Preview
Filing # 54201143 E-Filed 03/24/2017 04:11:22 PM
IN THE CIRCUIT COURT OF THE
17™ JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.: 17-000359
DONNA VIVIO and DEAN MONTELIONE
and/or any duly appointed Personal Representatives
of the Estate of HARRIET MONTELIONE,
Deceased,
Plaintiff,
vs.
E & BALF, INC., d/b/a GOLDEN AGE !
MANOR, '
Defendant.
/
DEFENDANT, E & B ALF, INC., d/bla GOLDEN AGE
MANOR’S, ANSWER AND AFFIRMATIVE DEFENSES TO THE PLAINTIFF’S
COMPLAINT FOR DAMAGES
Defendant, E & B ALF, INC., d/b/a GOLDEN AGE MANOR, (“Defendant”), by
and through its undersigned counsel, submits its Answer and Affirmative Defenses to |
the Plaintiffs Complaint for Damages, and states as follows:
1. It is admitted that the Plaintiff has claimed damages in excess of this
Court's jurisdictional limit, however, it is denied that the Plaintiff entitled to this sum, let
alone, any sum.
2. Without knowledge, therefore denied.
3. Admitted.
COLE, SCOTT & KISSANE, P.A.
DADELAND CENTRE il 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.0. BOX 569015 - MIAMI, FLORIDA 33166 - (308) 380-8300 - (306) 373-2294 FAX
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 3/24/2017 4:11:21 PM.****CASE NO.: 17-000359
FACTS GIVING RISE TO CAUSE OF ACTION
4. Denied,
NEGLIGENCE CLAIM AGAINST DEFENDANT
5, Denied as phrased,
6. Denied as phrased.
7. (a-d). Denied.
8. Denied.
9. Denied.
CLAIM FOR WRONGFUL DEAHT DAMAGES AGAINST DEFENDANT
10. The Defendant re-adopts and re-alleges paragraph 1-13 as fully set forth
herein.
11, (a-c). Denied.
AFFIRMATIVE DEFENSES
1. If the Plaintiff sustained damages by reason of the matters alleged in the
Complaint, and said damages were caused in whole or in part by Plaintiffs own
negligence, then the Plaintiff is subject to the doctrine of Comparative Negligence,
where the Plaintiff's recovery will be diminished by an amount equal to the Plaintiffs
negligence.
2. If the Plaintiff sustained damages as alleged in the Complaint, then the
Plaintiff failed and neglected to use reasonable care to protect herself, and to minimize
and mitigate the losses and damages complained of in the Complaint.
3. Plaintiff assumed the risk of injury and, accordingly, Plaintiff's claim is
barred. The Plaintiff knew of the existence of the danger complained of, realized and
-2-
COLE, SCOTT & KISSANE, P.A,
OADELAND CENTRE I - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O, BOX 569015 - MIAMI, FLORIDA 33156 - (305) 350-8300 - (906) 373-2264 FAXCASE NO.; 17-000359
appreciated the possibility of injury as a result of the danger and having a reasonable
opportunity to avoid it, voluntarily exposed herself to the danger.
4. The Plaintiff had actual or constructive knowledge of the allegedly
dangerous condition, which was equal to or greater than this Defendant's knowledge of
said condition, wherefore and under these circumstances, this Defendant is not liable.
5. This Defendant had neither actual nor constructive notice of any alleged
condition referred to in the Plaintiffs Complaint.
6. Defendant asserts all of the provisions contained in Florida Statute
768.0755, including, but not limited to, this statute's burden of proof requirements.
7. At all times relevant thereto, the allegedly dangerous condition referred to
by the Plaintiff in the Complaint, was neither created by the Defendant nor did said
condition exist upon the premises for a sufficient length of time that the Defendant
should have discovered said condition and corrected it or warned the Plaintiff as to the
existence of said condition.
8. The condition that the Plaintiff complains of in the Complaint was open
and obvious. Therefore, the Defendant did not have a duty to warn the Plaintiff of the
condition more fully described in the Plaintiffs Complaint.
9, 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 over whom the Defendant had no custody or control, pursuant to
Florida Statute 768.81, and were not caused or contributed to by any acts, omissions, or
fault of the Defendant, or any of it officers, agents, contractors, servants, employees, or
others whom were responsible. The Defendant reserves the right to a jury instruction
-3-
COLE, SCOTT & KISSANE, P.A.
DADELAND CENTRE Il - 9160 SOUTH DADELAND BOULEVARD - SUITE 1400 - F.C. BOX 569015 -MIAM), FLORIDA 33166 - (905) 950-5200 - (205) 373-2204 FAXCASE NO.: 17-000359
pursuant to Florida Statute 768.81(3), and to a verdict form that permits the jury to
proportion liability amongst all alleged tortfeasors, pursuant to the Florida Supreme
Court’s decision in Fabre v. Marin, 623 So. 2d 782 (Fla. 1993) and pursuant to Nash v.
Wells Fargo Guard Services Incorporated, 678 So. 2d 1262 (Fla. 1996). Defendant
reserves the right to amend this affirmative defense in the event that discovery should
reveal any other parties who may be at fault.
10. Plaintiff's alleged damages, if any, resulted from new and independent,
unforeseeable, superseding, and/or intervening causes unrelated to any conduct of this
Defendant.
11. | While denying all of the allegations of the Plaintiffs Complaint regarding
liability, injury, and damages allegedly sustained by Plaintiff, to the extent that Plaintiff
may be able to prove any negligence or fault on the part of the Defendant, it was not the
proximate cause of any of the damages at issue in this Complaint.
12, 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 Defendant had no control or right to control.
13. The Plaintiff has failed to mitigate, minimize, or avoid all or a portion of the
damages which comprise of the Plaintiff's claims.
14. Defendant 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.
4
COLE, SCOTT & KISSANE, P.A.
DADELAND CENTRE Ii -9180 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O, BOX 569015 - MIAMI, FLORIDA 33156 - (305) 350-5900 - (305) 373-2294 FAXCASE NO.: 17-000359
15. Defendant's liability for medical expenses does not include contractual
adjustments, write-offs, or the like.
16. Defendant 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, 848 So. 2d 406 (Fla. 2d DCA 2003).
Alternatively, Plaintiff is not entitled to claim bills, costs or expenses assessed but
waived or not actually incurred by Plaintiff.
17. Defendant affirmatively asserts that the premises are maintained in a
reasonably safe condition and this Defendant exercised reasonable policies and
procedures for maintenance of the area; Plaintiff is therefore not entitled to any
evidentiary or other presumptions at trial.
18. Pursuant to Section 768.36 of the Florida Statute, if the Plaintiff, HARRIET
MONTELIONE, was under the influence of alcohol drugs, or both, to the extent that his
normal faculties were impaired at the time of the subject incident, and as a result of
such influence, she was over 50% liable for his own injuries, then the Plaintiff is barred
from recovering damages.
19. Any injury or damage to the Plaintiff was 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.
20. Defendant reserves the right to amend its affirmative defenses as
discovery proceeds and information supporting an affirmative defense becomes known.
-S-
COLE, SCOTT & KISSANE, P.A.
DADELAND CENTRE It 8160 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O, BOX 869015 - MIAMI, FLORIDA 33156 - (905) 250-5900 - (205) 373-2094 FAXCASE NO.: 17-000359
DEMAND FOR JURY TRIAL
Defendant, E & B ALF, INC., d/b/a GOLDEN AGE MANOR, hereby demands trial
by jury of all issues by right so triable
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 24™ day of March, 2017 a true and correct
copy of the foregoing was filed with the Clerk of Broward 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: Darryn L. Silvertein, attorney for plaintiff;
dsilverstein@sspa-law.com; and gpatterson@sspa-law.com.
By:
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant,
E & BALF, INC., D/B/A GOLDEN AGE MANOR
Cole, Scott & Kissane Building
9150 South Dadeland Boulevard, Suite 1400
P.O. Box 569015
Miami, Florida 33256
Telephone (305)350-5307
Facsimile (305) 373-2294
Primary e-mail: john.coleman@csklegal.com
Primary e-mail: colin.riley@csklegal.com
Secondary e-mail gregoria.fernandez@csklegal.com
Secondary e-mail: diana.suarez@csklegal.com
7 >
f
/s/ Colin Riley “—/\.
JOHN D. COLEMAN
FBN: 179639
COLIN P. RILEY
Florida Bar No.: 061188
\\mia-file\miadoc\1 70324_0005\(6133353] answer - affirmative defenses to complaint (vivio.doc
-6-
COLE, SCOTT & KISSANE, P.A.
DADELAND CENTRE II -9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569016 - MIAMI, FLORIDA 33156 - (305) 250-6300 - (905) 373-2294 FAX
Preview
Filing # 54201143 E-Filed 03/24/2017 04:11:22 PM IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CIVIL DIVISION CASE NO.: 17-000359 DONNA VIVIO and DEAN MONTELIONE and/or any duly appointed Personal Representatives of the Estate of HARRIET MONTELIONE, Deceased, Plaintiff, vs. E & BALF, INC., d/b/a GOLDEN AGE ! MANOR, ' Defendant. / DEFENDANT, E & B ALF, INC., d/bla GOLDEN AGE MANOR’S, ANSWER AND AFFIRMATIVE DEFENSES TO THE PLAINTIFF’S COMPLAINT FOR DAMAGES Defendant, E & B ALF, INC., d/b/a GOLDEN AGE MANOR, (“Defendant”), by and through its undersigned counsel, submits its Answer and Affirmative Defenses to | the Plaintiffs Complaint for Damages, and states as follows: 1. It is admitted that the Plaintiff has claimed damages in excess of this Court's jurisdictional limit, however, it is denied that the Plaintiff entitled to this sum, let alone, any sum. 2. Without knowledge, therefore denied. 3. Admitted. COLE, SCOTT & KISSANE, P.A. DADELAND CENTRE il 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.0. BOX 569015 - MIAMI, FLORIDA 33166 - (308) 380-8300 - (306) 373-2294 FAX *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 3/24/2017 4:11:21 PM.****CASE NO.: 17-000359 FACTS GIVING RISE TO CAUSE OF ACTION 4. Denied, NEGLIGENCE CLAIM AGAINST DEFENDANT 5, Denied as phrased, 6. Denied as phrased. 7. (a-d). Denied. 8. Denied. 9. Denied. CLAIM FOR WRONGFUL DEAHT DAMAGES AGAINST DEFENDANT 10. The Defendant re-adopts and re-alleges paragraph 1-13 as fully set forth herein. 11, (a-c). Denied. AFFIRMATIVE DEFENSES 1. If the Plaintiff sustained damages by reason of the matters alleged in the Complaint, and said damages were caused in whole or in part by Plaintiffs own negligence, then the Plaintiff is subject to the doctrine of Comparative Negligence, where the Plaintiff's recovery will be diminished by an amount equal to the Plaintiffs negligence. 2. If the Plaintiff sustained damages as alleged in the Complaint, then the Plaintiff failed and neglected to use reasonable care to protect herself, and to minimize and mitigate the losses and damages complained of in the Complaint. 3. Plaintiff assumed the risk of injury and, accordingly, Plaintiff's claim is barred. The Plaintiff knew of the existence of the danger complained of, realized and -2- COLE, SCOTT & KISSANE, P.A, OADELAND CENTRE I - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O, BOX 569015 - MIAMI, FLORIDA 33156 - (305) 350-8300 - (906) 373-2264 FAXCASE NO.; 17-000359 appreciated the possibility of injury as a result of the danger and having a reasonable opportunity to avoid it, voluntarily exposed herself to the danger. 4. The Plaintiff had actual or constructive knowledge of the allegedly dangerous condition, which was equal to or greater than this Defendant's knowledge of said condition, wherefore and under these circumstances, this Defendant is not liable. 5. This Defendant had neither actual nor constructive notice of any alleged condition referred to in the Plaintiffs Complaint. 6. Defendant asserts all of the provisions contained in Florida Statute 768.0755, including, but not limited to, this statute's burden of proof requirements. 7. At all times relevant thereto, the allegedly dangerous condition referred to by the Plaintiff in the Complaint, was neither created by the Defendant nor did said condition exist upon the premises for a sufficient length of time that the Defendant should have discovered said condition and corrected it or warned the Plaintiff as to the existence of said condition. 8. The condition that the Plaintiff complains of in the Complaint was open and obvious. Therefore, the Defendant did not have a duty to warn the Plaintiff of the condition more fully described in the Plaintiffs Complaint. 9, 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 over whom the Defendant had no custody or control, pursuant to Florida Statute 768.81, and were not caused or contributed to by any acts, omissions, or fault of the Defendant, or any of it officers, agents, contractors, servants, employees, or others whom were responsible. The Defendant reserves the right to a jury instruction -3- COLE, SCOTT & KISSANE, P.A. DADELAND CENTRE Il - 9160 SOUTH DADELAND BOULEVARD - SUITE 1400 - F.C. BOX 569015 -MIAM), FLORIDA 33166 - (905) 950-5200 - (205) 373-2204 FAXCASE NO.: 17-000359 pursuant to Florida Statute 768.81(3), and to a verdict form that permits the jury to proportion liability amongst all alleged tortfeasors, pursuant to the Florida Supreme Court’s decision in Fabre v. Marin, 623 So. 2d 782 (Fla. 1993) and pursuant to Nash v. Wells Fargo Guard Services Incorporated, 678 So. 2d 1262 (Fla. 1996). Defendant reserves the right to amend this affirmative defense in the event that discovery should reveal any other parties who may be at fault. 10. Plaintiff's alleged damages, if any, resulted from new and independent, unforeseeable, superseding, and/or intervening causes unrelated to any conduct of this Defendant. 11. | While denying all of the allegations of the Plaintiffs Complaint regarding liability, injury, and damages allegedly sustained by Plaintiff, to the extent that Plaintiff may be able to prove any negligence or fault on the part of the Defendant, it was not the proximate cause of any of the damages at issue in this Complaint. 12, 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 Defendant had no control or right to control. 13. The Plaintiff has failed to mitigate, minimize, or avoid all or a portion of the damages which comprise of the Plaintiff's claims. 14. Defendant 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. 4 COLE, SCOTT & KISSANE, P.A. DADELAND CENTRE Ii -9180 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O, BOX 569015 - MIAMI, FLORIDA 33156 - (305) 350-5900 - (305) 373-2294 FAXCASE NO.: 17-000359 15. Defendant's liability for medical expenses does not include contractual adjustments, write-offs, or the like. 16. Defendant 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, 848 So. 2d 406 (Fla. 2d DCA 2003). Alternatively, Plaintiff is not entitled to claim bills, costs or expenses assessed but waived or not actually incurred by Plaintiff. 17. Defendant affirmatively asserts that the premises are maintained in a reasonably safe condition and this Defendant exercised reasonable policies and procedures for maintenance of the area; Plaintiff is therefore not entitled to any evidentiary or other presumptions at trial. 18. Pursuant to Section 768.36 of the Florida Statute, if the Plaintiff, HARRIET MONTELIONE, was under the influence of alcohol drugs, or both, to the extent that his normal faculties were impaired at the time of the subject incident, and as a result of such influence, she was over 50% liable for his own injuries, then the Plaintiff is barred from recovering damages. 19. Any injury or damage to the Plaintiff was 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. 20. Defendant reserves the right to amend its affirmative defenses as discovery proceeds and information supporting an affirmative defense becomes known. -S- COLE, SCOTT & KISSANE, P.A. DADELAND CENTRE It 8160 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O, BOX 869015 - MIAMI, FLORIDA 33156 - (905) 250-5900 - (205) 373-2094 FAXCASE NO.: 17-000359 DEMAND FOR JURY TRIAL Defendant, E & B ALF, INC., d/b/a GOLDEN AGE MANOR, hereby demands trial by jury of all issues by right so triable CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 24™ day of March, 2017 a true and correct copy of the foregoing was filed with the Clerk of Broward 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: Darryn L. Silvertein, attorney for plaintiff; dsilverstein@sspa-law.com; and gpatterson@sspa-law.com. By: COLE, SCOTT & KISSANE, P.A. Counsel for Defendant, E & BALF, INC., D/B/A GOLDEN AGE MANOR Cole, Scott & Kissane Building 9150 South Dadeland Boulevard, Suite 1400 P.O. Box 569015 Miami, Florida 33256 Telephone (305)350-5307 Facsimile (305) 373-2294 Primary e-mail: john.coleman@csklegal.com Primary e-mail: colin.riley@csklegal.com Secondary e-mail gregoria.fernandez@csklegal.com Secondary e-mail: diana.suarez@csklegal.com 7 > f /s/ Colin Riley “—/\. JOHN D. COLEMAN FBN: 179639 COLIN P. RILEY Florida Bar No.: 061188 \\mia-file\miadoc\1 70324_0005\(6133353] answer - affirmative defenses to complaint (vivio.doc -6- COLE, SCOTT & KISSANE, P.A. DADELAND CENTRE II -9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569016 - MIAMI, FLORIDA 33156 - (305) 250-6300 - (905) 373-2294 FAX