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Filing # 61400531 E-Filed 09/06/2017 04:02:00 PM
DJs:hme
IN THE CIRCUIT COURT OF THE
11TH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 17-014926 CA 01 (31)
XIOMARA LLERENA AND.
ROBERTO LLERENA ,
Plaintiffs,
vs.
QUINTANA FAMILY DAY CARE HOME
d/b/a LEARNING AND GROWING FAMILY
CHILD CARE,
Defendants.
/
DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND
DEMAND FOR JURY TRIAL TO PLAINTIFF’S COMPLAINT
Defendant, QUINTANA FAMILY DAY CARE HOME d/b/a LEARNING AND
GROWING FAMILY CARE CENTER, 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 Plaintiffs’ Complaint, as follows:
ANSWER
1. Defendant, QUINTANA FAMILY DAY CARE HOME d/b/a LEARNING AND
GROWING FAMILY CARE CENTER, denies each and every allegation contained in
Plaintiffs’ Complaint.AFFIRMATIVE DEFENSES
1. The Complaint fails to state a cause of action as it does not specifically state
ultimate facts as to the alleged dangerous condition or knowledge thereof on the part of
this Defendant.
2. The Plaintiff was guilty of negligence, which negligence was the sole and
legal cause of the accident described in the Complaint, thereby barring all claims, or in the
alternative, such negligence contributed to the accident and alleged damages, thus
requiring an apportionment of Plaintiffs’ damages according to Plaintiffs’ degree of fault.
Furthermore, to the extent Plaintiff was under the influence of any alcoholic beverage or
drug and was more than 50% at fault for his own harm, Plaintiffs claim would be barred
by Section 768.36, Florida Statutes.
3. 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, the 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 parties that may be liable are the co-defendants named in this or any
prior or subsequent complaint, and this defendant incorporates by reference the allegations
made against them in the complaint. Should the Plaintiff settle with or dismiss any or all of
these named co-defendants, then the defendant would adopt and incorporate these same
allegations against them.
The subject non-parties that may be liable are UNKNOWN.4. Plaintiff has received or is entitled to receive payments from collateral
sources as identified by section 768.76, Florida Statutes. To the extent that subrogation
rights do not exist or have been waived, the Defendant is entitled to a set-off for any
collateral sources paid to or on behalf of the Plaintiff and/or as allowed by Section
768.041, Florida Statutes.
5. The accident in question and damages alleged were proximately caused by
the negligence of other persons and/or entities not subject to this Defendant's control. In
accordance with section 768.81, Florida Statutes, the Defendant is entitled to an
apportionment of fault and an apportionment of damages under the modification of the
Doctrine of Joint and Several Liability.
6. Plaintiffs failed to mitigate or minimize their damages, if any.
7. The Defendant is entitled to a set-off of all sums or money, settlement,
judgment or otherwise received by the Plaintiff from any other party or non-party to this
action.
8. The cause of any damages to Plaintiffs was open and obvious and Plaintiff
expressly assumed the ordinary risk incident to this. The accident and damages
complained of by Plaintiff in this Complaint was due to the ordinary risk expressly assumed
by the Plaintiff.
9. The Plaintiff voluntarily used the subject premises knowing of the risks, if
any, incidental to use and therefore assumed all ordinary risks. Additionally, if the plaintiff
is a tenant or guest or family of the tenant, the claim is barred or reduced by Section 83.52,
Florida Statutes.10. Plaintiff, XIOMARA LLERENA, failed to take ordinary and reasonable care in
conducting herself on the premises. Plaintiff's failure to use all ordinary care and
reasonable care was the direct and proximate cause of Plaintiff's damages.
11. This Defendant had insufficient notice regarding the problems complained of
by Plaintiff. Any and all conditions complained of by Plaintiff existed for such a short
period of time that there was no notice to this Defendant so that corrective action could be
taken. Defendant further avails itself all defenses burdens required of plaintiffs pursuant to
Section 768.0755, Florida Statutes uly 1, 2010).
12. — If discovery reveals that at the time and place of the accident complained of
Plaintiff was either a trespasser or an uninvited licensee, then Defendant would not owe
Plaintiff the duty or duties alleged in the Complaint. Furthermore, Defendant is entitled to
all defenses and immunities provided for in Section 768.075, Florida Statutes, relating to
trespassers under the influence, or discovered, or committing acts.
13. Defendant’s mode of operation/maintenance was reasonable and adequate at
its premises.
14. At the time and place complained of, person or persons not operating under
the control and consent of this Defendant so carelessly and negligently conducted
themselves so as to cause the alleged accident, injuries and damages, and such negligence
was the sole and proximate cause of the accident, thus barring all claims for damages
against the Defendant.15. The Plaintiff's damages were caused by third parties not party to this
litigation and this Defendant is entitled to have its liability reduced on a pro rata basis for
the negligence of any and all persons not parties to this litigation.
16. — Any disability, disfigurement or injury claims alleged by 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.
17. Plaintiff has not satisfied all conditions precedent to filing this suit against this
Defendant and/or the subject action is barred by the Statute of Limitations.
18. If discovery reveals Plaintiff to be a borrowed servant and/or statutory
employee, then this action and said claims are barred by the Doctrine of Worker's
Compensation Immunity, Section 440.11, Florida Statutes.
19. | Defendant avails itself of the defenses and burdens of proof required by
Plaintiff pursuant to Section 768.0755, Florida Statutes, which requires Plaintiff to prove
negligence in the maintenance, inspection, repair, warning, or mode of operation of the
premises.
20. 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.
21. Plaintiffs have failed to mitigate damages because the medical bills are not
reasonable and/or necessary; the billing is excessive; the treatment and/or billing was not
casually related to the accident; the medical providers have engaged in conduct (excessive
billing or treatment) which was not reasonably foreseeable; Plaintiff had health insuranceand treated under a Letter of Protection which is void against public policy and Defendant
is entitled to a write-down or setoff pursuant to Section 641.3154, Florida Statutes and
Marion v. Orlando, 2009 W.L. 7582985 (Fla. Cir. Ct. 2009); plaintiff is a Medicare
beneficiary, then defendant is entitled to a write-down or setoff under the Medicare fee
schedule.
22. 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.
23. 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.
24. This defendant did not have possession or otherwise exclusive possession
was had by others not subject to this defendant's control. Therefore, the exclusivity of
possession defense relieves this defendant of any liability or duty.
25. The collateral source rule is no longer applicable, because the Patient
Protection and Affordable Care Act mandates that all persons obtain health insurance.
Therefore, evidence relating to collateral source benefits received in the past and availablein the future to Plaintiff's statutory survivors is admissible and such collateral source
benefits shall offset and reduce any past or future economic damages awarded.
26. To the extent that Plaintiff's statutory survivors fail to comply with the mandate
of the Patient Protection and Affordable Care Act to obtain health insurance, Plaintiff's
survivors have failed to mitigate their damages and Plaintiff's recovery must be reduced by
the amount attributable to such failure.
27. To the extent Defendant is found to be at fault, which fault is specifically
denied, it is entitled to an apportionment of damages, if any, in accordance with ' 768.81,
Florida Statutes and Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). Further, the Court shall
enter judgment against each party on the basis of such party's percentage of fault and not
on the basis of the doctrine of joint and several liability; provided that with respect to any
party whose percentage of fault equals or exceeds that of the Plaintiffs, the Court shall enter
judgment with respect to economic damages against that party on the basis of the doctrine
of joint and several liability. The subject parties that may be liable are the co-defendants
named in this or any prior or subsequent complaint, and this defendant incorporates by
reference the allegations made against them in the complaint. Should the Plaintiffs settle
with or dismiss any or all of these named co-defendants, then the defendant would adopt
and incorporate these same allegations against them.
The subject non-party that may be liable and is identifiable at this time is Keila
Alonso who is known to the Plaintiffs and parties and/or will be identified to the Plaintiffs
and parties in the normal course of discovery.
Defendant reserves the right to supplement as discovery continues.DEMAND FOR JURY TRIAL
Defendant demands a jury trial on all issues so triable.
WHEREFORE, Plaintiff should take nothing by this action and defendant should go
hence without day.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via Electronic Mail, to all counsel of record listed on the attached Service List, this 6" day
of September, 2017.
LUKS, SANTANIELLO,
PETRILLO & JONES
Attorneys for Defendant
150 W. Flagler Street, Suite 2750
Miami, FL 33130
Telephone: (305) 377-8900
Facsimile: (305) 377-8901
By: fof Heather M. Calhioan
DANIEL J. SANTANIELLO
Florida Bar No.: 860948
HEATHER M. CALHOON
Florida Bar No.: 495573
LUKSMIA-Pleadings@LS-Law.com
SERVICE LIST
Michael J. Carmona, Esq.
Friedland Law Group
1430 South Dixie Highway
Suite 305
Coral Gables, FL 33146
email@friedlandlawgroup.com
Preview
Filing # 61400531 E-Filed 09/06/2017 04:02:00 PM DJs:hme IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO.: 17-014926 CA 01 (31) XIOMARA LLERENA AND. ROBERTO LLERENA , Plaintiffs, vs. QUINTANA FAMILY DAY CARE HOME d/b/a LEARNING AND GROWING FAMILY CHILD CARE, Defendants. / DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND DEMAND FOR JURY TRIAL TO PLAINTIFF’S COMPLAINT Defendant, QUINTANA FAMILY DAY CARE HOME d/b/a LEARNING AND GROWING FAMILY CARE CENTER, 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 Plaintiffs’ Complaint, as follows: ANSWER 1. Defendant, QUINTANA FAMILY DAY CARE HOME d/b/a LEARNING AND GROWING FAMILY CARE CENTER, denies each and every allegation contained in Plaintiffs’ Complaint.AFFIRMATIVE DEFENSES 1. The Complaint fails to state a cause of action as it does not specifically state ultimate facts as to the alleged dangerous condition or knowledge thereof on the part of this Defendant. 2. The Plaintiff was guilty of negligence, which negligence was the sole and legal cause of the accident described in the Complaint, thereby barring all claims, or in the alternative, such negligence contributed to the accident and alleged damages, thus requiring an apportionment of Plaintiffs’ damages according to Plaintiffs’ degree of fault. Furthermore, to the extent Plaintiff was under the influence of any alcoholic beverage or drug and was more than 50% at fault for his own harm, Plaintiffs claim would be barred by Section 768.36, Florida Statutes. 3. 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, the 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 parties that may be liable are the co-defendants named in this or any prior or subsequent complaint, and this defendant incorporates by reference the allegations made against them in the complaint. Should the Plaintiff settle with or dismiss any or all of these named co-defendants, then the defendant would adopt and incorporate these same allegations against them. The subject non-parties that may be liable are UNKNOWN.4. Plaintiff has received or is entitled to receive payments from collateral sources as identified by section 768.76, Florida Statutes. To the extent that subrogation rights do not exist or have been waived, the Defendant is entitled to a set-off for any collateral sources paid to or on behalf of the Plaintiff and/or as allowed by Section 768.041, Florida Statutes. 5. The accident in question and damages alleged were proximately caused by the negligence of other persons and/or entities not subject to this Defendant's control. In accordance with section 768.81, Florida Statutes, the Defendant is entitled to an apportionment of fault and an apportionment of damages under the modification of the Doctrine of Joint and Several Liability. 6. Plaintiffs failed to mitigate or minimize their damages, if any. 7. The Defendant is entitled to a set-off of all sums or money, settlement, judgment or otherwise received by the Plaintiff from any other party or non-party to this action. 8. The cause of any damages to Plaintiffs was open and obvious and Plaintiff expressly assumed the ordinary risk incident to this. The accident and damages complained of by Plaintiff in this Complaint was due to the ordinary risk expressly assumed by the Plaintiff. 9. The Plaintiff voluntarily used the subject premises knowing of the risks, if any, incidental to use and therefore assumed all ordinary risks. Additionally, if the plaintiff is a tenant or guest or family of the tenant, the claim is barred or reduced by Section 83.52, Florida Statutes.10. Plaintiff, XIOMARA LLERENA, failed to take ordinary and reasonable care in conducting herself on the premises. Plaintiff's failure to use all ordinary care and reasonable care was the direct and proximate cause of Plaintiff's damages. 11. This Defendant had insufficient notice regarding the problems complained of by Plaintiff. Any and all conditions complained of by Plaintiff existed for such a short period of time that there was no notice to this Defendant so that corrective action could be taken. Defendant further avails itself all defenses burdens required of plaintiffs pursuant to Section 768.0755, Florida Statutes uly 1, 2010). 12. — If discovery reveals that at the time and place of the accident complained of Plaintiff was either a trespasser or an uninvited licensee, then Defendant would not owe Plaintiff the duty or duties alleged in the Complaint. Furthermore, Defendant is entitled to all defenses and immunities provided for in Section 768.075, Florida Statutes, relating to trespassers under the influence, or discovered, or committing acts. 13. Defendant’s mode of operation/maintenance was reasonable and adequate at its premises. 14. At the time and place complained of, person or persons not operating under the control and consent of this Defendant so carelessly and negligently conducted themselves so as to cause the alleged accident, injuries and damages, and such negligence was the sole and proximate cause of the accident, thus barring all claims for damages against the Defendant.15. The Plaintiff's damages were caused by third parties not party to this litigation and this Defendant is entitled to have its liability reduced on a pro rata basis for the negligence of any and all persons not parties to this litigation. 16. — Any disability, disfigurement or injury claims alleged by 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. 17. Plaintiff has not satisfied all conditions precedent to filing this suit against this Defendant and/or the subject action is barred by the Statute of Limitations. 18. If discovery reveals Plaintiff to be a borrowed servant and/or statutory employee, then this action and said claims are barred by the Doctrine of Worker's Compensation Immunity, Section 440.11, Florida Statutes. 19. | Defendant avails itself of the defenses and burdens of proof required by Plaintiff pursuant to Section 768.0755, Florida Statutes, which requires Plaintiff to prove negligence in the maintenance, inspection, repair, warning, or mode of operation of the premises. 20. 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. 21. Plaintiffs have failed to mitigate damages because the medical bills are not reasonable and/or necessary; the billing is excessive; the treatment and/or billing was not casually related to the accident; the medical providers have engaged in conduct (excessive billing or treatment) which was not reasonably foreseeable; Plaintiff had health insuranceand treated under a Letter of Protection which is void against public policy and Defendant is entitled to a write-down or setoff pursuant to Section 641.3154, Florida Statutes and Marion v. Orlando, 2009 W.L. 7582985 (Fla. Cir. Ct. 2009); plaintiff is a Medicare beneficiary, then defendant is entitled to a write-down or setoff under the Medicare fee schedule. 22. 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. 23. 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. 24. This defendant did not have possession or otherwise exclusive possession was had by others not subject to this defendant's control. Therefore, the exclusivity of possession defense relieves this defendant of any liability or duty. 25. The collateral source rule is no longer applicable, because the Patient Protection and Affordable Care Act mandates that all persons obtain health insurance. Therefore, evidence relating to collateral source benefits received in the past and availablein the future to Plaintiff's statutory survivors is admissible and such collateral source benefits shall offset and reduce any past or future economic damages awarded. 26. To the extent that Plaintiff's statutory survivors fail to comply with the mandate of the Patient Protection and Affordable Care Act to obtain health insurance, Plaintiff's survivors have failed to mitigate their damages and Plaintiff's recovery must be reduced by the amount attributable to such failure. 27. To the extent Defendant is found to be at fault, which fault is specifically denied, it is entitled to an apportionment of damages, if any, in accordance with ' 768.81, Florida Statutes and Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). Further, the Court shall enter judgment against each party on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability; provided that with respect to any party whose percentage of fault equals or exceeds that of the Plaintiffs, the Court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability. The subject parties that may be liable are the co-defendants named in this or any prior or subsequent complaint, and this defendant incorporates by reference the allegations made against them in the complaint. Should the Plaintiffs settle with or dismiss any or all of these named co-defendants, then the defendant would adopt and incorporate these same allegations against them. The subject non-party that may be liable and is identifiable at this time is Keila Alonso who is known to the Plaintiffs and parties and/or will be identified to the Plaintiffs and parties in the normal course of discovery. Defendant reserves the right to supplement as discovery continues.DEMAND FOR JURY TRIAL Defendant demands a jury trial on all issues so triable. WHEREFORE, Plaintiff should take nothing by this action and defendant should go hence without day. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Electronic Mail, to all counsel of record listed on the attached Service List, this 6" day of September, 2017. LUKS, SANTANIELLO, PETRILLO & JONES Attorneys for Defendant 150 W. Flagler Street, Suite 2750 Miami, FL 33130 Telephone: (305) 377-8900 Facsimile: (305) 377-8901 By: fof Heather M. Calhioan DANIEL J. SANTANIELLO Florida Bar No.: 860948 HEATHER M. CALHOON Florida Bar No.: 495573 LUKSMIA-Pleadings@LS-Law.com SERVICE LIST Michael J. Carmona, Esq. Friedland Law Group 1430 South Dixie Highway Suite 305 Coral Gables, FL 33146 email@friedlandlawgroup.com