Preview
Filing # 118568643 E-Filed 12/21/2020 04:06:10 PM
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT, IN AND FOR
OSCEOLA COUNTY, FLORIDA
CASE NO.: 2020-CA-002872
ASBEL ALEXANDER LLERENA,
Plaintiff,
V.
ADRIAN RODRIGUEZ CHAVEZ AND
GRANNY'S GARDEN II, INC.,
Defendants.
/
DEFENDANTS’ ANSWER, AFFIRMATIVE DEFENSES, AND DEMAND FOR JURY
TRIAL IN RESPONSE TO PLAINTIFFS’ COMPLAINT
Defendants, ADRIAN RODRIGUEZ CHAVEZ and GRANNY'S GARDEN II, INC.
(hereinafter “Defendants”,) by and through its undersigned counsel, pursuant to the
Florida Rules of Civil Procedure 1.140, file their Answer, Affirmative Defenses to Plaintiff,
ASBEL ALEXANDER LLERENA’s (hereinafter “Plaintiff’), Complaint, and state as
follows:
ANSWER
Admitted for jurisdictional purposes only; otherwise, denied.
Defendant is without knowledge; therefore, denied.
Admitted.
Admitted.
Defendant is without knowledge; therefore, denied.
Admitted.
Page 1
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020-CA-002872
7 Admitted.
8 Denied.
9. Admitted the concept of vicarious liability applies, but Defendants deny any
negligence.
10. Denied
To the extent a response is required, Defendants deny Plaintiffs WHEREFORE
clause.
AFFIRMATIVE DEFENSES
1 If the Plaintiff's sustained damages by reason of the matters alleged in the
Complaint, and said damages were caused in whole or in part by Plaintiff's own
negligence, then the Plaintiff is subject to the doctrine of Comparative Negligence, where
the Plaintiffs’ recovery will be diminished by an amount equal to the Plaintiffs’ negligence.
2 Plaintiff assumed the risk of injury and, accordingly, Plaintiff's claims
are barred. The Plaintiffs knew of the existence of the danger complained of, realized
and appreciated the possibility of injury as a result of the danger and having a
reasonable opportunity to avoid it, voluntarily exposed themselves to the danger.
3 These Defendants are liable only for a proportionate share of liability based
upon the percentage of negligence, if any, apportioned to the Defendant.
4 If the Plaintiff sustained damages as alleged in the Complaint, then the
Plaintiff failed and neglected to use reasonable care to protect themselves, and to
minimize and mitigate the losses and damages complained of in the Complaint.
Page 2
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020-CA-002872
5. If Plaintiff sustained damages as alleged in the Complaint, which are
denied, said damages were caused solely by or contributed by the acts, omissions, and
fault of third party, pursuant to Florida Statute §768.81, and were not caused or
contributed to by any acts, omissions, or fault of this Defendant, or any of it officers,
agents, contractors, servants, employees, or others whom were responsible. This
Defendant expressly reserves the right to amend its Affirmative Defenses to specifically
name individuals or entities as Fabre Defendants.
6 Plaintiff's alleged damages, if any, resulted from new and independent,
unforeseeable, superseding, and/or intervening causes unrelated to any conduct of, or of
this Defendant.
7 While denying all of the allegations of the Plaintiff's Complaint regarding
liability, injury, and damages allegedly sustained by Plaintiffs, to the extent that Plaintiffs
may be able to prove any negligence or fault on the part of this Defendant, it was not the
proximate cause of any of the damages at issue in this Complaint.
8 While denying all of the allegations of the Complaint regarding liability,
injuries and damages allegedly sustained by the Plaintiff, to the extent that Plaintiff may
be able to prove any such damages, it is asserted that such damages, if any, arose out
of some event or exposure over which this Defendant had no control or right to control.
9. The Plaintiff has failed to mitigate, minimize, or avoid all or a portion of the
damages which comprise of the Plaintiffs’ claims.
Page 3
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020-CA-002872
10. These Defendants is entitled to a set-off for any collateral source payment,
as expressed in Florida Statutes 768.76, that has been paid or are payable to or on behalf
of the Plaintiff.
11. Defendant's liability for medical expenses does not include contractual
adjustments, write-offs, or the like.
12. Plaintiffs’ claims are barred in whole, or in part, pursuant to Florida Statute
§440.11.
13. These Defendants ae entitled to a set off of any contractual discount of
medical bills or expenses, negotiated write off of medical bills or expenses, or negotiated
agreement to pay medical bills or other expenses in the future pursuant to the law of
collateral source setoffs and Goble v. Frohman, 848 So. 2d 406 (Fla. 2d DCA 2003).
Alternatively, Plaintiffs are not entitled to claim bills, costs or expenses assessed but
waived or not actually incurred by Plaintiffs. Plaintiff must establish his medical bills were
reasonable and related to the incident.
14. Any injury or damage to the Plaintiff were the result of pre-existing medical
and/or psychiatric conditions, and the unforeseeable, unpredictable, and/or unavoidable
sequel thereto, and was unrelated to any act or omission of Defendant.
15. These Defendants assert that the vehicle in which the Plaintiff were
traveling had available fully operational seat belts to be used by the occupants. Plaintiff
failed to make use of the seatbelt restraint system either entirely or in a proper manner,
which was unreasonable under the circumstances. Plaintiffs’ failure to make use of the
available seatbelt restraint system caused or contributed to their injuries. Plaintiff's
Page 4
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020-CA-002872
recovery should be barred or diminished in accordance with the percentage of damages
caused by their non-use or improper use of the seatbelt restraint system.
16. The Florida Automobile Reparations Reform Act, Fla. Stat. §627.737 is
applicable to the Plaintiffs and the Plaintiffs’ recovery, if any, is limited as per said statute.
17. Plaintiff did not sustain a permanent injury as a result of the subject
automobile accident.
18. To the extent Plaintiff is asserting any theory of liability based on active
negligence against GRANNY’S GARDEN, II, INC., Plaintiff fails to state a cause of action,
because Plaintiff has failed to plead the requisite elements, and Defendant, GRANNY’S
GARDEN, II, INC., admission to vicarious liability for the negligence, if any, of the other
defendant alleged to be an employee precludes any theory of liability against GRANNY’S
GARDEN, II, INC., as the employer other than on the basis of respondeat superior. See
Dep't of Envtl. Prot. v. Hardy, 907 So. 2d 655 (Fla. 5th DCA 2005); Garcia v. Duffy, 492
So. 2d 435 (Fla. 2d DCA 1986); Harrison v. Red Bull Distribution Co., 2019 U.S. Dist.
LEXIS 38124, at *5-7 (M.D. Fla. Mar. 11, 2019); see also Delaurentos v. Peguero, 47 So.
3d 879, 882 (Fla. 3d DCA 2010).
19. Plaintiff has failed to state a cause of action upon which relief may be
granted.
Defendants reserve the right to add more affirmative defenses as discovery is
ongoing, and upon proper notice to Plaintiff.
Page 5
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020-CA-002872
DEMAND FOR JURY TRIAL
The Defendants demand a trial by jury of all issues so triable as of right by jury.
WHEREFORE, the Defendants, ADRIAN RODRIGUEZ CHAVEZ AND
GRANNY'S GARDEN II, INC., demand Judgment against the Plaintiff for costs and all
other damages which this Court deems just and equitable and further demands a trial by
jury of all issues so triable as of right by jury.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 21st day of December, 2020, a true and correct
copy of the foregoing was filed with the Clerk of Osceloa County by using the Florida
Courts e-Filing Portal, which will send an automatic e-mail message to the following
parties registered with the e-Filing Portal system: Melissa Alzate, Esq., Morgan &
Morgan, P.A., malzate@forthepeople.com;imerlos@forthepeople.com, 198 Broadway
Page 6
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
CASE NO.: 2020-CA-002872
Avenue, Kissimmee, FL 34741, (407) 452-6990/(407) 452-1597 (F), Attorney for Plaintiff,
Asbel Alexander Llerena.
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendants ADRIAN RODRIGUEZ
CHAVEZ AND GRANNY'S GARDEN II, INC.
Tower Place, Suite 400
1900 Summit Tower Boulevard
Orlando, Florida 32810
Telephone (321) 972-0029
Facsimile (321) 972-0099
Primary e-mail: melissa.crowley@csklegal.com
Secondary e-mail:
brittainy joyner@csklegal.com
Alternate e-mail:
susan.grissinger@csklegal.com
By s/ Brittainy A. Joyner
MELISSA D. CROWLEY
Florida Bar No.: 90984
BRITTAINY A. JOYNER
Florida Bar No.: 1018602
0487.2384-00/21993250
Page 7
COLE, SCOTT & KISSANE, P.A.
TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX
Preview
Filing # 118568643 E-Filed 12/21/2020 04:06:10 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO.: 2020-CA-002872 ASBEL ALEXANDER LLERENA, Plaintiff, V. ADRIAN RODRIGUEZ CHAVEZ AND GRANNY'S GARDEN II, INC., Defendants. / DEFENDANTS’ ANSWER, AFFIRMATIVE DEFENSES, AND DEMAND FOR JURY TRIAL IN RESPONSE TO PLAINTIFFS’ COMPLAINT Defendants, ADRIAN RODRIGUEZ CHAVEZ and GRANNY'S GARDEN II, INC. (hereinafter “Defendants”,) by and through its undersigned counsel, pursuant to the Florida Rules of Civil Procedure 1.140, file their Answer, Affirmative Defenses to Plaintiff, ASBEL ALEXANDER LLERENA’s (hereinafter “Plaintiff’), Complaint, and state as follows: ANSWER Admitted for jurisdictional purposes only; otherwise, denied. Defendant is without knowledge; therefore, denied. Admitted. Admitted. Defendant is without knowledge; therefore, denied. Admitted. Page 1 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020-CA-002872 7 Admitted. 8 Denied. 9. Admitted the concept of vicarious liability applies, but Defendants deny any negligence. 10. Denied To the extent a response is required, Defendants deny Plaintiffs WHEREFORE clause. AFFIRMATIVE DEFENSES 1 If the Plaintiff's sustained damages by reason of the matters alleged in the Complaint, and said damages were caused in whole or in part by Plaintiff's own negligence, then the Plaintiff is subject to the doctrine of Comparative Negligence, where the Plaintiffs’ recovery will be diminished by an amount equal to the Plaintiffs’ negligence. 2 Plaintiff assumed the risk of injury and, accordingly, Plaintiff's claims are barred. The Plaintiffs knew of the existence of the danger complained of, realized and appreciated the possibility of injury as a result of the danger and having a reasonable opportunity to avoid it, voluntarily exposed themselves to the danger. 3 These Defendants are liable only for a proportionate share of liability based upon the percentage of negligence, if any, apportioned to the Defendant. 4 If the Plaintiff sustained damages as alleged in the Complaint, then the Plaintiff failed and neglected to use reasonable care to protect themselves, and to minimize and mitigate the losses and damages complained of in the Complaint. Page 2 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020-CA-002872 5. If Plaintiff sustained damages as alleged in the Complaint, which are denied, said damages were caused solely by or contributed by the acts, omissions, and fault of third party, pursuant to Florida Statute §768.81, and were not caused or contributed to by any acts, omissions, or fault of this Defendant, or any of it officers, agents, contractors, servants, employees, or others whom were responsible. This Defendant expressly reserves the right to amend its Affirmative Defenses to specifically name individuals or entities as Fabre Defendants. 6 Plaintiff's alleged damages, if any, resulted from new and independent, unforeseeable, superseding, and/or intervening causes unrelated to any conduct of, or of this Defendant. 7 While denying all of the allegations of the Plaintiff's Complaint regarding liability, injury, and damages allegedly sustained by Plaintiffs, to the extent that Plaintiffs may be able to prove any negligence or fault on the part of this Defendant, it was not the proximate cause of any of the damages at issue in this Complaint. 8 While denying all of the allegations of the Complaint regarding liability, injuries and damages allegedly sustained by the Plaintiff, to the extent that Plaintiff may be able to prove any such damages, it is asserted that such damages, if any, arose out of some event or exposure over which this Defendant had no control or right to control. 9. The Plaintiff has failed to mitigate, minimize, or avoid all or a portion of the damages which comprise of the Plaintiffs’ claims. Page 3 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020-CA-002872 10. These Defendants is entitled to a set-off for any collateral source payment, as expressed in Florida Statutes 768.76, that has been paid or are payable to or on behalf of the Plaintiff. 11. Defendant's liability for medical expenses does not include contractual adjustments, write-offs, or the like. 12. Plaintiffs’ claims are barred in whole, or in part, pursuant to Florida Statute §440.11. 13. These Defendants ae entitled to a set off of any contractual discount of medical bills or expenses, negotiated write off of medical bills or expenses, or negotiated agreement to pay medical bills or other expenses in the future pursuant to the law of collateral source setoffs and Goble v. Frohman, 848 So. 2d 406 (Fla. 2d DCA 2003). Alternatively, Plaintiffs are not entitled to claim bills, costs or expenses assessed but waived or not actually incurred by Plaintiffs. Plaintiff must establish his medical bills were reasonable and related to the incident. 14. Any injury or damage to the Plaintiff were the result of pre-existing medical and/or psychiatric conditions, and the unforeseeable, unpredictable, and/or unavoidable sequel thereto, and was unrelated to any act or omission of Defendant. 15. These Defendants assert that the vehicle in which the Plaintiff were traveling had available fully operational seat belts to be used by the occupants. Plaintiff failed to make use of the seatbelt restraint system either entirely or in a proper manner, which was unreasonable under the circumstances. Plaintiffs’ failure to make use of the available seatbelt restraint system caused or contributed to their injuries. Plaintiff's Page 4 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020-CA-002872 recovery should be barred or diminished in accordance with the percentage of damages caused by their non-use or improper use of the seatbelt restraint system. 16. The Florida Automobile Reparations Reform Act, Fla. Stat. §627.737 is applicable to the Plaintiffs and the Plaintiffs’ recovery, if any, is limited as per said statute. 17. Plaintiff did not sustain a permanent injury as a result of the subject automobile accident. 18. To the extent Plaintiff is asserting any theory of liability based on active negligence against GRANNY’S GARDEN, II, INC., Plaintiff fails to state a cause of action, because Plaintiff has failed to plead the requisite elements, and Defendant, GRANNY’S GARDEN, II, INC., admission to vicarious liability for the negligence, if any, of the other defendant alleged to be an employee precludes any theory of liability against GRANNY’S GARDEN, II, INC., as the employer other than on the basis of respondeat superior. See Dep't of Envtl. Prot. v. Hardy, 907 So. 2d 655 (Fla. 5th DCA 2005); Garcia v. Duffy, 492 So. 2d 435 (Fla. 2d DCA 1986); Harrison v. Red Bull Distribution Co., 2019 U.S. Dist. LEXIS 38124, at *5-7 (M.D. Fla. Mar. 11, 2019); see also Delaurentos v. Peguero, 47 So. 3d 879, 882 (Fla. 3d DCA 2010). 19. Plaintiff has failed to state a cause of action upon which relief may be granted. Defendants reserve the right to add more affirmative defenses as discovery is ongoing, and upon proper notice to Plaintiff. Page 5 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020-CA-002872 DEMAND FOR JURY TRIAL The Defendants demand a trial by jury of all issues so triable as of right by jury. WHEREFORE, the Defendants, ADRIAN RODRIGUEZ CHAVEZ AND GRANNY'S GARDEN II, INC., demand Judgment against the Plaintiff for costs and all other damages which this Court deems just and equitable and further demands a trial by jury of all issues so triable as of right by jury. CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 21st day of December, 2020, a true and correct copy of the foregoing was filed with the Clerk of Osceloa County by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: Melissa Alzate, Esq., Morgan & Morgan, P.A., malzate@forthepeople.com;imerlos@forthepeople.com, 198 Broadway Page 6 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX CASE NO.: 2020-CA-002872 Avenue, Kissimmee, FL 34741, (407) 452-6990/(407) 452-1597 (F), Attorney for Plaintiff, Asbel Alexander Llerena. COLE, SCOTT & KISSANE, P.A. Counsel for Defendants ADRIAN RODRIGUEZ CHAVEZ AND GRANNY'S GARDEN II, INC. Tower Place, Suite 400 1900 Summit Tower Boulevard Orlando, Florida 32810 Telephone (321) 972-0029 Facsimile (321) 972-0099 Primary e-mail: melissa.crowley@csklegal.com Secondary e-mail: brittainy joyner@csklegal.com Alternate e-mail: susan.grissinger@csklegal.com By s/ Brittainy A. Joyner MELISSA D. CROWLEY Florida Bar No.: 90984 BRITTAINY A. JOYNER Florida Bar No.: 1018602 0487.2384-00/21993250 Page 7 COLE, SCOTT & KISSANE, P.A. TOWER PLACE, SUITE 400 - 1900 SUMMIT TOWER BOULEVARD - ORLANDO, FLORIDA 32810 - (321) 972-0000 (321) 972-0099 FAX