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Filing # 195568005 E-Filed 04/05/2024 11:21:40 AM
IN THE CIRCUIT COURT OF THE
SEVENTH JUDICIAL CIRCUIT IN AND FOR
FLAGLER COUNTY, FLORIDA
JANICE SWANK,
Plaintiff,
vs. CASE NO: 2024-CA-71
CIVIL DIVISION
KAREN MILDRED POWELL and
AUTO CLUB INSURANCE COMPANY
OF FLORIDA, a Florida Corporation,
Defendants.
/
ANSWER AND AFFIRMATIVE DEFENSES
Defendant, KAREN MILDRED POWELL, by counsel, responds to Plaintiff's Complaint
as follows:
1 Admitted that Plaintiff is seeking damages in excess of $50,000.00. Denied that
Plaintiff is entitled to the relief requested.
2 Without knowledge, therefore denied.
3 Admit
Without knowledge, therefore denied.
Admit for purposes of venue.
COUNT I~ PLAINTIFF’S LIABILITY CLAIM AGAINST
KAREN MILDRED POWELL
6 Defendant realleges and reincorporates the allegations set forth in paragraphs 1
through 5 as if fully set forth herein
7 Admit; however, any inferences therefrom are denied
8 Admit; however, any inferences therefrom are denied.
Electronically Received in the Office of the Clerk of the Circuit Court - Flagler County, Florida - 04/05/2024 02:30 PM - DIN: 23
Case No: 2024-CA-71
9 Denied
10. Denied
Defendant denies that Plaintiff is entitled to any of the relief sought in the unnumbered
prayer for relief following Paragraph 10 of the Complaint and specifically denies that Plaintiff is
entitled to recover any damages from Defendant in her cause of action against Defendant.
Each and every allegation not specifically admitted is hereby denied and strict proof
thereof is demanded.
COUNT II - PLAINTIFF’S CLAIM OF NEGLIGENCE AS TO AUTO CLUB
COMPANY OF FLORIDA
Paragraphs 11-15 are directed to Defendant, AUTO CLUB COMPANY OF FLORIDA,
only, so no response from Defendant is necessary. To the extent a response is necessary, denied.
AFFIRMATIVE DEFENSES
1 Defendant is entitled to the protections afforded by any applicable hospital lien law.
2 Defendant is entitled to a credit and/or setoff from any and all personal injury
protection benefits paid and/or payable, and any and all other benefits, collateral sources or other
sources of setoffs or recoupments and therefore claims said setoffs, credits and recoupments in
accordance with Section 768.76 of the Florida Statutes
3 This action is subject to Section 768.81 Florida Statutes, and any liability found on
the part of Defendant shall be apportioned on the basis of Defendant's percentage of fault and not
on the basis of the doctrine of joint and several liability. Further, any contributory fault chargeable
to Plaintiff diminishes proportionately the amount awarded as economic and noneconomic
damages for an injury attributable to Plaintiffs’ contributory fault.
4 Defendant would affirmatively aver that at the time and place set forth in the
Complaint, Plaintiff negligently operated or maintained Plaintiffs' automobile so as to proximately
Case No: 2024-CA-71
cause or contribute to the cause of the injuries complained of. Accordingly, either the Plaintiffs
may not recover at all, or alternatively, Plaintiffs' recovery must be reduced to the extent that
Plaintiff's own negligent conduct contributed to the injuries complained of.
5 Defendant states that Plaintiff was unreasonable in failing to use an available and
operational seatbelt which caused or contributed to the proximate cause of the accident and
damages.
6 This action is subject to the provisions of the Tort Reform Act of 1998
7 Defendant would affirmatively aver that the Plaintiffs’ claims are barred by the tort
exemption provision of the Florida Motor Vehicle No Fault Act, Florida Statutes Section 627.730
through Section 627.7405, in that Plaintiff failed to meet the threshold provisions of said Act
outlined in Florida Statutes Section 627.737 and denies that the Plaintiffs are entitled to recover
by virtue of any exceptions to the tort exemption provided by the Statute:
8 Defendant would state that at all times material hereto, Plaintiff was insured by a
policy of automobile liability insurance providing no fault personal injury protection and medical
payments benefits which have been paid or are payable as a result of the subject
accident. Therefore, Defendant is entitled to set off for all sums paid or payable through the no
fault insurance benefits and medical payments benefits of said policy of insurance.
9 At all times material hereto, the accident and alleged injuries were caused by the
negligent and careless actions or omissions of third persons beyond the control, care and custody
of Defendant, and accordingly, Plaintiff is precluded from recovery for the alleged damages
against Defendant
10. Defendant states that Plaintiff failed to mitigate damages, if any, and therefore, are
not entitled to recovery of any damages which could have been mitigated.
Case No: 2024-CA-71
11 Plaintiff has failed to mitigate damages, including but not limited to failing to
submit all payable medical bills to his/her health insurer (and instead, executing a letter of
protection to his medical provider ), thus, depriving Defendant of the contractual discount available
as a third party beneficiary of the contract between Plaintiff and Provider. Goble v Frohman, 901
So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v. Lasky, 868 So 2d 547 (4th DCA 2003); Fla.
Stat. 641.3154
12. Plaintiffs is insured with health insurance coverage which inures to the benefit of
Defendant in that Plaintiffs’ providers must submit all bills for services rendered, to the Plaintiffs!
Health Insurer and the Plaintiffs' providers must accept the contracted amount in full payment of
all charges for treatment rendered. Thus; Defendant is entitled to the benefit of the contracted
difference. Fla. Stat 641.3154
13 Defendant is entitled to any and all health insurance contractual adjustments and/or
write offs and only that sum should be presented to the jury as the actual damage incurred. Goble
v Frohman, 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v. Lasky, 868 So 2d 547 (4th
DCA 2003)
14. Defendant would affirmatively aver that the Plaintiffs’ treating experts, providers
and/or facilities submission of medical bills to the PIP insurer violated F.S. 627.736(5) (b) 1.e, and
as such, Defendant is liable only to the extent that the PIP carrier would be responsible for
reasonable and necessary charges for medical care incurred as a result of injuries sustained in the
accident at issue, exclusive of any upcoming charges submitted by said expert, facility or provider.
15 Defendant is entitled to immunity from liability for the amount of any deductible
selected by Plaintiff or by which Plaintiff is bound pursuant to any applicable automobile insurance
agreement providing personal injury protection coverage since the Plaintiffs have not suffered a
Case No: 2024-CA-71
threshold breaking injury
16. Defendant is entitled to any and all Medicare/Medicaid insurance contractual
adjustments and/or write-offs and only that sum should be presented to the jury as the actual
damage incurred. Goble v Frohman 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v.
Lasky, 868 So 2d 547 (4% DCA 2003).
17. Defendant asserts this case is subject to the case Gross v. Lyons, and avails herself
of any protection said case provides to Defendant.
18 This action is subject to the provisions of Maser v. Fioretti, 498 So. 2d 568 (Fla
5th DCA 1986)
RESERVATION OF RIGHTS
Defendant reserves the right to assert additional affirmative defenses during this lawsuit,
as discovery is in its early stages and ongoing
DEMAND FOR JURY TRIAL
Defendant hereby demands trial by jury of all issues by right so triable.
WHEREFORE, Defendant, KAREN MILDRED POWELL, having fully responded to
the allegations in this cause, demands the same be dismissed with prejudice to and at the cost of
Plaintiff, and Defendant herein preserves their rights to file any/all relevant counterclaims in the
future and further demands a trial by jury of all issues so triable as of right.
CERTIFICATE OF SERVICE
THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via
the E-portal on April 5 > 2024, to Allan L. Ziffra, Esquire, aziffra@rueziffra.com;
amberm@rueziffra.com, Attorney for Plaintiff.
The Law Offices of Erick D. Martin
Attorneys for Defendant
Physical Address: 901 N. Lake Destiny Rd., Suite 105
Case No: 2024-CA-71
Maitland, FL 32751
Mailing Address: 4030 Crescent Park Drive, Suite 100 -
A Building/South
Riverview, FL 33578
(407) 949-3417 (Asst.)/(407) 949-3955 (Direct)
Fax: (866) 516-8617
SERVICE DESIGNATIONS:
Primary: NoFLBI@Progressive.com
Secondary: JSWADEL1@Progressive.com
By
JENNIFER BELBECK SWADEL, ESQUIRE
Florida Bar No. 88946
“Salaried Employees of Progressive Casualty Insurance Company”
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Filing # 195568005 E-Filed 04/05/2024 11:21:40 AM IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT IN AND FOR FLAGLER COUNTY, FLORIDA JANICE SWANK, Plaintiff, vs. CASE NO: 2024-CA-71 CIVIL DIVISION KAREN MILDRED POWELL and AUTO CLUB INSURANCE COMPANY OF FLORIDA, a Florida Corporation, Defendants. / ANSWER AND AFFIRMATIVE DEFENSES Defendant, KAREN MILDRED POWELL, by counsel, responds to Plaintiff's Complaint as follows: 1 Admitted that Plaintiff is seeking damages in excess of $50,000.00. Denied that Plaintiff is entitled to the relief requested. 2 Without knowledge, therefore denied. 3 Admit Without knowledge, therefore denied. Admit for purposes of venue. COUNT I~ PLAINTIFF’S LIABILITY CLAIM AGAINST KAREN MILDRED POWELL 6 Defendant realleges and reincorporates the allegations set forth in paragraphs 1 through 5 as if fully set forth herein 7 Admit; however, any inferences therefrom are denied 8 Admit; however, any inferences therefrom are denied. Electronically Received in the Office of the Clerk of the Circuit Court - Flagler County, Florida - 04/05/2024 02:30 PM - DIN: 23 Case No: 2024-CA-71 9 Denied 10. Denied Defendant denies that Plaintiff is entitled to any of the relief sought in the unnumbered prayer for relief following Paragraph 10 of the Complaint and specifically denies that Plaintiff is entitled to recover any damages from Defendant in her cause of action against Defendant. Each and every allegation not specifically admitted is hereby denied and strict proof thereof is demanded. COUNT II - PLAINTIFF’S CLAIM OF NEGLIGENCE AS TO AUTO CLUB COMPANY OF FLORIDA Paragraphs 11-15 are directed to Defendant, AUTO CLUB COMPANY OF FLORIDA, only, so no response from Defendant is necessary. To the extent a response is necessary, denied. AFFIRMATIVE DEFENSES 1 Defendant is entitled to the protections afforded by any applicable hospital lien law. 2 Defendant is entitled to a credit and/or setoff from any and all personal injury protection benefits paid and/or payable, and any and all other benefits, collateral sources or other sources of setoffs or recoupments and therefore claims said setoffs, credits and recoupments in accordance with Section 768.76 of the Florida Statutes 3 This action is subject to Section 768.81 Florida Statutes, and any liability found on the part of Defendant shall be apportioned on the basis of Defendant's percentage of fault and not on the basis of the doctrine of joint and several liability. Further, any contributory fault chargeable to Plaintiff diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to Plaintiffs’ contributory fault. 4 Defendant would affirmatively aver that at the time and place set forth in the Complaint, Plaintiff negligently operated or maintained Plaintiffs' automobile so as to proximately Case No: 2024-CA-71 cause or contribute to the cause of the injuries complained of. Accordingly, either the Plaintiffs may not recover at all, or alternatively, Plaintiffs' recovery must be reduced to the extent that Plaintiff's own negligent conduct contributed to the injuries complained of. 5 Defendant states that Plaintiff was unreasonable in failing to use an available and operational seatbelt which caused or contributed to the proximate cause of the accident and damages. 6 This action is subject to the provisions of the Tort Reform Act of 1998 7 Defendant would affirmatively aver that the Plaintiffs’ claims are barred by the tort exemption provision of the Florida Motor Vehicle No Fault Act, Florida Statutes Section 627.730 through Section 627.7405, in that Plaintiff failed to meet the threshold provisions of said Act outlined in Florida Statutes Section 627.737 and denies that the Plaintiffs are entitled to recover by virtue of any exceptions to the tort exemption provided by the Statute: 8 Defendant would state that at all times material hereto, Plaintiff was insured by a policy of automobile liability insurance providing no fault personal injury protection and medical payments benefits which have been paid or are payable as a result of the subject accident. Therefore, Defendant is entitled to set off for all sums paid or payable through the no fault insurance benefits and medical payments benefits of said policy of insurance. 9 At all times material hereto, the accident and alleged injuries were caused by the negligent and careless actions or omissions of third persons beyond the control, care and custody of Defendant, and accordingly, Plaintiff is precluded from recovery for the alleged damages against Defendant 10. Defendant states that Plaintiff failed to mitigate damages, if any, and therefore, are not entitled to recovery of any damages which could have been mitigated. Case No: 2024-CA-71 11 Plaintiff has failed to mitigate damages, including but not limited to failing to submit all payable medical bills to his/her health insurer (and instead, executing a letter of protection to his medical provider ), thus, depriving Defendant of the contractual discount available as a third party beneficiary of the contract between Plaintiff and Provider. Goble v Frohman, 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v. Lasky, 868 So 2d 547 (4th DCA 2003); Fla. Stat. 641.3154 12. Plaintiffs is insured with health insurance coverage which inures to the benefit of Defendant in that Plaintiffs’ providers must submit all bills for services rendered, to the Plaintiffs! Health Insurer and the Plaintiffs' providers must accept the contracted amount in full payment of all charges for treatment rendered. Thus; Defendant is entitled to the benefit of the contracted difference. Fla. Stat 641.3154 13 Defendant is entitled to any and all health insurance contractual adjustments and/or write offs and only that sum should be presented to the jury as the actual damage incurred. Goble v Frohman, 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v. Lasky, 868 So 2d 547 (4th DCA 2003) 14. Defendant would affirmatively aver that the Plaintiffs’ treating experts, providers and/or facilities submission of medical bills to the PIP insurer violated F.S. 627.736(5) (b) 1.e, and as such, Defendant is liable only to the extent that the PIP carrier would be responsible for reasonable and necessary charges for medical care incurred as a result of injuries sustained in the accident at issue, exclusive of any upcoming charges submitted by said expert, facility or provider. 15 Defendant is entitled to immunity from liability for the amount of any deductible selected by Plaintiff or by which Plaintiff is bound pursuant to any applicable automobile insurance agreement providing personal injury protection coverage since the Plaintiffs have not suffered a Case No: 2024-CA-71 threshold breaking injury 16. Defendant is entitled to any and all Medicare/Medicaid insurance contractual adjustments and/or write-offs and only that sum should be presented to the jury as the actual damage incurred. Goble v Frohman 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v. Lasky, 868 So 2d 547 (4% DCA 2003). 17. Defendant asserts this case is subject to the case Gross v. Lyons, and avails herself of any protection said case provides to Defendant. 18 This action is subject to the provisions of Maser v. Fioretti, 498 So. 2d 568 (Fla 5th DCA 1986) RESERVATION OF RIGHTS Defendant reserves the right to assert additional affirmative defenses during this lawsuit, as discovery is in its early stages and ongoing DEMAND FOR JURY TRIAL Defendant hereby demands trial by jury of all issues by right so triable. WHEREFORE, Defendant, KAREN MILDRED POWELL, having fully responded to the allegations in this cause, demands the same be dismissed with prejudice to and at the cost of Plaintiff, and Defendant herein preserves their rights to file any/all relevant counterclaims in the future and further demands a trial by jury of all issues so triable as of right. CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via the E-portal on April 5 > 2024, to Allan L. Ziffra, Esquire, aziffra@rueziffra.com; amberm@rueziffra.com, Attorney for Plaintiff. The Law Offices of Erick D. Martin Attorneys for Defendant Physical Address: 901 N. Lake Destiny Rd., Suite 105 Case No: 2024-CA-71 Maitland, FL 32751 Mailing Address: 4030 Crescent Park Drive, Suite 100 - A Building/South Riverview, FL 33578 (407) 949-3417 (Asst.)/(407) 949-3955 (Direct) Fax: (866) 516-8617 SERVICE DESIGNATIONS: Primary: NoFLBI@Progressive.com Secondary: JSWADEL1@Progressive.com By JENNIFER BELBECK SWADEL, ESQUIRE Florida Bar No. 88946 “Salaried Employees of Progressive Casualty Insurance Company”