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Filing # 90127495 E-Filed 05/25/2019 01:09:37 PM
IN THE COUNTY COURT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
CIVIL DIVISION
CASE # 19-000629 CC 26
MULTIMED CARE, INC.
AIAIO ARACELYS LEYVA,
Plaintiff,
v
GEICO GENERAL
INSURANCE COMPANY,
Defendant.
/
PLAINTIFF'S MOTION TO STRIKE AFFIRMATIVE DEFENSES, OR IN THE
ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT
Plaintiff, by and through its undersigned counsel, and pursuant to Fla. R. Civ. Pro.
1.140, serves and files this Motion to Strike Affirmative Defenses, or in the alternative,
Motion for More Definite Statement and state as follows:
1. The Plaintiff filed suit against the Defendant for Personal Injury Protection
(PIP) benefits.
2. On 03/08/19 Defendant served its Answer and Affirmative Defenses to
Plaintiff's Complaint and a copy of same is attached hereto as Exhibit “A”. In addition to the
denial of averments, Defendant has attempted to set forth certain affirmative defense(s) as
more specifically delineated in Exhibit “A". The affirmative defense(s) raised by the
Defendant should be stricken since the defense(s) raised:
(i) are conclusions of law;
(ii) allege no ultimate facts in support of the defense;
(iii) are vague and lack the requisite specificity;
(iv) are procedurally improper and contain denials of the Plaintiff's allegations and/orburden of proof;
(v) as framed do not constitute matters of avoidance; and
(vi) fail to allege any facts showing that Plaintiff is not entitled to all applicable
benefits under Fla. Stat. 627.736 and/or Defendant's policy of insurance.
3. As such, it is impossible for the Plaintiff to frame a reply and/or responsive
pleading to Defendant's defenses, as pled, and same should be stricken.
4. An affirmative defense is one that admits the cause of action asserted by the
preceding pleading, but avoids liability, wholly or partly, by allegations of excuse,
justification or other matter negating liability. Florida East Coast Railway Co. v. Peters, 73
So. 151, 164 (Fla. 1916); Tropical Exterminators, Inc. v. Murray, 174 So.2d 432 (Fla. 2™
DCA 1965); Storchwerke, GMBH v. Mr. Thiessen’s Wallpapering Supplies, Inc., 538 So.2d
4382 (Fla. 5 DCA 1989); St. Paul Mercury Ins. Co. v. Coucher, 837 So.2d 483 (Fla. 5°
DCA 2002). Accordingly, a denial of averments in a Complaint should not be pleaded
affirmatively. Tropical Exterminators, Inc. v. Murray, 171 So.2d 432 (Fla. 2° DCA 1965);
Armor Elevator Co., Inc. v. Elevator Sales & Service, Inc., 309 So.2d 44 (Fla. 3° DCA
4975).
5. The principles of effective pleading apply to affirmative defenses. In that
regard, Florida has been and continues to be a notice pleading state. Fla. R. Civ. Pro.
4.110(b) requires that a pleading contain a "short and plain statement of ultimate facts."
Ultimate facts are the final resulting facts, reached by the process of logical reasoning from
detailed probative facts. Ultimate issuable facts only, as distinguished from evidentiary
facts and conclusions of law are what must be pled. This has long been and continues to
be the law of Florida. Ingram-Dekle Lbr. Co .. v. Geiger, 71 So. 552 (Fla. 1916); Barton v.
Moline Properties, 164 So. 551 (Fla. 1935); Meadary v Dalman. 69 So.2d 888 (Fla. 1954);
Williams v. Guyton, 167 So.2d 7 (Fla. 3° DCA 1964).6. Accordingly, it is axiomatic that affirmative defenses which are conclusory in
their content, lack certainty, or lack any real allegations of ultimate facts are legally
insufficient. See Caddy v. Chevy Chase Savings and Loan, Inc., 528 So.2d 136 (Fla. 4h
DCA 1988). In fact, certainty is required when pleading defenses, and pleading conclusions
of law unsupported by allegations of ultimate fact is legally insufficient. Bliss v. Carmona,
418 So.2d 1019 (Fla. 3° DCA 1982); Cady v. Chevy Chase Savings and Loan Inc., 528
$o0.2d 136, 138 (Fla. 4% DCA 1988); Thompson v. Bank of NY, 862 So.2d 768 (Fla. 4h
DCA 2003). An Affirmative Defense which is conclusory as pled and fails to set forth the
ultimate facts upon which it is based should be stricken. Valdes v. Lombert, 568 So. 2d 117
(Fla. 5 DCA 1990); Matthews Corp. v. Green's Pool Service, 584 So. 2nd 1006 (Fla. 3°¢
DCA 1990).
7. in order to sufficiently plead an affirmative defense, "the pleader must set
forth the facts in such a manner as to reasonably inform his adversary of what is proposed
to be proved in order to provide the latter with a fair opportunity to meet it and prepare his
evidence." See Zito v, Washington Federal Savings & Loan Assoc. of Miami Beach, 318
So. 2d 175, 176 (Fla. 3 DCA 1975). “Certainty is required when pleading affirmative
defenses, and pleading conclusions of law unsupported by allegations of ultimate fact is
legally insufficient." Cady v. Chevy Chase Say. & Loan Inc., 528 So. 2d 136, 138 (Fla. 4"
DCA 1988): see also Zito v. Washington Federal Savings & Loan Assoc. of Miami Beach,
318 So. 2d at 176 (stating that “the requirement of certainty will be insisted upon in the
pleading of a defense”). Further, each element of a defense recognized by law must be
pled. L.B. McLeod Construction Co. v. Cooper, 134 So. 224 (Fla. 1931); Foley v. Hialeah
Race Course, Inc., 53 So. 2d 771 (Fla. 1931). Finally, the Defendant has the burden of
proof with regard to its affirmative defense(s). See Boymer v. Birmelin, 227 So.2d 358 (Fla.
3! DCA 1969); Hattaway v. Florida Power and Light, 133 So. 2d 101 (Fla. 2"¢ DCA 1961).Accordingly, the Defendant should be required to plead them properly so that the Plaintiff is
able to form a Reply and/or responsive pleading, ascertain and narrow the issues, and so
as to allow the Plaintiff to motion the court to determine entitlement to judgment as a matter
of law, if applicable.
8. This Court should strike Defendant's First (1) affirmative defense as it fails to
provide Plaintiff with sufficient notice of the factual allegations supporting them and lacks
sufficient particularity. As such, Defendant’s First (1) affirmative defense is insufficient as a
matter of law. See case law in support thereof cited above.
9. The affirmative defense(s) raised by the Defendant fail to comply with the
requirements of Florida law as they fail to provide any facts to reasonably inform Plaintiff of
what is proposed to be proved. There is nothing in the affirmative defense(s) that would
permit the Plaintiff to know what facts, as opposed to theory and conjecture, the defense
relies upon. Plaintiff is entitled to have ultimate facts plead before framing any reply to the
affirmative defense(s). Without the ultimate facts, Plaintiff will be unable to frame any reply
that may be required under the facts as alleged by the defense(s).
40. Even if the court does not find that the affirmative defense(s) should be
stricken or dismissed, the Plaintiff is, at a minimum, entitled to have the Defendant clarify
its affirmative defense(s) pursuant to Fla. R. Ciy. Pro. 1.140(e). When pleadings are
sufficient to state a cause of action a party may nevertheless be entitled to seek
clarification by way of a motion for more definite statement under Rule 1 -140(e). Feller v.
Eau Gallie Yatch, 397 So.2d 1155 (Fla. 5% DCA 1981). This is also true even if the
allegations contain sufficient particularity to overcome a motion to dismiss under Rule
1.120(b). Manka vs Defranco's Inc., 575 So. 2d 1357 (Fla. 1% DCA 1991). Thus, the
Plaintiff in this case is entitled to have the basis of the affirmative defense(s) clarified.14. Forthe foregoing reasons, Defendant's First (1) affirmative defense must be
stricken as legally insufficient as a matter of law.
WHEREFORE, Plaintiff requests this Honorable Court for the entry of an Order
striking Defendant’s First (1) affirmative defense, and granting such additional relief as this
Court deems just and proper.
Respectfully submitted,
MAJID VOSSOUGHI, P.A.
Attorneys for Plaintiff
3620 N.W. 7" Street
Miami, Florida 33125
Telephone: (305) 642-2661
Facsimile: (305) 642-6881
ee
~~-MAUID VOSSOUGHFFT-—.
~ Fla. Bar No. 0277370
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the foregoing was sent via email
onthis 24“ day of __ hAwy 2019 to MANUEL MENDOZA, ESQ., Law Office of
Haydee De La Rosa-Tolgyesi, 2600 Douglas Road, Suite 700, Coral Gables, Florida
Syeleo com.
33134, MiamipineExhibit “A”Filing # 86130001 E-Filed 03/08/2019 05:08:56 PM
IN THE COU:
MIAMI-D:
ITY COURT, IN AND FOR
2 COUNTY, FLORIDA
Case No. 19-629-CC-26
MULTIMED CARE INC A/A/O
ARACELYS LEYVA,
Plaintiff
vs.
GEICO GENERAL INSURANCE
COMPANY,
Defendant
ANSWER AND AFFIRMATIVE DEFENSES
The Defendant, GEICO General Insurance Company, files its Answer and Affirmative
Defenses to the Complaint filed herein as follows:
ADMISSIONS
Defendant admits this Court has jurisdiction. Defendant admits that it is a corporation
qualified and licensed to do business in the State of Florida as a casualty insurance cartier, and is
actively engaged in business in Miami Dade County, Florida. Defendant issued the subject
policy of insurance in the State of Florida, which complies with all Florida statutes.
DENIALS
Defendant is without knowledge and, therefore, denies all allegations in Plaintiff's
complaint not specifically admitted above and demands strict proof thereof.
AFFIRMATIVE DEFENSES
i. Defendant states that with reference to the No-Fault benefits claimed by the Plaintiff.
payment of all reasonable expenses has been made for all necessary and related medical services
and treatment of the Plaintiff as provided by the policy and Section 627.736(a), Florida Statutes.Any services, treatment or expenses for which the Plaintiff seeks medical benefits in this litigation
are not reasonable, necessary or related under Section 627.736(a), Florida Statutes.
2. Defendant reserves the right to assert additional affirmative defenses.
DEMAND FOR JURY TRIAL
The Defendant requests a trial by jury of all triable issues.
CERTIFICATE OF SERVICE
THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
Electronic Mail on this the 8" day of March, 2019 to the following designated service email
addresses: Majid Vossoughi, Esq., Majid Vossoughi, P.A., mail@piplawsuit.com,
majid@piplawsuit.com.
LAW OFFICE OF HAYDEE DE LA ROSA-
TOLGYESI
/s/ Manuel Mendoza, Esq.
(Employees of GEICO General Insurance
Company)
Florida Bar No.: 67246
2600 Douglas Road, Suite 700
Coral Gables, FL 33134
Phone: 786-483-1800
Facsimile: 305-373-3661
Attorney for Defendant GEICO General Insurance
Service Email: Miamipipgeico@geico.com
Preview
Filing # 90127495 E-Filed 05/25/2019 01:09:37 PM IN THE COUNTY COURT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIVIL DIVISION CASE # 19-000629 CC 26 MULTIMED CARE, INC. AIAIO ARACELYS LEYVA, Plaintiff, v GEICO GENERAL INSURANCE COMPANY, Defendant. / PLAINTIFF'S MOTION TO STRIKE AFFIRMATIVE DEFENSES, OR IN THE ALTERNATIVE, MOTION FOR MORE DEFINITE STATEMENT Plaintiff, by and through its undersigned counsel, and pursuant to Fla. R. Civ. Pro. 1.140, serves and files this Motion to Strike Affirmative Defenses, or in the alternative, Motion for More Definite Statement and state as follows: 1. The Plaintiff filed suit against the Defendant for Personal Injury Protection (PIP) benefits. 2. On 03/08/19 Defendant served its Answer and Affirmative Defenses to Plaintiff's Complaint and a copy of same is attached hereto as Exhibit “A”. In addition to the denial of averments, Defendant has attempted to set forth certain affirmative defense(s) as more specifically delineated in Exhibit “A". The affirmative defense(s) raised by the Defendant should be stricken since the defense(s) raised: (i) are conclusions of law; (ii) allege no ultimate facts in support of the defense; (iii) are vague and lack the requisite specificity; (iv) are procedurally improper and contain denials of the Plaintiff's allegations and/orburden of proof; (v) as framed do not constitute matters of avoidance; and (vi) fail to allege any facts showing that Plaintiff is not entitled to all applicable benefits under Fla. Stat. 627.736 and/or Defendant's policy of insurance. 3. As such, it is impossible for the Plaintiff to frame a reply and/or responsive pleading to Defendant's defenses, as pled, and same should be stricken. 4. An affirmative defense is one that admits the cause of action asserted by the preceding pleading, but avoids liability, wholly or partly, by allegations of excuse, justification or other matter negating liability. Florida East Coast Railway Co. v. Peters, 73 So. 151, 164 (Fla. 1916); Tropical Exterminators, Inc. v. Murray, 174 So.2d 432 (Fla. 2™ DCA 1965); Storchwerke, GMBH v. Mr. Thiessen’s Wallpapering Supplies, Inc., 538 So.2d 4382 (Fla. 5 DCA 1989); St. Paul Mercury Ins. Co. v. Coucher, 837 So.2d 483 (Fla. 5° DCA 2002). Accordingly, a denial of averments in a Complaint should not be pleaded affirmatively. Tropical Exterminators, Inc. v. Murray, 171 So.2d 432 (Fla. 2° DCA 1965); Armor Elevator Co., Inc. v. Elevator Sales & Service, Inc., 309 So.2d 44 (Fla. 3° DCA 4975). 5. The principles of effective pleading apply to affirmative defenses. In that regard, Florida has been and continues to be a notice pleading state. Fla. R. Civ. Pro. 4.110(b) requires that a pleading contain a "short and plain statement of ultimate facts." Ultimate facts are the final resulting facts, reached by the process of logical reasoning from detailed probative facts. Ultimate issuable facts only, as distinguished from evidentiary facts and conclusions of law are what must be pled. This has long been and continues to be the law of Florida. Ingram-Dekle Lbr. Co .. v. Geiger, 71 So. 552 (Fla. 1916); Barton v. Moline Properties, 164 So. 551 (Fla. 1935); Meadary v Dalman. 69 So.2d 888 (Fla. 1954); Williams v. Guyton, 167 So.2d 7 (Fla. 3° DCA 1964).6. Accordingly, it is axiomatic that affirmative defenses which are conclusory in their content, lack certainty, or lack any real allegations of ultimate facts are legally insufficient. See Caddy v. Chevy Chase Savings and Loan, Inc., 528 So.2d 136 (Fla. 4h DCA 1988). In fact, certainty is required when pleading defenses, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient. Bliss v. Carmona, 418 So.2d 1019 (Fla. 3° DCA 1982); Cady v. Chevy Chase Savings and Loan Inc., 528 $o0.2d 136, 138 (Fla. 4% DCA 1988); Thompson v. Bank of NY, 862 So.2d 768 (Fla. 4h DCA 2003). An Affirmative Defense which is conclusory as pled and fails to set forth the ultimate facts upon which it is based should be stricken. Valdes v. Lombert, 568 So. 2d 117 (Fla. 5 DCA 1990); Matthews Corp. v. Green's Pool Service, 584 So. 2nd 1006 (Fla. 3°¢ DCA 1990). 7. in order to sufficiently plead an affirmative defense, "the pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence." See Zito v, Washington Federal Savings & Loan Assoc. of Miami Beach, 318 So. 2d 175, 176 (Fla. 3 DCA 1975). “Certainty is required when pleading affirmative defenses, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient." Cady v. Chevy Chase Say. & Loan Inc., 528 So. 2d 136, 138 (Fla. 4" DCA 1988): see also Zito v. Washington Federal Savings & Loan Assoc. of Miami Beach, 318 So. 2d at 176 (stating that “the requirement of certainty will be insisted upon in the pleading of a defense”). Further, each element of a defense recognized by law must be pled. L.B. McLeod Construction Co. v. Cooper, 134 So. 224 (Fla. 1931); Foley v. Hialeah Race Course, Inc., 53 So. 2d 771 (Fla. 1931). Finally, the Defendant has the burden of proof with regard to its affirmative defense(s). See Boymer v. Birmelin, 227 So.2d 358 (Fla. 3! DCA 1969); Hattaway v. Florida Power and Light, 133 So. 2d 101 (Fla. 2"¢ DCA 1961).Accordingly, the Defendant should be required to plead them properly so that the Plaintiff is able to form a Reply and/or responsive pleading, ascertain and narrow the issues, and so as to allow the Plaintiff to motion the court to determine entitlement to judgment as a matter of law, if applicable. 8. This Court should strike Defendant's First (1) affirmative defense as it fails to provide Plaintiff with sufficient notice of the factual allegations supporting them and lacks sufficient particularity. As such, Defendant’s First (1) affirmative defense is insufficient as a matter of law. See case law in support thereof cited above. 9. The affirmative defense(s) raised by the Defendant fail to comply with the requirements of Florida law as they fail to provide any facts to reasonably inform Plaintiff of what is proposed to be proved. There is nothing in the affirmative defense(s) that would permit the Plaintiff to know what facts, as opposed to theory and conjecture, the defense relies upon. Plaintiff is entitled to have ultimate facts plead before framing any reply to the affirmative defense(s). Without the ultimate facts, Plaintiff will be unable to frame any reply that may be required under the facts as alleged by the defense(s). 40. Even if the court does not find that the affirmative defense(s) should be stricken or dismissed, the Plaintiff is, at a minimum, entitled to have the Defendant clarify its affirmative defense(s) pursuant to Fla. R. Ciy. Pro. 1.140(e). When pleadings are sufficient to state a cause of action a party may nevertheless be entitled to seek clarification by way of a motion for more definite statement under Rule 1 -140(e). Feller v. Eau Gallie Yatch, 397 So.2d 1155 (Fla. 5% DCA 1981). This is also true even if the allegations contain sufficient particularity to overcome a motion to dismiss under Rule 1.120(b). Manka vs Defranco's Inc., 575 So. 2d 1357 (Fla. 1% DCA 1991). Thus, the Plaintiff in this case is entitled to have the basis of the affirmative defense(s) clarified.14. Forthe foregoing reasons, Defendant's First (1) affirmative defense must be stricken as legally insufficient as a matter of law. WHEREFORE, Plaintiff requests this Honorable Court for the entry of an Order striking Defendant’s First (1) affirmative defense, and granting such additional relief as this Court deems just and proper. Respectfully submitted, MAJID VOSSOUGHI, P.A. Attorneys for Plaintiff 3620 N.W. 7" Street Miami, Florida 33125 Telephone: (305) 642-2661 Facsimile: (305) 642-6881 ee ~~-MAUID VOSSOUGHFFT-—. ~ Fla. Bar No. 0277370 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing was sent via email onthis 24“ day of __ hAwy 2019 to MANUEL MENDOZA, ESQ., Law Office of Haydee De La Rosa-Tolgyesi, 2600 Douglas Road, Suite 700, Coral Gables, Florida Syeleo com. 33134, MiamipineExhibit “A”Filing # 86130001 E-Filed 03/08/2019 05:08:56 PM IN THE COU: MIAMI-D: ITY COURT, IN AND FOR 2 COUNTY, FLORIDA Case No. 19-629-CC-26 MULTIMED CARE INC A/A/O ARACELYS LEYVA, Plaintiff vs. GEICO GENERAL INSURANCE COMPANY, Defendant ANSWER AND AFFIRMATIVE DEFENSES The Defendant, GEICO General Insurance Company, files its Answer and Affirmative Defenses to the Complaint filed herein as follows: ADMISSIONS Defendant admits this Court has jurisdiction. Defendant admits that it is a corporation qualified and licensed to do business in the State of Florida as a casualty insurance cartier, and is actively engaged in business in Miami Dade County, Florida. Defendant issued the subject policy of insurance in the State of Florida, which complies with all Florida statutes. DENIALS Defendant is without knowledge and, therefore, denies all allegations in Plaintiff's complaint not specifically admitted above and demands strict proof thereof. AFFIRMATIVE DEFENSES i. Defendant states that with reference to the No-Fault benefits claimed by the Plaintiff. payment of all reasonable expenses has been made for all necessary and related medical services and treatment of the Plaintiff as provided by the policy and Section 627.736(a), Florida Statutes.Any services, treatment or expenses for which the Plaintiff seeks medical benefits in this litigation are not reasonable, necessary or related under Section 627.736(a), Florida Statutes. 2. Defendant reserves the right to assert additional affirmative defenses. DEMAND FOR JURY TRIAL The Defendant requests a trial by jury of all triable issues. CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Electronic Mail on this the 8" day of March, 2019 to the following designated service email addresses: Majid Vossoughi, Esq., Majid Vossoughi, P.A., mail@piplawsuit.com, majid@piplawsuit.com. LAW OFFICE OF HAYDEE DE LA ROSA- TOLGYESI /s/ Manuel Mendoza, Esq. (Employees of GEICO General Insurance Company) Florida Bar No.: 67246 2600 Douglas Road, Suite 700 Coral Gables, FL 33134 Phone: 786-483-1800 Facsimile: 305-373-3661 Attorney for Defendant GEICO General Insurance Service Email: Miamipipgeico@geico.com