Preview
Filing # 136921165 E-Filed 10/20/2021 12:32:35 PM
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT, IN AND FOR
PALM BEACH COUNTY, FLORIDA
CASE NO.: 50-2021-CA-010108
MARION J. YOUNG BUTERA and
THOMAS BUTERA, her spouse
Plaintiff,
vs.
EDENS LIMITED PARTNERSHIP D/B/A
SUNSHINE SQUARE PLAZA and
THE BRIGHTVIEW LANDSCAPES, LLC
Date tot
veeiiuans,
EDENS LIMITED PARTNERSHIP D/B/A
SUNSHINE SQUARE PLAZA,
VS.
THE BRIGHTVIEW LANDSCAPES, LLC,
Cross-Defendant,
/
ANSWER, AFFIRMATIVE DEFENSES AND DEMAND FOR JURY TRIAL TO
COMPLAINT AND CROSS-CLAIM
COMES NOW Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A
SUNSHINE SQUARE PLAZA, by and through undersigned counsel, and in response to the
Complaint herein files its Answer, Affirmative Defenses, and Demand for Jury Trial, and states:
1. Paragraph 1 of the Complaint is admitted for jurisdictional purposes only;
otherwise, denied.
Pg. I
CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZA FL EDI Anning. 49.29.95 DNA
PILL. PAL DLA VUUINE TT, FL, VUOL II mDnuecy, ULL, 1Ureuieue! 12.02.00 Fit2. Paragraphs 4, 6, 7, 8, 9, 10, 11, first 13, and first 14 of the Complaint thereof are
denied and strict proof thereof is demanded.
3. Defendant is without knowledge to admit or deny the allegations of paragraphs 2,
3, 5, 12, and second 13 of the Complaint and same is therefore denied and strict proof
thereof is demanded.
4. The allegations contained in paragraphs 15-23 and second 14 of the Complaint are
directed at the Co-Defendant, and, as such, the Defendant/Cross-Plaintiff, EDENS LIMITED
PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, is not required to respond to those
allegations. However, to the extent that a response is required or, alternatively that any of the
allegations in paragraphs 15-23 and second 14 of the Complaint are directed or deemed to be
directed to the Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE
SQUARE PLAZA,, then this Defendant denies those allegations and demands strict proof thereof.
AFFIRMATIVE DEFENSES
i. This Defendant had no obligation to warn the Plaintift, ot any alieged condition or
alleged defect.
2. This Defendant neither knew nor in the exercise or reasonable care should not have
known of the potential hazard or condition of which Plaintiff complains.
3. Pursuant to applicable Florida Statutes, this Defendant is entitled to a credit or set-
off in this action for any of Plaintiffs damages for which any collateral source benefits are paid or
are payable.
Pg. 24. This Defendant is entitled to a set-off/reduction in excess of payments for amounts
received by Plaintiffs health care providers in satisfaction of medical bills with higher face
amounts; and/or amounts written off by health care providers per Goble v. Frohman, 901 So.2d
830 (Fla.2005).
5. Plaintiff was negligent and such negligence proximately caused or contributed to
the incident and damages complained of and Plaintiff is barred by the Doctrine of Comparative
Negligence from recovery herein to the extent of said negligence.
6. Plaintiff has failed to mitigate the damages claimed of, and as such, Plaintiff's
recovery, if any, should be reduced by the amount the damages complained of could have been
lessened.
7. This Defendant relies upon any defenses it may have pursuant to Florida Statute
Sections 768.31 and/or 768.81.
8. Plaintiff was negligent by failing to pay attention, failing to act reasonably, failing
to observe an open and obvious condition, failing to be aware of his surroundings, and/or failing
to aware of any warning(s) and such negligence proximately caused or contributed to the
incident and damages complained of and Piaintiff 1s barred by the Doctrine of Comparative
Negligence from recovery herein to the extent of said negligence.
9. The damages complained of are due to circumstances, conditions, or events beyond
the control of this defendant and which were unreasonable and or unforeseeable.
10. This Defendant had no notice of the condition complained of by the Plaintiff and
liability may not be imposed absent such notice.
11. Judgment shall only be entered on the basis of each party’s percentage of fault, not
nant ta Dlavida Qtatnte ThO Q1
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Pg. 312. The condition that Plaintiff alleges caused her to fall was in an open and obvious
condition and, as a result, Plaintiff is barred from recovery from this Defendant.
13. This Defendant specifically denies that the medical treatment, including diagnostic
studies, incurred by the Plaintiff after the accident was reasonable, related or necessary as the result
of the accident in question and demand strict proof thereof.
14. This Defendant specifically denies that the charges for medical treatment, including
diagnostic studies, were reasonable in amount and/or frequency and demand strict proof thereof.
15. At all times material hereto, Plaintiff was insured and/or had available health care
coverage from Medicare, Medicaid and/or health insurance. However, Plaintiffand/or her medical
providers negligently or intentionally failed to submit the medical charges to Medicare, Medicaid
and/or health insurance. Plaintiff is insured with health insurance coverage and/or Medicare and
Medicaid which inure to the benefit of this Defendant in that Plaintiff's medical providers must
submit all bills for services rendered, to the Plaintiff's Health Insurer and/or Medicare and
Medicaid and the Plaintiff's providers must accept the contracted amount in full payment of all
charges for treatment rendered. Thus, this Defendant is entitled to the benefit of the contracted
difference. See Fia. Stat 641.3154.
16. At all times material hereto, Plaintiff was insured and/or had available health care
coverage from Medicare, Medicaid and/or health insurance. However, Plaintiffand/or her medical
providers negligently or intentionally failed to submit the medical charges to Medicare, Medicaid
and/or health insurance. As such, Plaintiff has failed to mitigate his damages by failing to submit
his medical charges to Medicare, Medicaid or health insurance and/or by treating with medical
providers who failed to accept Medicare, Medicaid or health insurance.
Pg. 417. This Defendant is entitled to any and all Medicare, Medicaid and health insurance
contractual adjustments and/or write-offs and only that sum should be presented to the jury as the
actual damage incurred. Goble v Frohman 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp
v. Lasky, 868 So. 2d 547 (4th DCA 2003).
18. At the time of the accident as alleged in the Complaint, this Defendant did not
have actual or constructive knowledge of the alleged dangerous condition.
19. The sole or contributing proximate cause of the damages complained of may have
been the negligence or acts of others for whom this Defendant is not responsible including but not
limited to THE BRIGHTVIEW LANDSCAPES, LLC.
20. The sole or contributing proximate cause of the damages complained of may have
been the intervening negligence or acts of others for whom this Defendant is not responsible and/or
may be attributable to THE BRIGHTVIEW LANDSCAPES, LLC.
21. The incident alleged in the Complaint may have been caused by third persons over
whom this Defendant had no control including but not limited to THE BRIGHTVIEW
LANDSCAPES, LLC.
22. This Detendant would further atfirmativeiy aliege that although this Defendant has
denied liability to the Plaintiff, any liability found on the part of this Defendant, and any damages
awarded in favor of the Plaintiff, are subject to the Comparative Fault Provisions in Florida Statute
768.81, and this Defendant cannot be liable for more that its proportionate share of any non-
economic damages awarded. Further, pursuant to Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), any
damages awarded to the Plaintiff are subject to apportionment by the jury of the total fault of all
participants in the circumstances. Defendant states that the Plaintiff's damages, if any, must be
nannrtinnead ta hut ant THE DDICUTVIDUW TANIOOADEC TTC and je onhiant ta ananing
apportionea tO bul Tot TG DRIGHIVinbW LANDOCAL DS, LLL aia if SuDject tO ongoing
Pg. 5investigation and discovery under the principles set forth in Fabre v. Martin, 623 So. 2d 1182 (Fla.
1992) and its progeny.
WHEREFORE, Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A
SUNSHINE SQUARE PLAZA, prays this Court enter judgment against Plaintiff for costs and
such other relief this Court deems appropriate, and further demands trial by jury of all issues so
triable as a matter of right.
CROSS-CLAIM FOR COMMON LAW INDEMNITY
COMES NOW, Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A
SUNSHINE SQUARE PLAZA, by and through undersigned counsel, and hereby files this its
Cross-Claim for Common Law Indemnity against Cross-Defendant/Defendant, THE
BRIGHTVIEW LANDSCAPES, LLC and as grounds in support thereof, states as follows :
Ll. The Court has jurisdiction of the parties hereto for the reasons alleged in Plaintiffs’
Complaint and in that this action is to ancillary that of Plaintiffs. (See copy of Plaintiffs’ Complaint
attached hereto as Exhibit “A”).
2. At all times material hereto Defendant/Cross-Plaintiff, EDENS LIMITED
PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA. has been sued by the Plaintiffs for
Negligence as more fully set forth in Plaintiffs’ Complaint. (See exhibit A attached hereto).
3. At all times material Cross-Defendant/Defendant, THE BRIGHTVIEW
LANDSCAPES, LLC, was a corporation licensed to do business in the State of Florida and was in
fact doing business in Palm Beach County Florida.
Pg. 64. At all times material hereto, Cross-Defendant/Defendant, THE BRIGHTVIEW
LANDSCAPES, LLC was engaged in providing landscaping services at the Sunshine Square Plaza,
located on S.E. 18" Street, Boynton Beach, Florida (the “Premises”) and its employees were to
maintain a reasonably safe environment for individuals traversing the premises including the Plaintiff
MARION J. YOUNG BUTERA.
5. At all times material hereto, Defendant/Cross-Plaintiff, EDENS LIMITED
PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA owned the Premises but did not participate
in any way with the landscaping services for the Premises.
6. Cross Plaintiff/Defendant, Defendant/Cross-Plaintiff, EDENS LIMITED
PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA did not have any control of the landscaping
services performed by Defendant/Cross-Defendant, THE BRIGHT VIEW LANDSCAPES, LLC at the
Premises.
COUNTI
INDEMNITY BY COMMON LAW
7. Defendant/Cross-Plaintiff, _EDENS LIMITED PARTNERSHIP D/B/A
SUNSHINE SQUARE PLAZA re-alleges and adopts paragraphs | through 6 of this Crossclaim in
their entirety, and as further grounds, would show:
8. The Plaintiff, MARION J. YOUNG BUTERA claims she was on the Premises and
walked inrough a large cul out painway between bushes leading io ine parking loi When she clams
she tripped and fell due to an extended black sprinkler head protruding in the pathway on or about
March 31, 2018.
Pg.79. That at all times material hereto, Cross-Defendant/Defendant, THE BRIGHT VIEW
LANDSCAPES, LLC owed a duty to the Plaintiff MARION J. YOUNG BUTERA to ensure that the
Premises were landscaped in such a way so as to be free from any hazard or defect.
10. That while not admitting any negligence, and in fact, Cross-Plaintiff/Defendant
EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA specifically denies that
there was any negligence, that if a Jury were to find that there were any negligence, then it would be
the negligence of Cross-Defendant/Defendant, THE BRIGHTVIEW LANDSCAPES, LLC. for
breaching their duty to ensure that the Premises were landscaped in such a way so as to be free from
any hazard or defect including but not limited to an extended black sprinkler head protruding in the
pathway between bushes leading to the parking lot where the Plaintiff MARION J. YOUNG BUTERA
claims she tripped and fell as result of the extended black sprinkler head protruding in the pathway.
11. The liability of this Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP
D/B/A SUNSHINE SQUARE PLAZA for Plaintiffs’ injuries is therefore passive and only as a result
of vicarious liability for the active negligence, acts and foreseeability of Defendant/Cross-Defendant,
THE BRIGHTVIEW LANDSCAPES, LLC and therefore this Defendant/Cross-Plaintiff, EDENS
LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA 1s entitied to indemnity from
Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC for any sums it may be
required to pay Plaintiffs.
12. Accordingly, Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP
D/B/A SUNSHINE SQUARE PLAZA demands that Defendant/Cross-Defendant, THE
BRIGHTVIEW LANDSCAPES, LLC indemnify Defendant/Cross-Plaintiff, EDENS LIMITED
PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA against all claims for damages arising from
a inaidant namalainad afin Dinintiffe? Camalaint
ule inciGcine COmipiailica Or i viaimias = COnipiaint.
Pg. 813. Additionally, this Defendant/ Cross-Plaintiff, EDENS LIMITED PARTNERSHIP
D/B/A SUNSHINE SQUARE PLAZA has been required to retain undersigned counsel and pay
various other legal costs in the defense of Plaintiffs’ claims and in the prosecution of this claim for
indemnity, all to the additional damage of Defendant/Cross-Plaintiff, EDENS LIMITED
PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA.
WHEREFORE, Defendant/ Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A
SUNSHINE SQUARE PLAZA requests this Honorable Court to enter judgment against
Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC for any judgment rendered
against Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE
PLAZA., together with costs and attorneys’ fees, and any other further relief as this Honorable Court
may deem just and appropriate, and further demands Trial by Jury for all issues triable as a matter of
right.
COUNT IT
CROSS-CLAIM FOR CONTRACTUAL INDEMNITY
COMES NOW Defendant/Cross-Piaintift, EDENS LIMITED PARTNERSHIP D/B/A
SUNSHINE SQUARE PLAZA, by and through undersigned counsel and hereby files this its Cross-
Claim for Contractual Indemnity against Defendant/Cross-Defendant, THE BRIGHTVIEW
LANDSCAPES, LLC and as grounds in support thereof, states as follows:
Pg.914. Defendant/Cross-Plaintiff, .EDENS LIMITED PARTNERSHIP D/B/A
SUNSHINE SQUARE PLAZA re-alleges and adopts paragraphs | through 6 of this Crossclaim in
their entirety, and as further grounds, would show:
15. At all times material hereto Defendant/ Cross-Plaintiff, EDENS LIMITED
PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, has been sued by the Plaintiffs for injuries
more specifically alleged in Plaintiffs’ Complaint.
16. At all times material hereto Defendant/Cross-Defendant, THE BRIGHTVIEW
LANDSCAPES, LLC., was a landscaper at the Sunshine Square Plaza, located on S.E. 18" Street,
Boynton Beach, Florida (the “Premises”).
17. Upon information and belief, The Brickman Group Ltd and ValleyCrest
Landscape Companies merged to form Defendant/Cross-Defendant, THE BRIGHTVIEW
LANDSCAPES, LLC in 2016.
18. Atall times material hereto there was a Landscape Maintenance Annual Contract
(the “Agreement”) entered into between Defendant/Cross-Plaintiff, EDENS LIMITED
PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA (the “Owner”) and The Brickman
Group, Ltd (the “Contractor”) as of June i, 2015 that was that was in fuli force and effect and
performed by the Cross-Defendant/Defendant, THE BRIGHT VIEW LANDSCAPES, LLC at the
premises where the subject incident is alleged to have occurred. A copy of the Agreement is
attached hereto as Exhibit “B”.
19. At all times material hereto, the Plaintiff, MARION J. YOUNG BUTERA claims
she was on the Premises and walked through a large cut out pathway between bushes leading to the
parking lot when she claims she tripped and fell due to an extended black sprinkler head protruding in
tha nathwroe an av chant March 21 912
ule paulway Ou Or aout iiain 51, 2U10.
Pg. 1020. Pursuant to the terms and provisions of paragraph 1.B.ii of said Agreement entitled
Indemnification:
The Contractor agrees to indemnify, save, and hold Owners,
Owners’ Parties, and Owners’ officers, directors, managers,
partners and shareholders harmless of, from and against any and
all Damages arising from the Contractors’ entering into this
Agreement and/or the performance of its Work, or caused in whole
or in part by the acts, errors, or omissions of Contractor or
Contractor’s employees, agents, subcontractors, and/or
subconsultants (and except to the extent such Damages are found to
be caused by gross negligence or willful misconduct of Owners),
provided such Damages are attributable to (a) the bodily injury,
personal injury, sickness, disease and/or death of any person; (b)
injury to or loss of value to tangible personal property; or c) a
breach of this Agreement.
21. | The Agreement required the Contractor to provide all material and workmanship
shall be of good quality and suitable for their intended use. In addition, the Agreement required the
Cross-Defendant/Detendant to inspect the sprinkler in question.
22. The Complaint alleges that the employees of the Defendant/Cross-Defendant, THE
BRIGHTVIEW LANDSCAPES, LLC failed to maintain a safe clean environment and that Plaintiffs’
injuries were caused by the negligence of the actions of the employees of the Defendant/Cross-
Defendant, THE BRIGHTVIEW LANDSCAPES, LLC in creating the cut out pathway with an
exposed sprinkler head which caused the Plaintiff to be injured.
23. Accordingly, pursuant to paragraph 1.B.ii cited herein above, this Cross-
tee ea tte Be Bene ee a Ne eta
Fiamull/ verengant seeks Indemnity rom Uross velendany Velen be required
to pay Plaintiffs as a result of the Plaintiffs’ claims of damage; all conditions precedent to the filing of
this action as the Agreement may call for have been met.
Pg. 1124. Additionally, this Defendant/Cross-Plaintiff has been required to retain
undersigned counsel and pay various other legal costs in the defense of Plaintiffs’ claims and in the
prosecution of this claim for indemnity, all to the additional damage of this Defendant/ Cross-Plaintiff.
WHEREFORE, Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A
SUNSHINE SQUARE PLAZA, requests this Honorable Court to enter judgment against
Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC, for any judgment rendered
against Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE
PLAZA, together with costs and attorneys’ fees, and any other further relief as this Honorable Court
may deem just and appropriate, and further demands Trial by Jury for all issues triable as a matter of
right.
COUNT II
CROSSCLAIM FOR BREACH OF CONTRACT
COMES NOW Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A
SUNSHINE SQUARE PLAZA, by and through undersigned counsel and hereby files this its
Crossclaim for Breach of Contract against Cross-Defendant/Defendant, THE BRIGHTVIEW
LANDSCAPES, LLC and as grounds in support thereof, states as foliows:
25. Defendant/Cross-Plaintiff, _EDENS LIMITED PARTNERSHIP D/B/A
SUNSHINE SQUARE PLAZA re-alleges and adopts paragraphs | through 6 of this Crossclaim in
their entirety, and as further grounds, would show:
26. At all times material hereto Defendant/Cross-Plaintiff, EDENS LIMITED
PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, has been sued by the Plaintiffs for injuries
more specifically alleged in Plaintiffs’ Complaint.
Pg. 1227. At all times material hereto Defendant/Cross-Defendant, THE BRIGHTVIEW
LANDSCAPES, LLC., was a landscaper at the Sunshine Square Plaza, located on S.E. 18" Street,
Boynton Beach, Florida (the “Premises”).
28. Upon information and belief, The Brickman Group Ltd and ValleyCrest
Landscape Companies merged to form Cross-Defendant/Defendant THE BRIGHT VIEW
LANDSCAPES, LLC in 2016.
29. At all times material hereto there was a Landscape Maintenance Annual Contract
(the “Agreement”) entered into between Defendant/ Cross-Plaintiff, EDENS LIMITED
PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA (the “Owner”) and The Brickman
Group, Ltd (the “Contractor”) as of June 1, 2015 that was that was in full force and effect and
performed by the Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC at the
premises where the subject incident is alleged to have occurred. A copy of the Agreement is
attached hereto as Exhibit “B”.
30. At all times material hereto, the Plaintiff, MARION J. YOUNG BUTERA claims
she was on the Premises and walked through a large cut out pathway between bushes leading to the
parking lot when she ciaims she tripped and feii due to an extended black sprinkler head protruding in
the pathway on or about March 31, 2018.
31. Pursuant to the terms and provisions of paragraph 4 of said Agreement entitled
INSURANCE:
Prior to the commencement of Work, Contractor shall deliver to
Owners applicable certificates of insurance coverage in for and
substance acceptable to Owners, which shall include written
confirmation that all required premiums, fees, or other costs have
been fully paid through the Effective Date, and that Owners (or any
winutenean landaw nunnaves manana inint vantiua ncutiae
morigagee, venaer, property manager, youu veriure pariner,
Pg. 13Ofiliate entity(ies), and/or other entity designated by Owner) are
named as “Additional Insured” thereunder...
32. In addition, pursuant to the terms and provisions of ‘GENERAL CONDITIONS”
“1, INSURANCE/INDEMNIFICATION” of said Agreement:
A, Insurance:
Contractor represents, warrants, and covenants to Owners that it, and its
employees, subcontractors and subconsultants, are covered at a minimum, by the following:
Commercial General Liability Insurance: $1,000,000 each occurrence,
$2,0000,000 aggregate
(a eR oi 2 ok ik ee ok oe oe oe ao 2 OK KK aK aK A HK RK
Umbrella: $5,000,000 each occurrence, $5,000,000 aggregate
Contractor, and its employees, subcontr4actors and subconsultants, shall continue to carry such
insurance throughout the Term...
33. The Agreement required the Defendant/Cross-Defendant, THE BRIGHTVIEW
LANDSCAPES, LLC to provide insurance coverage to inure to the benefit of the Defendant/Cross-
Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA for the injuries
sustained by the Piaintifts as alieged in the Compiaint.
34, The Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC has
failed to provide insurance coverage and/or benefits to inure to the benefit of the Defendant/ Cross-
Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA for the injuries
sustained by the Plaintiffs as alleged in the Complaint.
35. Accordingly, pursuant to paragraphs cited above in Count III, this Cross-
Plaintiff/Defendant seeks recovery from Cross Defendant/Defendant for the breach of the terms of the
Anraamant ac aitad harain and fae ant one thic NafandantlOrnce Diaintiff mar he rannivad ta naw
Agreement aS Chea Werein aia 10r any Sunis wis WeiciGaniu Ur0SS-1 iain May OC Tequirea ww pay
Pg. 14Plaintiffs as a result of the Plaintiffs’ claims o damage; all conditions precedent to the filing of this
action as the Agreement may call for have been met.
36. Additionally, this Cross-Plaintiff/Defendant has been required to retain
undersigned counsel and pay various other legal costs in the defense of Plaintiffs’ claims and in the
prosecution of this claim for indemnity, all to the additional damage of this Cross-Plaintiff/Defendant.
WHEREFORE, Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A
SUNSHINE SQUARE PLAZA, requests this Honorable Court to enter judgment against
Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC, for any judgment rendered
against Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE
PLAZA, together with costs and attorneys’ fees, and any other further relief as this Honorable Court
may deem just and appropriate, and further demands Trial by Jury for all issues triable as a matter of
right.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 20th day of October 2021, I electronically filed the foregoing
document with the Clerk of Court using Florida Courts eFiling Portal. I also certify that the foregoing
document is being served this day on all counsel of record or pro se parties identified as follows, either via
transmission of Notices of Electronic Filing generated by Florida Courts ¢Filing Portal or in some other
authorized manner for those counsel or parties who are not authorized to receive electronic Notices of
Filing: Barry C. Hoffman, Esquire; Counsel for Plaintiff at Law Offices of Barry G. Hoffman Law Firm,
9045 La Fontana Boulevard, Suite 1106, Boca Raton, FL 33434; hchlawoffice@aol.com; David J. Majcak,
Esquire; Counsel for Defendant, The Brightview Landscapes, LLC, at Law Offices of Goldberg Segalla,
LLP, 222 Lakeview Avenue, Suite 800, West Palm Beach, FL 33401; dmajcak@goldbergsegalla.com;
dharrison@goldbergsegalla.ocm
LAW OFFICES OF JAMES W. KEHOE, IIT
3230 West Commercial Boulevard, Ste. 250
Fort Lauderdale, Florida 33309
Mailing Address:
P.0. Box 2503
Hartford, CT 06104-2903
Telephone No.: (954) 677-3708
Pg. 15Facsimile No.: (866) 292-4641
E-mail: MKatler@travelers.com;
EGuilbea@travelers.com;
TGruende@travelers.com
By:_/s/ Dachao Hater
MITCHELL H. KATLER, ESQUIRE
vt Dave Mevetlines AEANOD
PiOUUa Dat INUIUET. 454702
Pg. 16Filing # 133324761 E-Filed 08/26/2021 03:25:06 PM
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT, IN AND FOR PALM
BEACH COUNTY, FLORIDA.
CASE NO:
MARION J. YOUNG BUTERA and
THOMAS BUTERA, her spouse
Plaintiffs),
ws.
EDENS LIMITED PARTNERSHIP d/b/a
SUNSHINE SQUARE PLAZA and
THE BRIGHTVIEW LANDSCAPES, LLC,
Defendant(s).
COMPLAINT
COMES MOU MADION F VOTING DIVrED A 4 TOOMAG BITTE & dn nite
WU 1 2 RIUMIUIN J. CUUING DU LORS Gn BUI DU LOAN, UG
by and through her undersigned attomey, and sue the Defendants EDENS LIMITED
PARTNERSHIP d/b/a SUNSHINE SQUARE PLAZA (herein referred to as EDENS LIMITED
PARTNERSHIP) and THE BRIGHTVIEW LANDSCAPES, LLC and complain as follows:
1. This is an action for damages that exceeds the jurisdictional amount of
$30,000.00 (THIRTY THOUSAND DOLLARS ($30,000.00), along with a declaratory relief.
2. _Atall times material hereto, the Plaintiff, MARION J. YOUNG BUTERA,
was a resident of Palm Beach County, Florida and is sui-juris.
3. _Atall times material hereto, the Plaintiff, THOMAS BUTERA, was resident
of Palm Beach County, Florida and is sui-juris.
1 EXHIBIT "A"4. At all time miterial hereto, the Defendant, EDENS LIMITED
PARTNERSHIP, was a foreign corporation authorized and doing business in mmmerous locations
throughout Palm Beach County.
5. Atal time material hereto, the Defendant, BRIGHTVIEW LANDSCAPES,
LLC, was a foreign corporation authorized and doing business in numerons locations throughout.
Palm Beach County.
COUNT ONE
ACTION FOR PERSONAL INJURY
_ AGAINST DEFENDANT, EDENS LIMITED PA RTNERSHIP
6. The Plaintiff, MARION J. YOUNG BUTERA, re-adopts and re-alleges the
allegations contained in paragraphs 1 through 4 as if set forth below in full.
7. That on or about the March 31, 2018, the Defendant, EDENS LIMITED
PARTNERSHIP, owned and operated the Sunshine Square Plaza, Florida located on S.E. 18" Street,
Boynton Beach, Florida. It’s employees, within the scope of their employment, were to maintain
aclean and safe environment.
8. At the time and place aforesaid, the Plaintiff, MARION J. YOUNG BUTERA,
a business customer, exited a take-out Chinese restaurant following other business customers and
walked thenngh a laree ent ant nathway hetween shes leading to the nating lot. She could not
distinguish an extended black sprinkler head which was left protruding in the pathway which caused
her to trp and fall flat on her left side on the cement. The Defendant’s EDENS LIMITED
PARTNERSHIP employees failed to maintain a safe walkway. The Plaintiff's MARION J.YOUNG BUTERA injuries were caused by the negligence of the Defendant’s employees in their
failure to show due care for the Plaintiff's MARION J. YOUNG BUTERA’S safety. The
employee’s actions in creating the cut out pathway with an exposed sprinklethead, caused the
Plaintiff, MARION J. YOUNG BUTERA, to injure her left shoulder, requiring a shoulder
replacement :
9. ‘Thatas a direct and proximate result of thénegligent actions of the Defendant
EDENS LIMITED PARTNERSHIP employees, the Plaintiff, MARION J. YOUNG BUTERA, was
injured which resulted in serious bodily harm. The Plaintiff, MARION J. YOUNG BUTERA,
sustained a displaced and comminuted fracture of the left humeral head and neck and a permanent
metal rod in her left humerus. In particalar as a direct result of the negligence of the Defendant’s
employees, the Plaintiff, MARION J. YOUNG BUTERA, sustained injuries that included but were
not limited to a left shoulder replacement/reverse shoulder arthroplasty which caused extreme pain,
fimitation of motion and other injuries, ail of which are permanent and continuing in their nature and
were caused or activated by the accident in question.
TA ‘That as a Airant ond menwimate comlt af the pnvalase antinne nf tha Nafandanto
AV, 4112 G9 @ ULIUAL Ging PIU AUUGLy FUOUIS UA Uy CGlud¥o GUUULD UE UNL A7UIMIUGLL >
employees of the EDENS LIMITED PARTNERSHD, the Plaintiff, MARION J. YOUNG
BUTERA, has in the past and will in the future suffer or incur the following damages to wit:
@ Surgical procedares on her left shoulder, left shoulder replacemeat/reverse
shoulder arthroplasty
®) Great mental and physical pain and suffering,
(©) Shame, humiliation, embarrassment, anguish and emotional instability,
(4) —_Shehas in the past and will in the future, be required to seck medical care and© Inability to follow usual and ordinary course of recreation and social activities;
@ Physical handicap and disability and personal inconvenience;
@® ‘That she has in the past and may in the future, incur liability for doctors’ and
nurses’ hire, hospital expenses and related medical expenses, along with travel
expenses, incident to the procurement of such medical care and treatment,
® She has been rendered less able to provide a home for herself and her insband and
otherwise enjoy a normal life both now and in the future;
@ _Dimimntion of her eaming capacity and workability and loss of eamings;
WHEREFORE, the Plaintiff, MARION J. YOUNG BUTERA, demands judgment against
the Defendant, left shoulder replacement/reversc shoulder arthroplasty , for damages and sach other
and further relief as the Court may deem right and proper.
11. The Plaintiff, THOMAS BUTERA re-adopts and re-alleges the allegations
contained in paragraphs 1 through 4 as if set forth below in full.
12. Atalltimesherein mentioned, and at the present time, the Plaintiff, THOMAS
BUTERA was manicd to the Plaintiff, MARION J. YOUNG BUTERA.
13. That on or about the March 31, 2018, the Defendant, EDENS LIMITED
PARTNERSHIP, owned and opesated the Sunshine Square Plaza, Florida located on SE. 18* Street,
Boynton Beach, Florida. It’s employees, within the scope of their employment, were to maintain
Wen eeea clean and safe environment.
13. At thetime and place aforesaid, the Plaintiff, MARION J. YOUNGBUTERA,
a business customer, exited a take-out Chinese restaurant following other business customers and
walked through 2 large cut out pathway between bushes leading to the parking lot. She could not
distinguish an extended black sprinkler head which was left protruding in the pathway which caused
her to trip and fall flat on her left side on the cement.
14. Thatas a direct and proximate result of the Defendant’s, EDENS LIMITED
PARTNERSHIP'S employees actions, the Plaintiff, THOMAS BUTERA has and will continue to
be deprived of the services, society, companionship and consortium ofhis wife, Plaintiff, MARION
J. YOUNG BUTERA, and has incurred expenses for medical care and attention to her, all of which
may be reasonably be anticipated to continue into the future for an indeterminable period of time.
WHEREFORE the Plaintiff, THOMAS BUTERA demands judgement against the Defendant,
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AGA PAOIND? AGAR AAGKs 2 CORR A ANE ROSEAES 9 AUS UCU GRO GAPS OULU VUES GAILS AA LA BARA OO LLY NATED ALE
deem right and proper.
ACTION FOR. PERSONAL INJURY
15. The Plaintiff, MARION J. YOUNG BUTERA, re-adopts and re-alleges the
allegations contained in paragraphs 1 through 4 as if set forth below in full.
16. That on or about the March 31, 2018, the Defendant, BRIGHTVIEWLANDSCAPES, LLC, owned and operated the business known as Brightview Landscapes, LUC
which were hired to maintain the landscaping at the Sunshine Square Plaza, Florida located on SE.
18* Street, Boynton Beach, Florida. It’s employees, within the scope of their employment, were to
maintain a clean and safe environment.
17. Atthe time and place aforesaid, the Plaintiff, MARION J. YOUNG BUTERA,
a business customer, exited a take-out Chinese restanrant following other business customers and
walked through a large cut out pathway between bushes leading to the parking lot. She could not
distinguish an extended black sprinkler head which was left protrading in the pathway which cansed
her to trip and fall flat on her left side on the cement. The Defendant's BRIGHTVIEW
LANDSCAPES, LLC employees, failed to maintain a safe clean environment. The Plaintiff's
MARION J. YOUNG BUTERA injuries were caused by the negligence of the Defendant’s
employees in their failure to show due care for the Plaintiff's MARION J. YOUNG BUTERA’S
safety. The employee’s actions in creating the cut out pathway with an exposed sprinklerhead,
caused the Plaintiff, MARION J. YOUNG BUTERA, to injure herleft shoulder, requiring a shoulder
senlancmant
ivpucue,
18. Thatasadirect and proximateresult of the negligent actions of the Defendant
BRIGHTVIEW LANDSCAPES, LLC employees, the Plaintiff, MARION J. YOUNG BUTERA,
was injured which resulted in serious bodily harm. The Plaintiff, MARION J. YOUNG BUTERA,
saStainéd a displaced and comminuted fracture of the left humeral head and neck and a permanent
metal fod in her left lnmerus. In particular as a direct result of the negligence of the Defendant’s
employees, the Plaintiff, MARION J. YOUNG BUTERA, sustained injurics that inclnded but were
not limited to a left shoulder replacement/reverse shoulder arthroplasty which caused extreme pain,ae)
limitation of motion and other injuries, all of which are permanent and continuing in their nature and
‘were caused or activated by the accident in question.
19. Thatasa direct and proximate resalt of the careless actions of the Defendant’s
employees of the | BRIGHTVIEW LANDSCAPES, LLC, the Plaintiff, MARION J. YOUNG
BUTERA, has in the past and will in the futore suffer ar incur the following damages to wit:
@ Surgical procedures on her left shoulder, left shoulder replacement/reverse shoulder
arthroplasty.
(9) Shame, humiliation, embarrassment, anguish and emotional instability;
@ _ Shehas inthe past and will in the future, be required to seck medical care and
attention and undergo fture medical treatment for his injuries;
(© | __ Inability to follow usual and ordinary course of recreation and social dotivities;
@® That she has in the past and may in the future, incur liability for doctors’ and -
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TUISS UG, BUDPiIA CAPRADGS GU IUIAKAL TCG CApRAEAS, GLUT Wil UavGE
expénsés, incident to the procatement of such medical care and treatnient;
(1) She has been rendered less able to provide a home for herself and husband and
otherwisé enjoy a normal life both now and in the future;
@ _Dimiliution‘of tiis canting capacity and workability and loss of eamings,
WHEREFORE, the Plaintiff, MARION J. YOUNG BUTERA, demands judgement against
the Defendant, left shoulder replacement/reverse shoulder arthroplasty , for damages and such other
and finther relief as the Court may deem sight and proper.
}
{COUNT FOUR
CONSORTIUM CLAIM AGAINST -
_AGAINST.-DE
20. The Plaintiff, THOMAS BUTERA re-adopts and re-alleges the allegations
contained in paragraphs 1 through 4 as if set forth below in fall.
21. —_Atall timeshereimmentioned, and at the present time, the Plaintif£ THOMAS
BUTERA was manied to the Plaintiff, MARION J. YOUNG BUTERA.
22. ‘That on or about the March 31, 2018, the Defendant, BRIGHTVIEW
LANDSCAPES, LLC, owned and operated the business known as Brightview Landscapes, LLC
which were hired to maintain the landscaping at the Sunshine Square Plaza, Florida located on SE.
18* Street, Boynton Beach, Florida. It's employees, within the scope of their employment, were to
inaintain a clean and safe environment.
23. Atthetimeand place aforesaid, the Plaintiff, MARION J. YOUNG BUTERA,
a business customer, exited a take-out Chinese restaurant following other business customers and
walked through a large cut out pathway between bushes leading to the parkinglot. She could not
distinguish an extended black sprinkler head which waslefi protruding in the pathway which caused
her to trip and fall flat on her Jeff side on the cement.
14. That as a direct and proximate result of the Defendant's, BRIGHT VIEW
LANDSCAPES, LLC’S employees actions, the Plaintiff, THOMAS BUTERA has and will contime
to be deprived of the services, society, companionship and consortium of his wife, Plaintifé,
MARION J. YOUNG BUTERA, and has incurred expenses for medical care and attention fo her;all of which may be reasonably be anticipated to continue into the fature for an indeterminable
period of time.
WHEREFORE the Plaintiff, THOMAS BUTERA demands judgement against the Defendant,
HESS CORPORATION, for damagés and such other and farther relief as the Court may deem right
and proper.
Plaintiffs, MARION J. YOUNG BUTERA and THOMAS BUTERA, hereby demand a trial
by jury of all issues triable as a matter of law:
BARRY G. HOFFMAN LAW FIRM.
Attomeys for Plaintiffs
9045 La Fontana Boulevard, Suite 106
Boca Raton, Florida 33434
Ted: (561) 482-2000
Fax: (561)4829663DocuSign Envelope ID: 57 1ACD7E-9BB3-40BF-A36-E84B7EDEF4CB
(the “Agreement™
EDENS LIMITED PARTNERSHIP, for and on behalf of its afi -s, their successors, and/or assigns (“Owners”) (whit
collectively as each Owner noted on Exhibit“D”)and The Brickman Group, Ltd. (“Contractor”), in connection with
the properties noted on Exhibit “D” (collectively, the “Properties,” and individually, a “Property’).
A. Each Owner desire to retain Contractor for the purpose of providing certain services and/or work from time to time upon its
corresponding Property, and Contractor agrees to provide such services to Owners.
B. _Ownersand Contractor agree and acknowledge that it shall be expeditious to enter into this Agreement such that, subject tothe terms
and conditions hereof, this Agreement and its terms shall apply to and constitute the general obligations, responsibilities, and
liabilities of the parties hereto with respect to Contractor’s provision and performance of services to Owners upon the Properties
during the term hereof, as more fully herein set forth.
C. Upon the Effective Date, this Agreement shall be deemed to fally amend and restate the terms and conditions of any prior agreements
or work orders entered into between the parties, or any of them, with respect to services and/or work to be performed by Contractor,
unless expressly agreed upon in writing by the parties.
Owners and Contractor hereby agree that Owners can add or remove one, or more, of the Properties from the seope of this Agreement
upon fifteen (15) days’ notice delivered to Contractor at Contractor's Address for Notices, provided below, and such addition or
removal of a Property from the definition of “Properties” in this Agreement shall be effective fifteen (15) days from the date of such
notice.
NOW, THEREFORE, in consideration of the mutual agreements and covenants hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Owners and Contractor hereby agree to enter into this Agreement
and be bound hereby, as more fully hereinafter set forth.
1. WORK: Subject to the terms of this Agreement (which shal include the General Conditions attached hereto and made a part hereof),
‘Contractor agrees to furnish all labor, materials, and equipment to perform the services and/or work herein described (the “Work”), as follows:
[check & all applicable item(s]
2. SERVICE CONTRACT DESCRIPTION: _Landscape Maintenance Annual Contract
1X On the description of the Work entitled “Service Summary” attached hereto as Exhibit “A” and made a part hereof. Unless mutually agreed
upon by the parties, each Service Summary shall include the following, at a mi
(ii) a description of the project, including the location of the specific Property, and the Work to be provided by Contractor and the
sequences or phases of such Work to be performed, if applicable;
(iii) the fee rate(s) or schedule of feerate(s), as applicable, to be paid to Contractorby the particular Owner for the Work (including cost
breakdowns related to sequencing or phasing of services, if applicable), and any out-of-pocket expenses (ifany) to be reimbursed to
Contractor by Owner andior limitations thereon;
(iv) any such other information as may be directly pertinent to the subject Work, or which the parties mutually determine shall be
necessary or appropriate to modify or amend the tems of this Agreement for such Work, unless specifically prohibited herein.
in the event of aconilici between ihe terms of inis Agreement and each Service Summary with respectio each ofthe Properties iefermsand
conditions of the Service Summary shall prevail and control with respect to the Work to be performed on the subject Property by Contractor,
except that inno event shall the insurance requirements, limitations of Liability, or indemnity ebligations of the Parties be waived, modified or
extinguished or so deemed to be by reason of anything set forth in any sich Service Summary. Any Service Summary shall be binding and
effective between the Partics solely as and to the extent it shall have been executed by a person on behalf of Owners and/or Contractor having
authority to sign same and to legally bind Contractor in accordance with the terms and conditions hereof. Owners and Contractor agree that by
their execution hereof, each Service Summary shall be deemed amended by, and the complete integration and incorporation by reference of
this Agreement, shall each constitute a separate Valid and legal contract, subject to the terms, conditions, and other limitations set forth in of
this Agreement without the requirement of any other amendment to this Agreement or any other instrument. Such integrated documents shall
each set forth the sole and exclusive duties, obligations and liabilities of Owners with respect to the provision of service at issue and shall
amend and supersede any and all other agreements, either written or oral, between the Parties respecting the subject matter of the Service
Summary.
On the Price Sheet and Exclusions, attached hereto as Ex!
“B" and made a part hereof.
On the plans and/or specifications prepared by Hanna Turner dated June Ist, 2015
a list of which plans and/or specifications is attached hereto as Exhibit “C” and made a part hereof, a complete and correct copy of whichhas
been approved by Owners and Contractor.
CAs follows:
EXHIBIT "B'
Sd|jp— 7
(V— ‘Contractor's Initials: ful
PM INITIAL Owners’ Initials:
Date: 6/26/2015 | 9:21:29 AM ETDocuSign Envelope ID: 57 1ACD7E-9BB3-40BF-A36-E84B7EDEF4CB
3. TERM: Except as expressly set forth herein or in the General Conditions, the term of this Agreement (the “Term”) shall commence
on the Effective Date and continue until: (check 4 all applicable item(s)]
1 The thirtieth G0") day after one party receives written notice from the other of ts election to terminate this Agreement. Either party may
elect to terminate this Agreement without cause by giving such written notice to the other.
BI one (1) year(s) commencingon June 1st, 2015 andendingon May 31st, 2016
Said Term shall be automatically extended on a month-to-month basis unless either party terminates.
1D Final completion of the Work. Contractor shall commence the Work on or about,
and shall complete the Work (including all punch list items) on or before .
Time is of the essence with respect to Contractor’s performance of the Work.
4. INSURANCE: Priorto commencement of Work, Contractor shall deliver to Owners applicable certificates of insurance coverage in form
and substance acceptable to Owners, which shall include written confirmation that all required premiums, fees, or other costs have been fully
paid through the Effective Date, and that Owners (or any mortgagee, lender, property manager, joint venture partner, affiliate entity(ies), and/or
other entity designated by Owners) are named as "Additional Insured” thereunder. Owners shall also be granted waiver of subrogation and
coverage shall be primary and non-contributory. If proof of the insurance coverage required by this Agreement and/or the General Conditions
not properly submitted to Owners upon demand, or if same has been cancelled or not renewed, as the case may be, Owners may, at their
discretion (but without any affirmative obligation), in addition to any other rights and remedies available, immediately procure any such
insurance on behalf of Contractor and charge and deduct the cost thereof from any payment that may be or become due and owing to
Contractor hereunder.
5. PAYMENT: Owner's payment to Contractor shall be in accordance with, and subject to, Contractor’s performance of the Work in
accordance with this Agreement, together with the payment requirements set forth in the General Conditions. The payment terms for the
‘Work shall be as follows: [check Wall applicable item(s))
DA fixed cnmaf © nermanth durine the Term navahla in arroare within thirty (20) dave fallawine recaint of Contractors hill ar
invoice therefor. The total amount on an annualized basis shall be §, during the Term.
1D Alump sum ofS payable within thirty (30) days after final completion of the Work (including all punch list items) and acceptance
thereof by Owners. At the election of Owners and upon receipt of any progress reports or other information required by Owners, progress
payments may be made for completed portions of the Work subject to retainage of ___% until final payment.
H._Asum per month in accordance with the Price Sheet and Exclusions (Exhibit “B”) attached hereto, billed and payable separately by Property,
payable in arrears within thirty (30) days of receipt of Contractor's bill or invoice.
centering into this one Agreement, severally (ather than each entering into a separate Agreement), solely as a
involving any one or more of the Properties, each Owner shall be severally obligated to pay only for the Work attributable to its Property, and no
Owner shall be obligated to pay for any Work performed at any other Property.
6. INTEGRATION: The parties’ agreements with respect to the Work shall be comprised of this Agreement, together with the
following additional documents (if applicable) which, when taken together, shall form the entirety of the Agreement between the parties
General Conditions
Exhibit A: Service Summary (if applicable)
ExhibitB: Price Sheet and Exclusions (if applicable)
Exhibit: List of Plans and/or Specifications (if applicable)
Exhibit: List of Owners and Properties
Other: (if applicable)
IN WITNESS WHEREOF, Owners and Contractor have executed this Agreement as of the date set forth above.
EDENS LIMITED PARTNERSHIP, a Delaware
CONTRACTOR: The Brickman Group, Ltd. OWNERS: limited partnership
By: Edens GP, LLC, a Delaware limited liability
company, its sole general partner
eke aprererg SSO generl pariner _
Matthew Weinride »: | M2
5:
By:
-D2zTZUGABICBFAZE... 7 Aiea
Printed Name: Matthew Weinrich Printed Name: _Gregg Edelstein
Title: Account manager : Authorized Representative
Contractor's Address for Notices: Owners’ Address for Notices:
The Brickman Group, Ltd. clo EDENS Limited Partnership
3515 S.w. 136th Avenue, Suite 207 515 East Las Olas Boulevard, Sutic 1010
FL 33325 Fort Laudonale, FL 23204
954-476-2103 (954) 670-8990.
8
Sdjp— ul
(Sue— Contractor's Initials: uy
PM INITIAL Owners! Initi
Date: 6/26/2015 | 9:21:29 AM ETDocuSign Envelope ID: 57 1ACD7E-9BB3-40BF-A36-E84B7EDEF4CB
—©@ EDENS.
GENERAL CONDITIONS
i, INSURANCH/INDEMNIFICATIOL
A. Insurance:
Contractor represents, warrants, and covenants to Owners that it, and its employees, subcontractors and
subconsultants, are covered, at a minimum, by the following:
© Commercial General Liability Insurance: $1,000,000 each occurrence, $2,000,000 aggregate
© Workmen’s Compensation and Employee’s Liability Insurance: $500,000 each employee, $500,000
each accident, and $500,000 policy limit
© Automobile Liability Insurance: $1,000,000 single limit aggregate including coverage of non-owned
sed hina
© Professional Liability Insurance: $2,000,000 each occurrence, $5,000,000 aggregate
© Umbrella: $5,000,000 each occurrence, $5,000,000 aggregate
Contractor, and its employees, subcontractors and subconsultants, shall continue to carry such insurance throughout
the Term. Certificates of Insurance shall be provided to Owners before commencement of the Work and upon
annual renewal, if applicable.
B. Indemnification
i, ‘Owners (severally, solely to the extent of their corresponding Property as identified on Exhibit “D”, and
subject in all respects to Paragraph 16 hereof) agree to indemnify, defend, and hold Contractor harmle
Preview
Filing # 136921165 E-Filed 10/20/2021 12:32:35 PM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 50-2021-CA-010108 MARION J. YOUNG BUTERA and THOMAS BUTERA, her spouse Plaintiff, vs. EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA and THE BRIGHTVIEW LANDSCAPES, LLC Date tot veeiiuans, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, VS. THE BRIGHTVIEW LANDSCAPES, LLC, Cross-Defendant, / ANSWER, AFFIRMATIVE DEFENSES AND DEMAND FOR JURY TRIAL TO COMPLAINT AND CROSS-CLAIM COMES NOW Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, by and through undersigned counsel, and in response to the Complaint herein files its Answer, Affirmative Defenses, and Demand for Jury Trial, and states: 1. Paragraph 1 of the Complaint is admitted for jurisdictional purposes only; otherwise, denied. Pg. I CHEN. DAIAARCACUAAIINTY Cl INGEDU ARDIIV7ZA FL EDI Anning. 49.29.95 DNA PILL. PAL DLA VUUINE TT, FL, VUOL II mDnuecy, ULL, 1Ureuieue! 12.02.00 Fit2. Paragraphs 4, 6, 7, 8, 9, 10, 11, first 13, and first 14 of the Complaint thereof are denied and strict proof thereof is demanded. 3. Defendant is without knowledge to admit or deny the allegations of paragraphs 2, 3, 5, 12, and second 13 of the Complaint and same is therefore denied and strict proof thereof is demanded. 4. The allegations contained in paragraphs 15-23 and second 14 of the Complaint are directed at the Co-Defendant, and, as such, the Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, is not required to respond to those allegations. However, to the extent that a response is required or, alternatively that any of the allegations in paragraphs 15-23 and second 14 of the Complaint are directed or deemed to be directed to the Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA,, then this Defendant denies those allegations and demands strict proof thereof. AFFIRMATIVE DEFENSES i. This Defendant had no obligation to warn the Plaintift, ot any alieged condition or alleged defect. 2. This Defendant neither knew nor in the exercise or reasonable care should not have known of the potential hazard or condition of which Plaintiff complains. 3. Pursuant to applicable Florida Statutes, this Defendant is entitled to a credit or set- off in this action for any of Plaintiffs damages for which any collateral source benefits are paid or are payable. Pg. 24. This Defendant is entitled to a set-off/reduction in excess of payments for amounts received by Plaintiffs health care providers in satisfaction of medical bills with higher face amounts; and/or amounts written off by health care providers per Goble v. Frohman, 901 So.2d 830 (Fla.2005). 5. Plaintiff was negligent and such negligence proximately caused or contributed to the incident and damages complained of and Plaintiff is barred by the Doctrine of Comparative Negligence from recovery herein to the extent of said negligence. 6. Plaintiff has failed to mitigate the damages claimed of, and as such, Plaintiff's recovery, if any, should be reduced by the amount the damages complained of could have been lessened. 7. This Defendant relies upon any defenses it may have pursuant to Florida Statute Sections 768.31 and/or 768.81. 8. Plaintiff was negligent by failing to pay attention, failing to act reasonably, failing to observe an open and obvious condition, failing to be aware of his surroundings, and/or failing to aware of any warning(s) and such negligence proximately caused or contributed to the incident and damages complained of and Piaintiff 1s barred by the Doctrine of Comparative Negligence from recovery herein to the extent of said negligence. 9. The damages complained of are due to circumstances, conditions, or events beyond the control of this defendant and which were unreasonable and or unforeseeable. 10. This Defendant had no notice of the condition complained of by the Plaintiff and liability may not be imposed absent such notice. 11. Judgment shall only be entered on the basis of each party’s percentage of fault, not nant ta Dlavida Qtatnte ThO Q1 at and ana Walt WO L1OTua Slate 100.01. an tha Of ule va: Pg. 312. The condition that Plaintiff alleges caused her to fall was in an open and obvious condition and, as a result, Plaintiff is barred from recovery from this Defendant. 13. This Defendant specifically denies that the medical treatment, including diagnostic studies, incurred by the Plaintiff after the accident was reasonable, related or necessary as the result of the accident in question and demand strict proof thereof. 14. This Defendant specifically denies that the charges for medical treatment, including diagnostic studies, were reasonable in amount and/or frequency and demand strict proof thereof. 15. At all times material hereto, Plaintiff was insured and/or had available health care coverage from Medicare, Medicaid and/or health insurance. However, Plaintiffand/or her medical providers negligently or intentionally failed to submit the medical charges to Medicare, Medicaid and/or health insurance. Plaintiff is insured with health insurance coverage and/or Medicare and Medicaid which inure to the benefit of this Defendant in that Plaintiff's medical providers must submit all bills for services rendered, to the Plaintiff's Health Insurer and/or Medicare and Medicaid and the Plaintiff's providers must accept the contracted amount in full payment of all charges for treatment rendered. Thus, this Defendant is entitled to the benefit of the contracted difference. See Fia. Stat 641.3154. 16. At all times material hereto, Plaintiff was insured and/or had available health care coverage from Medicare, Medicaid and/or health insurance. However, Plaintiffand/or her medical providers negligently or intentionally failed to submit the medical charges to Medicare, Medicaid and/or health insurance. As such, Plaintiff has failed to mitigate his damages by failing to submit his medical charges to Medicare, Medicaid or health insurance and/or by treating with medical providers who failed to accept Medicare, Medicaid or health insurance. Pg. 417. This Defendant is entitled to any and all Medicare, Medicaid and health insurance contractual adjustments and/or write-offs and only that sum should be presented to the jury as the actual damage incurred. Goble v Frohman 901 So 2d 830 (Fla. 2005); Thyssenkrupp Elevator Corp v. Lasky, 868 So. 2d 547 (4th DCA 2003). 18. At the time of the accident as alleged in the Complaint, this Defendant did not have actual or constructive knowledge of the alleged dangerous condition. 19. The sole or contributing proximate cause of the damages complained of may have been the negligence or acts of others for whom this Defendant is not responsible including but not limited to THE BRIGHTVIEW LANDSCAPES, LLC. 20. The sole or contributing proximate cause of the damages complained of may have been the intervening negligence or acts of others for whom this Defendant is not responsible and/or may be attributable to THE BRIGHTVIEW LANDSCAPES, LLC. 21. The incident alleged in the Complaint may have been caused by third persons over whom this Defendant had no control including but not limited to THE BRIGHTVIEW LANDSCAPES, LLC. 22. This Detendant would further atfirmativeiy aliege that although this Defendant has denied liability to the Plaintiff, any liability found on the part of this Defendant, and any damages awarded in favor of the Plaintiff, are subject to the Comparative Fault Provisions in Florida Statute 768.81, and this Defendant cannot be liable for more that its proportionate share of any non- economic damages awarded. Further, pursuant to Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), any damages awarded to the Plaintiff are subject to apportionment by the jury of the total fault of all participants in the circumstances. Defendant states that the Plaintiff's damages, if any, must be nannrtinnead ta hut ant THE DDICUTVIDUW TANIOOADEC TTC and je onhiant ta ananing apportionea tO bul Tot TG DRIGHIVinbW LANDOCAL DS, LLL aia if SuDject tO ongoing Pg. 5investigation and discovery under the principles set forth in Fabre v. Martin, 623 So. 2d 1182 (Fla. 1992) and its progeny. WHEREFORE, Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, prays this Court enter judgment against Plaintiff for costs and such other relief this Court deems appropriate, and further demands trial by jury of all issues so triable as a matter of right. CROSS-CLAIM FOR COMMON LAW INDEMNITY COMES NOW, Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, by and through undersigned counsel, and hereby files this its Cross-Claim for Common Law Indemnity against Cross-Defendant/Defendant, THE BRIGHTVIEW LANDSCAPES, LLC and as grounds in support thereof, states as follows : Ll. The Court has jurisdiction of the parties hereto for the reasons alleged in Plaintiffs’ Complaint and in that this action is to ancillary that of Plaintiffs. (See copy of Plaintiffs’ Complaint attached hereto as Exhibit “A”). 2. At all times material hereto Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA. has been sued by the Plaintiffs for Negligence as more fully set forth in Plaintiffs’ Complaint. (See exhibit A attached hereto). 3. At all times material Cross-Defendant/Defendant, THE BRIGHTVIEW LANDSCAPES, LLC, was a corporation licensed to do business in the State of Florida and was in fact doing business in Palm Beach County Florida. Pg. 64. At all times material hereto, Cross-Defendant/Defendant, THE BRIGHTVIEW LANDSCAPES, LLC was engaged in providing landscaping services at the Sunshine Square Plaza, located on S.E. 18" Street, Boynton Beach, Florida (the “Premises”) and its employees were to maintain a reasonably safe environment for individuals traversing the premises including the Plaintiff MARION J. YOUNG BUTERA. 5. At all times material hereto, Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA owned the Premises but did not participate in any way with the landscaping services for the Premises. 6. Cross Plaintiff/Defendant, Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA did not have any control of the landscaping services performed by Defendant/Cross-Defendant, THE BRIGHT VIEW LANDSCAPES, LLC at the Premises. COUNTI INDEMNITY BY COMMON LAW 7. Defendant/Cross-Plaintiff, _EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA re-alleges and adopts paragraphs | through 6 of this Crossclaim in their entirety, and as further grounds, would show: 8. The Plaintiff, MARION J. YOUNG BUTERA claims she was on the Premises and walked inrough a large cul out painway between bushes leading io ine parking loi When she clams she tripped and fell due to an extended black sprinkler head protruding in the pathway on or about March 31, 2018. Pg.79. That at all times material hereto, Cross-Defendant/Defendant, THE BRIGHT VIEW LANDSCAPES, LLC owed a duty to the Plaintiff MARION J. YOUNG BUTERA to ensure that the Premises were landscaped in such a way so as to be free from any hazard or defect. 10. That while not admitting any negligence, and in fact, Cross-Plaintiff/Defendant EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA specifically denies that there was any negligence, that if a Jury were to find that there were any negligence, then it would be the negligence of Cross-Defendant/Defendant, THE BRIGHTVIEW LANDSCAPES, LLC. for breaching their duty to ensure that the Premises were landscaped in such a way so as to be free from any hazard or defect including but not limited to an extended black sprinkler head protruding in the pathway between bushes leading to the parking lot where the Plaintiff MARION J. YOUNG BUTERA claims she tripped and fell as result of the extended black sprinkler head protruding in the pathway. 11. The liability of this Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA for Plaintiffs’ injuries is therefore passive and only as a result of vicarious liability for the active negligence, acts and foreseeability of Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC and therefore this Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA 1s entitied to indemnity from Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC for any sums it may be required to pay Plaintiffs. 12. Accordingly, Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA demands that Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC indemnify Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA against all claims for damages arising from a inaidant namalainad afin Dinintiffe? Camalaint ule inciGcine COmipiailica Or i viaimias = COnipiaint. Pg. 813. Additionally, this Defendant/ Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA has been required to retain undersigned counsel and pay various other legal costs in the defense of Plaintiffs’ claims and in the prosecution of this claim for indemnity, all to the additional damage of Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA. WHEREFORE, Defendant/ Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA requests this Honorable Court to enter judgment against Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC for any judgment rendered against Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA., together with costs and attorneys’ fees, and any other further relief as this Honorable Court may deem just and appropriate, and further demands Trial by Jury for all issues triable as a matter of right. COUNT IT CROSS-CLAIM FOR CONTRACTUAL INDEMNITY COMES NOW Defendant/Cross-Piaintift, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, by and through undersigned counsel and hereby files this its Cross- Claim for Contractual Indemnity against Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC and as grounds in support thereof, states as follows: Pg.914. Defendant/Cross-Plaintiff, .EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA re-alleges and adopts paragraphs | through 6 of this Crossclaim in their entirety, and as further grounds, would show: 15. At all times material hereto Defendant/ Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, has been sued by the Plaintiffs for injuries more specifically alleged in Plaintiffs’ Complaint. 16. At all times material hereto Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC., was a landscaper at the Sunshine Square Plaza, located on S.E. 18" Street, Boynton Beach, Florida (the “Premises”). 17. Upon information and belief, The Brickman Group Ltd and ValleyCrest Landscape Companies merged to form Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC in 2016. 18. Atall times material hereto there was a Landscape Maintenance Annual Contract (the “Agreement”) entered into between Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA (the “Owner”) and The Brickman Group, Ltd (the “Contractor”) as of June i, 2015 that was that was in fuli force and effect and performed by the Cross-Defendant/Defendant, THE BRIGHT VIEW LANDSCAPES, LLC at the premises where the subject incident is alleged to have occurred. A copy of the Agreement is attached hereto as Exhibit “B”. 19. At all times material hereto, the Plaintiff, MARION J. YOUNG BUTERA claims she was on the Premises and walked through a large cut out pathway between bushes leading to the parking lot when she claims she tripped and fell due to an extended black sprinkler head protruding in tha nathwroe an av chant March 21 912 ule paulway Ou Or aout iiain 51, 2U10. Pg. 1020. Pursuant to the terms and provisions of paragraph 1.B.ii of said Agreement entitled Indemnification: The Contractor agrees to indemnify, save, and hold Owners, Owners’ Parties, and Owners’ officers, directors, managers, partners and shareholders harmless of, from and against any and all Damages arising from the Contractors’ entering into this Agreement and/or the performance of its Work, or caused in whole or in part by the acts, errors, or omissions of Contractor or Contractor’s employees, agents, subcontractors, and/or subconsultants (and except to the extent such Damages are found to be caused by gross negligence or willful misconduct of Owners), provided such Damages are attributable to (a) the bodily injury, personal injury, sickness, disease and/or death of any person; (b) injury to or loss of value to tangible personal property; or c) a breach of this Agreement. 21. | The Agreement required the Contractor to provide all material and workmanship shall be of good quality and suitable for their intended use. In addition, the Agreement required the Cross-Defendant/Detendant to inspect the sprinkler in question. 22. The Complaint alleges that the employees of the Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC failed to maintain a safe clean environment and that Plaintiffs’ injuries were caused by the negligence of the actions of the employees of the Defendant/Cross- Defendant, THE BRIGHTVIEW LANDSCAPES, LLC in creating the cut out pathway with an exposed sprinkler head which caused the Plaintiff to be injured. 23. Accordingly, pursuant to paragraph 1.B.ii cited herein above, this Cross- tee ea tte Be Bene ee a Ne eta Fiamull/ verengant seeks Indemnity rom Uross velendany Velen be required to pay Plaintiffs as a result of the Plaintiffs’ claims of damage; all conditions precedent to the filing of this action as the Agreement may call for have been met. Pg. 1124. Additionally, this Defendant/Cross-Plaintiff has been required to retain undersigned counsel and pay various other legal costs in the defense of Plaintiffs’ claims and in the prosecution of this claim for indemnity, all to the additional damage of this Defendant/ Cross-Plaintiff. WHEREFORE, Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, requests this Honorable Court to enter judgment against Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC, for any judgment rendered against Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, together with costs and attorneys’ fees, and any other further relief as this Honorable Court may deem just and appropriate, and further demands Trial by Jury for all issues triable as a matter of right. COUNT II CROSSCLAIM FOR BREACH OF CONTRACT COMES NOW Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, by and through undersigned counsel and hereby files this its Crossclaim for Breach of Contract against Cross-Defendant/Defendant, THE BRIGHTVIEW LANDSCAPES, LLC and as grounds in support thereof, states as foliows: 25. Defendant/Cross-Plaintiff, _EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA re-alleges and adopts paragraphs | through 6 of this Crossclaim in their entirety, and as further grounds, would show: 26. At all times material hereto Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, has been sued by the Plaintiffs for injuries more specifically alleged in Plaintiffs’ Complaint. Pg. 1227. At all times material hereto Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC., was a landscaper at the Sunshine Square Plaza, located on S.E. 18" Street, Boynton Beach, Florida (the “Premises”). 28. Upon information and belief, The Brickman Group Ltd and ValleyCrest Landscape Companies merged to form Cross-Defendant/Defendant THE BRIGHT VIEW LANDSCAPES, LLC in 2016. 29. At all times material hereto there was a Landscape Maintenance Annual Contract (the “Agreement”) entered into between Defendant/ Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA (the “Owner”) and The Brickman Group, Ltd (the “Contractor”) as of June 1, 2015 that was that was in full force and effect and performed by the Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC at the premises where the subject incident is alleged to have occurred. A copy of the Agreement is attached hereto as Exhibit “B”. 30. At all times material hereto, the Plaintiff, MARION J. YOUNG BUTERA claims she was on the Premises and walked through a large cut out pathway between bushes leading to the parking lot when she ciaims she tripped and feii due to an extended black sprinkler head protruding in the pathway on or about March 31, 2018. 31. Pursuant to the terms and provisions of paragraph 4 of said Agreement entitled INSURANCE: Prior to the commencement of Work, Contractor shall deliver to Owners applicable certificates of insurance coverage in for and substance acceptable to Owners, which shall include written confirmation that all required premiums, fees, or other costs have been fully paid through the Effective Date, and that Owners (or any winutenean landaw nunnaves manana inint vantiua ncutiae morigagee, venaer, property manager, youu veriure pariner, Pg. 13Ofiliate entity(ies), and/or other entity designated by Owner) are named as “Additional Insured” thereunder... 32. In addition, pursuant to the terms and provisions of ‘GENERAL CONDITIONS” “1, INSURANCE/INDEMNIFICATION” of said Agreement: A, Insurance: Contractor represents, warrants, and covenants to Owners that it, and its employees, subcontractors and subconsultants, are covered at a minimum, by the following: Commercial General Liability Insurance: $1,000,000 each occurrence, $2,0000,000 aggregate (a eR oi 2 ok ik ee ok oe oe oe ao 2 OK KK aK aK A HK RK Umbrella: $5,000,000 each occurrence, $5,000,000 aggregate Contractor, and its employees, subcontr4actors and subconsultants, shall continue to carry such insurance throughout the Term... 33. The Agreement required the Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC to provide insurance coverage to inure to the benefit of the Defendant/Cross- Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA for the injuries sustained by the Piaintifts as alieged in the Compiaint. 34, The Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC has failed to provide insurance coverage and/or benefits to inure to the benefit of the Defendant/ Cross- Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA for the injuries sustained by the Plaintiffs as alleged in the Complaint. 35. Accordingly, pursuant to paragraphs cited above in Count III, this Cross- Plaintiff/Defendant seeks recovery from Cross Defendant/Defendant for the breach of the terms of the Anraamant ac aitad harain and fae ant one thic NafandantlOrnce Diaintiff mar he rannivad ta naw Agreement aS Chea Werein aia 10r any Sunis wis WeiciGaniu Ur0SS-1 iain May OC Tequirea ww pay Pg. 14Plaintiffs as a result of the Plaintiffs’ claims o damage; all conditions precedent to the filing of this action as the Agreement may call for have been met. 36. Additionally, this Cross-Plaintiff/Defendant has been required to retain undersigned counsel and pay various other legal costs in the defense of Plaintiffs’ claims and in the prosecution of this claim for indemnity, all to the additional damage of this Cross-Plaintiff/Defendant. WHEREFORE, Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, requests this Honorable Court to enter judgment against Defendant/Cross-Defendant, THE BRIGHTVIEW LANDSCAPES, LLC, for any judgment rendered against Defendant/Cross-Plaintiff, EDENS LIMITED PARTNERSHIP D/B/A SUNSHINE SQUARE PLAZA, together with costs and attorneys’ fees, and any other further relief as this Honorable Court may deem just and appropriate, and further demands Trial by Jury for all issues triable as a matter of right. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 20th day of October 2021, I electronically filed the foregoing document with the Clerk of Court using Florida Courts eFiling Portal. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified as follows, either via transmission of Notices of Electronic Filing generated by Florida Courts ¢Filing Portal or in some other authorized manner for those counsel or parties who are not authorized to receive electronic Notices of Filing: Barry C. Hoffman, Esquire; Counsel for Plaintiff at Law Offices of Barry G. Hoffman Law Firm, 9045 La Fontana Boulevard, Suite 1106, Boca Raton, FL 33434; hchlawoffice@aol.com; David J. Majcak, Esquire; Counsel for Defendant, The Brightview Landscapes, LLC, at Law Offices of Goldberg Segalla, LLP, 222 Lakeview Avenue, Suite 800, West Palm Beach, FL 33401; dmajcak@goldbergsegalla.com; dharrison@goldbergsegalla.ocm LAW OFFICES OF JAMES W. KEHOE, IIT 3230 West Commercial Boulevard, Ste. 250 Fort Lauderdale, Florida 33309 Mailing Address: P.0. Box 2503 Hartford, CT 06104-2903 Telephone No.: (954) 677-3708 Pg. 15Facsimile No.: (866) 292-4641 E-mail: MKatler@travelers.com; EGuilbea@travelers.com; TGruende@travelers.com By:_/s/ Dachao Hater MITCHELL H. KATLER, ESQUIRE vt Dave Mevetlines AEANOD PiOUUa Dat INUIUET. 454702 Pg. 16Filing # 133324761 E-Filed 08/26/2021 03:25:06 PM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA. CASE NO: MARION J. YOUNG BUTERA and THOMAS BUTERA, her spouse Plaintiffs), ws. EDENS LIMITED PARTNERSHIP d/b/a SUNSHINE SQUARE PLAZA and THE BRIGHTVIEW LANDSCAPES, LLC, Defendant(s). COMPLAINT COMES MOU MADION F VOTING DIVrED A 4 TOOMAG BITTE & dn nite WU 1 2 RIUMIUIN J. CUUING DU LORS Gn BUI DU LOAN, UG by and through her undersigned attomey, and sue the Defendants EDENS LIMITED PARTNERSHIP d/b/a SUNSHINE SQUARE PLAZA (herein referred to as EDENS LIMITED PARTNERSHIP) and THE BRIGHTVIEW LANDSCAPES, LLC and complain as follows: 1. This is an action for damages that exceeds the jurisdictional amount of $30,000.00 (THIRTY THOUSAND DOLLARS ($30,000.00), along with a declaratory relief. 2. _Atall times material hereto, the Plaintiff, MARION J. YOUNG BUTERA, was a resident of Palm Beach County, Florida and is sui-juris. 3. _Atall times material hereto, the Plaintiff, THOMAS BUTERA, was resident of Palm Beach County, Florida and is sui-juris. 1 EXHIBIT "A"4. At all time miterial hereto, the Defendant, EDENS LIMITED PARTNERSHIP, was a foreign corporation authorized and doing business in mmmerous locations throughout Palm Beach County. 5. Atal time material hereto, the Defendant, BRIGHTVIEW LANDSCAPES, LLC, was a foreign corporation authorized and doing business in numerons locations throughout. Palm Beach County. COUNT ONE ACTION FOR PERSONAL INJURY _ AGAINST DEFENDANT, EDENS LIMITED PA RTNERSHIP 6. The Plaintiff, MARION J. YOUNG BUTERA, re-adopts and re-alleges the allegations contained in paragraphs 1 through 4 as if set forth below in full. 7. That on or about the March 31, 2018, the Defendant, EDENS LIMITED PARTNERSHIP, owned and operated the Sunshine Square Plaza, Florida located on S.E. 18" Street, Boynton Beach, Florida. It’s employees, within the scope of their employment, were to maintain aclean and safe environment. 8. At the time and place aforesaid, the Plaintiff, MARION J. YOUNG BUTERA, a business customer, exited a take-out Chinese restaurant following other business customers and walked thenngh a laree ent ant nathway hetween shes leading to the nating lot. She could not distinguish an extended black sprinkler head which was left protruding in the pathway which caused her to trp and fall flat on her left side on the cement. The Defendant’s EDENS LIMITED PARTNERSHIP employees failed to maintain a safe walkway. The Plaintiff's MARION J.YOUNG BUTERA injuries were caused by the negligence of the Defendant’s employees in their failure to show due care for the Plaintiff's MARION J. YOUNG BUTERA’S safety. The employee’s actions in creating the cut out pathway with an exposed sprinklethead, caused the Plaintiff, MARION J. YOUNG BUTERA, to injure her left shoulder, requiring a shoulder replacement : 9. ‘Thatas a direct and proximate result of thénegligent actions of the Defendant EDENS LIMITED PARTNERSHIP employees, the Plaintiff, MARION J. YOUNG BUTERA, was injured which resulted in serious bodily harm. The Plaintiff, MARION J. YOUNG BUTERA, sustained a displaced and comminuted fracture of the left humeral head and neck and a permanent metal rod in her left humerus. In particalar as a direct result of the negligence of the Defendant’s employees, the Plaintiff, MARION J. YOUNG BUTERA, sustained injuries that included but were not limited to a left shoulder replacement/reverse shoulder arthroplasty which caused extreme pain, fimitation of motion and other injuries, ail of which are permanent and continuing in their nature and were caused or activated by the accident in question. TA ‘That as a Airant ond menwimate comlt af the pnvalase antinne nf tha Nafandanto AV, 4112 G9 @ ULIUAL Ging PIU AUUGLy FUOUIS UA Uy CGlud¥o GUUULD UE UNL A7UIMIUGLL > employees of the EDENS LIMITED PARTNERSHD, the Plaintiff, MARION J. YOUNG BUTERA, has in the past and will in the future suffer or incur the following damages to wit: @ Surgical procedares on her left shoulder, left shoulder replacemeat/reverse shoulder arthroplasty ®) Great mental and physical pain and suffering, (©) Shame, humiliation, embarrassment, anguish and emotional instability, (4) —_Shehas in the past and will in the future, be required to seck medical care and© Inability to follow usual and ordinary course of recreation and social activities; @ Physical handicap and disability and personal inconvenience; @® ‘That she has in the past and may in the future, incur liability for doctors’ and nurses’ hire, hospital expenses and related medical expenses, along with travel expenses, incident to the procurement of such medical care and treatment, ® She has been rendered less able to provide a home for herself and her insband and otherwise enjoy a normal life both now and in the future; @ _Dimimntion of her eaming capacity and workability and loss of eamings; WHEREFORE, the Plaintiff, MARION J. YOUNG BUTERA, demands judgment against the Defendant, left shoulder replacement/reversc shoulder arthroplasty , for damages and sach other and further relief as the Court may deem right and proper. 11. The Plaintiff, THOMAS BUTERA re-adopts and re-alleges the allegations contained in paragraphs 1 through 4 as if set forth below in full. 12. Atalltimesherein mentioned, and at the present time, the Plaintiff, THOMAS BUTERA was manicd to the Plaintiff, MARION J. YOUNG BUTERA. 13. That on or about the March 31, 2018, the Defendant, EDENS LIMITED PARTNERSHIP, owned and opesated the Sunshine Square Plaza, Florida located on SE. 18* Street, Boynton Beach, Florida. It’s employees, within the scope of their employment, were to maintain Wen eeea clean and safe environment. 13. At thetime and place aforesaid, the Plaintiff, MARION J. YOUNGBUTERA, a business customer, exited a take-out Chinese restaurant following other business customers and walked through 2 large cut out pathway between bushes leading to the parking lot. She could not distinguish an extended black sprinkler head which was left protruding in the pathway which caused her to trip and fall flat on her left side on the cement. 14. Thatas a direct and proximate result of the Defendant’s, EDENS LIMITED PARTNERSHIP'S employees actions, the Plaintiff, THOMAS BUTERA has and will continue to be deprived of the services, society, companionship and consortium ofhis wife, Plaintiff, MARION J. YOUNG BUTERA, and has incurred expenses for medical care and attention to her, all of which may be reasonably be anticipated to continue into the future for an indeterminable period of time. WHEREFORE the Plaintiff, THOMAS BUTERA demands judgement against the Defendant, ENON TITHE DAD TNE CHD fire damanne and anch athor ond forthor roliofac the Crm mau AGA PAOIND? AGAR AAGKs 2 CORR A ANE ROSEAES 9 AUS UCU GRO GAPS OULU VUES GAILS AA LA BARA OO LLY NATED ALE deem right and proper. ACTION FOR. PERSONAL INJURY 15. The Plaintiff, MARION J. YOUNG BUTERA, re-adopts and re-alleges the allegations contained in paragraphs 1 through 4 as if set forth below in full. 16. That on or about the March 31, 2018, the Defendant, BRIGHTVIEWLANDSCAPES, LLC, owned and operated the business known as Brightview Landscapes, LUC which were hired to maintain the landscaping at the Sunshine Square Plaza, Florida located on SE. 18* Street, Boynton Beach, Florida. It’s employees, within the scope of their employment, were to maintain a clean and safe environment. 17. Atthe time and place aforesaid, the Plaintiff, MARION J. YOUNG BUTERA, a business customer, exited a take-out Chinese restanrant following other business customers and walked through a large cut out pathway between bushes leading to the parking lot. She could not distinguish an extended black sprinkler head which was left protrading in the pathway which cansed her to trip and fall flat on her left side on the cement. The Defendant's BRIGHTVIEW LANDSCAPES, LLC employees, failed to maintain a safe clean environment. The Plaintiff's MARION J. YOUNG BUTERA injuries were caused by the negligence of the Defendant’s employees in their failure to show due care for the Plaintiff's MARION J. YOUNG BUTERA’S safety. The employee’s actions in creating the cut out pathway with an exposed sprinklerhead, caused the Plaintiff, MARION J. YOUNG BUTERA, to injure herleft shoulder, requiring a shoulder senlancmant ivpucue, 18. Thatasadirect and proximateresult of the negligent actions of the Defendant BRIGHTVIEW LANDSCAPES, LLC employees, the Plaintiff, MARION J. YOUNG BUTERA, was injured which resulted in serious bodily harm. The Plaintiff, MARION J. YOUNG BUTERA, saStainéd a displaced and comminuted fracture of the left humeral head and neck and a permanent metal fod in her left lnmerus. In particular as a direct result of the negligence of the Defendant’s employees, the Plaintiff, MARION J. YOUNG BUTERA, sustained injurics that inclnded but were not limited to a left shoulder replacement/reverse shoulder arthroplasty which caused extreme pain,ae) limitation of motion and other injuries, all of which are permanent and continuing in their nature and ‘were caused or activated by the accident in question. 19. Thatasa direct and proximate resalt of the careless actions of the Defendant’s employees of the | BRIGHTVIEW LANDSCAPES, LLC, the Plaintiff, MARION J. YOUNG BUTERA, has in the past and will in the futore suffer ar incur the following damages to wit: @ Surgical procedures on her left shoulder, left shoulder replacement/reverse shoulder arthroplasty. (9) Shame, humiliation, embarrassment, anguish and emotional instability; @ _ Shehas inthe past and will in the future, be required to seck medical care and attention and undergo fture medical treatment for his injuries; (© | __ Inability to follow usual and ordinary course of recreation and social dotivities; @® That she has in the past and may in the future, incur liability for doctors’ and - ennae? Mien Lnanital sonaann cool salatad sradianl mcnan alace wnt sone TUISS UG, BUDPiIA CAPRADGS GU IUIAKAL TCG CApRAEAS, GLUT Wil UavGE expénsés, incident to the procatement of such medical care and treatnient; (1) She has been rendered less able to provide a home for herself and husband and otherwisé enjoy a normal life both now and in the future; @ _Dimiliution‘of tiis canting capacity and workability and loss of eamings, WHEREFORE, the Plaintiff, MARION J. YOUNG BUTERA, demands judgement against the Defendant, left shoulder replacement/reverse shoulder arthroplasty , for damages and such other and finther relief as the Court may deem sight and proper. } {COUNT FOUR CONSORTIUM CLAIM AGAINST - _AGAINST.-DE 20. The Plaintiff, THOMAS BUTERA re-adopts and re-alleges the allegations contained in paragraphs 1 through 4 as if set forth below in fall. 21. —_Atall timeshereimmentioned, and at the present time, the Plaintif£ THOMAS BUTERA was manied to the Plaintiff, MARION J. YOUNG BUTERA. 22. ‘That on or about the March 31, 2018, the Defendant, BRIGHTVIEW LANDSCAPES, LLC, owned and operated the business known as Brightview Landscapes, LLC which were hired to maintain the landscaping at the Sunshine Square Plaza, Florida located on SE. 18* Street, Boynton Beach, Florida. It's employees, within the scope of their employment, were to inaintain a clean and safe environment. 23. Atthetimeand place aforesaid, the Plaintiff, MARION J. YOUNG BUTERA, a business customer, exited a take-out Chinese restaurant following other business customers and walked through a large cut out pathway between bushes leading to the parkinglot. She could not distinguish an extended black sprinkler head which waslefi protruding in the pathway which caused her to trip and fall flat on her Jeff side on the cement. 14. That as a direct and proximate result of the Defendant's, BRIGHT VIEW LANDSCAPES, LLC’S employees actions, the Plaintiff, THOMAS BUTERA has and will contime to be deprived of the services, society, companionship and consortium of his wife, Plaintifé, MARION J. YOUNG BUTERA, and has incurred expenses for medical care and attention fo her;all of which may be reasonably be anticipated to continue into the fature for an indeterminable period of time. WHEREFORE the Plaintiff, THOMAS BUTERA demands judgement against the Defendant, HESS CORPORATION, for damagés and such other and farther relief as the Court may deem right and proper. Plaintiffs, MARION J. YOUNG BUTERA and THOMAS BUTERA, hereby demand a trial by jury of all issues triable as a matter of law: BARRY G. HOFFMAN LAW FIRM. Attomeys for Plaintiffs 9045 La Fontana Boulevard, Suite 106 Boca Raton, Florida 33434 Ted: (561) 482-2000 Fax: (561)4829663DocuSign Envelope ID: 57 1ACD7E-9BB3-40BF-A36-E84B7EDEF4CB (the “Agreement™ EDENS LIMITED PARTNERSHIP, for and on behalf of its afi -s, their successors, and/or assigns (“Owners”) (whit collectively as each Owner noted on Exhibit“D”)and The Brickman Group, Ltd. (“Contractor”), in connection with the properties noted on Exhibit “D” (collectively, the “Properties,” and individually, a “Property’). A. Each Owner desire to retain Contractor for the purpose of providing certain services and/or work from time to time upon its corresponding Property, and Contractor agrees to provide such services to Owners. B. _Ownersand Contractor agree and acknowledge that it shall be expeditious to enter into this Agreement such that, subject tothe terms and conditions hereof, this Agreement and its terms shall apply to and constitute the general obligations, responsibilities, and liabilities of the parties hereto with respect to Contractor’s provision and performance of services to Owners upon the Properties during the term hereof, as more fully herein set forth. C. Upon the Effective Date, this Agreement shall be deemed to fally amend and restate the terms and conditions of any prior agreements or work orders entered into between the parties, or any of them, with respect to services and/or work to be performed by Contractor, unless expressly agreed upon in writing by the parties. Owners and Contractor hereby agree that Owners can add or remove one, or more, of the Properties from the seope of this Agreement upon fifteen (15) days’ notice delivered to Contractor at Contractor's Address for Notices, provided below, and such addition or removal of a Property from the definition of “Properties” in this Agreement shall be effective fifteen (15) days from the date of such notice. NOW, THEREFORE, in consideration of the mutual agreements and covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Owners and Contractor hereby agree to enter into this Agreement and be bound hereby, as more fully hereinafter set forth. 1. WORK: Subject to the terms of this Agreement (which shal include the General Conditions attached hereto and made a part hereof), ‘Contractor agrees to furnish all labor, materials, and equipment to perform the services and/or work herein described (the “Work”), as follows: [check & all applicable item(s] 2. SERVICE CONTRACT DESCRIPTION: _Landscape Maintenance Annual Contract 1X On the description of the Work entitled “Service Summary” attached hereto as Exhibit “A” and made a part hereof. Unless mutually agreed upon by the parties, each Service Summary shall include the following, at a mi (ii) a description of the project, including the location of the specific Property, and the Work to be provided by Contractor and the sequences or phases of such Work to be performed, if applicable; (iii) the fee rate(s) or schedule of feerate(s), as applicable, to be paid to Contractorby the particular Owner for the Work (including cost breakdowns related to sequencing or phasing of services, if applicable), and any out-of-pocket expenses (ifany) to be reimbursed to Contractor by Owner andior limitations thereon; (iv) any such other information as may be directly pertinent to the subject Work, or which the parties mutually determine shall be necessary or appropriate to modify or amend the tems of this Agreement for such Work, unless specifically prohibited herein. in the event of aconilici between ihe terms of inis Agreement and each Service Summary with respectio each ofthe Properties iefermsand conditions of the Service Summary shall prevail and control with respect to the Work to be performed on the subject Property by Contractor, except that inno event shall the insurance requirements, limitations of Liability, or indemnity ebligations of the Parties be waived, modified or extinguished or so deemed to be by reason of anything set forth in any sich Service Summary. Any Service Summary shall be binding and effective between the Partics solely as and to the extent it shall have been executed by a person on behalf of Owners and/or Contractor having authority to sign same and to legally bind Contractor in accordance with the terms and conditions hereof. Owners and Contractor agree that by their execution hereof, each Service Summary shall be deemed amended by, and the complete integration and incorporation by reference of this Agreement, shall each constitute a separate Valid and legal contract, subject to the terms, conditions, and other limitations set forth in of this Agreement without the requirement of any other amendment to this Agreement or any other instrument. Such integrated documents shall each set forth the sole and exclusive duties, obligations and liabilities of Owners with respect to the provision of service at issue and shall amend and supersede any and all other agreements, either written or oral, between the Parties respecting the subject matter of the Service Summary. On the Price Sheet and Exclusions, attached hereto as Ex! “B" and made a part hereof. On the plans and/or specifications prepared by Hanna Turner dated June Ist, 2015 a list of which plans and/or specifications is attached hereto as Exhibit “C” and made a part hereof, a complete and correct copy of whichhas been approved by Owners and Contractor. CAs follows: EXHIBIT "B' Sd|jp— 7 (V— ‘Contractor's Initials: ful PM INITIAL Owners’ Initials: Date: 6/26/2015 | 9:21:29 AM ETDocuSign Envelope ID: 57 1ACD7E-9BB3-40BF-A36-E84B7EDEF4CB 3. TERM: Except as expressly set forth herein or in the General Conditions, the term of this Agreement (the “Term”) shall commence on the Effective Date and continue until: (check 4 all applicable item(s)] 1 The thirtieth G0") day after one party receives written notice from the other of ts election to terminate this Agreement. Either party may elect to terminate this Agreement without cause by giving such written notice to the other. BI one (1) year(s) commencingon June 1st, 2015 andendingon May 31st, 2016 Said Term shall be automatically extended on a month-to-month basis unless either party terminates. 1D Final completion of the Work. Contractor shall commence the Work on or about, and shall complete the Work (including all punch list items) on or before . Time is of the essence with respect to Contractor’s performance of the Work. 4. INSURANCE: Priorto commencement of Work, Contractor shall deliver to Owners applicable certificates of insurance coverage in form and substance acceptable to Owners, which shall include written confirmation that all required premiums, fees, or other costs have been fully paid through the Effective Date, and that Owners (or any mortgagee, lender, property manager, joint venture partner, affiliate entity(ies), and/or other entity designated by Owners) are named as "Additional Insured” thereunder. Owners shall also be granted waiver of subrogation and coverage shall be primary and non-contributory. If proof of the insurance coverage required by this Agreement and/or the General Conditions not properly submitted to Owners upon demand, or if same has been cancelled or not renewed, as the case may be, Owners may, at their discretion (but without any affirmative obligation), in addition to any other rights and remedies available, immediately procure any such insurance on behalf of Contractor and charge and deduct the cost thereof from any payment that may be or become due and owing to Contractor hereunder. 5. PAYMENT: Owner's payment to Contractor shall be in accordance with, and subject to, Contractor’s performance of the Work in accordance with this Agreement, together with the payment requirements set forth in the General Conditions. The payment terms for the ‘Work shall be as follows: [check Wall applicable item(s)) DA fixed cnmaf © nermanth durine the Term navahla in arroare within thirty (20) dave fallawine recaint of Contractors hill ar invoice therefor. The total amount on an annualized basis shall be §, during the Term. 1D Alump sum ofS payable within thirty (30) days after final completion of the Work (including all punch list items) and acceptance thereof by Owners. At the election of Owners and upon receipt of any progress reports or other information required by Owners, progress payments may be made for completed portions of the Work subject to retainage of ___% until final payment. H._Asum per month in accordance with the Price Sheet and Exclusions (Exhibit “B”) attached hereto, billed and payable separately by Property, payable in arrears within thirty (30) days of receipt of Contractor's bill or invoice. centering into this one Agreement, severally (ather than each entering into a separate Agreement), solely as a involving any one or more of the Properties, each Owner shall be severally obligated to pay only for the Work attributable to its Property, and no Owner shall be obligated to pay for any Work performed at any other Property. 6. INTEGRATION: The parties’ agreements with respect to the Work shall be comprised of this Agreement, together with the following additional documents (if applicable) which, when taken together, shall form the entirety of the Agreement between the parties General Conditions Exhibit A: Service Summary (if applicable) ExhibitB: Price Sheet and Exclusions (if applicable) Exhibit: List of Plans and/or Specifications (if applicable) Exhibit: List of Owners and Properties Other: (if applicable) IN WITNESS WHEREOF, Owners and Contractor have executed this Agreement as of the date set forth above. EDENS LIMITED PARTNERSHIP, a Delaware CONTRACTOR: The Brickman Group, Ltd. OWNERS: limited partnership By: Edens GP, LLC, a Delaware limited liability company, its sole general partner eke aprererg SSO generl pariner _ Matthew Weinride »: | M2 5: By: -D2zTZUGABICBFAZE... 7 Aiea Printed Name: Matthew Weinrich Printed Name: _Gregg Edelstein Title: Account manager : Authorized Representative Contractor's Address for Notices: Owners’ Address for Notices: The Brickman Group, Ltd. clo EDENS Limited Partnership 3515 S.w. 136th Avenue, Suite 207 515 East Las Olas Boulevard, Sutic 1010 FL 33325 Fort Laudonale, FL 23204 954-476-2103 (954) 670-8990. 8 Sdjp— ul (Sue— Contractor's Initials: uy PM INITIAL Owners! Initi Date: 6/26/2015 | 9:21:29 AM ETDocuSign Envelope ID: 57 1ACD7E-9BB3-40BF-A36-E84B7EDEF4CB —©@ EDENS. GENERAL CONDITIONS i, INSURANCH/INDEMNIFICATIOL A. Insurance: Contractor represents, warrants, and covenants to Owners that it, and its employees, subcontractors and subconsultants, are covered, at a minimum, by the following: © Commercial General Liability Insurance: $1,000,000 each occurrence, $2,000,000 aggregate © Workmen’s Compensation and Employee’s Liability Insurance: $500,000 each employee, $500,000 each accident, and $500,000 policy limit © Automobile Liability Insurance: $1,000,000 single limit aggregate including coverage of non-owned sed hina © Professional Liability Insurance: $2,000,000 each occurrence, $5,000,000 aggregate © Umbrella: $5,000,000 each occurrence, $5,000,000 aggregate Contractor, and its employees, subcontractors and subconsultants, shall continue to carry such insurance throughout the Term. Certificates of Insurance shall be provided to Owners before commencement of the Work and upon annual renewal, if applicable. B. Indemnification i, ‘Owners (severally, solely to the extent of their corresponding Property as identified on Exhibit “D”, and subject in all respects to Paragraph 16 hereof) agree to indemnify, defend, and hold Contractor harmle