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Filing # 129358596 E-Filed 06/23/2021 03:05:54 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
VENISSA DRIGGERS, as _ Personal
Representative of the Estate of DAVID B.
FLICK, Deceased,
Plaintiffs, CASE NO, 21-CA-410
vs.
MARK BARCIA, HOOTERS OF PORT
CHARLOTTE, INC., BWR NORTH PORT, LLC
d/b/a BUFFALO WINGS AND RINGS,
ATLANTA RESTAURANT PARTNERS, LLC
d/b/a TGl FRIDAYS, and JACKMONT
HOSPITALITY, INC. d/b/a TGI FRIDAYS,
Defendants.
/
PLAINTIFF’S MOTION TO STRIKE DEFENDANT, MARK BARCIA’S FIRST, EIGHTH, TENTH, AND
THIRTEENTH AFFIRMATIVE DEFENSES, OR FOR MORE DEFINITE STATEMENT
Plaintiff, VENISSA DRIGGERS, as Personal Representative of the Estate of DAVID B. FLICK,
Deceased, pursuant to Florida Law the Fabre Doctrine, and Florida Statutes §768.81, hereby moves
to strike the Defendant, MARK BARCIA’S First, Eighth, Tenth, and Thirteenth Affirmative Defenses
dated June 17, 2021, and as grounds, Plaintiffs would state as follows:
1. On or about June 17, 2021, the Defendant, MARK BARCIA, filed his Answer and Affirmative
Defenses. See Exhibit 1 attached hereto.
2. In the Defendant, MARK BARCIA’S First Affirmative Defense, he did not allege the identity of
the Fabre Defendant(s) nor the factual basis. The Defendant merely alleges as follows:
As a first affirmative defense, Defendant asserts that if decedent was injured as alleged,
Page |said injuries were proximately caused by the acts or forces of third parties not under
the control of this Defendant, and therefore, Plaintiff is barred from recovery against
Defendant, or else Defendant’s exposure is limited to his degree of fault pursuant to
Section 768.81, Fla. Stat., and Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).
3. Such vague allegations are precluded by §768.81(3)(a) and (b), Fla. Stat., and the Florida
Supreme Court rulings in D’Angelo v. Fitzmaurice, 863 So.2d 311 (Fla. 2003), and in Nash v. Wells
Fargo, 678 So.2d 1262, 1264 (Fla. 1996), as well as the Second District decisions in Clark v.
Hargraves, 753 So.2d 138, 143-143 (Fla. 2d DCA 2000) and E.H.P. v. Cousin, 654 So.2d 976 (Fla. 2d
DCA 1995), as well as Lagueux v. Union Carbide, 861 So.2d 87 (Fla. 4** DCA 2003) (in order to plead
§768.81 apportionment of liability to a non-party, the defendant must “specifically identify the
non-party”); Snoozy v. U.S. Gypsum, 695 So.2d 767, 769 (Fla. 3d DCA 1997) (improper to seek fault-
apportionment to unidentified “others”); Thomas v. Daniel, 736 So.2d 100 (Fla. 1st DCA 1999) and
Loureiro v. Pools by Greg, Inc., 698 So.2d 1262 (Fla. 4" DCA 1997), all of which hold that a party
cannot seek to shift blame to a non-party without specifically identifying the non-party who is
alleged to be at fault and describing that non-party’s acts or omissions. Indeed, because the whole
purpose of the “Fabre” doctrine is to ensure that if a negligent non-party is partly to blame for an
injury, then the Plaintiff has the opportunity to add that party as a defendant, Defendants’ failure
to identify the alleged “Fabre” non-party(ies) and describe what he/she/they may have done or
failed to do, defeats the entire purpose of the fault-apportionment doctrine.
4. In the Defendant, MARK BARCIA’S Ninth Affirmative, the Defendant asserts the Plaintiff
“failed to satisfy all conditions precedent...” but fails to state what conditions precedent.
5. In the Defendant, MARK BARCIA’S Tenth and Thirteenth Affirmative Defense, he fails to
state any facts in support of his affirmative defense regarding “intervening medical condition” and
“independent and/or intervening cause.”
Page 26. Just as a Plaintiff must allege ultimate facts in a Complaint, Fla. R. Civ. P. 1.110(6) requires
that a Defendant allege ultimate facts showing that it is entitled to relief.
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order
striking Defendant, MARK BARCIA’S First, Eighth, Tenth, and Thirteenth Affirmative Defenses, for
more definite statement, granting attorney’s fees and costs to Plaintiff for bringing this motion and
for such other relief as the Court deems proper.
CERTIFICATE OF SERVICE
| HEREBY CERTIFIY that a copy of the foregoing has been furnished via Electronic Mail on the
234 day of June, 2021, to Laurie J. Adams, 515 North Flagler Drive, Suite 1800, West Palm Beach, FL
33401; Howard W Holden, Esq, Luks, Santaniello, Petrillo & Jones, 1422 Hendry St., 3rd Floor, Fort
Myers, FL 33901; James F. Sposato, Esq., Ritter Chusid, LLP, 5850 Coral Ridge Dr., Ste. 201, Coral
Springs, FL 33076.
SPIVEY LAW FIRM
PERSONAL INJURY ATTORNEYS, P.A.
13400 Parker Commons Boulevard
Fort Myers, FL 33912
Phone: (239) 337-7483
Fax: (239) 337-7484
By
RANDALL L. SPIVEY
Florida Bar No. 0064742
Randall@spiveylaw.com
Page 3Filing # 129004982 E-Filed 06/17/2021 07:54:58 PM
EXHIBIT 1
IN THE CIRCUIT COURT OF THE
TWENTIETH JUDICIAL CIRCUIT IN AND
FOR CHARLOTTE COUNTY, FLORIDA
CASE NO.: 210000410CA
VENISSA DRIGGERS, as Personal Representative
Of the Estate of DAVID B. FLICK, Deceased,
Plaintiff,
vs.
MARK BARCIA, HOOTERS OF PORT CHARLOTTE,
INC., BWR NORTH PORT, LLC d/b/a BUFFALO WINGS
AND RINGS, ATLANTA RESTAURANT PARTNERS, LLC
d/b/a TGI FRIDAYS, and JACKMONT HOSPITALITY, INC.
d/b/a TGI FRIDAYS,
Defendants.
DEFENDANT, MARK BARCIA’S
ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW, the Defendant, MARK BARCIA (hereinafter “Defendant”), by and
through the undersigned counsel, hereby files his Answer and Affirmative Defenses in response
to Plaintiff, VENISSA DRIGGERS’, as Personal Representative of the Estate of DAVID B.
FLICK (“Plaintiff”), Complaint, and states as follows:
1. Admitted for jurisdictional purposes only; otherwise denied. Strict proof is demanded
thereof.
2. Without knowledge; therefore, denied. Strict proof is demanded thereof.
3. a.-b. Without knowledge; therefore, denied. Strict proof is demanded thereof.
4. Without knowledge; therefore, denied. Strict proof is demanded thereof.
5. Without knowledge; therefore, denied. Strict proof is demanded thereof.
6. Admitted.Charlotte County Circuit Court
Case No. 21000410CA
28.
29.
Without knowledge; tl
Without knowledge; tl
Without knowledge; tl
Without knowledge; tl
Without knowledge; tl
Without knowledge; tl
Without knowledge; tl
Without knowledge; tl
erefore, denied.
cre)
erefore, denied.
cre)
erefore, denied.
cre)
erefore, denied.
cre)
ore, denied.
ore, denied.
ore, denied.
ore, denied.
Objection:
Objection:
Objection:
Objection:
Objection:
Objection:
Objection:
Objection:
Objection:
Objection:
Objection:
Objection:
Objection:
Objection:
Objection:
Defendant asserts his Fift
Defendant asserts his Fift
Defendant asserts his Fift
Defendant asserts his Fift
Defendant asserts his Fift
Defendant asserts his Fift
Defendant asserts his Fift
Defendant asserts his Fift
Defendant asserts his Fift
Defendant asserts his Fift
Defendant asserts his Fift
Defendant asserts his Fift
Defendant asserts his Fift
Defendant asserts his Fift
Defendant asserts his Fift
Driggers v. Barcia, et al.
Strict proof is demanded thereof.
Strict proo:
Strict proof is demanded thereof.
Strict proo:
Strict proof is demanded thereof.
Strict proo:
Strict proof is demanded thereof.
Strict proo:
Amendment Privi
Amendment Privi
Amendment Privi
Amendment Privi
Amendment Privi
Amendment Privi
Amendment Privi
Amendment Privi
Amendment Privi
Amendment Privi
Amendment Privi
Amendment Privi
Amendment Privi
Amendment Privi
Amendment Privi
Page 2 of 10
is demanded thereof.
is demanded thereof.
is demanded thereof.
is demanded thereof.
lege.
lege.
lege.
lege.
lege.
lege.
lege.
lege.
lege.
lege.
lege.
lege.
lege.
lege.
lege.Charlotte County Circuit Court
Case No. 21000410CA Driggers v. Barcia, et al.
30. Objection: Defendant asserts his Fifth Amendment Privilege.
31. | Objection: Defendant asserts his Fifth Amendment Privilege.
COUNTI
WRONGFUL DEATH NEGLIGENCE AS TO DEFENDANT, MARK BARCIA
32. Objection. Defendant asserts his fifth amendment privilege.
33. Objection: Defendant asserts his Fifth Amendment Privilege.
34. Objection: Defendant asserts his Fifth Amendment Privilege.
35. Objection: Defendant asserts his Fifth Amendment Privilege.
36. a.-d. Denied. Strict proof is demanded thereof.
COUNT
WRONGFUL DEATH NEGLIGENCE AS TO DEFENDANT, HOOTERS OF PORT
CHARLOTTE, INC.
37. Objection. Defendant asserts his fifth amendment privilege.
38. Objection. Defendant asserts his fifth amendment privilege.
39. Objection. Defendant asserts his fifth amendment privilege.
40. Objection. Defendant asserts his fifth amendment privilege.
41. This paragraph does not contain allegations against Defendant Mark Barcia; to any extent
they could be, this Defendant denies any and all allegations and demands strict proof thereof.
42. | Objection. Defendant asserts his fifth amendment privilege.
43. Objection. Defendant asserts his fifth amendment privilege
44. Objection. Defendant asserts his fifth amendment privilege.
45. Objection. Defendant asserts his fifth amendment privilege.
46. Objection. Defendant asserts his fifth amendment privilege.
Page 3 of 10Charlotte County Circuit Court
Case No. 21000410CA Driggers v. Barcia, et al.
47. a.-d. This paragraph does not contain allegations against Defendant Mark Barcia; to
any extent they could be, this Defendant denies any and all allegations and demands strict proof
thereof.
COUNT IIT
WRONGFUL DEATH NEGLIGENCE AS TO DEFENDANT, BWR NORTH PORT, LLC
d/b/a BUFFALO WING AND RIN
48. Objection. Defendant asserts his fifth amendment privilege.
49. Objection. Defendant asserts his fifth amendment privilege.
50. Objection. Defendant asserts his fifth amendment privilege.
51. Objection. Defendant asserts his fifth amendment privilege.
52. This paragraph does not contain allegations against Defendant Mark Barcia; to any extent
they could be, this Defendant denies any and all allegations and demands strict proof thereof.
53. Objection. Defendant asserts his fifth amendment privilege.
54. | Objection. Defendant asserts his fifth amendment privilege.
55. Objection. Defendant asserts his fifth amendment privilege.
56. | Objection. Defendant asserts his fifth amendment privilege.
57. Objection. Defendant asserts his fifth amendment privilege.
58. a.-d. This paragraph does not contain allegations against Defendant Mark Barcia; to
any extent they could be, this Defendant denies any and all allegations and demands strict proof
thereof.
COUNT IV
WRONGFUL DEATH NEGLIGENCE AS TO DEFENDANT, ATLANTA
RESTAURANT PARTNERS, LLC d/b/a BUFFALO WING AND RINGS
Page 4 of 10Charlotte County Circuit Court
Case No. 21000410CA
59.
60.
6l.
62.
63.
they could be, this Defendant denies any and
64.
65.
66.
67.
68.
69.
any extent they could be, this Defend
Objection. Defendant asserts his fiftl
Objection. Defendant asserts his fift
Objection. Defendant asserts his fiftl
Objection. Defendant asserts his fift
Driggers v. Barcia, et al.
amendment privilege.
amendment privilege.
amendment privilege.
amendment privilege.
This paragraph does not contain allegations against Defendant Mark Barcia; to any extent
Objection.
Objection.
Objection.
Objection.
Objection.
. Defendant asserts
. Defendant asserts
. Defendant asserts
. Defendant asserts
. Defendant asserts
is fift
is fift
is fift
is fift
is fift
all allegations and demands strict proof thereof.
amendment privilege.
amendment privilege.
amendment privilege.
amendment privilege
amendment privilege.
a.-d. This paragraph does not contain allegations against Defendant Mark Barcia; to
thereof.
70.
71.
72.
73.
74.
Objection.
Objection.
Objection.
Objection.
ant denies any and all allegations and demands strict proof
COUNT V
WRONGFUL DEATH NEGLIGENCE AS TO DEFENDANT, JACKMONT
HOSPITALITY, INC. d/b/a TGI FRIDAYS
. Defendant asserts his fift
. Defendant asserts his fift
. Defendant asserts his fift
. Defendant asserts his fift
amendment privilege.
amendment privilege.
amendment privilege.
amendment privilege.
This paragraph does not contain allegations against Defendant Mark Barcia; to any extent
they could be, this Defendant denies any and all allegations and demands strict proof thereof.
75.
Objection. Defendant asserts his fift
amendment privilege.
Page 5 of 10Charlotte County Circuit Court
Case No. 21000410CA Driggers v. Barcia, et al.
76. Objection. Defendant asserts his fifth amendment privilege.
77. Objection. Defendant asserts his fifth amendment privilege
78. Objection. Defendant asserts his fifth amendment privilege.
79. Objection. Defendant asserts his fifth amendment privilege.
80. ad. This paragraph does not contain allegations against Defendant Mark Barcia; to
any extent they could be, this Defendant denies any and all allegations and demands strict proof
thereof.
80. Each and every allegation contained in Plaintiff's Complaint not specifically admitted is
denied, and strict proof is demanded thereof.
81. This Defendant denies all allegations of recklessness, negligence, carelessness, breach of
duty, damages, and causation.
AFFIRMATIVE DEFENSES
Subject to, and without waiving the above denials or the fifth amendment privilege,
Defendant Mark Barcia asserts the following affirmative defenses:
1. As a first affirmative defense, Defendant asserts that if decedent was injured as alleged,
said injuries were proximately caused by the acts or forces of third parties not under the
control of this Defendant, and therefore, Plaintiff is barred from recovery against
Defendant, or else Defendant’s exposure is limited to his degree of fault pursuant to
Section 768.81, Fla. Stat., and Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). At this time,
such additional third-parties are unknown to Defendant. Pursuant to Nash v. Wells Fargo,
678 So, 2d 1262 (Fla. 1996), Defendant will seek an amendment to identify such third
parties as soon as practical, or in the alternative, will voluntarily withdraw this
affirmative defense.
Page 6 of 10Charlotte County Circuit Court
Case No. 21000410CA Driggers v. Barcia, et al.
2. As a second affirmative defense, Defendant specifically claims any credit or setoff to
which he is entitled or may be entitled for any payments paid or payable to the
decedent/Plaintiff herein for any damages alleged in this action from any collateral source
whatsoever.
3. As a third affirmative defense, Defendant asserts that any recovery should be reduced or
barred by any settlement, judgment, or payment of any kind by any individual or entity in
connection with the subject matter of the incident described in Plaintiff's Complaint.
4. As a fourth affirmative defense, Defendant asserts that any recovery should be reduced or
barred to the extent of available insurance coverage, including benefits available through
any guaranty association or other governmental authority available to any individual or
entity which may be wholly or partially responsible for the damages alleged in
connection with the subject matter of the incident described in Plaintiff's Complaint.
5. As a fifth affirmative defense, Defendant alleges entitlement to immunity from liability
for the amount of any deductible selected by the Plaintiff or by which Plaintiff is bound
pursuant to any applicable automobile insurance agreement providing personal injury
protection coverage.
6. As a sixth affirmative defense, Defendant pleads the benefit of all provisions of the
Florida Tort Reform Act of 1986 regarding the partial abolition of the joint and several
liability doctrines; collateral source setoffs; and the option to pay judgment over time;
and otherwise.
7. As a seventh affirmative defense, Defendant asserts that the Plaintiff has failed to plead a
proper cause of action for which relief can be granted against Defendant.
Page 7 of 10Charlotte County Circuit Court
Case No. 21000410CA Driggers v. Barcia, et al.
10.
11.
12.
13.
14.
As a eighth affirmative defense, Defendant states that he is not guilty of any negligence
which was the legal cause of loss, injury, or damage to the Plaintiff/decedent herein.
As an ninth affirmative defense, Defendant states that the Plaintiff has failed to satisfy all
conditions precedent to filing this action.
As a tenth affirmative defense, Defendant asserts that the Decedent’s damages, if any,
were solely and proximately caused by an intervening medical condition, which was not
itself the result of any negligence on the part of Defendant and, accordingly, recovery
against Defendant should be denied.
As a eleventh affirmative defense, Defendant states that the Decedent failed to use an
available and operational seatbelt, which its use would have prevented or lessened the
Plaintiffs alleged injuries, and Plaintiff’s damages, if any, should therefore be reduced
by the percentage which would have been prevented had the Decedent worn a seatbelt.
As a twelfth affirmative defense, Defendant states that the Decedent has available or was
required to maintain certain personal injury protection benefits and other collateral
sources to cover damages sought pursuant to the Florida Automobile Reparations Act and
the Plaintiff is precluded from recovering those elements of damage which were paid, are
payable or were payable by applicable or required personal injury protection benefits and
any and all other collateral sources.
As a thirteenth affirmative defense, Defendant asserts that Plaintiff's damages were
caused by an independent and/or intervening cause for which the Defendant is and was
not responsible.
As a fourteenth affirmative defense, this Defendant states that at all times material to this
action, the Decedent was himself guilty of negligence and carelessness and that this
Page 8 of 10Charlotte County Circuit Court
Case No. 21000410CA Driggers v. Barcia, et al.
negligence and carelessness was the sole proximate cause of the alleged damages herein,
and therefore the Plaintiff is barred from recovery in whole or in part against this
Defendant on the grounds of comparative negligence.
15. Defendant specifically reserves the right to allege additional affirmative defenses upon
discovery and review of additional documents and information, upon the development of
other pertinent facts as discovery progresses, and as they may present themselves in the
future.
DEMAND FOR JURY TRIAL
Defendant demands a TRIAL BY JURY of all issues so triable as a right by jury.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that a true and correct copy of the foregoing has been furnished
by E-Service to all counsel of record on the Service List below, this 17e day of _ JUNE _,
2021.
KUBICKI DRAPER.
Attorneys for Defendant, Mark Barcia
515 N. Flagler Drive, Suite 1800
West Palm Beach, Florida 33401
Telephone: (561) 615-4315
Fax: (561) 640-0524
BY: /s/ Laurie Adams
Laurie J. Adams
Florida Bar No.: 37613
Juan Arrubla
Florida Bar No.: 6201020
Page 9 of 10Charlotte County Circuit Court
Case No. 21000410CA Driggers v. Barcia, et al.
SERVICE LIST
Randall L. Spivey, Esq.,
Spivey Law Firm
Attorneys for Plaintiffs
13400 Parker Commons Blvd.,
Fort Myers, FL 33913
Randall@spiveylaw.com
James F. Sposato, Esq., Mitchell
Mitchel Chusid, Esq.
Jeffrey Glotzer, Esq.
Ritter Chusid, LLP
Attorneys for Defendant, Hooters of Port Charlotte, Inc.
5850 Coral Ridge Drive
Suite 201
Coral Springs, FL 33076
IJsposato@ritterchusid.com
mehusid@ritterchusid.com
jglotzer@ritterchusoid.com
Howard W. Holden, Esq.
Jorge W. Rodriguez-Sierra, Esq.
Jorge W. Rodriguez Sierra, Esq.
Luks, Santaniello, Petrillo & Cohen
Attorneys for Defendant BWR North Port, LLC d/b/a Buffalo Wings and Rings
1422 Hendry Street,
Third Floor
Fort Myers, FL 33901
LUKSFTM-Pleadings@I|s-law.com
Page 10 of 10
Preview
Filing # 129358596 E-Filed 06/23/2021 03:05:54 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION VENISSA DRIGGERS, as _ Personal Representative of the Estate of DAVID B. FLICK, Deceased, Plaintiffs, CASE NO, 21-CA-410 vs. MARK BARCIA, HOOTERS OF PORT CHARLOTTE, INC., BWR NORTH PORT, LLC d/b/a BUFFALO WINGS AND RINGS, ATLANTA RESTAURANT PARTNERS, LLC d/b/a TGl FRIDAYS, and JACKMONT HOSPITALITY, INC. d/b/a TGI FRIDAYS, Defendants. / PLAINTIFF’S MOTION TO STRIKE DEFENDANT, MARK BARCIA’S FIRST, EIGHTH, TENTH, AND THIRTEENTH AFFIRMATIVE DEFENSES, OR FOR MORE DEFINITE STATEMENT Plaintiff, VENISSA DRIGGERS, as Personal Representative of the Estate of DAVID B. FLICK, Deceased, pursuant to Florida Law the Fabre Doctrine, and Florida Statutes §768.81, hereby moves to strike the Defendant, MARK BARCIA’S First, Eighth, Tenth, and Thirteenth Affirmative Defenses dated June 17, 2021, and as grounds, Plaintiffs would state as follows: 1. On or about June 17, 2021, the Defendant, MARK BARCIA, filed his Answer and Affirmative Defenses. See Exhibit 1 attached hereto. 2. In the Defendant, MARK BARCIA’S First Affirmative Defense, he did not allege the identity of the Fabre Defendant(s) nor the factual basis. The Defendant merely alleges as follows: As a first affirmative defense, Defendant asserts that if decedent was injured as alleged, Page |said injuries were proximately caused by the acts or forces of third parties not under the control of this Defendant, and therefore, Plaintiff is barred from recovery against Defendant, or else Defendant’s exposure is limited to his degree of fault pursuant to Section 768.81, Fla. Stat., and Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). 3. Such vague allegations are precluded by §768.81(3)(a) and (b), Fla. Stat., and the Florida Supreme Court rulings in D’Angelo v. Fitzmaurice, 863 So.2d 311 (Fla. 2003), and in Nash v. Wells Fargo, 678 So.2d 1262, 1264 (Fla. 1996), as well as the Second District decisions in Clark v. Hargraves, 753 So.2d 138, 143-143 (Fla. 2d DCA 2000) and E.H.P. v. Cousin, 654 So.2d 976 (Fla. 2d DCA 1995), as well as Lagueux v. Union Carbide, 861 So.2d 87 (Fla. 4** DCA 2003) (in order to plead §768.81 apportionment of liability to a non-party, the defendant must “specifically identify the non-party”); Snoozy v. U.S. Gypsum, 695 So.2d 767, 769 (Fla. 3d DCA 1997) (improper to seek fault- apportionment to unidentified “others”); Thomas v. Daniel, 736 So.2d 100 (Fla. 1st DCA 1999) and Loureiro v. Pools by Greg, Inc., 698 So.2d 1262 (Fla. 4" DCA 1997), all of which hold that a party cannot seek to shift blame to a non-party without specifically identifying the non-party who is alleged to be at fault and describing that non-party’s acts or omissions. Indeed, because the whole purpose of the “Fabre” doctrine is to ensure that if a negligent non-party is partly to blame for an injury, then the Plaintiff has the opportunity to add that party as a defendant, Defendants’ failure to identify the alleged “Fabre” non-party(ies) and describe what he/she/they may have done or failed to do, defeats the entire purpose of the fault-apportionment doctrine. 4. In the Defendant, MARK BARCIA’S Ninth Affirmative, the Defendant asserts the Plaintiff “failed to satisfy all conditions precedent...” but fails to state what conditions precedent. 5. In the Defendant, MARK BARCIA’S Tenth and Thirteenth Affirmative Defense, he fails to state any facts in support of his affirmative defense regarding “intervening medical condition” and “independent and/or intervening cause.” Page 26. Just as a Plaintiff must allege ultimate facts in a Complaint, Fla. R. Civ. P. 1.110(6) requires that a Defendant allege ultimate facts showing that it is entitled to relief. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter an Order striking Defendant, MARK BARCIA’S First, Eighth, Tenth, and Thirteenth Affirmative Defenses, for more definite statement, granting attorney’s fees and costs to Plaintiff for bringing this motion and for such other relief as the Court deems proper. CERTIFICATE OF SERVICE | HEREBY CERTIFIY that a copy of the foregoing has been furnished via Electronic Mail on the 234 day of June, 2021, to Laurie J. Adams, 515 North Flagler Drive, Suite 1800, West Palm Beach, FL 33401; Howard W Holden, Esq, Luks, Santaniello, Petrillo & Jones, 1422 Hendry St., 3rd Floor, Fort Myers, FL 33901; James F. Sposato, Esq., Ritter Chusid, LLP, 5850 Coral Ridge Dr., Ste. 201, Coral Springs, FL 33076. SPIVEY LAW FIRM PERSONAL INJURY ATTORNEYS, P.A. 13400 Parker Commons Boulevard Fort Myers, FL 33912 Phone: (239) 337-7483 Fax: (239) 337-7484 By RANDALL L. SPIVEY Florida Bar No. 0064742 Randall@spiveylaw.com Page 3Filing # 129004982 E-Filed 06/17/2021 07:54:58 PM EXHIBIT 1 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO.: 210000410CA VENISSA DRIGGERS, as Personal Representative Of the Estate of DAVID B. FLICK, Deceased, Plaintiff, vs. MARK BARCIA, HOOTERS OF PORT CHARLOTTE, INC., BWR NORTH PORT, LLC d/b/a BUFFALO WINGS AND RINGS, ATLANTA RESTAURANT PARTNERS, LLC d/b/a TGI FRIDAYS, and JACKMONT HOSPITALITY, INC. d/b/a TGI FRIDAYS, Defendants. DEFENDANT, MARK BARCIA’S ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, the Defendant, MARK BARCIA (hereinafter “Defendant”), by and through the undersigned counsel, hereby files his Answer and Affirmative Defenses in response to Plaintiff, VENISSA DRIGGERS’, as Personal Representative of the Estate of DAVID B. FLICK (“Plaintiff”), Complaint, and states as follows: 1. Admitted for jurisdictional purposes only; otherwise denied. Strict proof is demanded thereof. 2. Without knowledge; therefore, denied. Strict proof is demanded thereof. 3. a.-b. Without knowledge; therefore, denied. Strict proof is demanded thereof. 4. Without knowledge; therefore, denied. Strict proof is demanded thereof. 5. Without knowledge; therefore, denied. Strict proof is demanded thereof. 6. Admitted.Charlotte County Circuit Court Case No. 21000410CA 28. 29. Without knowledge; tl Without knowledge; tl Without knowledge; tl Without knowledge; tl Without knowledge; tl Without knowledge; tl Without knowledge; tl Without knowledge; tl erefore, denied. cre) erefore, denied. cre) erefore, denied. cre) erefore, denied. cre) ore, denied. ore, denied. ore, denied. ore, denied. Objection: Objection: Objection: Objection: Objection: Objection: Objection: Objection: Objection: Objection: Objection: Objection: Objection: Objection: Objection: Defendant asserts his Fift Defendant asserts his Fift Defendant asserts his Fift Defendant asserts his Fift Defendant asserts his Fift Defendant asserts his Fift Defendant asserts his Fift Defendant asserts his Fift Defendant asserts his Fift Defendant asserts his Fift Defendant asserts his Fift Defendant asserts his Fift Defendant asserts his Fift Defendant asserts his Fift Defendant asserts his Fift Driggers v. Barcia, et al. Strict proof is demanded thereof. Strict proo: Strict proof is demanded thereof. Strict proo: Strict proof is demanded thereof. Strict proo: Strict proof is demanded thereof. Strict proo: Amendment Privi Amendment Privi Amendment Privi Amendment Privi Amendment Privi Amendment Privi Amendment Privi Amendment Privi Amendment Privi Amendment Privi Amendment Privi Amendment Privi Amendment Privi Amendment Privi Amendment Privi Page 2 of 10 is demanded thereof. is demanded thereof. is demanded thereof. is demanded thereof. lege. lege. lege. lege. lege. lege. lege. lege. lege. lege. lege. lege. lege. lege. lege.Charlotte County Circuit Court Case No. 21000410CA Driggers v. Barcia, et al. 30. Objection: Defendant asserts his Fifth Amendment Privilege. 31. | Objection: Defendant asserts his Fifth Amendment Privilege. COUNTI WRONGFUL DEATH NEGLIGENCE AS TO DEFENDANT, MARK BARCIA 32. Objection. Defendant asserts his fifth amendment privilege. 33. Objection: Defendant asserts his Fifth Amendment Privilege. 34. Objection: Defendant asserts his Fifth Amendment Privilege. 35. Objection: Defendant asserts his Fifth Amendment Privilege. 36. a.-d. Denied. Strict proof is demanded thereof. COUNT WRONGFUL DEATH NEGLIGENCE AS TO DEFENDANT, HOOTERS OF PORT CHARLOTTE, INC. 37. Objection. Defendant asserts his fifth amendment privilege. 38. Objection. Defendant asserts his fifth amendment privilege. 39. Objection. Defendant asserts his fifth amendment privilege. 40. Objection. Defendant asserts his fifth amendment privilege. 41. This paragraph does not contain allegations against Defendant Mark Barcia; to any extent they could be, this Defendant denies any and all allegations and demands strict proof thereof. 42. | Objection. Defendant asserts his fifth amendment privilege. 43. Objection. Defendant asserts his fifth amendment privilege 44. Objection. Defendant asserts his fifth amendment privilege. 45. Objection. Defendant asserts his fifth amendment privilege. 46. Objection. Defendant asserts his fifth amendment privilege. Page 3 of 10Charlotte County Circuit Court Case No. 21000410CA Driggers v. Barcia, et al. 47. a.-d. This paragraph does not contain allegations against Defendant Mark Barcia; to any extent they could be, this Defendant denies any and all allegations and demands strict proof thereof. COUNT IIT WRONGFUL DEATH NEGLIGENCE AS TO DEFENDANT, BWR NORTH PORT, LLC d/b/a BUFFALO WING AND RIN 48. Objection. Defendant asserts his fifth amendment privilege. 49. Objection. Defendant asserts his fifth amendment privilege. 50. Objection. Defendant asserts his fifth amendment privilege. 51. Objection. Defendant asserts his fifth amendment privilege. 52. This paragraph does not contain allegations against Defendant Mark Barcia; to any extent they could be, this Defendant denies any and all allegations and demands strict proof thereof. 53. Objection. Defendant asserts his fifth amendment privilege. 54. | Objection. Defendant asserts his fifth amendment privilege. 55. Objection. Defendant asserts his fifth amendment privilege. 56. | Objection. Defendant asserts his fifth amendment privilege. 57. Objection. Defendant asserts his fifth amendment privilege. 58. a.-d. This paragraph does not contain allegations against Defendant Mark Barcia; to any extent they could be, this Defendant denies any and all allegations and demands strict proof thereof. COUNT IV WRONGFUL DEATH NEGLIGENCE AS TO DEFENDANT, ATLANTA RESTAURANT PARTNERS, LLC d/b/a BUFFALO WING AND RINGS Page 4 of 10Charlotte County Circuit Court Case No. 21000410CA 59. 60. 6l. 62. 63. they could be, this Defendant denies any and 64. 65. 66. 67. 68. 69. any extent they could be, this Defend Objection. Defendant asserts his fiftl Objection. Defendant asserts his fift Objection. Defendant asserts his fiftl Objection. Defendant asserts his fift Driggers v. Barcia, et al. amendment privilege. amendment privilege. amendment privilege. amendment privilege. This paragraph does not contain allegations against Defendant Mark Barcia; to any extent Objection. Objection. Objection. Objection. Objection. . Defendant asserts . Defendant asserts . Defendant asserts . Defendant asserts . Defendant asserts is fift is fift is fift is fift is fift all allegations and demands strict proof thereof. amendment privilege. amendment privilege. amendment privilege. amendment privilege amendment privilege. a.-d. This paragraph does not contain allegations against Defendant Mark Barcia; to thereof. 70. 71. 72. 73. 74. Objection. Objection. Objection. Objection. ant denies any and all allegations and demands strict proof COUNT V WRONGFUL DEATH NEGLIGENCE AS TO DEFENDANT, JACKMONT HOSPITALITY, INC. d/b/a TGI FRIDAYS . Defendant asserts his fift . Defendant asserts his fift . Defendant asserts his fift . Defendant asserts his fift amendment privilege. amendment privilege. amendment privilege. amendment privilege. This paragraph does not contain allegations against Defendant Mark Barcia; to any extent they could be, this Defendant denies any and all allegations and demands strict proof thereof. 75. Objection. Defendant asserts his fift amendment privilege. Page 5 of 10Charlotte County Circuit Court Case No. 21000410CA Driggers v. Barcia, et al. 76. Objection. Defendant asserts his fifth amendment privilege. 77. Objection. Defendant asserts his fifth amendment privilege 78. Objection. Defendant asserts his fifth amendment privilege. 79. Objection. Defendant asserts his fifth amendment privilege. 80. ad. This paragraph does not contain allegations against Defendant Mark Barcia; to any extent they could be, this Defendant denies any and all allegations and demands strict proof thereof. 80. Each and every allegation contained in Plaintiff's Complaint not specifically admitted is denied, and strict proof is demanded thereof. 81. This Defendant denies all allegations of recklessness, negligence, carelessness, breach of duty, damages, and causation. AFFIRMATIVE DEFENSES Subject to, and without waiving the above denials or the fifth amendment privilege, Defendant Mark Barcia asserts the following affirmative defenses: 1. As a first affirmative defense, Defendant asserts that if decedent was injured as alleged, said injuries were proximately caused by the acts or forces of third parties not under the control of this Defendant, and therefore, Plaintiff is barred from recovery against Defendant, or else Defendant’s exposure is limited to his degree of fault pursuant to Section 768.81, Fla. Stat., and Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). At this time, such additional third-parties are unknown to Defendant. Pursuant to Nash v. Wells Fargo, 678 So, 2d 1262 (Fla. 1996), Defendant will seek an amendment to identify such third parties as soon as practical, or in the alternative, will voluntarily withdraw this affirmative defense. Page 6 of 10Charlotte County Circuit Court Case No. 21000410CA Driggers v. Barcia, et al. 2. As a second affirmative defense, Defendant specifically claims any credit or setoff to which he is entitled or may be entitled for any payments paid or payable to the decedent/Plaintiff herein for any damages alleged in this action from any collateral source whatsoever. 3. As a third affirmative defense, Defendant asserts that any recovery should be reduced or barred by any settlement, judgment, or payment of any kind by any individual or entity in connection with the subject matter of the incident described in Plaintiff's Complaint. 4. As a fourth affirmative defense, Defendant asserts that any recovery should be reduced or barred to the extent of available insurance coverage, including benefits available through any guaranty association or other governmental authority available to any individual or entity which may be wholly or partially responsible for the damages alleged in connection with the subject matter of the incident described in Plaintiff's Complaint. 5. As a fifth affirmative defense, Defendant alleges entitlement to immunity from liability for the amount of any deductible selected by the Plaintiff or by which Plaintiff is bound pursuant to any applicable automobile insurance agreement providing personal injury protection coverage. 6. As a sixth affirmative defense, Defendant pleads the benefit of all provisions of the Florida Tort Reform Act of 1986 regarding the partial abolition of the joint and several liability doctrines; collateral source setoffs; and the option to pay judgment over time; and otherwise. 7. As a seventh affirmative defense, Defendant asserts that the Plaintiff has failed to plead a proper cause of action for which relief can be granted against Defendant. Page 7 of 10Charlotte County Circuit Court Case No. 21000410CA Driggers v. Barcia, et al. 10. 11. 12. 13. 14. As a eighth affirmative defense, Defendant states that he is not guilty of any negligence which was the legal cause of loss, injury, or damage to the Plaintiff/decedent herein. As an ninth affirmative defense, Defendant states that the Plaintiff has failed to satisfy all conditions precedent to filing this action. As a tenth affirmative defense, Defendant asserts that the Decedent’s damages, if any, were solely and proximately caused by an intervening medical condition, which was not itself the result of any negligence on the part of Defendant and, accordingly, recovery against Defendant should be denied. As a eleventh affirmative defense, Defendant states that the Decedent failed to use an available and operational seatbelt, which its use would have prevented or lessened the Plaintiffs alleged injuries, and Plaintiff’s damages, if any, should therefore be reduced by the percentage which would have been prevented had the Decedent worn a seatbelt. As a twelfth affirmative defense, Defendant states that the Decedent has available or was required to maintain certain personal injury protection benefits and other collateral sources to cover damages sought pursuant to the Florida Automobile Reparations Act and the Plaintiff is precluded from recovering those elements of damage which were paid, are payable or were payable by applicable or required personal injury protection benefits and any and all other collateral sources. As a thirteenth affirmative defense, Defendant asserts that Plaintiff's damages were caused by an independent and/or intervening cause for which the Defendant is and was not responsible. As a fourteenth affirmative defense, this Defendant states that at all times material to this action, the Decedent was himself guilty of negligence and carelessness and that this Page 8 of 10Charlotte County Circuit Court Case No. 21000410CA Driggers v. Barcia, et al. negligence and carelessness was the sole proximate cause of the alleged damages herein, and therefore the Plaintiff is barred from recovery in whole or in part against this Defendant on the grounds of comparative negligence. 15. Defendant specifically reserves the right to allege additional affirmative defenses upon discovery and review of additional documents and information, upon the development of other pertinent facts as discovery progresses, and as they may present themselves in the future. DEMAND FOR JURY TRIAL Defendant demands a TRIAL BY JURY of all issues so triable as a right by jury. CERTIFICATE OF SERVICE I HEREBY CERTIFY, that a true and correct copy of the foregoing has been furnished by E-Service to all counsel of record on the Service List below, this 17e day of _ JUNE _, 2021. KUBICKI DRAPER. Attorneys for Defendant, Mark Barcia 515 N. Flagler Drive, Suite 1800 West Palm Beach, Florida 33401 Telephone: (561) 615-4315 Fax: (561) 640-0524 BY: /s/ Laurie Adams Laurie J. Adams Florida Bar No.: 37613 Juan Arrubla Florida Bar No.: 6201020 Page 9 of 10Charlotte County Circuit Court Case No. 21000410CA Driggers v. Barcia, et al. SERVICE LIST Randall L. Spivey, Esq., Spivey Law Firm Attorneys for Plaintiffs 13400 Parker Commons Blvd., Fort Myers, FL 33913 Randall@spiveylaw.com James F. Sposato, Esq., Mitchell Mitchel Chusid, Esq. Jeffrey Glotzer, Esq. Ritter Chusid, LLP Attorneys for Defendant, Hooters of Port Charlotte, Inc. 5850 Coral Ridge Drive Suite 201 Coral Springs, FL 33076 IJsposato@ritterchusid.com mehusid@ritterchusid.com jglotzer@ritterchusoid.com Howard W. Holden, Esq. Jorge W. Rodriguez-Sierra, Esq. Jorge W. Rodriguez Sierra, Esq. Luks, Santaniello, Petrillo & Cohen Attorneys for Defendant BWR North Port, LLC d/b/a Buffalo Wings and Rings 1422 Hendry Street, Third Floor Fort Myers, FL 33901 LUKSFTM-Pleadings@I|s-law.com Page 10 of 10