Preview
Filing # 176701478 E-Filed 07/05/2023 11:36:39 AM
IN THE CIRCUIT COURT, NINTH
JUDICIAL CIRCUIT, IN AND FOR
OSCEOLA COUNTY, FLORIDA
CASE NO.: 2023-CA-001120
LUIS ANTONIO DAVILA,
Plaintiff,
v.
RALPH JACQUES AND
HOME DEPOT USA, INC.,
Defendant.
_____________________________________/
DEFENDANT’S, HOME DEPOT USA, INC., ANSWER AND AFFIRMATIVE
DEFENSES TO PLAINTIFF’S AMENDED COMPLAINT
AND DEMAND FOR JURT TRIAL
Defendant, HOME DEPOT USA, INC. (“HOME DEPOT”), by and through undersigned
counsel, and pursuant to Florida Rule of Civil Procedure 1.110, hereby serves its Answer,
Affirmative Defenses, and Demand for Jury Trial to Plaintiff, LUIS ANTONIO DAVILA’S,
Amended Complaint, as follows:
1. Admitted for jurisdictional purposes only.
2. Without knowledge and therefore denied.
3. Admitted for jurisdictional purposes only.
4. Admitted for jurisdictional purposes only.
5. Admitted for jurisdictional purposes only.
FACTS REGARDING THE CRASH
6. Admitted for jurisdictional purposes only.
7. Admitted for jurisdictional purposes only.
Case No.: 2023-CA-001120
Page 2 of 8
8. Denied.
9. Denied.
10. Denied.
COUNT 1 – NEGLIGENCE AGAINST RALPH JACQUES
11. Defendant adopts and realleges the responses contained within paragraphs 1 through 10,
above and incorporates them by reference, and further states:
12. Paragraph 12 is not directed to this Defendant and therefore no response is necessary,
however, to the extent a response should be deemed necessary from this Defendant, Denied
as phrased, Florida law speaks for itself.
13. Paragraph 13 is not directed to this Defendant and therefore no response is necessary,
however, to the extent a response should be deemed necessary from this Defendant,
Denied.
14. Paragraph 14 is not directed to this Defendant and therefore no response is necessary,
however, to the extent a response should be deemed necessary from this Defendant,
Denied.
COUNT II – VICARIOUS LIABILITY
AGAINST DEFENDANT HOME DEPOT USA, INC.
15. Defendant adopts and realleges those responses contained within paragraphs 1 through 10
above and incorporates them herein by reference, and further states:
16. Denied.
17. Denied.
18. Denied.
Case No.: 2023-CA-001120
Page 3 of 8
AFFIRMATIVE DEFENSES
1. The Plaintiff's Complaint (or portions thereof) fails to state a cause of action against
this Defendant.
2. At the time and place complained of, the Plaintiff so carelessly and negligently
conducted himself, and/or was in violation of statutes or ordinances, so as to proximately cause or
contribute to the alleged accident, injuries or damages alleged in Plaintiff’s Complaint, thus barring
or reducing proportionately all claims for damages against this Defendant. Furthermore, to the
extent the Plaintiff was under the influence of any alcoholic beverage or drug and was more than
50% at fault for his own harm, the Plaintiff’s claims would be barred by Section 768.36, Florida
Statutes.
3. This Defendant is entitled to a set-off of all sums of money received by judgment,
settlement or otherwise by the Plaintiff from any party or nonparty to this action for the injuries
allegedly sustained as a result of the incident described in the Plaintiff’s Complaint and/or as
allowed by Section 768.041, Florida Statutes..
4. This Defendant is entitled to a set-off of any recovery rendered against it to the
extent of all personal injury protection benefits paid or payable to or on behalf of the Plaintiff, as
a result of the incident complained of in Plaintiff’s Complaint.
5. The Plaintiff is precluded from recovery from this Defendant for the alleged
physical injuries sustained as a result of the incident particularized in Plaintiff’s Complaint
pursuant to the Florida Automobile Reparations Reform Act since the Plaintiff has failed to sustain
any injury sufficient to meet the thresholds established by Section 627.737, Florida Statutes. The
Plaintiff’s failure to meet the thresholds set forth in Section 627.737, Florida Statutes, bars any
Case No.: 2023-CA-001120
Page 4 of 8
claim for damage for personal injury or disease or derivative action in the instant case against this
Defendant.
6. There were sufficient intervening and superseding causes, including the negligence
of other persons, parties or entities, to which this Defendant had no control. In accordance with
section 768.81, Florida Statutes, this Defendant is entitled to an apportionment of fault and an
apportionment of damages as the Doctrine of Joint and Several Liability has been abolished.
The subject non-parties that may be liable and are identifiable at this time are listed in the
police report and/or are known to the Plaintiff and parties and/or will be identified to the Plaintiff
and parties in the normal course of discovery. Additionally, the treating physicians in this case
may have engaged in excessive billing or unnecessary treatment that was not reasonably
foreseeable.
7. At all times material hereto, the Plaintiff’s claims are barred or limited by the
Florida Motor Vehicle No-Fault Law.
8. Any disability, disfigurement or injury claims alleged by the Plaintiff are a result
of a pre-existing condition or were caused by a subsequent injury or injuries and were not caused
or aggravated by any alleged acts of negligence of third parties.
9. The Plaintiff has not satisfied all conditions precedent to filing this suit against this
Defendant.
10. To the extent that said action was pursued without sufficient legal basis in law or
fact, the Plaintiff is on notice that this Defendant would pursue attorneys' fees pursuant to Section
57.105, Florida Statutes.
Case No.: 2023-CA-001120
Page 5 of 8
11. The Plaintiff’s claims may be barred by the failure to file a compulsory counter-
claim. Furthermore, this Defendant reserves the right to file a counter-claim after discovery
proceeds in this action.
12. This action may be barred by the Statute of Limitations or applicable statute of
repose or by the doctrine of enforceable settlement and/or accord and satisfaction.
13. The Plaintiff’s medical bills were not reasonable and/or necessary or the billing is
excessive. Additionally or alternatively, the treatment and/or billing was not casually related to the
accident, and/or was a result of medical providers engaging in fraudulent or excessive billing
and/or treatment that was not reasonably foreseeable. Additionally, if the Plaintiff had health
insurance, the Plaintiff is entitled to a write-down or setoff pursuant to Section 641.3154, Florida
Statutes.
14. The Plaintiff has failed to mitigate damages.
15. The Plaintiff has failed to minimize damages by not undertaking reasonable and
necessary medical care.
16. This Defendant avails itself of all statutory defenses and burdens of proof required
by Florida law, FAC or Federal law, including but not limited to Chapters 324, 768 and 627,
Florida Statutes.
17. This Defendant’s liability is limited, capped or absolved pursuant to Florida and/or
Federal law, including but not limited to Section 324.021, Florida Statutes, and/or 49 U.S.C.
Section 30106.
Case No.: 2023-CA-001120
Page 6 of 8
18. If discovery reveals the Plaintiff to be a borrowed servant, statutory employee, co-
employee or entitled to worker’s compensation benefits, then this action and said claims are barred
by the Doctrine of Worker's Compensation Immunity, Section 440.11, Florida Statutes.
19. This Defendant asserts that the Plaintiff’s past and future damages are reduced or
offset by the amount of ay governmental or charitable benefits available and further, that the
defendant is entitled to an offset by any and all payments which have been made or will be made
to the Plaintiff as a result of the injuries alleged in the Complaint.
20. This Defendant asserts that it is 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, 901 So.2d 830 (Fla. 2005). Alternatively, Plaintiff is not entitled to claim
bills, costs or expenses incurred but waived or not actually incurred by the Plaintiff.
21. This Defendant asserts that the Plaintiff is the sole and proximate cause of the
subject incident and claimed injuries based on his failure to adhere to and comply with Florida
Statute §316.2065(1), Florida Statute §316.2065(5)(a), and Florida Statute §316.2065(13) at the
time of the subject incident, thereby reducing any purported negligence on behalf of this
Defendant.
22. This Defendant asserts that the Plaintiff failed to satisfy all of the responsibilities
as set forth within Florida Statute §316.2065(1) at the time of the incident, thereby reducing any
purported negligence on behalf of this Defendant.
Case No.: 2023-CA-001120
Page 7 of 8
23. This Defendant asserts that the Plaintiff failed to adhere to Florida Statute
§316.130(8) at the time of the incident, thereby reducing any purported negligence on behalf of
this Defendant.
24. This Defendant asserts that the Plaintiff failed to satisfy the requirements set forth
within Florida Statute §316 et seq. at the time of the incident since he was traveling in the opposite
direction of traffic, thereby reducing any purported negligence on behalf of this Defendant.
DEMAND FOR JURY TRIAL
Defendant, HOME DEPOT, INC., demands a jury trial on all issues so triable.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via Electronic Mail, to all counsel of record on the Florida E-Portal Service List, this 5th day of
July, 2023.
LUKS, SANTANIELLO, PETRILLO, COHEN
& PETERFRIEND
Attorneys for Defendant Home Depot
201 S ORANGE AVENUE
SUITE 400
ORLANDO, FL 32801
Telephone: (407) 540-9170
Facsimile: (407) 540-9171
By: /s/ Michael A. Kerwin_____________
Michael A. Kerwin
Florida Bar No.: 102697
LUKSORL-Pleadings@LS-Law.com
Case No.: 2023-CA-001120
Page 8 of 8
SERVICE LIST
Manuel "Manny" Stefan, Esquire, Morgan & Morgan, P.A., 4495 South Semoran Boulevard,
Orlando, Florida, 32822 (MStefan@forthepeople.com; cvictor@forthepeople.com)
Preview
Filing # 176701478 E-Filed 07/05/2023 11:36:39 AM IN THE CIRCUIT COURT, NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO.: 2023-CA-001120 LUIS ANTONIO DAVILA, Plaintiff, v. RALPH JACQUES AND HOME DEPOT USA, INC., Defendant. _____________________________________/ DEFENDANT’S, HOME DEPOT USA, INC., ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S AMENDED COMPLAINT AND DEMAND FOR JURT TRIAL Defendant, HOME DEPOT USA, INC. (“HOME DEPOT”), by and through undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.110, hereby serves its Answer, Affirmative Defenses, and Demand for Jury Trial to Plaintiff, LUIS ANTONIO DAVILA’S, Amended Complaint, as follows: 1. Admitted for jurisdictional purposes only. 2. Without knowledge and therefore denied. 3. Admitted for jurisdictional purposes only. 4. Admitted for jurisdictional purposes only. 5. Admitted for jurisdictional purposes only. FACTS REGARDING THE CRASH 6. Admitted for jurisdictional purposes only. 7. Admitted for jurisdictional purposes only. Case No.: 2023-CA-001120 Page 2 of 8 8. Denied. 9. Denied. 10. Denied. COUNT 1 – NEGLIGENCE AGAINST RALPH JACQUES 11. Defendant adopts and realleges the responses contained within paragraphs 1 through 10, above and incorporates them by reference, and further states: 12. Paragraph 12 is not directed to this Defendant and therefore no response is necessary, however, to the extent a response should be deemed necessary from this Defendant, Denied as phrased, Florida law speaks for itself. 13. Paragraph 13 is not directed to this Defendant and therefore no response is necessary, however, to the extent a response should be deemed necessary from this Defendant, Denied. 14. Paragraph 14 is not directed to this Defendant and therefore no response is necessary, however, to the extent a response should be deemed necessary from this Defendant, Denied. COUNT II – VICARIOUS LIABILITY AGAINST DEFENDANT HOME DEPOT USA, INC. 15. Defendant adopts and realleges those responses contained within paragraphs 1 through 10 above and incorporates them herein by reference, and further states: 16. Denied. 17. Denied. 18. Denied. Case No.: 2023-CA-001120 Page 3 of 8 AFFIRMATIVE DEFENSES 1. The Plaintiff's Complaint (or portions thereof) fails to state a cause of action against this Defendant. 2. At the time and place complained of, the Plaintiff so carelessly and negligently conducted himself, and/or was in violation of statutes or ordinances, so as to proximately cause or contribute to the alleged accident, injuries or damages alleged in Plaintiff’s Complaint, thus barring or reducing proportionately all claims for damages against this Defendant. Furthermore, to the extent the Plaintiff was under the influence of any alcoholic beverage or drug and was more than 50% at fault for his own harm, the Plaintiff’s claims would be barred by Section 768.36, Florida Statutes. 3. This Defendant is entitled to a set-off of all sums of money received by judgment, settlement or otherwise by the Plaintiff from any party or nonparty to this action for the injuries allegedly sustained as a result of the incident described in the Plaintiff’s Complaint and/or as allowed by Section 768.041, Florida Statutes.. 4. This Defendant is entitled to a set-off of any recovery rendered against it to the extent of all personal injury protection benefits paid or payable to or on behalf of the Plaintiff, as a result of the incident complained of in Plaintiff’s Complaint. 5. The Plaintiff is precluded from recovery from this Defendant for the alleged physical injuries sustained as a result of the incident particularized in Plaintiff’s Complaint pursuant to the Florida Automobile Reparations Reform Act since the Plaintiff has failed to sustain any injury sufficient to meet the thresholds established by Section 627.737, Florida Statutes. The Plaintiff’s failure to meet the thresholds set forth in Section 627.737, Florida Statutes, bars any Case No.: 2023-CA-001120 Page 4 of 8 claim for damage for personal injury or disease or derivative action in the instant case against this Defendant. 6. There were sufficient intervening and superseding causes, including the negligence of other persons, parties or entities, to which this Defendant had no control. In accordance with section 768.81, Florida Statutes, this Defendant is entitled to an apportionment of fault and an apportionment of damages as the Doctrine of Joint and Several Liability has been abolished. The subject non-parties that may be liable and are identifiable at this time are listed in the police report and/or are known to the Plaintiff and parties and/or will be identified to the Plaintiff and parties in the normal course of discovery. Additionally, the treating physicians in this case may have engaged in excessive billing or unnecessary treatment that was not reasonably foreseeable. 7. At all times material hereto, the Plaintiff’s claims are barred or limited by the Florida Motor Vehicle No-Fault Law. 8. Any disability, disfigurement or injury claims alleged by the Plaintiff are a result of a pre-existing condition or were caused by a subsequent injury or injuries and were not caused or aggravated by any alleged acts of negligence of third parties. 9. The Plaintiff has not satisfied all conditions precedent to filing this suit against this Defendant. 10. To the extent that said action was pursued without sufficient legal basis in law or fact, the Plaintiff is on notice that this Defendant would pursue attorneys' fees pursuant to Section 57.105, Florida Statutes. Case No.: 2023-CA-001120 Page 5 of 8 11. The Plaintiff’s claims may be barred by the failure to file a compulsory counter- claim. Furthermore, this Defendant reserves the right to file a counter-claim after discovery proceeds in this action. 12. This action may be barred by the Statute of Limitations or applicable statute of repose or by the doctrine of enforceable settlement and/or accord and satisfaction. 13. The Plaintiff’s medical bills were not reasonable and/or necessary or the billing is excessive. Additionally or alternatively, the treatment and/or billing was not casually related to the accident, and/or was a result of medical providers engaging in fraudulent or excessive billing and/or treatment that was not reasonably foreseeable. Additionally, if the Plaintiff had health insurance, the Plaintiff is entitled to a write-down or setoff pursuant to Section 641.3154, Florida Statutes. 14. The Plaintiff has failed to mitigate damages. 15. The Plaintiff has failed to minimize damages by not undertaking reasonable and necessary medical care. 16. This Defendant avails itself of all statutory defenses and burdens of proof required by Florida law, FAC or Federal law, including but not limited to Chapters 324, 768 and 627, Florida Statutes. 17. This Defendant’s liability is limited, capped or absolved pursuant to Florida and/or Federal law, including but not limited to Section 324.021, Florida Statutes, and/or 49 U.S.C. Section 30106. Case No.: 2023-CA-001120 Page 6 of 8 18. If discovery reveals the Plaintiff to be a borrowed servant, statutory employee, co- employee or entitled to worker’s compensation benefits, then this action and said claims are barred by the Doctrine of Worker's Compensation Immunity, Section 440.11, Florida Statutes. 19. This Defendant asserts that the Plaintiff’s past and future damages are reduced or offset by the amount of ay governmental or charitable benefits available and further, that the defendant is entitled to an offset by any and all payments which have been made or will be made to the Plaintiff as a result of the injuries alleged in the Complaint. 20. This Defendant asserts that it is 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, 901 So.2d 830 (Fla. 2005). Alternatively, Plaintiff is not entitled to claim bills, costs or expenses incurred but waived or not actually incurred by the Plaintiff. 21. This Defendant asserts that the Plaintiff is the sole and proximate cause of the subject incident and claimed injuries based on his failure to adhere to and comply with Florida Statute §316.2065(1), Florida Statute §316.2065(5)(a), and Florida Statute §316.2065(13) at the time of the subject incident, thereby reducing any purported negligence on behalf of this Defendant. 22. This Defendant asserts that the Plaintiff failed to satisfy all of the responsibilities as set forth within Florida Statute §316.2065(1) at the time of the incident, thereby reducing any purported negligence on behalf of this Defendant. Case No.: 2023-CA-001120 Page 7 of 8 23. This Defendant asserts that the Plaintiff failed to adhere to Florida Statute §316.130(8) at the time of the incident, thereby reducing any purported negligence on behalf of this Defendant. 24. This Defendant asserts that the Plaintiff failed to satisfy the requirements set forth within Florida Statute §316 et seq. at the time of the incident since he was traveling in the opposite direction of traffic, thereby reducing any purported negligence on behalf of this Defendant. DEMAND FOR JURY TRIAL Defendant, HOME DEPOT, INC., demands a jury trial on all issues so triable. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Electronic Mail, to all counsel of record on the Florida E-Portal Service List, this 5th day of July, 2023. LUKS, SANTANIELLO, PETRILLO, COHEN & PETERFRIEND Attorneys for Defendant Home Depot 201 S ORANGE AVENUE SUITE 400 ORLANDO, FL 32801 Telephone: (407) 540-9170 Facsimile: (407) 540-9171 By: /s/ Michael A. Kerwin_____________ Michael A. Kerwin Florida Bar No.: 102697 LUKSORL-Pleadings@LS-Law.com Case No.: 2023-CA-001120 Page 8 of 8 SERVICE LIST Manuel "Manny" Stefan, Esquire, Morgan & Morgan, P.A., 4495 South Semoran Boulevard, Orlando, Florida, 32822 (MStefan@forthepeople.com; cvictor@forthepeople.com)