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Filing # 152623022 E-Filed 07/01/2022 04:13:16 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CIVIL DIVISION
CHARLES A. ANDERSON, III,
Plaintiff, CASE NO.: 2021-CA-3164-AN
v. DIVISION: 20
THE ESTATE OF KENNETH ELTON
NICHOLLS, SCI SHARED RESOURCES,
LLC. a Foreign Corporation, and S. E.
CEMETERIES OF FLORIDA, LLC a Florida
Limited Liability Company d/b/a GLEN
HAVEN MEMORIAL PARK,
Defendants.
DEFENDANT’S, SCI SHARED RESOURCES, LLC, ANSWER
AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S AMENDED COMPLAINT
Defendant, SCI SHARED RESOURCES, LLC (hereinafter “SCI”), by and through its
undersigned counsel, hereby files its Answer and Affirmative Defenses to Plaintiff’s Amended
Complaint and states as follows:
GENERAL ALLEGATIONS
1. SCI is without knowledge or information sufficient to form a belief as to the truth
of the allegations in Paragraph 1, therefore denied.
2. SCI is without knowledge or information sufficient to form a belief as to the truth
of the allegations in Paragraph 2, therefore denied.
3. SCI is without knowledge or information sufficient to form a belief as to the truth
of the allegations in Paragraph 3, therefore denied.
4. Admitted.
5. SCI is without knowledge or information sufficient to form a belief as to the truth
of the allegations in Paragraph 5, therefore denied.
6. Denied.
7. Admitted.
8. SCI is without knowledge or information sufficient to form a belief as to the truth
of the allegations in Paragraph 8, therefore denied.
9. Denied.
10. Admitted.
11. Admitted.
COUNT I – NEGLIGENCE CLAIM AGAINST
THE ESTATE OF KENNETH ELTON NICHOLLS
12. SCI re-alleges and re-states the responses to Paragraphs 1 through 11 as if fully
set forth herein.
13. The allegations contained in Paragraph 13 are not directed towards SCI; therefore,
no response is required. To the extent a response is required; SCI denies the allegations in
Paragraph 13 and demands strict proof thereof.
14. The allegations contained in Paragraph 14 are not directed towards SCI; therefore,
no response is required. To the extent a response is required; SCI denies the allegations in
Paragraph 14 and demands strict proof thereof.
15. The allegations contained in Paragraph 15 are not directed towards SCI; therefore,
no response is required. To the extent a response is required; SCI denies the allegations in
Paragraph 15 and demands strict proof thereof.
16. The allegations contained in Paragraph 16 are not directed towards SCI; therefore,
no response is required. To the extent a response is required; SCI denies the allegations in
Paragraph 16 and demands strict proof thereof.
COUNT II – VICARIOUS LIABILITY CLAIM AGAINST
DEFENDANT, SCI SHARED RESOURCES, LLC
17. SCI re-alleges and re-states the responses to Paragraphs 1 through 16 as if fully
set forth herein.
18. Denied.
19. Denied.
20. Denied.
21. Denied.
COUNT III – NEGLIGENT ENTRUSTMENT CLAIM AGAINST
DEFENDANT, SCI SHARED RESOURCES, LLC
22. SCI re-alleges and re-states the responses to Paragraphs 1 through 21 as if fully
set forth herein.
23. The allegations in Paragraph 23 call for a legal conclusion, therefore no response
is required. To the extent a response is required, SCI denies the allegations set forth in
Paragraph 23 and demands strict proof thereof.
24. The allegations in Paragraph 24 call for a legal conclusion, therefore no response
is required. To the extent a response is required, SCI denies the allegations set forth in
Paragraph 24 and demands strict proof thereof.
25. Denied.
26. Denied.
27. Denied.
28. Denied.
COUNT IV – RESPONDEAT SUPERIOR CLAIM AGAINST
DEFENDANT, S. E. CEMETERIES OF FLORIDA, LLC.
d/b/a GLEN HAVEN MEMORIAL PARK
29. SCI re-alleges and re-states the responses to Paragraphs 1 through 28 as if fully
set forth herein.
30. The allegations contained in Paragraph 30 are not directed towards SCI; therefore,
no response is required. To the extent a response is required; SCI denies the allegations in
Paragraph 30 and demands strict proof thereof.
31. The allegations contained in Paragraph 31 are not directed towards SCI; therefore,
no response is required. To the extent a response is required; SCI denies the allegations in
Paragraph 31 and demands strict proof thereof.
GENERAL DENIAL
SCI denies each and every allegation contained in Plaintiff’s Complaint that is not
specifically admitted herein, including all wherefore clauses and Plaintiff’s Prayer for Relief.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
SCI states that Plaintiff was guilty of negligence, in failing to have her vehicle under
control, failing to avoid collision, in failing to use available and fully operational seat belts in
compliance with Florida Statutes§ 316.614, and in other ways to be discovered, which
negligence were the sole, proximate cause or contributing case of the damages complained of,
and Plaintiff’s recovery, if any, should be barred or reduced proportionately pursuant to the
doctrine of comparative negligence, pursuant to Florida Statutes § 768.81.
SECOND AFFIRMATIVE DEFENSE
In the event the Plaintiff has received, or has available, collateral source benefits,
Plaintiff’s damages, if any, should be reduced by the amount of collateral source benefits
received and/or available as a result of the incident in question.
THIRD AFFIRMATIVE DEFENSE
Plaintiff’s alleged damages were solely and proximately caused by a superseding,
intervening or subsequent act, which was not itself a result of any negligence on the part of SCI,
and accordingly recovery against SCI should be denied.
FOURTH AFFIRMATIVE DEFENSE
SCI is entitled to a set-off for any settlement paid by any party or non-party, in
satisfaction of the same damages for which the Plaintiff is suing under Fla. Stat. § 768.041.
FIFTH AFFIRMATIVE DEFENSE.
If discovery reveals that Plaintiff was injured by a previous and/or later event, Plaintiff
should only be awarded those damages, if any, resulting from the alleged incident in the
Complaint.
SIXTH AFFIRMATIVE DEFENSE
Any injury or damage alleged by Plaintiff is based upon pre-existing and/or congenital or
hereditary conditions that are not the responsibility of SCI. Plaintiff is not entitled to any
recovery based upon injuries or damages sustained as a result of that condition. Plaintiff may not
recover damages in tort for past or future pain, suffering, mental anguish and inconvenience
pursuant to § 627.737(2), Fla. Stat.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff has failed to mitigate the alleged damages including but not limited to seeking
timely medical treatment, complying with recommended medical treatment, following prescribed
treatment and his alleged damages should be reduced accordingly, and/or failing to submit all
payable medical bills to his health insurer (and instead, executing a letter of protection to his
medical provider), thus depriving SCI of the contractual discount available as a third party
beneficiary of the contract between the Plaintiff and Provider. Goble v. Frohman, 901 So. 2d
830 (Fla. 2005); Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003);
Fla. Stat. 641.3154.
EIGHTH AFFIRMATIVE DEFENSE
SCI was not the legal cause of injury to Plaintiff.
NINTH AFFIRMATIVE DEFENSE
SCI 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
(Fla. 4th DCA 2003).
TENTH AFFIRMATIVE DEFENSE
SCI is entitled to any and all Medicare/Medicaid insurance contractual adjustments
and/or write-offs and only that sum should be presented to the jury as the actual damage
incurred. Goble v. Frohman, 901 So. 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp. v. Lasky,
868 So. 2d 547 (Fla. 4th DCA 2003).
ELEVENTH AFFIRMATIVE DEFENSE
SCI asserts that he is entitled to an offset by any and all payments which have been made
or will be made to Plaintiff as a result of the injuries alleged in Plaintiff’s Amended Complaint
and asserts that Plaintiff’s past and future damages are reduced or offset by the amount of any
governmental or charitable benefits available.
TWELFTH AFFIRMATIVE DEFENSE
Intervening or superseding acts occurred that were unforeseeable occurrences causing the
injuries or damages alleged in the Amended Complaint, and such intervening or superseding
causes bar or reduce proportionately Plaintiff’s claims for damages.
THIRTEENTH AFFIRMATIVE DEFENSE
SCI states that Plaintiff has not suffered permanent injuries within a reasonable degree of
medical probability. Any injury or damage alleged by Plaintiff is based upon pre-existing and/or
congenital or hereditary conditions that are not the responsibility of SCI. Plaintiff is not entitled
to any recovery based upon injuries or damages sustained as a result of that condition. Plaintiff
may not recover damages in tort for past or future pain, suffering, mental anguish and
inconvenience pursuant to Florida Statutes § 627.737(2).
FOURTEENTH AFFIRMATIVE DEFENSE
SCI is entitled to any and all Medicare/Medicaid insurance contractual adjustments
and/or write-offs and only that sum should be presented to the jury as the actual damage
incurred. Goble v. Frohman, 901 So. 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp. v. Lasky,
868 So. 2d 547 (Fla. 4th DCA 2003).
SCI specifically reserves the right to allege additional affirmative defenses as they may
present themselves in the future.
DEMAND FOR JURY TRIAL
Defendant, SCI SHARED RESOURCES, LLC, demands a trial by jury on all issues so
triable.
Respectfully submitted,
WEINBERG, WHEELER, HUDGINS,
GUNN & DIAL, LLC
/s/ Jose O. De La Cruz
LAWRENCE E. BURKHALTER
Florida Bar No.: 186104
JOSE O. DE LA CRUZ
Florida Bar No.: 1005862
3350 Virginia Street, Suite 500
Miami, Florida 33133
Telephone: (305) 455-9500
Facsimile: (305) 455-9501
E-Mail: lburkhalter@wwhgd.com
jdelacruz@wwhgd.com
malvarez@wwhgd.com
arezende@wwhgd.com
ahayes@wwhgd.com
Attorneys for Defendant
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on July 1st, 2022, a true and a correct copy of the
foregoing was electronically filed with the Clerk of Court via the Florida Courts eFiling Portal,
which will send a copy via electronic mail to all Counsel of Record listed on the attached Service
List.
/s/ Jose O. De La Cruz
Jose O. De La Cruz
SERVICE LIST
Nadine S. Diaz, Esq.
Walter L. Grantham, Jr., Esq.
DARRIGO & DIAZ, P.A.
4504 North Armenia Avenue
Tampa, Florida 33603
Telephone: (813) 877-5548
Facsimile: (813) 877-8829
E-Mail: mail@ddlawtampa.com
ndiaz@ddlawtampa.com
wgrantham@ddlawtampa.com
jbattaglia@ddlawtampa.com
yrodriguez@ddlawtampa.com
Attorneys for Plaintiff
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Filing # 152623022 E-Filed 07/01/2022 04:13:16 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CIVIL DIVISION CHARLES A. ANDERSON, III, Plaintiff, CASE NO.: 2021-CA-3164-AN v. DIVISION: 20 THE ESTATE OF KENNETH ELTON NICHOLLS, SCI SHARED RESOURCES, LLC. a Foreign Corporation, and S. E. CEMETERIES OF FLORIDA, LLC a Florida Limited Liability Company d/b/a GLEN HAVEN MEMORIAL PARK, Defendants. DEFENDANT’S, SCI SHARED RESOURCES, LLC, ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S AMENDED COMPLAINT Defendant, SCI SHARED RESOURCES, LLC (hereinafter “SCI”), by and through its undersigned counsel, hereby files its Answer and Affirmative Defenses to Plaintiff’s Amended Complaint and states as follows: GENERAL ALLEGATIONS 1. SCI is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 1, therefore denied. 2. SCI is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 2, therefore denied. 3. SCI is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 3, therefore denied. 4. Admitted. 5. SCI is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 5, therefore denied. 6. Denied. 7. Admitted. 8. SCI is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 8, therefore denied. 9. Denied. 10. Admitted. 11. Admitted. COUNT I – NEGLIGENCE CLAIM AGAINST THE ESTATE OF KENNETH ELTON NICHOLLS 12. SCI re-alleges and re-states the responses to Paragraphs 1 through 11 as if fully set forth herein. 13. The allegations contained in Paragraph 13 are not directed towards SCI; therefore, no response is required. To the extent a response is required; SCI denies the allegations in Paragraph 13 and demands strict proof thereof. 14. The allegations contained in Paragraph 14 are not directed towards SCI; therefore, no response is required. To the extent a response is required; SCI denies the allegations in Paragraph 14 and demands strict proof thereof. 15. The allegations contained in Paragraph 15 are not directed towards SCI; therefore, no response is required. To the extent a response is required; SCI denies the allegations in Paragraph 15 and demands strict proof thereof. 16. The allegations contained in Paragraph 16 are not directed towards SCI; therefore, no response is required. To the extent a response is required; SCI denies the allegations in Paragraph 16 and demands strict proof thereof. COUNT II – VICARIOUS LIABILITY CLAIM AGAINST DEFENDANT, SCI SHARED RESOURCES, LLC 17. SCI re-alleges and re-states the responses to Paragraphs 1 through 16 as if fully set forth herein. 18. Denied. 19. Denied. 20. Denied. 21. Denied. COUNT III – NEGLIGENT ENTRUSTMENT CLAIM AGAINST DEFENDANT, SCI SHARED RESOURCES, LLC 22. SCI re-alleges and re-states the responses to Paragraphs 1 through 21 as if fully set forth herein. 23. The allegations in Paragraph 23 call for a legal conclusion, therefore no response is required. To the extent a response is required, SCI denies the allegations set forth in Paragraph 23 and demands strict proof thereof. 24. The allegations in Paragraph 24 call for a legal conclusion, therefore no response is required. To the extent a response is required, SCI denies the allegations set forth in Paragraph 24 and demands strict proof thereof. 25. Denied. 26. Denied. 27. Denied. 28. Denied. COUNT IV – RESPONDEAT SUPERIOR CLAIM AGAINST DEFENDANT, S. E. CEMETERIES OF FLORIDA, LLC. d/b/a GLEN HAVEN MEMORIAL PARK 29. SCI re-alleges and re-states the responses to Paragraphs 1 through 28 as if fully set forth herein. 30. The allegations contained in Paragraph 30 are not directed towards SCI; therefore, no response is required. To the extent a response is required; SCI denies the allegations in Paragraph 30 and demands strict proof thereof. 31. The allegations contained in Paragraph 31 are not directed towards SCI; therefore, no response is required. To the extent a response is required; SCI denies the allegations in Paragraph 31 and demands strict proof thereof. GENERAL DENIAL SCI denies each and every allegation contained in Plaintiff’s Complaint that is not specifically admitted herein, including all wherefore clauses and Plaintiff’s Prayer for Relief. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE SCI states that Plaintiff was guilty of negligence, in failing to have her vehicle under control, failing to avoid collision, in failing to use available and fully operational seat belts in compliance with Florida Statutes§ 316.614, and in other ways to be discovered, which negligence were the sole, proximate cause or contributing case of the damages complained of, and Plaintiff’s recovery, if any, should be barred or reduced proportionately pursuant to the doctrine of comparative negligence, pursuant to Florida Statutes § 768.81. SECOND AFFIRMATIVE DEFENSE In the event the Plaintiff has received, or has available, collateral source benefits, Plaintiff’s damages, if any, should be reduced by the amount of collateral source benefits received and/or available as a result of the incident in question. THIRD AFFIRMATIVE DEFENSE Plaintiff’s alleged damages were solely and proximately caused by a superseding, intervening or subsequent act, which was not itself a result of any negligence on the part of SCI, and accordingly recovery against SCI should be denied. FOURTH AFFIRMATIVE DEFENSE SCI is entitled to a set-off for any settlement paid by any party or non-party, in satisfaction of the same damages for which the Plaintiff is suing under Fla. Stat. § 768.041. FIFTH AFFIRMATIVE DEFENSE. If discovery reveals that Plaintiff was injured by a previous and/or later event, Plaintiff should only be awarded those damages, if any, resulting from the alleged incident in the Complaint. SIXTH AFFIRMATIVE DEFENSE Any injury or damage alleged by Plaintiff is based upon pre-existing and/or congenital or hereditary conditions that are not the responsibility of SCI. Plaintiff is not entitled to any recovery based upon injuries or damages sustained as a result of that condition. Plaintiff may not recover damages in tort for past or future pain, suffering, mental anguish and inconvenience pursuant to § 627.737(2), Fla. Stat. SEVENTH AFFIRMATIVE DEFENSE Plaintiff has failed to mitigate the alleged damages including but not limited to seeking timely medical treatment, complying with recommended medical treatment, following prescribed treatment and his alleged damages should be reduced accordingly, and/or failing to submit all payable medical bills to his health insurer (and instead, executing a letter of protection to his medical provider), thus depriving SCI of the contractual discount available as a third party beneficiary of the contract between the Plaintiff and Provider. Goble v. Frohman, 901 So. 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003); Fla. Stat. 641.3154. EIGHTH AFFIRMATIVE DEFENSE SCI was not the legal cause of injury to Plaintiff. NINTH AFFIRMATIVE DEFENSE SCI 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 (Fla. 4th DCA 2003). TENTH AFFIRMATIVE DEFENSE SCI is entitled to any and all Medicare/Medicaid insurance contractual adjustments and/or write-offs and only that sum should be presented to the jury as the actual damage incurred. Goble v. Frohman, 901 So. 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003). ELEVENTH AFFIRMATIVE DEFENSE SCI asserts that he is entitled to an offset by any and all payments which have been made or will be made to Plaintiff as a result of the injuries alleged in Plaintiff’s Amended Complaint and asserts that Plaintiff’s past and future damages are reduced or offset by the amount of any governmental or charitable benefits available. TWELFTH AFFIRMATIVE DEFENSE Intervening or superseding acts occurred that were unforeseeable occurrences causing the injuries or damages alleged in the Amended Complaint, and such intervening or superseding causes bar or reduce proportionately Plaintiff’s claims for damages. THIRTEENTH AFFIRMATIVE DEFENSE SCI states that Plaintiff has not suffered permanent injuries within a reasonable degree of medical probability. Any injury or damage alleged by Plaintiff is based upon pre-existing and/or congenital or hereditary conditions that are not the responsibility of SCI. Plaintiff is not entitled to any recovery based upon injuries or damages sustained as a result of that condition. Plaintiff may not recover damages in tort for past or future pain, suffering, mental anguish and inconvenience pursuant to Florida Statutes § 627.737(2). FOURTEENTH AFFIRMATIVE DEFENSE SCI is entitled to any and all Medicare/Medicaid insurance contractual adjustments and/or write-offs and only that sum should be presented to the jury as the actual damage incurred. Goble v. Frohman, 901 So. 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp. v. Lasky, 868 So. 2d 547 (Fla. 4th DCA 2003). SCI specifically reserves the right to allege additional affirmative defenses as they may present themselves in the future. DEMAND FOR JURY TRIAL Defendant, SCI SHARED RESOURCES, LLC, demands a trial by jury on all issues so triable. Respectfully submitted, WEINBERG, WHEELER, HUDGINS, GUNN & DIAL, LLC /s/ Jose O. De La Cruz LAWRENCE E. BURKHALTER Florida Bar No.: 186104 JOSE O. DE LA CRUZ Florida Bar No.: 1005862 3350 Virginia Street, Suite 500 Miami, Florida 33133 Telephone: (305) 455-9500 Facsimile: (305) 455-9501 E-Mail: lburkhalter@wwhgd.com jdelacruz@wwhgd.com malvarez@wwhgd.com arezende@wwhgd.com ahayes@wwhgd.com Attorneys for Defendant CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on July 1st, 2022, a true and a correct copy of the foregoing was electronically filed with the Clerk of Court via the Florida Courts eFiling Portal, which will send a copy via electronic mail to all Counsel of Record listed on the attached Service List. /s/ Jose O. De La Cruz Jose O. De La Cruz SERVICE LIST Nadine S. Diaz, Esq. Walter L. Grantham, Jr., Esq. DARRIGO & DIAZ, P.A. 4504 North Armenia Avenue Tampa, Florida 33603 Telephone: (813) 877-5548 Facsimile: (813) 877-8829 E-Mail: mail@ddlawtampa.com ndiaz@ddlawtampa.com wgrantham@ddlawtampa.com jbattaglia@ddlawtampa.com yrodriguez@ddlawtampa.com Attorneys for Plaintiff