you ever been arrested? 11• • • • A• • Yes. 12• • • • Q• • How long ago? 13• • • • A• • 24 years ago. 14• • • • Q• • Did that result in any convictions? 15• • • • A• • No. 16• • • • Q• • And just real brief, what were you arrested for? 17• • • • A• • It was a domestic violence between me and my 18• •ex-girlfriend. 19• • • • Q• • Are you currently employed? 20• • • • A• • Yes. 21• • • • Q• • Where do you work? 22• • • • A• • Gourmet Foods International. 23• • • • Q• • When did you first start working for Gourmet Foods 24• •International? 25• • • • A• • 2015. •1• • • • Q• • Have you worked consecutively from the date of •2• •hire to the present date at Gourmet Foods International? •3• • • • A• • Yes. •4• • • • Q• • Have you held any other jobs between that period •5• •of time from 2015 to the present day? •6• • • • A• • No. •7• • • • Q• • What’s your position with Gourmet Foods •8• •International? •9• • • • A• • Currently delivery driver. 10• • • • Q• • Back in December 2018, what was your position? 11• • • • A• • Delivery driver. 12• • • • Q• • And are you a W-2 employee meaning or are you an 13• •independent contractor, if you know? 14• • • • A• • No. 15• • • • Q• • All right.• Let me ask you this way.• Are you a 16• •salaried employee? 17• • • • A• • Yes. 18• • • • Q• • And then on the date of the crash that we’re here 19• •for today which was back in December 2018, were you working 20• •for Gourmet Foods International? 21• • • • A• • Yes. 22• • • • Q• • As a delivery driver, right? 23• • • • A• • Yes. 24• • • • Q• • So do you have a set work schedule with Gourmet 25• •Foods? •1• • • • A• • Can you rephrase that question? •2• • • • Q• • Yeah.• Do you work like a 9:00 to 5:00?• For •3• •example, do you have set hours or is your schedule flexible? •4• • • • A• • It’s set hours, pretty much.• When I say set •5• •hours, it could be between 3:00 a.m. in the morning till •6• •12:00 -- 12:00 p.m. or 5:00.• It depends what time you come •7• •in. •8• • • • Q• • Okay.• So I’m going to take you back a few years, •9• •back to 2018.• What was your work schedule back in December 10• •2018? 11• • • • A• • 3:00 -- let me see.• I want to say 4:00 a.m. 12• • • • Q• • So you would start work at 4:00 a.m.? 13• • • • A• • Yes. 14• • • • Q• • And then what time would you go to? 15• • • • A• • 1:00, 2:00 -- 1:00, maybe 2:00 o’clock. 16• • • • Q• • In the afternoon? 17• • • • A• • Yes. 18• • • • Q• • And was that a Monday-to-Friday job back in 2018? 19• • • • A• • That particular day, it was just -- I think it was 20• •4:00 o’clock. 21• • • • Q• • Okay.• So you started working at 4:00 a.m. on 22• •December 21st, 2018; is that right? 23• • • • A• • Yes. 24• • • • Q• • And when you start working in the day, do you 25• •start from your home or do you go to like a central location •1• •to pick up a truck, or how does that work? •2• • • • A• • You wake up 3:00 o’clock and -- in the a.m. and •3• •you go to the warehouse. •4• • • • Q• • And so, in other words, your truck as a delivery •5• •driver, whatever vehicle you would use, that would be •6• •located at the warehouse, not your home; is that correct? •7• • • • A• • Correct, at the warehouse. •8• • • • Q• • Would you ever bring your vehicle home for the •9• •night? 10• • • • A• • No, never. 11• • • • Q• • Where was the warehouse located? 12• • • • A• • It’s located in Lakeland, Florida. 13• • • • Q• • Do you know the exact address? 14• • • • A• • Yes. 15• • • • Q• • What is it? 16• • • • A• • The exact address is 3000 -- 3000 State Road 33, 17• •Lakeland, Florida. 18• • • • Q• • So as a delivery driver for Gourmet Foods, back in 19• •December 2018, did you have a set route or would it change 20• •weekly, daily or whatever other schedule? 21• • • • A• • That was a daily route.• I -- I’ve done that route 22• •before. 23• • • • Q• • Okay.• Explain to me what the route entailed. 24• •What was the route?• So you’d pick up your truck at the 25• •warehouse and then do you have set points that you have to •1• •stop? •2• • • • A• • It’s set stores in a particular order. •3• • • • Q• • What was that order of stores -- I’m sorry. I •4• •didn’t mean to cut you off. •5• • • • A• • It would range from Kissimmee, St. Cloud, •6• •Poinciana. •7• • • • Q• • Do you still work the same route or do you have a •8• •different route now? •9• • • • A• • Same route. 10• • • • Q• • All right.• So walk me store by store along your 11• •route, starting with the first delivery of the day. 12• • • • A• • First delivery of the day is Publix store 77 -- 13• •770.• Second store, 1195. 14• • • • Q• • Hold on one second.• Let me write this down.• So 15• •Publix store 77? 16• • • • A• • 770. 17• • • • Q• • Okay.• Do you know the address for that? 18• • • • A• • No, I do not.• I could give you store numbers. I 19• •don’t know the correct address for any store -- 20• • • • Q• • Okay. 21• • • • A• • -- right off the -- 22• • • • Q• • No problem.• So that’s the first store.• What’s 23• •the second store? 24• • • • A• • 1195. 25• • • • Q• • Is that Publix as well? •1• • • • A• • Yes, all Publix. •2• • • • Q• • All Publix.• Got it.• What’s the third store? •3• • • • A• • 879. •4• • • • Q• • Publix 879.• All right.• What’s the fourth store? •5• • • • A• • Publix 551. •6• • • • Q• • Okay.• Anything else? •7• • • • A• • Yes.• I -- do you want the whole route? •8• • • • Q• • The whole route, yeah. •9• • • • A• • Okay.• 551, 1607. 10• • • • Q• • Publix 1607.• All right. 11• • • • A• • 70 -- 707. 12• • • • Q• • 707.• Okay. 13• • • • A• • Publix 515. 14• • • • Q• • 515.• Okay. 15• • • • A• • I’m sorry.• Not 515 -- not 515.• I’m sorry.• 1502. 16• •I’m sorry.• 1502, 1408. 17• • • • Q• • Okay.• 1408.• Uh-huh. 18• • • • A• • 235. 19• • • • Q• • All right. 20• • • • A• • 1216. 21• • • • Q• • Okay. 22• • • • A• • 1045. 23• • • • Q• • Okay. 24• • • • A• • And coming back, 1179. 25• • • • Q• • Okay. •1• • • • A• • 1181. •2• • • • Q• • Got it. •3• • • • A• • And 758. •4• • • • Q• • All right.• Thank you.• Do you do all of these •5• •stores in one day? •6• • • • A• • Yes. •7• • • • Q• • So -- I’m just going to go through some of these. •8• •What time do you have to be at Publix 770? •9• • • • A• • 770, I can get there between -- the window is 4:00 10• •to 10:00.• I normally get there 4:00 o’clock -- 11• • • • Q• • That’s 4:00 to 10:00 a.m.? 12• • • • A• • Yes. 13• • • • Q• • So how long do you spend at that location? 14• • • • A• • Ten minutes. 15• • • • Q• • What do you deliver there? 16• • • • A• • Cheese and crackers and chips. 17• • • • Q• • So who loads up your truck in the morning? 18• • • • A• • We have a warehouse for that. 19• • • • Q• • So you don’t do that?• That’s not your 20• •responsibility? 21• • • • A• • No. 22• • • • Q• • All right.• So when you leave the warehouse, is 23• •the truck fully loaded every day? 24• • • • A• • Yes. 25• • • • Q• • What -- do you drive the same truck every day? •1• • • • A• • Yes, at that -- on that day from I have -- since •2• •2008 I have switched one truck, that is, I had truck GFI 734 •3• •at the time of the accident and the truck I drive now is GFI •4• •750. •5• • • • Q• • Okay.• So at the time of the crash back in •6• •December 2018, you were driving a GFI what? •7• • • • A• • 734. •8• • • • Q• • What does that stand for, GFI 734? •9• • • • A• • Gourmet Foods International. 10• • • • Q• • So the number of the truck is 734? 11• • • • A• • Yes. 12• • • • Q• • So do you recall what make and model the truck 13• •was? 14• • • • A• • Not right offhand, I don’t remember what truck. 15• •It’s -- I want to say it was a Freightliner. 16• • • • Q• • So I have here on the police report, it says it’s 17• •a 2014 Freightliner, the color is black.• Is that right? 18• • • • A• • Correct. 19• • • • Q• • On the date of the crash, was that the first time 20• •that you had used that truck or were you familiar with the 21• •truck? 22• • • • A• • Familiar with the truck. 23• • • • Q• • When did you first start using that truck, GFI 24• •734? 25• • • • A• • Back in 2015 or 2016 when I first was assigned to •1• •that truck. •2• • • • Q• • Do you know if anybody else used that truck or was •3• •that exclusively assigned to you at the time of the crash? •4• • • • A• • It was exclusively assigned to me. •5• • • • Q• • Who was responsible for the vehicle maintenance •6• •such as oil changes, changing the brakes, that type of •7• •stuff? •8• • • • A• • I believe Penske Truck ’cause that’s who we do -- •9• •get our trucks from.• It was that -- I believe that’s Penske 10• •Truck -- Truck Service, Penske in Lakeland, Florida. 11• • • • Q• • Sorry about that.• Did you say Penske, Lakeland, 12• •Florida? 13• • • • A• • Yes. 14• • • • Q• • Do you know which Penske? 15• • • • A• • I believe it’s Penske -- all I can tell you is 16• •Penske, Lakeland, Florida. 17• • • • Q• • Do you know of any intersections or any roads 18• •where the Penske was located? 19• • • • A• • I believe it’s off I-4 and Kathleen Road, Exit 28 20• •or 26.• I’m not -- I’m not positive on the exit but it’s 21• •Kathleen Road. 22• • • • Q• • Would you ever take the vehicle to be serviced 23• •yourself or somebody from the warehouse would do it 24• •themselves? 25• • • • • • •MS. McDOWELL:• Objection; compound. •1• • • • Q• • You can still answer. •2• • • • A• • Say -- can you repeat the question? •3• • • • Q• • Absolutely.• Would you take the vehicle to the •4• •service center yourself? •5• • • • A• • No. •6• • • • Q• • To your knowledge, who would take the vehicle to •7• •get maintenance, to get serviced? •8• • • • A• • Penske has their own maintenance that would come •9• •pick the trucks up. 10• • • • Q• • Okay.• To your knowledge, when was the vehicle 11• •last serviced by Penske prior to December 21st, 2018? 12• • • • A• • I do not know. 13• • • • Q• • At the time of the crash, were you aware of any 14• •maintenance issues, any service problems with the vehicle? 15• • • • A• • No, none to my knowledge. 16• • • • Q• • All right.• So I’m going to go back a little bit. 17• •We were talking about your delivery route.• So you could be 18• •at the first store anywhere from 4:00 to 10:00 a.m. but you 19• •try to get there at 4:00 a.m.• Is there a second -- as far 20• •as the second store goes, is there a time that you had to be 21• •there by? 22• • • • A• • No, there’s no certain amount.• There’s no amount 23• •of time.• I just normally would run it in that particular 24• •order, and each store takes about 10 -- 10 to 15 minutes at 25• •tops. •1• • • • Q• • And in every store are you delivering the same •2• •goods or are there different goods within your vehicle? I •3• •know you said cheese, crackers and chips. •4• • • • A• • That’s basically the same -- same amount.• It’s •5• •just -- it’s the same amount -- same product, just a •6• •different amount of product.• I can take five cases to one •7• •stop, 10 cases to the next.• It just varied on what they •8• •ordered. •9• • • • Q• • Okay.• The truck that you were driving at the time 10• •of the crash, so you said it’s a Freightliner.• Can you 11• •describe the body of the truck?• Not the semi part of it but 12• •the -- is it -- would you consider it a box truck?• Is it a 13• •tractor-trailer? 14• • • • A• • It’s a box truck, no tractor-trailer. 15• • • • Q• • Did you need a commercial driver’s license to 16• •operate that vehicle? 17• • • • A• • Yes. 18• • • • Q• • Do you know what class of a box truck that was? 19• • • • A• • I’m not sure. 20• • • • Q• • Does Gourmet Foods provide you any training on 21• •driving the box truck? 22• • • • • • •MS. McDOWELL:• Objection; form. 23• • • • A• • Did they provide -- 24• • • • • • •MR. MAVROMATIS:• I’m sorry? 25• • • • • • •MS. McDOWELL:• Go ahead. •1• • • • A• • Can I continue? •2• • • • Q• • Yes. •3• • • • • • •MS. McDOWELL:• Go ahead. •4• • • • A• • Okay.• Can you repeat the question? •5• •BY MR. MAVROMATIS: •6• • • • Q• • Does Gourmet Foods International provide you with •7• •any training on operating the GFI 734 truck? •8• • • • A• • They provide sometimes videos for drivers, •9• •defensive driving class -- defense driving videos to driving 10• •videos, yes, they do. 11• • • • Q• • Did you have to take any tests or certification 12• •courses through Gourmet Foods International to use the -- to 13• •operate the truck? 14• • • • A• • I believe you’re given those videos and classes 15• •when you first start.• It’s part of your -- how do I say? 16• •What’s the word I’m looking for?• It’s part of your hiring 17• •process when you get -- when you’re getting hired to watch 18• •those type of videos. 19• • • • Q• • Okay.• So let’s talk a little bit about the hiring 20• •process.• As a delivery driver, what is the -- were you 21• •first hired as a delivery driver with Gourmet Foods? 22• • • • A• • Yes. 23• • • • Q• • Okay.• Explain to me the -- the hiring or the 24• •onboarding process.• Do you have to take any tests or any 25• •exams to become a delivery driver through Gourmet Foods? •1• • • • A• • I believe you have -- like I said, they show you •2• •your videos and you -- you run through the -- I’m not •3• •understanding the question as far as... •4• • • • Q• • Sure.• Let me try to rephrase it this way. •5• •Does -- when Gourmet Foods hires you to drive a delivery •6• •truck, do they ask -- they show you a video, correct? •7• • • • A• • Yes. •8• • • • Q• • Do they want you to take any tests, either written •9• •or in person, driving tests as a condition of working for 10• •Gourmet Foods? 11• • • • A• • I believe so but I’m not positive.• I’m not -- I 12• •don’t -- no, I don’t think so.• There’s nothing like that. 13• • • • Q• • Okay.• So all they do is, from your recollection 14• •of when you first started with Gourmet Foods, you saw a 15• •video; is that right? 16• • • • A• • Yes. 17• • • • Q• • How long was that video, if you recall? 18• • • • A• • I believe it was maybe 30 minutes to an hour. 19• • • • Q• • Is that a yearly video you had to watch or is that 20• •a one-time thing that you watched when you first joined 21• •Gourmet Foods? 22• • • • A• • At the time, I want to say it was a one-time 23• •thing, but I’m not sure how they do it now. 24• • • • Q• • Okay.• So you’ve been employed by Gourmet Foods, I 25• •think you said about five or six years.• Have you seen that •1• •video since you first joined Gourmet Foods? •2• • • • A• • I -- yes, I saw that video a second time after my •3• •accident. •4• • • • Q• • So you saw it once before the accident and then •5• •second after the crash; is that right? •6• • • • A• • Correct. •7• • • • Q• • And any other times you’ve seen that video? •8• • • • A• • No. •9• • • • Q• • And what was the contents?• What was that video 10• •about, that 30-minute-to-one-hour video? 11• • • • A• • It ranged from your job description to what you 12• •had to -- what your job detail was, and it ran over your -- 13• •the truck issues, whether -- when I say issues, what -- your 14• •truck from your pre-trip to your post-trip to just your 15• •regular, normally what -- what were you going to be doing 16• •for that day or what your job title detailed as far as being 17• •a delivery driver. 18• • • • Q• • And then prior to December 2018, did you ever 19• •watch any defensive driving videos or take any defensive 20• •driving courses through Gourmet Foods International? 21• • • • A• • I believe when I first started, we were -- we had 22• •to watch those videos. 23• • • • Q• • Was it the same 30-minute-to-one-hour video or was 24• •it a separate video? 25• • • • A• • I believe it was a separate one. •1• • • • Q• • Okay.• And then in the five to six years that •2• •you’ve been with Gourmet Foods, how many times have you •3• •watched that defensive driving video? •4• • • • A• • Twice. •5• • • • Q• • The first time was when you started with Gourmet •6• •Foods; is that correct? •7• • • • A• • Correct. •8• • • • Q• • When was the second time? •9• • • • A• • After the 2018 accident. 10• • • • Q• • And did you have to take any written exams after 11• •the 2018 crash saying that you watched the video or passed 12• •the test or anything like that? 13• • • • A• • No, they make you sign off on a sheet that says 14• •you watched it.• No written exam, though. 15• • • • Q• • Do you recall ever signing off on a sheet saying 16• •that you watched the defensive driver video? 17• • • • A• • Yes. 18• • • • Q• • Did you keep a copy of that or did they ever give 19• •you a copy of that sheet? 20• • • • • • •MS. McDOWELL:• Objection; form, compound. 21• • • • Q• • Did they ever give you -- they being Gourmet 22• •Foods, did Gourmet Foods ever give you a copy of the 23• •sign-off sheet after watching the video? 24• • • • A• • No, I never received a copy. 25• • • • Q• • When you first started with Gourmet Foods, did you •1• •ever have to sit with another driver at Gourmet Foods to •2• •show you how to operate one of their trucks? •3• • • • A• • I believe the first two -- two to three months, •4• •I -- I remember driving with other drivers, riding with •5• •other drivers, yes, when I first started back in 2015. •6• • • • Q• • Were you observing them driving or were they •7• •observing you driving? •8• • • • A• • I was doing the observing. •9• • • • Q• • As part of your onboarding process, the hiring 10• •process, did you have -- did any employee from Gourmet Foods 11• •or somebody working on their behalf ever observe you driving 12• •your box truck or any other vehicle? 13• • • • A• • Yes. 14• • • • Q• • When was that? 15• • • • A• • When I -- back in 2015 when I first started. 16• • • • Q• • And what was the purpose of that observation? 17• • • • A• • I was being trained. 18• • • • Q• • And explain to me the training process that 19• •Gourmet Foods does with new delivery drivers. 20• • • • A• • You basically -- they basically show you the job 21• •as far as your check-in procedure at your Publixes, the 22• •return procedures of product that doesn’t go to certain 23• •stores.• And they observe you driving, your speed limit. 24• •They observe you checking your miles per hour, your -- they 25• •observe your -- your height, make sure you don’t go under •1• •bridges that you’re not supposed to or no -- no-truck zones. •2• • • • Q• • Okay.• Is that a one-time training process just •3• •when you first started or is that a yearly process? •4• • • • A• • That’s one-time training. •5• • • • Q• • Am I correct in saying that from after the •6• •first -- after the first time you were hired in 2015 there •7• •was no other trainings until 2018 after the crash; is that •8• •right?• Any other trainings by Gourmet Foods? •9• • • • A• • Correct.• That’s all the training. 10• • • • Q• • Were you given an employee handbook when you first 11• •started with Gourmet Foods? 12• • • • A• • Yes. 13• • • • Q• • Do you still have a copy of that handbook? 14• • • • A• • I’m not sure where I put it, placed it. 15• • • • Q• • Do you think you could find it if it’s available? 16• • • • A• • No, I don’t have any clue where I may have placed 17• •it. 18• • • • Q• • What was in the employee handbook, if you recall? 19• • • • A• • I would say your -- it would tell you about your 20• •PTO.• I think what they -- they may have went from your 21• •handbook to a more digital, electronic what your PTO is, the 22• •company policies and your job -- details of your job. 23• •That’s about all I can think of. 24• • • • Q• • Okay.• All right.• Did the employee handbook 25• •outline any defensive driving information? •1• • • • A• • Not that I’m aware of. •2• • • • Q• • You talked about when you first joined, when you •3• •were first hired by Gourmet Foods International about them •4• •observing your speed limit.• Are you aware of any devices •5• •within the box truck that would track the speed limit when •6• •you’re driving the motor vehicle? •7• • • • A• • At that time, that particular truck, 734, I’m not •8• •sure, but I know that my vehicle now, 735, tracks your •9• •speed, your speed and -- and it -- yeah, it -- the truck -- 10• •tractor I have now does.