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Filing # 128737385 E-Filed 06/14/2021 10:57:40 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
Case No.: CACE21-010539
Division:
LOLA BASTIANELLI AND
STEPHANIE BERRABI,
Plaintiffs,
V
JASON R. RUDDER,
Defendants.
i
DEFENDANT'SANSWER AND AFFIRMATIVE DEFENSES
Defendant, JASON R. RUDDER, by and through the undersigned counsel and
pursuant to the Florida Rules of Civil Procedure, hereby files his answerto the Plaintiffs' Complaint
as follows:
1.
The Defendantadmits that this is a lawsuit that purportsto be an action for damages
in excess of Thirty Thousand Dollars ($30,000.00), but denies the Plaintiffs are entitled to any such
damages from Defendant.
2.
The Defendant is without sufficient information and knowledge to enable him to
admit or deny the allegations contained within paragraph 2, and therefore denied and strict proof
thereofis demanded.
3
The Defendant is without sufficient information and knowledge to enable him to
admit or deny the allegations contained within paragraph 3, and therefore denied and strict proof
thereofis demanded.
4.
Admit.
Sensitivity: Public
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/14/2021 10:57:40 PM.****
COUNTI
5.
Defendant re-alleges, adopts and incorporates by reference his responses to
paragraphsabove.
6.
Admit on or about September 3,2020, an incident occurred on I-95 in the City of
Hollywood, Broward County, Florida. All remaining allegationsare denied.
7.
Admit.
8
Denied.
9.
Admit that Defendant, JASON R. RUDDER, had the duties-imposed law. All
remaining allegationsare denied.
10.
Denied.
COUNT II
11.
Defendant re-alleges, adopts and incorporates by reference his responses to
paragraphsabove.
12.
Admit that on or about September 3,2020, an incident occurred on I-95 in the City
of Hollywood,Broward County, Florida. All remaining allegationsare denied.
13.
Admit.
14.
Denied.
15.
Admit that Defendant, JASON R. RUDDER, had the duties-imposed law. All
remaining allegationsare denied.
16.
Denied.
Sensitivity: Public
AFFIRMATIVE DEFENSES
1.
Defendant states that at the time and place alleged in the Complaint, the Plaintiffs were
negligentin failingto use reasonable care, and Plaintiffs' own negligence was the sole cause
or proximate cause of the accident and injuries claimed. Therefore, the Plaintiffs are
precludedfrom recoveryor any recovery is diminishedin proportionto said negligence.
2.
Defendant states that at all times material herein, the Plaintiffshad available for use a fully
operational seatbelt which, had it been properly utilized, would have substantiallyreduced
or prevented the damages claimed by Plaintiffs.
Plaintiffs' failure to properly use the
seatbelt was negligent and the damages claimed should be reduced in proportion to
Plaintiffs' negligence.
3.
Defendant states that the Plaintiffs' alleged injuries do not constitute threshold injuries to
recover damages under the Florida No Fault Act.
Plaintiffs' bodily injury, sickness or
disease does not involve significant and permanent loss of an important bodily function,
permanent injury within a reasonable degree of medical probability, or significant and
permanent scarring or disfigurement as is required by Section 627.737(2), Florida Statutes,
and therefore the Plaintiffs are barred from any recovery of non-economic damages against
the Defendants.
4.
Defendant states that the Plaintiffs have failed to mitigate damages and, therefore, any
award should be reduced accordingly.
5.
Defendants state that the Plaintiffs' recovery, if any, should be reduced by the amount of
collateral source payments, including Personal Injury Protection benefits, paid or payable
for or on behalf of the Plaintiffs, as prescribed by Section 768.76, Florida Statutes.
Sensitivity: Public
Defendant is entitled to a set-off for any and all collateral source and/or Personal Injury
Protection benefits that have been paid or are payable to the Plaintiffs.
6.
Defendantstates that Plaintiffs are barred from recovery ofany medical care expenses above
and beyond that contractedfor and accepted by Plaintiffs' medical care providers, are barred
from recovery of any medical expenses which have been written off by Plaintiffs' health
care providers, and are barred from any recovery of medical expenses for which Plaintiffs'
medical providershave no right ofreimbursement or for which Plaintiffs' medical providers
are otherwise prohibited from collecting pursuant to Section 768.76, Florida Statutes, or
applicable Florida Law. See also, Goble v. Frohman, 901 So.2d 830 (Fla. 2005). In the
alternative, evidence of any collateral source or duplicate payments should be submitted to
the jury.
7.
Defendantis entitled to immunity from liabilityup to the amount of any deductibleselected
by Plaintiffs of by which Plaintiffs are bound pursuant to any applicable automobile
insurance agreements providing Personal Injury Protection coverage. Pursuantto Section
627.739, Florida Statutes, Plaintiffs may not claim or recover any damages for medical
expenses or lost wages to the extent of said deductible.
8.
Plaintiffshave received monies in settlement of their claims for the damages alleged, and as
such the Defendants are entitled to a setoff of these amounts from any verdict rendered
against Defendants, including but not limited to the setoffs as described in Goble v.
Frohman, 901 So.2d 830 (Fla. 2005).
9.
Defendant states that the Plaintiffs' alleged injuries are the result of a preexisting condition
and were not the result of any alleged negligence of the Defendants. Furthermore,
Sensitivity: Public
Defendant is entitled to a setoff to the extent of any settlements paid to Plaintiffs for the
same injuries or conditions that resulted from prior or subsequentlawsuits or accidents.
10. Defendant states that any injuries suffered by Plaintiffs at the time and place alleged in the
Complaint were the result of an unavoidable accident and were not caused by the
negligence,fault or want of care on the part ofDefendants.
11. Defendant states that Plaintiffs' damages, if any, were caused, in whole or in part, by the
negligence of a third party. Pursuantto Section 768.81, Florida Statutes, the Defendants are
not liable for the comparative fault of other joint tortfeasors. See also, Fabre v. Marin, 618
So.2d 209 (Fla. 1993).
12. Defendant states that in the event Plaintiffs are awarded damages in this action, the court
should enter judgment against these Defendants on the basis of each party's percentage of
fault and not on the basis ofthe doctrine ofjoint and several liability, to the extent and in the
manner providedby Section 768.81, Florida Statutes.
13. Defendant states that the Defendant driver suffered a sudden and unforeseeable loss of
consciousness or capacity prior to any alleged negligence ofthe Defendants.
14. Defendant states that each cause of action alleged by Plaintiffs is barred by the Statute of
Limitations.
15. Defendant states that the Defendant's liability, if any, is based solely on its having issued a
policy of insurance to the Plaintiff and, therefore, its liability, if any, is limited to all of the
terms conditions, exclusionsand limitations set forth within said policy of insurance and the
terms of Section 627.727, Florida Statutes, and judgment should be conformed to the policy
limits.
Sensitivity: Public
DEMAND FOR JURY TRIAL
The Defendant,Jason Rudder, request a trial byjury ofall trialleissues.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
Electronic Mail on this, the 14th day of June, 2021 to the following designated service email
address(est Thomas H. Leeder, Esq.,
The Law Office of George L. Cimballa, III
Sonia Mardarewich,Esq.
Sonia Mardarewich,Esq.
(Employees of GEICO General Insurance Company)
FloridaBar No.. 108358
600 N. Pine Island Road, STE 400
Plantation,Florida 33324
Phone: 954-472-6585
Facsimile: 954-472-6586
Attorney for Defendant(s) Jason Rudder
Service Email:
Sensitivity: Public
Preview
Filing # 128737385 E-Filed 06/14/2021 10:57:40 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA Case No.: CACE21-010539 Division: LOLA BASTIANELLI AND STEPHANIE BERRABI, Plaintiffs, V JASON R. RUDDER, Defendants. i DEFENDANT'SANSWER AND AFFIRMATIVE DEFENSES Defendant, JASON R. RUDDER, by and through the undersigned counsel and pursuant to the Florida Rules of Civil Procedure, hereby files his answerto the Plaintiffs' Complaint as follows: 1. The Defendantadmits that this is a lawsuit that purportsto be an action for damages in excess of Thirty Thousand Dollars ($30,000.00), but denies the Plaintiffs are entitled to any such damages from Defendant. 2. The Defendant is without sufficient information and knowledge to enable him to admit or deny the allegations contained within paragraph 2, and therefore denied and strict proof thereofis demanded. 3 The Defendant is without sufficient information and knowledge to enable him to admit or deny the allegations contained within paragraph 3, and therefore denied and strict proof thereofis demanded. 4. Admit. Sensitivity: Public *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/14/2021 10:57:40 PM.**** COUNTI 5. Defendant re-alleges, adopts and incorporates by reference his responses to paragraphsabove. 6. Admit on or about September 3,2020, an incident occurred on I-95 in the City of Hollywood, Broward County, Florida. All remaining allegationsare denied. 7. Admit. 8 Denied. 9. Admit that Defendant, JASON R. RUDDER, had the duties-imposed law. All remaining allegationsare denied. 10. Denied. COUNT II 11. Defendant re-alleges, adopts and incorporates by reference his responses to paragraphsabove. 12. Admit that on or about September 3,2020, an incident occurred on I-95 in the City of Hollywood,Broward County, Florida. All remaining allegationsare denied. 13. Admit. 14. Denied. 15. Admit that Defendant, JASON R. RUDDER, had the duties-imposed law. All remaining allegationsare denied. 16. Denied. Sensitivity: Public AFFIRMATIVE DEFENSES 1. Defendant states that at the time and place alleged in the Complaint, the Plaintiffs were negligentin failingto use reasonable care, and Plaintiffs' own negligence was the sole cause or proximate cause of the accident and injuries claimed. Therefore, the Plaintiffs are precludedfrom recoveryor any recovery is diminishedin proportionto said negligence. 2. Defendant states that at all times material herein, the Plaintiffshad available for use a fully operational seatbelt which, had it been properly utilized, would have substantiallyreduced or prevented the damages claimed by Plaintiffs. Plaintiffs' failure to properly use the seatbelt was negligent and the damages claimed should be reduced in proportion to Plaintiffs' negligence. 3. Defendant states that the Plaintiffs' alleged injuries do not constitute threshold injuries to recover damages under the Florida No Fault Act. Plaintiffs' bodily injury, sickness or disease does not involve significant and permanent loss of an important bodily function, permanent injury within a reasonable degree of medical probability, or significant and permanent scarring or disfigurement as is required by Section 627.737(2), Florida Statutes, and therefore the Plaintiffs are barred from any recovery of non-economic damages against the Defendants. 4. Defendant states that the Plaintiffs have failed to mitigate damages and, therefore, any award should be reduced accordingly. 5. Defendants state that the Plaintiffs' recovery, if any, should be reduced by the amount of collateral source payments, including Personal Injury Protection benefits, paid or payable for or on behalf of the Plaintiffs, as prescribed by Section 768.76, Florida Statutes. Sensitivity: Public Defendant is entitled to a set-off for any and all collateral source and/or Personal Injury Protection benefits that have been paid or are payable to the Plaintiffs. 6. Defendantstates that Plaintiffs are barred from recovery ofany medical care expenses above and beyond that contractedfor and accepted by Plaintiffs' medical care providers, are barred from recovery of any medical expenses which have been written off by Plaintiffs' health care providers, and are barred from any recovery of medical expenses for which Plaintiffs' medical providershave no right ofreimbursement or for which Plaintiffs' medical providers are otherwise prohibited from collecting pursuant to Section 768.76, Florida Statutes, or applicable Florida Law. See also, Goble v. Frohman, 901 So.2d 830 (Fla. 2005). In the alternative, evidence of any collateral source or duplicate payments should be submitted to the jury. 7. Defendantis entitled to immunity from liabilityup to the amount of any deductibleselected by Plaintiffs of by which Plaintiffs are bound pursuant to any applicable automobile insurance agreements providing Personal Injury Protection coverage. Pursuantto Section 627.739, Florida Statutes, Plaintiffs may not claim or recover any damages for medical expenses or lost wages to the extent of said deductible. 8. Plaintiffshave received monies in settlement of their claims for the damages alleged, and as such the Defendants are entitled to a setoff of these amounts from any verdict rendered against Defendants, including but not limited to the setoffs as described in Goble v. Frohman, 901 So.2d 830 (Fla. 2005). 9. Defendant states that the Plaintiffs' alleged injuries are the result of a preexisting condition and were not the result of any alleged negligence of the Defendants. Furthermore, Sensitivity: Public Defendant is entitled to a setoff to the extent of any settlements paid to Plaintiffs for the same injuries or conditions that resulted from prior or subsequentlawsuits or accidents. 10. Defendant states that any injuries suffered by Plaintiffs at the time and place alleged in the Complaint were the result of an unavoidable accident and were not caused by the negligence,fault or want of care on the part ofDefendants. 11. Defendant states that Plaintiffs' damages, if any, were caused, in whole or in part, by the negligence of a third party. Pursuantto Section 768.81, Florida Statutes, the Defendants are not liable for the comparative fault of other joint tortfeasors. See also, Fabre v. Marin, 618 So.2d 209 (Fla. 1993). 12. Defendant states that in the event Plaintiffs are awarded damages in this action, the court should enter judgment against these Defendants on the basis of each party's percentage of fault and not on the basis ofthe doctrine ofjoint and several liability, to the extent and in the manner providedby Section 768.81, Florida Statutes. 13. Defendant states that the Defendant driver suffered a sudden and unforeseeable loss of consciousness or capacity prior to any alleged negligence ofthe Defendants. 14. Defendant states that each cause of action alleged by Plaintiffs is barred by the Statute of Limitations. 15. Defendant states that the Defendant's liability, if any, is based solely on its having issued a policy of insurance to the Plaintiff and, therefore, its liability, if any, is limited to all of the terms conditions, exclusionsand limitations set forth within said policy of insurance and the terms of Section 627.727, Florida Statutes, and judgment should be conformed to the policy limits. Sensitivity: Public DEMAND FOR JURY TRIAL The Defendant,Jason Rudder, request a trial byjury ofall trialleissues. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Electronic Mail on this, the 14th day of June, 2021 to the following designated service email address(est Thomas H. Leeder, Esq., The Law Office of George L. Cimballa, III Sonia Mardarewich,Esq. Sonia Mardarewich,Esq. (Employees of GEICO General Insurance Company) FloridaBar No.. 108358 600 N. Pine Island Road, STE 400 Plantation,Florida 33324 Phone: 954-472-6585 Facsimile: 954-472-6586 Attorney for Defendant(s) Jason Rudder Service Email: Sensitivity: Public