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Filing # 132632173 E-Filed 08/13/2021 11:56:47 AM
IN THE CIRCUIT COURT OF THE 20" JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CASE NO.: —2020-CA-000258
DONNA EMERY,
Plaintiff,
vs.
AZPEITIA GUSTAVO
and ARELLANO BROTHERS
FRAMING COMPANY,
Defendants.
/
DEFENDANT’S MOTION FOR LEAVE TO FILE AMENDED ANSWER TO
AMENDED COMPLAINT
COMES NOW, the Defendant, ARELLANO BROTHERS FRAMING COMPANY
(“Defendant”), by and through his undersigned counsel, and files this Motion for Leave to file
Amended Answer to Amended Complaint, and in support of said motion shows the following:
1. On March 25, 2020, Plaintiff filed her Amended Complaint.
2. Defendant filed and served its Answer, including affirmative defenses on June 9,
2020.
3. Defendant seeks to amend the previously filed Answer and file their own Answer
to the Amended Complaint.
4. As such, Defendant accordingly seeks leave, pursuant to Florida Rule of Civil
Procedure 1.190, to file Defendant’s Amended Answer and Affirmative Defenses to Plaintiffs
Amended Complaint. See Exhibit B attached hereto.5. Rule 1.190(a) states that, “[l]eave of court [to amend] shall be given freely when
justice requires.”
6. Rule 1.190(e) stats that amendments may be allowed, “[a]t any time in furtherance
of justice, upon such terms as may be just.”
7. Florida courts have explained that Rule 1.190 embodies a “liberal amendment
policy” and that, in the absence of any prejudice or abuse of the privilege to amend, an amendment
should be allowed. See Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 208 n.3
(Fla. 3d DCA 2003); see also Arminger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 869
(Fla. 2d DCA 2010) (reversing denial of motion to amend and noting that “the Florida courts
follow a liberal policy with regard to the amendment of pleadings so that claims may be determined
on their merits”); EAC USA, Inc. v. Kawa, 805 So. 2d 1, 5 (Fla. 2d DCA 2001) (stating that
“[p]ublic policy favors the liberal amendment of pleadings so that cases may be decided on their
merits”) (citations omitted),
8. Here, Defendant’s proposed amendment will not result in any prejudice, Defendant
has not abused his privilege to amend, and the proposed amendments are in furtherance of justice.
9. This would be Defendant’s first amendment to his defenses to Plaintiffs Complaint
and these amendments are sought only to provide Plaintiff with notice of the particular defenses
Defendant will raise at trial.
10. Plaintiff will not be prejudiced by allowing the proposed amendment.
WHEREFORE, the Defendant, ARELLANO BROTHERS FRAMING COMPANY,
respectfully requests this Honorable Court for an entry of Order allowing this Defendant to file itsAmended Answer and Affirmative Defenses and for such other and further relief as this Court
deems just and proper.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been emailed
to: ANGELA AGOSTINO, ESQUIRE, Counsel for Plaintiff, aagostino@forthepeople.com; and
CHRISTOPHER J. BLAINE, ESQUIRE, Counsel for Co-Defendant Gustavo Azpeitia Bautista,
tpafiling@florida-law.com and mquintana@floridalaw.com; this 13" day of August, 2021.
ROBINSON PECARO & MIER, P.A.
Attorneys for Defendant Arellano Brothers
Framing Company
510 Shotgun Road, Suite 404
Sunrise, FL 33326
Tel: 954-252-7197
Fax: 954-252-7199
mschechter@lawdrive.com
kirstin@lawdrive.com
nicole@lawdrive.com
cari@lawdrive.com
By:_/s/ Marc Schechter
Marc Schechter
Florida Bar No.: 183105IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
DONNA EMERY,
Plaintiff,
vs. Case No: 2020-CA-000258
AZPEITIA GUSTAVO and ARELLANO
BROTHERS FRAMING COMPANY,
Defendants.
/
DEFENDANT’S_ AMENDED ANSWER AND AFFIRMATIVE
DEFENSES
Defendant, ARELLANO BROTHERS FRAMING COMPANY, by and through their
undersigned attorney, file Defendant’s Amended Answer and Affirmative Defenses in response to
the Plaintiff's Amended Complaint and state:
1. Defendant admits for the purposes of jurisdiction only that this is an action in which
the Plaintiff is alleging damages in excess of Thirty Thousand Dollars ($30,000.00), but Defendant
has no knowledge or information sufficient to form a belief regarding the remaining allegations in
Paragraph | of the Plaintiff's Amended Complaint, therefore they are denied.
2. Defendant has no knowledge or information sufficient to form a belief regarding the
allegation in Paragraph 2 and 11 and 13 of the Plaintiff's Amended Complaint, therefore it is
denied.
3. Defendant admits the allegations in Paragraphs 3, 4, 5, 6, 8, 10 and 16 of the
Plaintiff's Amended Complaint.
4. Defendant denies the allegation in Paragraph 7, 9, 12, 14 and 15 of the
Plaintiff's Amended Complaint and refer all questions of fact to the trier of fact.AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
(NO FAULT)
Defendant alleges entitlement to all provisions of the Florida Motor Vehicle No-Fault Law
including, but not limited to, provisions dealing with tort exemption and set-off for personal injury
protection benefits paid or payable.
SECOND AFFIRMATIVE DEFENSE
(COLLATERAL SOURCES)
At the time, date, place, and on the occasion mentioned in the Plaintiffs Amended
Complaint, the Plaintiff had available to her various collateral sources, and pursuant to the
collateral source rule, Defendants are entitled to set offs for any and all monies received as a result
of any and all collateral sources pursuant to Florida Statutes section 768.76 and 627.736.
THIRD AFFIRMATIVE DEFENSE
(SEATBELT)
At the time, date, place, and on the occasion mentioned in the Plaintiffs Amended
Complaint, the Plaintiff, had available to her safety restraint devices which the Plaintiff failed to
utilize. That any damages, are the result of the Plaintiff's own negligence and failure to utilize said
safety restraint devices.FOURTH AFFIRMATIVE DEFENSE
(THRESHOLD)
That the claim of the Plaintiff does not reach the threshold required by the Florida Motor
Vehicle No-Fault Law, Florida Statutes section 627.737(2), in that the injuries alleged by the
Plaintiff: (1) are not permanent within a reasonable degree of medical probability; (2) did not
sustain significant and permanent scarring; and/or (3) did not result in an impairment of an
important bodily function.
FIFTH AFFIRMATIVE DEFENSE
(UNREASONABLE/UNNECESSARY)
That the claim of the Plaintiff for lost wages or medical expenses is not recoverable because
they are unreasonable, unnecessary, and/or unrelated to the subject automobile accident on the
grounds that the Plaintiff does not need any future medical, chiropractic, and/or health care and
the Plaintiff is fit to work at any job classification the Plaintiff was capable of working at prior to
the subject accident.
SIXTH AFFIRMATIVE DEFENSE
(PRE-EXISTING CONDITION)
That the injuries or damages claimed by the Plaintiff in the Amended Complaint were pre-
existing at the time of the subject incident and as a result, they are neither the fault nor
responsibility of Defendants. Further, the accident averred in the Amended Complaint, did not
aggravate any such pre-existing disease, defect, or injury.
SEVENTH AFFIRMATIVE DEFENSE
(SATISFACTION)
That the claim for the Plaintiff for expenses relating to property damage is not recoverable
because the Plaintiff already received complete payment for her property damage claim arising
from the accident averred in the Amended Complaint.DEMAND FOR JURY TRIAL
Defendant further requests a Trial by jury on all issues so triable.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been emailed to: ANGELA
AGOSTINO, ESQUIRE, Counsel for Plaintiff, aagostino@forthepeople.com; and CHRISTOPHER J.
BLAINE, ESQUIRE, Counsel for Co-Defendant Gustavo Azpeitia Bautista, tpafiling@florida-law.com and
mquintana@floridalaw.com; this 13" day of August, 2021.
ROBINSON PECARO & MIER, P.A.
Attorneys for Defendant Arellano Brothers
Framing Company
510 Shotgun Road, Suite 404
Sunrise, FL 33326
Tel: 954-252-7197
Fax: 954-252-7199
mschechter@lawdrive.com
kirstin@lawdrive.com
nicole@lawdrive.com
cari@lawdrive.com
By: /s/ Mare Schechter
Mare Schechter
Florida Bar No.: 183105
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Filing # 132632173 E-Filed 08/13/2021 11:56:47 AM IN THE CIRCUIT COURT OF THE 20" JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO.: —2020-CA-000258 DONNA EMERY, Plaintiff, vs. AZPEITIA GUSTAVO and ARELLANO BROTHERS FRAMING COMPANY, Defendants. / DEFENDANT’S MOTION FOR LEAVE TO FILE AMENDED ANSWER TO AMENDED COMPLAINT COMES NOW, the Defendant, ARELLANO BROTHERS FRAMING COMPANY (“Defendant”), by and through his undersigned counsel, and files this Motion for Leave to file Amended Answer to Amended Complaint, and in support of said motion shows the following: 1. On March 25, 2020, Plaintiff filed her Amended Complaint. 2. Defendant filed and served its Answer, including affirmative defenses on June 9, 2020. 3. Defendant seeks to amend the previously filed Answer and file their own Answer to the Amended Complaint. 4. As such, Defendant accordingly seeks leave, pursuant to Florida Rule of Civil Procedure 1.190, to file Defendant’s Amended Answer and Affirmative Defenses to Plaintiffs Amended Complaint. See Exhibit B attached hereto.5. Rule 1.190(a) states that, “[l]eave of court [to amend] shall be given freely when justice requires.” 6. Rule 1.190(e) stats that amendments may be allowed, “[a]t any time in furtherance of justice, upon such terms as may be just.” 7. Florida courts have explained that Rule 1.190 embodies a “liberal amendment policy” and that, in the absence of any prejudice or abuse of the privilege to amend, an amendment should be allowed. See Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 208 n.3 (Fla. 3d DCA 2003); see also Arminger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 869 (Fla. 2d DCA 2010) (reversing denial of motion to amend and noting that “the Florida courts follow a liberal policy with regard to the amendment of pleadings so that claims may be determined on their merits”); EAC USA, Inc. v. Kawa, 805 So. 2d 1, 5 (Fla. 2d DCA 2001) (stating that “[p]ublic policy favors the liberal amendment of pleadings so that cases may be decided on their merits”) (citations omitted), 8. Here, Defendant’s proposed amendment will not result in any prejudice, Defendant has not abused his privilege to amend, and the proposed amendments are in furtherance of justice. 9. This would be Defendant’s first amendment to his defenses to Plaintiffs Complaint and these amendments are sought only to provide Plaintiff with notice of the particular defenses Defendant will raise at trial. 10. Plaintiff will not be prejudiced by allowing the proposed amendment. WHEREFORE, the Defendant, ARELLANO BROTHERS FRAMING COMPANY, respectfully requests this Honorable Court for an entry of Order allowing this Defendant to file itsAmended Answer and Affirmative Defenses and for such other and further relief as this Court deems just and proper. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been emailed to: ANGELA AGOSTINO, ESQUIRE, Counsel for Plaintiff, aagostino@forthepeople.com; and CHRISTOPHER J. BLAINE, ESQUIRE, Counsel for Co-Defendant Gustavo Azpeitia Bautista, tpafiling@florida-law.com and mquintana@floridalaw.com; this 13" day of August, 2021. ROBINSON PECARO & MIER, P.A. Attorneys for Defendant Arellano Brothers Framing Company 510 Shotgun Road, Suite 404 Sunrise, FL 33326 Tel: 954-252-7197 Fax: 954-252-7199 mschechter@lawdrive.com kirstin@lawdrive.com nicole@lawdrive.com cari@lawdrive.com By:_/s/ Marc Schechter Marc Schechter Florida Bar No.: 183105IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION DONNA EMERY, Plaintiff, vs. Case No: 2020-CA-000258 AZPEITIA GUSTAVO and ARELLANO BROTHERS FRAMING COMPANY, Defendants. / DEFENDANT’S_ AMENDED ANSWER AND AFFIRMATIVE DEFENSES Defendant, ARELLANO BROTHERS FRAMING COMPANY, by and through their undersigned attorney, file Defendant’s Amended Answer and Affirmative Defenses in response to the Plaintiff's Amended Complaint and state: 1. Defendant admits for the purposes of jurisdiction only that this is an action in which the Plaintiff is alleging damages in excess of Thirty Thousand Dollars ($30,000.00), but Defendant has no knowledge or information sufficient to form a belief regarding the remaining allegations in Paragraph | of the Plaintiff's Amended Complaint, therefore they are denied. 2. Defendant has no knowledge or information sufficient to form a belief regarding the allegation in Paragraph 2 and 11 and 13 of the Plaintiff's Amended Complaint, therefore it is denied. 3. Defendant admits the allegations in Paragraphs 3, 4, 5, 6, 8, 10 and 16 of the Plaintiff's Amended Complaint. 4. Defendant denies the allegation in Paragraph 7, 9, 12, 14 and 15 of the Plaintiff's Amended Complaint and refer all questions of fact to the trier of fact.AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (NO FAULT) Defendant alleges entitlement to all provisions of the Florida Motor Vehicle No-Fault Law including, but not limited to, provisions dealing with tort exemption and set-off for personal injury protection benefits paid or payable. SECOND AFFIRMATIVE DEFENSE (COLLATERAL SOURCES) At the time, date, place, and on the occasion mentioned in the Plaintiffs Amended Complaint, the Plaintiff had available to her various collateral sources, and pursuant to the collateral source rule, Defendants are entitled to set offs for any and all monies received as a result of any and all collateral sources pursuant to Florida Statutes section 768.76 and 627.736. THIRD AFFIRMATIVE DEFENSE (SEATBELT) At the time, date, place, and on the occasion mentioned in the Plaintiffs Amended Complaint, the Plaintiff, had available to her safety restraint devices which the Plaintiff failed to utilize. That any damages, are the result of the Plaintiff's own negligence and failure to utilize said safety restraint devices.FOURTH AFFIRMATIVE DEFENSE (THRESHOLD) That the claim of the Plaintiff does not reach the threshold required by the Florida Motor Vehicle No-Fault Law, Florida Statutes section 627.737(2), in that the injuries alleged by the Plaintiff: (1) are not permanent within a reasonable degree of medical probability; (2) did not sustain significant and permanent scarring; and/or (3) did not result in an impairment of an important bodily function. FIFTH AFFIRMATIVE DEFENSE (UNREASONABLE/UNNECESSARY) That the claim of the Plaintiff for lost wages or medical expenses is not recoverable because they are unreasonable, unnecessary, and/or unrelated to the subject automobile accident on the grounds that the Plaintiff does not need any future medical, chiropractic, and/or health care and the Plaintiff is fit to work at any job classification the Plaintiff was capable of working at prior to the subject accident. SIXTH AFFIRMATIVE DEFENSE (PRE-EXISTING CONDITION) That the injuries or damages claimed by the Plaintiff in the Amended Complaint were pre- existing at the time of the subject incident and as a result, they are neither the fault nor responsibility of Defendants. Further, the accident averred in the Amended Complaint, did not aggravate any such pre-existing disease, defect, or injury. SEVENTH AFFIRMATIVE DEFENSE (SATISFACTION) That the claim for the Plaintiff for expenses relating to property damage is not recoverable because the Plaintiff already received complete payment for her property damage claim arising from the accident averred in the Amended Complaint.DEMAND FOR JURY TRIAL Defendant further requests a Trial by jury on all issues so triable. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been emailed to: ANGELA AGOSTINO, ESQUIRE, Counsel for Plaintiff, aagostino@forthepeople.com; and CHRISTOPHER J. BLAINE, ESQUIRE, Counsel for Co-Defendant Gustavo Azpeitia Bautista, tpafiling@florida-law.com and mquintana@floridalaw.com; this 13" day of August, 2021. ROBINSON PECARO & MIER, P.A. Attorneys for Defendant Arellano Brothers Framing Company 510 Shotgun Road, Suite 404 Sunrise, FL 33326 Tel: 954-252-7197 Fax: 954-252-7199 mschechter@lawdrive.com kirstin@lawdrive.com nicole@lawdrive.com cari@lawdrive.com By: /s/ Mare Schechter Mare Schechter Florida Bar No.: 183105