On December 20, 2017 a
Motion-Secondary
was filed
involving a dispute between
Mri Associates Of St Pete Inc,
and
State Farm Mutual Automobile Ins Co,
for SMALL CLAIMS PIP 3 - $501 - $2,500
in the District Court of Pinellas County.
Preview
Filing # 58309338 E-Filed 06/27/2017 01:06:28 PM
IN THE COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
SMALL CLAIMS DIVISION
MRI ASSOCIATES OF ST. PETE, INC.
D/B/A ST. PETE MRI A/A/O ANGELA
ARROYO,
Plaintiff,
v. Case No.: 17-CC-016198
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
/
PLAINTIFF’S REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES
AND MOTION TO STRIKE
Reply
COMES NOW, the Plaintiff, by and through the undersigned attorney and hereby files
this Reply to Defendant’s affirmative defenses by denying each and every allegation contained
therein and leaves the Defendant to their proof of same. Said Reply is in response to the Answer
and Affirmative Defenses filed by the Defendant.
Motion to Strike
Plaintiff now moves this Honorable court to strike the following affirmative defenses and
in support thereof states as follows:
1. The Defendant’s Affirmative Defense consists of nothing more than conclusory
allegations, unsupported by ultimate facts to support the defenses. Florida is a fact pleading
jurisdiction and Florida law requires specificity and certainty in pleadings whether they be
claims or defenses. Continental Banking Co. v. Vincent, 634 So.2d 242, 244 (Fla 5th DCA
1994). A defendant must allege each element of the defense and must state the factual basis forthe same. L.B. McLeod Const. Co. v. Cooper, 134 So. 224, 225 (Fla. 1931). This is to
reasonably inform the adversary and provide them with a fair opportunity to prepare a response.
Zito v. Washington Federal Sav. & Loan Assoc. of Miami Beach, 318 So.2d 175, 176 (Fla 3d
DCA 1975). As the Defendant’s Affirmative Defense addressed below is legally insufficient and
fails as a matter of law, it should be stricken. Valdes v. Lambert, 568 So.2d 117, 118 (Fla Sth
DCA 1990); Zito, 318 So.2d at 176-77 (certainty is required when pleading defenses, and
pleading conclusion of law unsupported by allegations of ultimate fact is legally insufficient).
Furthermore, it is premature in that this litigation involves a disputed interpretation of
Defendant’s insurance policy and election of the permissive Medicare fee schedules. In the event
the Defendant’s policy is non-compliant then the Plaintiff will be entitled to further recovery to
make up the difference between the paid fee schedule amounts and 80% of reasonable expenses,
as stated in Fla. Stat. 627.736(1)(a).
WHEREFORE, Plaintiff requests the Honorable Court enter an Order striking the above-
listed affirmative defenses for the reasons stated above.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been provided
via electronic mail this 27th day of June, 2017 to Jarod L. Gilbert, Esq., Andrews & Manno,
P.A., 701 Harbour Post Drive, Tampa, FL 33602 jgilbert@andrewsmanno.com.
LES
DEREK W. BERNSTEIN, ESQUIRE
FBN: 102535
MATTHEW DOLMAN, ESQ
FBN: 0729221 SPN: 02964416
DOLMAN LAW GROUP
1663 First Avenue South
St. Petersburg, FL 33712
Telephone: (727) 222-6922
Facsimile: (727) 201-9785
service@dolmanlaw.com
Attorneys for Plaintiff
Document Filed Date
December 20, 2017
Case Filing Date
December 20, 2017
Category
SMALL CLAIMS PIP 3 - $501 - $2,500
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Filing # 58309338 E-Filed 06/27/2017 01:06:28 PM IN THE COUNTY COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA SMALL CLAIMS DIVISION MRI ASSOCIATES OF ST. PETE, INC. D/B/A ST. PETE MRI A/A/O ANGELA ARROYO, Plaintiff, v. Case No.: 17-CC-016198 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. / PLAINTIFF’S REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES AND MOTION TO STRIKE Reply COMES NOW, the Plaintiff, by and through the undersigned attorney and hereby files this Reply to Defendant’s affirmative defenses by denying each and every allegation contained therein and leaves the Defendant to their proof of same. Said Reply is in response to the Answer and Affirmative Defenses filed by the Defendant. Motion to Strike Plaintiff now moves this Honorable court to strike the following affirmative defenses and in support thereof states as follows: 1. The Defendant’s Affirmative Defense consists of nothing more than conclusory allegations, unsupported by ultimate facts to support the defenses. Florida is a fact pleading jurisdiction and Florida law requires specificity and certainty in pleadings whether they be claims or defenses. Continental Banking Co. v. Vincent, 634 So.2d 242, 244 (Fla 5th DCA 1994). A defendant must allege each element of the defense and must state the factual basis forthe same. L.B. McLeod Const. Co. v. Cooper, 134 So. 224, 225 (Fla. 1931). This is to reasonably inform the adversary and provide them with a fair opportunity to prepare a response. Zito v. Washington Federal Sav. & Loan Assoc. of Miami Beach, 318 So.2d 175, 176 (Fla 3d DCA 1975). As the Defendant’s Affirmative Defense addressed below is legally insufficient and fails as a matter of law, it should be stricken. Valdes v. Lambert, 568 So.2d 117, 118 (Fla Sth DCA 1990); Zito, 318 So.2d at 176-77 (certainty is required when pleading defenses, and pleading conclusion of law unsupported by allegations of ultimate fact is legally insufficient). Furthermore, it is premature in that this litigation involves a disputed interpretation of Defendant’s insurance policy and election of the permissive Medicare fee schedules. In the event the Defendant’s policy is non-compliant then the Plaintiff will be entitled to further recovery to make up the difference between the paid fee schedule amounts and 80% of reasonable expenses, as stated in Fla. Stat. 627.736(1)(a). WHEREFORE, Plaintiff requests the Honorable Court enter an Order striking the above- listed affirmative defenses for the reasons stated above. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been provided via electronic mail this 27th day of June, 2017 to Jarod L. Gilbert, Esq., Andrews & Manno, P.A., 701 Harbour Post Drive, Tampa, FL 33602 jgilbert@andrewsmanno.com. LES DEREK W. BERNSTEIN, ESQUIRE FBN: 102535 MATTHEW DOLMAN, ESQ FBN: 0729221 SPN: 02964416 DOLMAN LAW GROUP 1663 First Avenue South St. Petersburg, FL 33712 Telephone: (727) 222-6922 Facsimile: (727) 201-9785 service@dolmanlaw.com Attorneys for Plaintiff