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Filing # 124507459 E-Filed 04/07/2021 03:44:29 PM
IN THE CIRCUIT COURT OF THE 7"™ JUDICIAL CIRCUIT, IN AND FOR
FLAGLER COUNTY, FLORIDA
CIVIL DIVISION
CASE NO.: 2021-CA-000023
THE ESTATE OF HARRY JOHNSON,
JR. by and through HARRIET S. JOHNSON,
Personal Representative,
Plaintiff,
v.
MF FLAGLER, LLC.; FLORIDA FACILITIES,
LLC; PENSACOLA ADMINISTRATIVE
SERVICES, LLC; HC NAVIGATOR, LLC;
GULF COAST HEALTH CARE HOLDINGS,
LLC; NORMA ALVAREZ; and CHARLENE
PETRETTI (as to FLAGLER HEALTH AND
REHABILITATION CENTER),
Defendant.
DEFENDANTS’, MF FLAGLER, LLC,
ANSWER, AFFIRMATIVE DEFENSES, AND MOTION TO
DISMISS COUNT IV OF PLAINTIFF’S COMPLAINT
COMES NOW, Defendant, MF FLAGLER, LLC, by and through the undersigned Counsel
and pursuant to Florida Rules of Civil Procedure, hereby files this Answer, Affirmative Defenses
and Motion to Dismiss Count IV of Plaintiff's Complaint to Plaintiff's Complaint, and state as
follows:
JURISDICTION, PARTIES AND VENUE ALLEGATIONS
1. Without knowledge, therefore denied and strict proof is demanded thereof.
2. Admitted only and for jurisdictional purposes as to dates of admission and discharge, and
location of the Facility, otherwise denied.
Electronically Received in the Office of the Clerk of the Circuit Court - Flagler County, Florida - 04/08/2021 02:51 PM10.
11.
12.
Admitted only and for jurisdictional purposes, Letters of Administration appointing Harriet
Johnson as Personal Representative of the Estate of Harry Johnson, Jr. are attached to the
complaint. Otherwise, without knowledge, therefore denied and strict proof is demanded
thereof.
Denied as phrased.
Denied as phrased.
Denied and strict proof is demanded thereof.
Denied and strict proof is demanded thereof.
Admitted only and for jurisdictional purposes that MF FLAGLER, LLC is the licensee for
FLAGLER HEALTH AND REHABILITATION CENTER, otherwise denied and strict
proof is demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.13,
14.
15,
16.
17.
18.
19.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.20.
21.
22.
23.
24.
25.
26.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.27.
28.
29.
30.
31.
32.
33.
34,
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This paragraph is not an allegation against the Defendant; therefore, no response is
required. To the extent a response is necessary, without knowledge therefore denied.35.
36.
37.
38.
39
40.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
This allegation is directed to another defendant therefore no response is required. To the
extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
. (a-c) This allegation is directed to another defendant therefore no response is required. To
the extent a response is necessary, without knowledge therefore denied and strict proof is
demanded thereof.
Without knowledge therefore denied and strict proof is demanded thereof.
Count I
Non-Lethal Negligence Damages Against
MF FLAGLER, LLC, FLORIDA FACILITIES, LLC;
PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC;
41.
GULF COAST HEALTHCARE HOLDINGS, LLC;
NORMA ALVAREZ; and CHARLENE PETRETTI
Defendant, MF FLAGLER, LLC, incorporates by reference the admissions, denials and
statements set forth in paragraphs 1 through 40 of Plaintiff's Complaint.42. This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
43. This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
44. This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
45. This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
46. This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
47. This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
48. This allegation is directed to multiple defendants. As to this Defendant, denied and strict
a
proof is demanded thereof.
49. This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
To the extent the WHEREFORE clause requires a response, denied and strict proof is
demanded thereof.
Count II
Lethal Negligence Damages Against
MF FLAGLER, LLC, FLORIDA FACILITIES, LLC;
PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC;
GULF COAST HEALTHCARE HOLDINGS, LLC;
NORMA ALVAREZ; and CHARLENE PETRETTI50.
51.
52.
53.
54.
55.
56.
57.
58.
59.
To the extent the WHEREFORE clause requires a response, denie
Defendant, MF FLAGLER, LLC, incorporates by reference the admissions, denials and
statements set forth in paragraphs 1 through 40 of Plaintiffs Complaint.
This paragraph is not an allegation against this Defendant; therefore, no response is
required. To the extent a response is necessary, without knowledge therefore denied and
strict proof is demanded t
This allegation is directed
proof is demanded thereof.
This allegation is directed
proof is demanded thereof.
This allegation is directed
proof is demanded thereof.
This allegation is directed
proof is demanded thereof.
This allegation is directe
proof is demanded thereof.
This allegation is directe
proof is demanded thereof.
This allegation is directe
proof is demanded thereof.
This allegation is directe
proof is demanded thereof.
demanded thereof.
ereof.
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to mul
to mul
to mul
to mul
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to mul
to mul
tiple defendants.
tiple defendants.
tiple defendants.
tiple defendants.
tiple defendants.
tiple defendants.
tiple defendants.
tiple defendants.
As to this Defendant,
As to this Defendant,
As to this Defendant,
As to this Defendant,
As to this Defen
As to this Defen
As to this Defen
As to this Defen
ant,
ant,
ant,
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lenied an
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denied and strict
denied and strict
denied and strict
denied and strict
strict
strict
strict
strict
and strict proof isCount III
Wrongful Death Damages Against
MF FLAGLER, LLC, FLORIDA FACILITIES, LLC;
PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC;
60.
61.
62.
63.
64.
65.
66.
67.
68.
GULF COAST HEALTHCARE HOLDINGS, LLC;
NORMA ALVAREZ; and CHARLENE PETRETTI
Defendant, MF FLAGLER, LLC, incorporates by reference the admissions, denials and
statements set forth in paragraphs 1 through 40 of Plaintiffs Complaint.
This paragraph is not an allegation against this Defendant; therefore, no response is
required. To the extent a response is necessary, without knowledge therefore denied and
strict proof is demanded thereof.
This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.69. This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
70. This allegation is directed to multiple defendants. As to this Defendant, denied and strict
proof is demanded thereof.
71. This allegation is directed to multiple defendants. As to this Defendant, without knowledge
therefore denied and strict proof is demanded thereof.
72. This allegation is directed to multiple defendants. As to this Defendant, without knowledge
therefore denied and strict proof is demanded thereof.
73. This allegation is directed to multiple defendants. As to this Defendant, without knowledge
therefore denied and strict proof is demanded thereof.
To the extent the WHEREFORE clause requires a response, denied and strict proof is
demanded thereof.
As to any remaining allegations in Plaintiff's Complaint, denied and strict proof is demanded
thereof.
Count IV
Breach of Fiduciary Duty
MF FLAGLER, LLC
See Defendant, MF FLAGLER, LLC’s Motion to Dismiss attached and incorporated
hereto.
Count V
Aiding and Abetting Breach of Fiduciary Duty
FLORIDA FACILITIES, LLC; FLORIDA FACILITIES, LLC;
PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC;
GULF COAST HEALTHCARE HOLDINGS, LLC
Count V is directed to other defendants therefore no response is required. To the extent a
response is necessary, so respective defendant’s response.Count VI
Violation of Florida Statutes §415.1111 as to
FLORIDA FACILITIES, LLC; FLORIDA FACILITIES, LLC;
PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC;
GULF COAST HEALTHCARE HOLDINGS, LLC
Count V is directed to other defendants therefore no response is required. To the extent a
response is necessary, so respective defendant’s response.
DEFENDANT’S, MF FLAGLER, LLC,
AFFIRMATIVE DEFENSES
Defendant, MF FLAGLER, LLC, sets forth the following Affirmative Defenses to
Plaintiff's Complaint:
FIRST AFFIRMATIVE DEFENSE
Defendant affirmatively states that any damages that Plaintiff is alleging was caused by the
acts or omissions of third parties other than Defendant’s agents, representatives or employees, the
identity of whom is not yet known.
SECOND AFFIRMATIVE DEFENSE
Defendant affirmatively states that it is entitled to have the total fault of all participants
apportioned, whether parties or non-parties, based upon each participant's percentage of fault
according to Fabre.
THIRD AFFIRMATIVE DEFENSE
Defendant affirmatively states that any damages which the Plaintiff is alleging was the
result of an intervening or supervening cause such that Plaintiff may not recover against the
Defendants herein.
FOURTH AFFIRMATIVE DEFENSE
Defendant affirmatively states that Plaintiff's injuries or damages was the result of
preexisting medical or congenital problems or conditions unrelated to the care and treatment of thePlaintiff by the Defendant, and that Plaintiff's injuries or damages did not result from a deprivation
or infringement of his resident's rights.
FIFTH AFFIRMATIVE DEFENSE
Defendant affirmatively states that they are entitled to a set off pursuant to Section 768.31
and 768.76, Florida Statutes, and any other applicable Florida Statutes for benefits the Plaintiffhas
received, or is entitled to receive payment under, from a collateral source or potential tortfeasor.
SIXTH AFFIRMATIVE DEFENSE
Defendant affirmatively states that at the time and place alleged in the Complaint, the
Plaintiff was guilty of negligence which proximately caused or proximately contributed to any
injuries or damages he may have sustained and that, therefore, any award to which Plaintiff may
be entitled should be reduced accordingly, pursuant to the Doctrine of Comparative Negligence.
SEVENTH AFFIRMATIVE DEFENSE
Defendant affirmatively states that in the event of a judgment for the Plaintiff, this
Defendant is entitled to have the judgment made payable in accordance with the alternative
methods of payment.
EIGHTH AFFIRMATIVE DEFENSE
Defendant affirmatively states that the Plaintiff has failed to mitigate his damages and/or
losses and, as such, any claim of the Plaintiff should be reduced by virtue of their failure to
mitigate.
NINTH AFFIRMATIVE DEFENSE
Defendant affirmatively states that the Plaintiff has failed to state a cause of action against
MF FLAGLER, LLC, as the Complaint fails to demonstrate a direct cause of harm, injury or loss
to the Plaintiff.TENTH AFFIRMATIVE DEFENSE
Defendant affirmatively states that the Plaintiff has failed to state a cause of action against
MF FLAGLER, LLC as the Complaint fails to demonstrate a direct cause of harm, injury or loss
to the Plaintiff.
ELEVENTH AFFIRMATIVE DEFENSE
The Defendant affirmatively states the only duties owed to the Plaintiff are set forth in
Section 400.022, Florida Statutes, which does not include that a nursing facility owes a fiduciary
duty to its residents.
TWELFTH AFFIRMATIVE DEFENSE
Defendant affirmatively states that if the Plaintiff's rights were violated, Sections 400.023
through 400.0238 provide the exclusive remedy for a cause of action for recovery of damages for
the personal injury or death of a nursing home resident arising out of negligence or a violation of
tights specified in Section 400.022.
THIRTEENTH AFFIRMATIVE DEFENSE
Defendant affirmatively states that this action is alleged to have arisen out of negligence
during a residency at a nursing home facility pursuant to Chapter 400 of Florida Statutes, which
has a limitations period of two years from the date the cause of action accrues. Therefore, the
Plaintiff's action is time barred pursuant to statute of limitations for any allegations of negligence
outside of the two-year statute of limitations period.
FOURTEENTH AFFIRMATIVE DEFENSE
Defendants affirmatively state that the Plaintiff has failed to state a cause of action for joint
venture and partnership as the Plaintiff has only made incomplete, general, conclusory statementsand has failed to properly plead elements required to bring a cause of action for joint venture and
partnership. The Plaintiff has improperly and impermissibly plead the foregoing.
SEVENTEENTH AFFIRMATIVE DEFENSE
Defendant, MF FLAGLER, LLC reserves the right to amend their affirmative defenses.
JURY DEMAND
Defendant, MF FLAGLER, LLC, herein requests a trial by jury of all issues so triable by
jury.
WHEREFORE, Defendant, MF FLAGLER, demands judgment in its favor.
DEFENDANT’S, MF FLAGLER, LLC, MOTION TO DISMISS COUNT IV,
BREACH OF FIDUCIARY DUTY
COMES NOW, Defendant, MF FLAGLER, LLC, by and through the undersigned counsel
and pursuant to Florida Rules of Procedure, hereby moves this Honorable Court to Dismiss Count
IV, Breach of Fiduciary Duty of Plaintiff's Complaint directed against MF FLAGLER, LLC, and
as grounds in support thereof states as follows.
1. On a motion to dismiss a complaint, the allegations in the complaint are viewed
in the light most favorable to the plaintiff. Palm Beach-Broward Medical Imaging
Center, Inc. v. Continental Grain Co., 715 So.2d 343, 344 (Fla. 4th DCA 1998).
2. In ruling upon a motion to dismiss the complaint, the issue before the court is
whether the complaint states a valid cause of action. Temples v. Florida Indus. Const.
Co., Inc., 310 So.2d 326, 327 (Fla. 2d DCA 1975).
3. When a trial court rules upon a motion to dismiss pursuant to Rule 1.140, Fla. R.
Civ. Pro., the “court’s gaze is limited to the four corners of the complaint.” Fresh
Capital Financial Services, Inc. v. Bridgeport Capital Services, Inc., 891 So.2d 1142,
1143 (Fla. 4th DCA 2005).To determine the sufficiency of plaintiff's complaint, the court must assign truth
to facts alleged and determine whether the facts support an actionable case under the
applicable principles of law. Binz v. Helvetia Florida Enterprises, Inc., 104 So.2d 124,
126 (Fla. 3d DCA 1958).
In Count IV, Plaintiff mistakenly alleges that a “special confidence” or “special
telationship” existed between Defendant, MF FLAGLER, LLC and the resident. See
Exhibit A.
Additionally, Plaintiff alleges that the Defendant, MF FLAGLER, LLC owed a
“fiduciary duty” to the resident.
The only duties owed to Plaintiff are set forth explicitly in Section 400.022,
Florida Statutes (2012). Nowhere in Section 400.022, is there any indication the
legislature intended skilled nursing facilities to owe a fiduciary duty to its residents.
A fiduciary duty is the duty to act for someone else’s benefit while subordinating
one’s personal interest to that of the other person. It is the highest standard of duty
implied by law and is usually attributed to trustees, or guardians, etc. Black’s Law
Dictionary, (1991).
Chapter 400, Florida Statutes, should not be interpreted to mean that a nursing
home owes a fiduciary duty to its residents. Under the principle of statutory
construction, expressio unius est exclusio alterius, “the mention of one thing implies
the exclusion of another." Moonlit Waters Apartments Inc. v. Cauley, 666 So.2d 898.
900 (Fla.1996). If the legislature intended skilled nursing facilities in Florida to be a
fiduciary for its residents, it would have indicated so by expressly stating a nursing
home owed a fiduciary duty to its residents.10.
ll.
12.
13.
14.
In fact, the legislature has indicated that nursing homes are not to be guardians,
trustees, or conservators for any resident in the facility. Section 400.162(2), Florida
Statutes (2012). Accordingly, the legislature has indicated the duties owed to a nursing
home resident do not rise to the level of a fiduciary.
More importantly, a claim for breach of fiduciary duty is based on the theory of
negligence. See, Gracy v. Eaker, 837 So.2d 348 (Fla. 2002). See also, Palafrugell
Holdings, Inc. v. Cassell, 825 So.2d 937 (Fla. 3d DCA 2001).
If Plaintiffs rights were violated, she is entitled to file a civil action pursuant to
Section 400.023, Florida Statutes, which states in pertinent part: “Sections 400.023
through 400.0238 provide the exclusive remedy for a cause of action for recovery of
damages for the personal injury or death of a nursing home resident arising out of
negligence or a violation of rights specified in Section 400.022.” Section 400.22,
Florida Statutes (2012). (Emphasis added.)
Plaintiff’s allegations contained in Count IV arise from resident’s rights set forth
in Section 400.022. Count IV of Plaintiff's Complaint references several duties that
are substantially similar to the nursing home resident’s rights found in §400.023. Asa
tesult of the aforementioned breaches, the Plaintiff alleges that the resident suffered
loss, injury, and damages. Therefore, Count IV is redundant as Section 400.023
provides Plaintiff the exclusive remedy to address any claims he may have against the
Defendant.
Alternatively, Plaintiff fails to adequately plead that there existed a relationship
between Plaintiff and Defendant, whereby Plaintiff reposed trust and confidence in
Defendant; Defendant undertook such trust and assumed a duty to advise, counsel,and/or protect Plaintiff; Defendant breach of any duty owed to Plaintiff by Defendant;
and Plaintiff suffered damages because of any breach by Defendant.
15. Plaintiff has failed to produce any sworn proof with regards to each and every
element of the breach of fiduciary claim alleged in Count IV and therefore the Court
should dismiss Plaintiff's Breach of Fiduciary Duty Claim.
16. Florida case law has not held a nursing home facility to the standard of a
fiduciary; therefore, Court IV should be dismissed under Florida law.
17. Accordingly, Count IV of Plaintiff's Complaint against Defendant, MF
FLAGLER, LLC, should be dismissed with prejudice.
WHEREFORE, Defendant, MF FLAGLER, LLC, moves this Honorable Court for an order
dismissing Count IV, Breach of Fiduciary Duty, of Plaintiff's Complaint with prejudice, and any
other relief deemed just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via
Electronic Mail to: Carl R. Wilander, Esq., Primary: carl@mrwlawgroup.com; Secondary:
fl@mrwlawgroup.com, on this 7" day of April, 2021.
QUINTAIROS, PRIETO, WOOD & BOYER, P.A.
Attorney(s) for Defendant
1475 Centrepark Blvd., Suite 130
West Palm Beach, FL 33401
Telephone: 561-686-1880
Facsimile: 561-686-1886
Primary Email service: jmorrison.pleadings@qpwblaw.com
Secondary Email service: rebecca.kimball@qpwblaw.com
BY: _/s/ Nicole M. Healy
JAMES B. MORRISON, ESQ.
Florida Bar No.: 313210NICOLE M. HEALY, ESQ.
Florida Bar No.: 52606
JESSICA S. HERZIG, ESQ.
Florida Bar No.: 116403Filing # 119745498 E-Filed 01/15/2021 05:43:29 PM |
IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
IN AND FOR FLAGLER COUNTY, STATE OF FLORIDA
CIVIL DIVISION
THE ESTATE OF HARRY JOHNSON, JR., by
and through HARRIET S. JOHNSON, Personal
Representative,
Plaintiff,
VS,
MF FLAGLER, LLC; FLORIDA FACILITIES, CASE NO; 2021 CA 000028
LLC; PENSACOLA ADMINISTRATIVE
SERVICES, LLC; HC NAVIGATOR, LLC;
GULF COAST HEALTH CARE HOLDINGS,
LLC; NORMA ALVAREZ; and CHARLENE
PETRETTI (as to FLAGLER HEALTH AND
REHABILITATION CENTER),
Defendants,
/
COMPLAINT
Plaintiff, THE ESTATE OF HARRY JOHNSON, JR., by and through HARRIET S$.
JOHNSON, Personal Representative, and by and through undersigned counsel, hereby sues
Defendants, MF FLAGLER, LLC; FLORIDA FACILITIES, LLC; PENSACOLA
ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC; GULF COAST HEALTH
CARE HOLDINGS, LLC; NORMA ALVAREZ; and CHARLENE PETRETTI, and alleges:
SJORISDICTION, PARTIES AND VENUE ALLEGATIONS
1. This is an action for damages in excess of Thirty Thousand Dollars ($30,000.00).
2, On October 27, 2018, HARRY JOHNSON, JR. was admitted to FLAGLER
HEALTH AND REHABILITATION CENTER, located at 300 Dr. Carter Blvd., Bunnell, FL
32110 in Flagler County, where HARRY JOHNSON, JR, remained in primary residence until he
was discharged on January 24, 2019.
EXHIBIT
} " Q"3. Plaintiff, HARRIET S. JOHNSON, is the Personal Representative of THE
ESTATE OF HARRY JOHNSON, JR.. Letters of Administration, dated June 4, 2020
evidencing HARRIET S. JOHNSON’s authority to bring this action on behalf of THE ESTATE
OF HARRY JOHNSON, JR. are attached hereto as Exhibit “A.”
4. FLAGLER HEALTH AND REHABILITATION CENTER is a fictitious name
owned by Defendant, MF FLAGLER, LLC.
5. Defendant, MF FLAGLER, LLC, is an active Delaware foreign limited liability
company, with its principal place of business at 300 Dr. Carter Blvd., Bunnell, FL 32210, which
is doing business in Florida.
6. Defendant, MF FLAGLER, LLC conducted and engaged in business activities
within the State of Florida; engaged in substantial and not isolated activities within the State of
Florida; and purposely availed itself of the privileges of the State of Florida, through its
ownership of, leasing of, operation of, management of, and/or consultation with nursing homes,
including FLAGLER HEALTH AND REHABILITATION CENTER, within the State of
Florida. Accordingly, pursuant to Florida Statute §48.193, MF FLAGLER, LLC is subject to the
jurisdiction of the courts of the State of Florida.
7. MF FLAGLER, LLC committed tortious acts against HARRY JOHNSON, JR. in
the State of Florida. Each tortious act is specifically alleged in the subsequent counts.
Accordingly, pursuant to Florida Statute §48.193(1)(b), MF FLAGLER, LLC is subject to the
jurisdiction of the courts of the State of Florida.
8. MF FLAGLER, LLC is a licensee that operated the nursing home during HARRY
JOHNSON, JR.’s residency and as such owed a duty to HARRY JOHNSON, JR. to exercise
reasonable care in its operation according to §400.023(3), Florida Statutes.9. Defendant, FLORIDA FACILITIES, LLC is an active Delaware foreign limited
liability company, with its principal place of business at 40 South Palafox Place, Suite 400,
Pensacola, FL 32502, which is doing business in Florida.
10. FLORIDA FACILITIES, LLC is the sole owner of Defendant, MF FLAGLER,
LLC.
11. FLORIDA FACILITIES, LLC conducted and engaged in business activities
within the State of Florida; engaged in substantial and not isolated activities within the State of
Florida; and purposely availed itself of the privileges of the State of Florida, through its
ownership of, leasing of, operation of, management of, and/or consultation with nursing homes,
including FLAGLER HEALTH AND REHABILITATION CENTER, within the State of
Florida. Accordingly, pursuant to Florida Statute §48.193, FLORIDA FACILITIES, LLC is
subject to the jurisdiction of the courts of the State of Florida.
12. FLORIDA FACILITIES, LLC committed tortious acts against HARRY
JOHNSON, JR. in the State of Florida. Each tortious act is specifically alleged in the subsequent
counts. Accordingly, pursuant to Florida Statute §48.193(1)(b), FLORIDA FACILITIES, LLC is
subject to the jurisdiction of the courts of the State of Florida.
13. FLORIDA FACILITIES, LLC is an entity that owned, operated, managed, and/or
controlled FLAGLER HEALTH AND REHABILITATION CENTER, and as such, owed a duty
to HARRY JOHNSON, JR. to exercise reasonable care according to §400.023(3), Florida
Statutes.
14. FLORIDA FACILITIES, LLC accepted certain duties and obligations owed to
FLAGLER HEALTH AND REHABILITATION CENTER residents. FLORIDA FACILITIES,LLC breached or failed to perform its duties, with disregard of human rights, safety or property,
during HARRY JOHNSON, JR.’s period of residency.
15. Defendant, PENSACOLA ADMINISTRATIVE SERVICES, LLC, is an active
Delaware foreign limited liability company, with its principal place of business at 40 South
Palafox Place, Suite 400, Pensacola, FL 32502, which is doing business in Florida as Gulf Coast
Health Care, LLC, also known as Gulf Coast Health Care of Delaware, LLC.
16. | PENSACOLA ADMINISTRATIVE SERVICES, LLC serves as the home office
of Defendant, MF FLAGLER, LLC.
17. PENSACOLA ADMINISTRATIVE SERVICES, LLC conducted and engaged in
business activities within the State of Florida; engaged in substantial and not isolated activities
within the State of Florida; and purposely availed itself of the privileges of the State of Florida,
through its ownership of, leasing of, operation of, management of, and/or consultation with
nursing homes, including FLAGLER HEALTH AND REHABILITATION CENTER, within the
State of Florida. Accordingly, pursuant to Florida Statute §48.193, PENSACOLA
ADMINISTRATIVE SERVICES, LLC is subject to the jurisdiction of the courts of the State of
Florida.
18. PENSACOLA ADMINISTRATIVE SERVICES, LLC committed tortious acts
against HARRY JOHNSON, JR. in the State of Florida. Each tortious act is specifically alleged
in the subsequent counts. Accordingly, pursuant to Florida Statute §48.193(1)(b), PENSACOLA
ADMINISTRATIVE SERVICES, LLC is subject to the jurisdiction of the courts of the State of
Florida.
19. | PENSACOLA ADMINISTRATIVE SERVICES, LLC is an entity that owned,
operated, managed, and/or controlled FLAGLER HEALTH AND REHABILITATIONCENTER, and as such, owed a duty to HARRY JOHNSON, JR. to exercise reasonable care
according to §400.023(3), Florida Statutes.
20. Defendant, HC NAVIGATOR, LLC, also known as Health Care Navigator, LLC,
is an active Delaware foreign limited liability company, with its principal place of business at 4
West Red Oak Lane, Suite 201, White Plains, NY 10604, which is doing business in Florida.
21. HC NAVIGATOR, LLC is a management consulting company providing services
to Defendant, MF FLAGLER, LLC.
22. HC NAVIGATOR, LLC conducted and engaged in business activities within the
State of Florida; engaged in substantial and not isolated activities within the State of Florida; and
purposely availed itself of the privileges of the State of Florida, through its ownership of, leasing
of, operation of, management of, and/or consultation with nursing homes, including FLAGLER
HEALTH AND REHABILITATION CENTER, within the State of Florida. Accordingly,
pursuant to Florida Statute §48.193, HC NAVIGATOR, LLC is subject to the jurisdiction of the
courts of the State of Florida.
23. | HC NAVIGATOR, LLC committed tortious acts against HARRY JOHNSON,
JR. in the State of Florida. Each tortious act is specifically alleged in the subsequent counts.
Accordingly, pursuant to Florida Statute §48.193(1)(b), HC NAVIGATOR, LLC is subject to the
jurisdiction of the courts of the State of Florida.
24. HC NAVIGATOR, LLC is an entity that owned, operated, managed, and/or
controlled FLAGLER HEALTH AND REHABILITATION CENTER, and as such, owed a duty
to HARRY JOHNSON, JR. to exercise reasonable care according to §400.023(3), Florida
Statutes.25. Defendant, GULF COAST HEALTH CARE HOLDINGS, LLC, is an active
Delaware domestic limited liability company, with its principal place of business at 40 South
Palafox Place, Suite 400, Pensacola, FL 32502, which is doing business in Florida.
26. | GULF COAST HEALTH CARE HOLDINGS, LLC is a managing member of
Gulf Coast Health Care, LLC, also known as Defendant, PENSACOLA ADMINISTRATIVE
SERVICES, LLC.
27. | GULF COAST HEALTH CARE HOLDINGS, LLC conducted and engaged in
business activities within the State of Florida; engaged in substantial and not isolated activities
within the State of Florida; and purposely availed itself of the privileges of the State of Florida,
through its ownership of, leasing of, operation of, management of, and/or consultation with
nursing homes, including FLAGLER HEALTH AND REHABILITATION CENTER, within the
State of Florida. Accordingly, pursuant to Florida Statute §48.193, GULF COAST HEALTH
CARE HOLDINGS, LLC is subject to the jurisdiction of the courts of the State of Florida.
28. GULF COAST HEALTH CARE HOLDINGS, LLC committed tortious acts
against HARRY JOHNSON, JR. in the State of Florida. Each tortious act is specifically alleged
in the subsequent counts. Accordingly, pursuant to Florida Statute §48.193(1)(b), GULF COAST
HEALTH CARE HOLDINGS, LLC is subject to the jurisdiction of the courts of the State of
Florida.
29. | GULF COAST HEALTH CARE HOLDINGS, LLC is an entity that owned,
operated, managed, and/or controlled FLAGLER HEALTH AND REHABILITATION
CENTER, and as such, owed a duty to HARRY JOHNSON, JR. to exercise reasonable care
according to §400.023(3), Florida Statutes.30. Defendant, NORMA ALVAREZ, was at times material hereto a resident of the
State of Florida and the Administrator at FLAGLER HEALTH AND REHABILITATION
CENTER.
31. NORMA ALVAREZ conducted and engaged in business activities within the
State of Florida; engaged in substantial and not isolated activities within the State of Florida; and
purposely availed herself of the privileges of the State of Florida. Accordingly, pursuant to
Florida Statute §48.193, NORMA ALVAREZ is subject to the jurisdiction of the courts of the
State of Florida.
32. NORMA ALVAREZ committed tortious acts against HARRY JOHNSON, JR. in
the State of Florida. Each tortious act is specifically alleged in the subsequent counts.
Accordingly, NORMA ALVAREZ is subject to the jurisdiction of the courts of the State of
Florida, Fla. Stat. §48.193 (1)(b).
33. NORMA ALVAREZ owed a duty to HARRY JOHNSON, JR. to exercise
reasonable care according to §400.023(3), Florida Statutes,
34. Florida Administrative Code Rule 59A-4.103 requires the licensee to designate an
Administrator, “who oversees the day to day administration and operation of the facility.”
35. As the Administrator, NORMA ALVAREZ had the overall duty and
responsibility for making sure the nursing home complied with all Federal, State, Local laws and
professional standards under 42 CFR §483.75.
36. Defendant, CHARLENE PETRETTI, was at times material hereto a resident of
the State of Florida and the Director of Nursing at FLAGLER HEALTH AND
REHABILITATION CENTER.37. | CHARLENE PETRETTI conducted and engaged in business activities within the
State of Florida; engaged in substantial and not isolated activities within the State of Florida; and
purposely availed himself/herself of the privileges of the State of Florida. Accordingly, pursuant
to Florida Statute §48.193, CHARLENE PETRETTI is subject to the jurisdiction of the courts of
the State of Florida.
38. CHARLENE PETRETTI committed tortious acts against HARRY JOHNSON,
JR. in the State of Florida. Each tortious act is specifically alleged in the subsequent counts.
Accordingly, pursuant to Florida Statute §48.193, CHARLENE PETRETTI is subject to the
jurisdiction of the courts of the State of Florida.
39. As the Director of Nursing, CHARLENE PETRETTI had the duty and
responsibility and, therefore, accountability for supervision and administration of all of the
nursing services provided to residents including HARRY JOHNSON, JR. under the following
statutes and regulations:
a. Fla. Stat. §400.462 (7) provides:
“Director of Nursing means a Registered Nurse and direct employee of the agency
or related business entity who is a graduate of an approved school of nursing and is
licensed in this State and who oversees nursing services.” (emphasis added)
b. Fla. Admin. Code Rule 59A-4.108 (1):
“The Administrator of each nursing home will designate one full time registered
nurse as a Director of Nursing who shall be responsible and accountable for the
supervision and administration of the total nursing services program...” (emphasis added)
c 42 CFR §483.30 (2) provides:“Except when waived under paragraph (c) or (d) of this section, the facility must
designate a registered nurse to serve as the director of nursing on a full time basis.”
(emphasis added).
40. Plaintiff has performed all conditions precedent to commencement of this action.
Count I
Non-Lethal Negligence Damages Against
MF FLAGLER, LLC; FLORIDA FACILITIES, LLC;
PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC;
GULF COAST HEALTH CARE HOLDINGS, LLC;
NORMA ALVAREZ; and CHARLENE PETRETTI
41. Plaintiffre-alleges Paragraphs 1 through 40 above.
42. The acts and omissions of Defendants, as set forth herein, constitute violations of
the residents’ rights of HARRY JOHNSON, JR., pursuant to Florida Statute 400.022.
43. Defendants owed a duty to HARRY JOHNSON, JR. to properly hire, retain and
supervise nurses on Defendants’ staff and to ensure that any such licensed nurses exercised care
consistent with the prevailing professional standard of care for a nurse.
44. Defendants owed a duty to HARRY JOHNSON, JR. to properly hire, retain, and
supervise the administrator(s) of FLAGLER HEALTH AND REHABILITATION CENTER and
to ensure that any such licensed administrator(s) exercised care consistent with the prevailing
professional standard of care for an administrator.
45. Notwithstanding the responsibility of the Defendants to provide HARRY
JOHNSON, JR. with reasonable care, Defendants failed to act reasonably in the care of HARRY
JOHNSON, JR. by failing to provide HARRY JOHNSON, JR. a safe environment; failing to
monitor significant signs and symptoms of infection of HARRY JOHNSON, JR.; failing to
provide adequate and appropriate hygiene to HARRY JOHNSON, JR.; failing to maintain
appropriate records and properly document injuries for HARRY JOHNSON, JR.; failing tomonitor and adequately respond to changes in physical signs and symptoms of HARRY
JOHNSON, JR.; failing to properly notify a doctor upon significant changes in HARRY
JOHNSON, JR.'s condition; failing to properly follow doctor's orders for HARRY JOHNSON,
JR.; failing to adequately respond to changes in HARRY JOHNSON, JR.'s dehydration and
malnutrition status; failing to properly supervise staff; failing to properly train staff; failing to
provide adequate and appropriate supervision to ensure HARRY JOHNSON, JR.’s safety; and,
failing to provide proper nursing care, wound care, and to prescribe and administer proper
medication to prevent HARRY JOHNSON, JR.’s existing medical conditions from worsening to
the point of becoming life-threatening.
46. Additionally, Defendants endangered residents, including HARRY JOHNSON,
JR., by failing to use reasonable care in accepting and keeping residents in order to obtain
maximum census levels, which allows for increased revenues. The Defendants further
endangered residents by failing to adjust staffing levels to meet the needs of the residents,
including HARRY JOHNSON, JR., which significantly contributed to the following failures:
failure to provide HARRY JOHNSON, JR. a safe environment; failure to monitor significant
signs and symptoms of infection of HARRY JOHNSON, JR.; failure to provide adequate and
appropriate hygiene to HARRY JOHNSON, JR.; failure to maintain appropriate records and
properly document injuries for HARRY JOHNSON, JR.; failure to monitor and adequately
respond to changes in physical signs and symptoms of HARRY JOHNSON, JR.; failure to
properly notify a doctor upon significant changes in HARRY JOHNSON, JR.'s condition; failure
to properly follow doctor's orders for HARRY JOHNSON, JR.; failure to adequately respond to
changes in HARRY JOHNSON, JR.'s dehydration and malnutrition status; failure to properly
supervise staff; failure to properly train staff; failure to provide adequate and appropriate
10supervision to ensure HARRY JOHNSON, JR.’s safety; and, failure to provide proper nursing
care, wound care, and to prescribe and administer proper medication to prevent HARRY
JOHNSON, JR.’s existing medical conditions from worsening to the point of becoming life-
threatening.
47. Defendants each knew or should have known that the above-described failures
occurred or were likely to occur thus exposing HARRY JOHNSON, JR. to injury.
48. Defendants’ breach of the duties owed to Plaintiff as set forth herein was the legal
cause of the loss, injury and damages suffered by HARRY JOHNSON, JR. which included
aspiration pneumonia; E. coli; MRSA; and sepsis with septic shock.
49. As a direct and proximate result of Defendants’ negligent acts and omissions,
HARRY JOHNSON, JR. suffered bodily injury and resulting pain and suffering, disability,
disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of
hospitalization, medical and nursing care and treatment, and aggravation of a previously existing
condition.
WHEREFORE, Plaintiff demands judgment against the Defendants for damages as stated
above and further demands a trial by jury, together with such other and further relief as this
Court deems appropriate.
Count IL
Lethal Negligence Damages Against
MF FLAGLER, LLC; FLORIDA FACILITIES, LLC; °
PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC;
GULF COAST HEALTH CARE HOLDINGS, LLC;
NORMA ALVAREZ; and CHARLENE PETRETTI
50. Plaintiff re-alleges Paragraphs 1 through 40 above.
51. This is a claim for lethal negligence seeking survival damages.52. The acts and omissions of Defendants, as set forth herein, constitute violations of
the residents’ rights of HARRY JOHNSON, JR., pursuant to Florida Statute 400.022.
53. Defendants owed a duty to HARRY JOHNSON, IR. to properly hire, retain and
supervise nurses on Defendants’ staff and to ensure that any such licensed nurses exercised care
consistent with the prevailing professional standard of care for a nurse.
54. Defendants owed a duty to HARRY JOHNSON, JR. to properly hire, retain, and
supervise the administrator(s) of FLAGLER HEALTH AND REHABILITATION CENTER and
to ensure that any such licensed administrator(s) exercised care consistent with the prevailing
professional standard of care for an administrator.
55. Notwithstanding the responsibility of the Defendants to provide HARRY
JOHNSON, JR. with reasonable care, Defendants failed to act reasonably in the care of HARRY
JOHNSON, JR. by failing to provide HARRY JOHNSON, JR. a safe environment; failing to
monitor significant signs and symptoms of infection of HARRY JOHNSON, JR.; failing to
provide adequate and appropriate hygiene to HARRY JOHNSON, JR.; failing to maintain
appropriate records and properly document injuries for HARRY JOHNSON, JR.; failing to
monitor and adequately respond to changes in physical signs and symptoms of HARRY
JOHNSON, JR.; failing to properly notify a doctor upon significant changes in HARRY
JOHNSON, JR.'s condition; failing to properly follow doctor's orders for HARRY JOHNSON,
JR.; failing to adequately respond to changes in HARRY JOHNSON, JR.'s dehydration and
malnutrition status; failing to properly supervise staff; failing to properly train staff, failing to
provide adequate and appropriate supervision to ensure HARRY JOHNSON, JR.’s safety; and,
failing to provide proper nursing care, wound care, and to prescribe and administer proper
12medication to prevent HARRY JOHNSON, JR.’s existing medical conditions from worsening to
the point of becoming life-threatening.
56. Additionally, Defendants endangered residents, including HARRY JOHNSON,
JR., by failing to use reasonable care in accepting and keeping residents in order to obtain
maximum census levels, which allows for increased revenues. The Defendants further
endangered residents by failing to adjust staffing levels to meet the needs of the residents,
including HARRY JOHNSON, JR., which significantly contributed to the following failures:
failure to provide HARRY JOHNSON, JR. a safe environment; failure to monitor significant
signs and symptoms of infection of HARRY JOHNSON, JR.; failure to provide adequate and
appropriate hygiene to HARRY JOHNSON, JR.; failure to maintain appropriate records and
properly document injuries for HARRY JOHNSON, IR; failure to monitor and adequately
respond to changes in physical signs and symptoms of HARRY JOHNSON, JR.; failure to
properly notify a doctor upon significant changes in HARRY JOHNSON, JR.'s condition; failure
to properly follow doctor's orders for HARRY JOHNSON, JR.; failure to adequately respond to
changes in HARRY JOHNSON, JR.'s dehydration and malnutrition status; failure to properly
supervise staff; failure to properly train staff; failure to provide adequate and appropriate
supervision to ensure HARRY JOHNSON, JR.’s safety; and, failure to provide proper nursing
care, wound care, and to prescribe and administer proper medication to prevent HARRY
JOHNSON, JR.’s existing medical conditions from worsening to the point of becoming life-
threatening.
57. Defendants each knew or should have known that the above-described failures
occurred or were likely to occur thus exposing HARRY JOHNSON, JR. to injury.
1358. Defendants’ breach of the duties owed to Plaintiff as set forth herein was the legal
cause of the loss, injury and damages suffered by HARRY JOHNSON, JR. which included
aspiration pneumonia; E. coli; MRSA; and sepsis with septic shock.
59. As a direct and proximate result of Defendants’ negligent acts and omissions,
HARRY JOHNSON, JR. suffered bodily injury and resulting pain and suffering, disability,
disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of
hospitalization, medical and nursing care and treatment, aggravation of a previously existing
condition and ultimately, HARRY JOHNSON, JR. died on February 16, 2019.
WHEREFORE, Plaintiff demands judgment against the Defendants for damages as stated
above and further demands a trial by jury, together with such other and further relief as this
Court deems appropriate.
Count IT
Wrongful Death Damages Against
MF FLAGLER, LLC; FLORIDA FACILITIES, LLC;
PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC;
GULF COAST HEALTH CARE HOLDINGS, LLC;
NORMA ALVAREZ; and CHARLENE PETRETTI
60. Plaintiff re-alleges Paragraphs 1 through 40 above.
61. This is a claim for lethal negligence seeking wrongful death damages.
62. The acts and omissions of Defendants, as set forth herein, constitute violations of
the residents’ rights of HARRY JOHNSON, JR., pursuant to Florida Statute 400.022.
63. Defendants owed a duty to HARRY JOHNSON, JR. to properly hire, retain and
supervise nurses on Defendants’ staff and to ensure that any such licensed nurses exercised care
consistent with the prevailing professional standard of care for a nurse.
64. Defendants owed a duty to HARRY JOHNSON, JR. to properly hire, retain, and
supervise the administrator(s) of FLAGLER HEALTH AND REHABILITATION CENTER and.
14to ensure that any such licensed administrator(s) exercised care consistent with the prevailing
professional standard of care for an administrator.
65. Notwithstanding the responsibility of the Defendants to provide HARRY
JOHNSON, JR. with reasonable care, Defendants failed to act reasonably in the care of HARRY
JOHNSON, JR. by failing to provide HARRY JOHNSON, JR. a safe environment; failing to
monitor significant signs and symptoms of infection of HARRY JOHNSON, JR.; failing to
provide adequate and appropriate hygiene to HARRY JOHNSON, JR.; failing to maintain
appropriate records and properly document injuries for HARRY JOHNSON, JR.; failing to
monitor and adequately respond to changes in physical signs and symptoms of HARRY
JOHNSON, JR.; failing to properly notify a doctor upon significant changes in HARRY
JOHNSON, JR.'s condition; failing to properly follow doctor's orders for HARRY JOHNSON,
JR.; failing to adequately respond to changes in HARR
Preview
Filing # 124507459 E-Filed 04/07/2021 03:44:29 PM IN THE CIRCUIT COURT OF THE 7"™ JUDICIAL CIRCUIT, IN AND FOR FLAGLER COUNTY, FLORIDA CIVIL DIVISION CASE NO.: 2021-CA-000023 THE ESTATE OF HARRY JOHNSON, JR. by and through HARRIET S. JOHNSON, Personal Representative, Plaintiff, v. MF FLAGLER, LLC.; FLORIDA FACILITIES, LLC; PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC; GULF COAST HEALTH CARE HOLDINGS, LLC; NORMA ALVAREZ; and CHARLENE PETRETTI (as to FLAGLER HEALTH AND REHABILITATION CENTER), Defendant. DEFENDANTS’, MF FLAGLER, LLC, ANSWER, AFFIRMATIVE DEFENSES, AND MOTION TO DISMISS COUNT IV OF PLAINTIFF’S COMPLAINT COMES NOW, Defendant, MF FLAGLER, LLC, by and through the undersigned Counsel and pursuant to Florida Rules of Civil Procedure, hereby files this Answer, Affirmative Defenses and Motion to Dismiss Count IV of Plaintiff's Complaint to Plaintiff's Complaint, and state as follows: JURISDICTION, PARTIES AND VENUE ALLEGATIONS 1. Without knowledge, therefore denied and strict proof is demanded thereof. 2. Admitted only and for jurisdictional purposes as to dates of admission and discharge, and location of the Facility, otherwise denied. Electronically Received in the Office of the Clerk of the Circuit Court - Flagler County, Florida - 04/08/2021 02:51 PM10. 11. 12. Admitted only and for jurisdictional purposes, Letters of Administration appointing Harriet Johnson as Personal Representative of the Estate of Harry Johnson, Jr. are attached to the complaint. Otherwise, without knowledge, therefore denied and strict proof is demanded thereof. Denied as phrased. Denied as phrased. Denied and strict proof is demanded thereof. Denied and strict proof is demanded thereof. Admitted only and for jurisdictional purposes that MF FLAGLER, LLC is the licensee for FLAGLER HEALTH AND REHABILITATION CENTER, otherwise denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof.13, 14. 15, 16. 17. 18. 19. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof.20. 21. 22. 23. 24. 25. 26. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof.27. 28. 29. 30. 31. 32. 33. 34, This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This paragraph is not an allegation against the Defendant; therefore, no response is required. To the extent a response is necessary, without knowledge therefore denied.35. 36. 37. 38. 39 40. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. . (a-c) This allegation is directed to another defendant therefore no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. Without knowledge therefore denied and strict proof is demanded thereof. Count I Non-Lethal Negligence Damages Against MF FLAGLER, LLC, FLORIDA FACILITIES, LLC; PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC; 41. GULF COAST HEALTHCARE HOLDINGS, LLC; NORMA ALVAREZ; and CHARLENE PETRETTI Defendant, MF FLAGLER, LLC, incorporates by reference the admissions, denials and statements set forth in paragraphs 1 through 40 of Plaintiff's Complaint.42. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. 43. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. 44. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. 45. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. 46. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. 47. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. 48. This allegation is directed to multiple defendants. As to this Defendant, denied and strict a proof is demanded thereof. 49. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. To the extent the WHEREFORE clause requires a response, denied and strict proof is demanded thereof. Count II Lethal Negligence Damages Against MF FLAGLER, LLC, FLORIDA FACILITIES, LLC; PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC; GULF COAST HEALTHCARE HOLDINGS, LLC; NORMA ALVAREZ; and CHARLENE PETRETTI50. 51. 52. 53. 54. 55. 56. 57. 58. 59. To the extent the WHEREFORE clause requires a response, denie Defendant, MF FLAGLER, LLC, incorporates by reference the admissions, denials and statements set forth in paragraphs 1 through 40 of Plaintiffs Complaint. This paragraph is not an allegation against this Defendant; therefore, no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded t This allegation is directed proof is demanded thereof. This allegation is directed proof is demanded thereof. This allegation is directed proof is demanded thereof. This allegation is directed proof is demanded thereof. This allegation is directe proof is demanded thereof. This allegation is directe proof is demanded thereof. This allegation is directe proof is demanded thereof. This allegation is directe proof is demanded thereof. demanded thereof. ereof. to mul to mul to mul to mul to mul to mul to mul to mul tiple defendants. tiple defendants. tiple defendants. tiple defendants. tiple defendants. tiple defendants. tiple defendants. tiple defendants. As to this Defendant, As to this Defendant, As to this Defendant, As to this Defendant, As to this Defen As to this Defen As to this Defen As to this Defen ant, ant, ant, ant, lenied an lenied an lenied an lenied an denied and strict denied and strict denied and strict denied and strict strict strict strict strict and strict proof isCount III Wrongful Death Damages Against MF FLAGLER, LLC, FLORIDA FACILITIES, LLC; PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC; 60. 61. 62. 63. 64. 65. 66. 67. 68. GULF COAST HEALTHCARE HOLDINGS, LLC; NORMA ALVAREZ; and CHARLENE PETRETTI Defendant, MF FLAGLER, LLC, incorporates by reference the admissions, denials and statements set forth in paragraphs 1 through 40 of Plaintiffs Complaint. This paragraph is not an allegation against this Defendant; therefore, no response is required. To the extent a response is necessary, without knowledge therefore denied and strict proof is demanded thereof. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof.69. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. 70. This allegation is directed to multiple defendants. As to this Defendant, denied and strict proof is demanded thereof. 71. This allegation is directed to multiple defendants. As to this Defendant, without knowledge therefore denied and strict proof is demanded thereof. 72. This allegation is directed to multiple defendants. As to this Defendant, without knowledge therefore denied and strict proof is demanded thereof. 73. This allegation is directed to multiple defendants. As to this Defendant, without knowledge therefore denied and strict proof is demanded thereof. To the extent the WHEREFORE clause requires a response, denied and strict proof is demanded thereof. As to any remaining allegations in Plaintiff's Complaint, denied and strict proof is demanded thereof. Count IV Breach of Fiduciary Duty MF FLAGLER, LLC See Defendant, MF FLAGLER, LLC’s Motion to Dismiss attached and incorporated hereto. Count V Aiding and Abetting Breach of Fiduciary Duty FLORIDA FACILITIES, LLC; FLORIDA FACILITIES, LLC; PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC; GULF COAST HEALTHCARE HOLDINGS, LLC Count V is directed to other defendants therefore no response is required. To the extent a response is necessary, so respective defendant’s response.Count VI Violation of Florida Statutes §415.1111 as to FLORIDA FACILITIES, LLC; FLORIDA FACILITIES, LLC; PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC; GULF COAST HEALTHCARE HOLDINGS, LLC Count V is directed to other defendants therefore no response is required. To the extent a response is necessary, so respective defendant’s response. DEFENDANT’S, MF FLAGLER, LLC, AFFIRMATIVE DEFENSES Defendant, MF FLAGLER, LLC, sets forth the following Affirmative Defenses to Plaintiff's Complaint: FIRST AFFIRMATIVE DEFENSE Defendant affirmatively states that any damages that Plaintiff is alleging was caused by the acts or omissions of third parties other than Defendant’s agents, representatives or employees, the identity of whom is not yet known. SECOND AFFIRMATIVE DEFENSE Defendant affirmatively states that it is entitled to have the total fault of all participants apportioned, whether parties or non-parties, based upon each participant's percentage of fault according to Fabre. THIRD AFFIRMATIVE DEFENSE Defendant affirmatively states that any damages which the Plaintiff is alleging was the result of an intervening or supervening cause such that Plaintiff may not recover against the Defendants herein. FOURTH AFFIRMATIVE DEFENSE Defendant affirmatively states that Plaintiff's injuries or damages was the result of preexisting medical or congenital problems or conditions unrelated to the care and treatment of thePlaintiff by the Defendant, and that Plaintiff's injuries or damages did not result from a deprivation or infringement of his resident's rights. FIFTH AFFIRMATIVE DEFENSE Defendant affirmatively states that they are entitled to a set off pursuant to Section 768.31 and 768.76, Florida Statutes, and any other applicable Florida Statutes for benefits the Plaintiffhas received, or is entitled to receive payment under, from a collateral source or potential tortfeasor. SIXTH AFFIRMATIVE DEFENSE Defendant affirmatively states that at the time and place alleged in the Complaint, the Plaintiff was guilty of negligence which proximately caused or proximately contributed to any injuries or damages he may have sustained and that, therefore, any award to which Plaintiff may be entitled should be reduced accordingly, pursuant to the Doctrine of Comparative Negligence. SEVENTH AFFIRMATIVE DEFENSE Defendant affirmatively states that in the event of a judgment for the Plaintiff, this Defendant is entitled to have the judgment made payable in accordance with the alternative methods of payment. EIGHTH AFFIRMATIVE DEFENSE Defendant affirmatively states that the Plaintiff has failed to mitigate his damages and/or losses and, as such, any claim of the Plaintiff should be reduced by virtue of their failure to mitigate. NINTH AFFIRMATIVE DEFENSE Defendant affirmatively states that the Plaintiff has failed to state a cause of action against MF FLAGLER, LLC, as the Complaint fails to demonstrate a direct cause of harm, injury or loss to the Plaintiff.TENTH AFFIRMATIVE DEFENSE Defendant affirmatively states that the Plaintiff has failed to state a cause of action against MF FLAGLER, LLC as the Complaint fails to demonstrate a direct cause of harm, injury or loss to the Plaintiff. ELEVENTH AFFIRMATIVE DEFENSE The Defendant affirmatively states the only duties owed to the Plaintiff are set forth in Section 400.022, Florida Statutes, which does not include that a nursing facility owes a fiduciary duty to its residents. TWELFTH AFFIRMATIVE DEFENSE Defendant affirmatively states that if the Plaintiff's rights were violated, Sections 400.023 through 400.0238 provide the exclusive remedy for a cause of action for recovery of damages for the personal injury or death of a nursing home resident arising out of negligence or a violation of tights specified in Section 400.022. THIRTEENTH AFFIRMATIVE DEFENSE Defendant affirmatively states that this action is alleged to have arisen out of negligence during a residency at a nursing home facility pursuant to Chapter 400 of Florida Statutes, which has a limitations period of two years from the date the cause of action accrues. Therefore, the Plaintiff's action is time barred pursuant to statute of limitations for any allegations of negligence outside of the two-year statute of limitations period. FOURTEENTH AFFIRMATIVE DEFENSE Defendants affirmatively state that the Plaintiff has failed to state a cause of action for joint venture and partnership as the Plaintiff has only made incomplete, general, conclusory statementsand has failed to properly plead elements required to bring a cause of action for joint venture and partnership. The Plaintiff has improperly and impermissibly plead the foregoing. SEVENTEENTH AFFIRMATIVE DEFENSE Defendant, MF FLAGLER, LLC reserves the right to amend their affirmative defenses. JURY DEMAND Defendant, MF FLAGLER, LLC, herein requests a trial by jury of all issues so triable by jury. WHEREFORE, Defendant, MF FLAGLER, demands judgment in its favor. DEFENDANT’S, MF FLAGLER, LLC, MOTION TO DISMISS COUNT IV, BREACH OF FIDUCIARY DUTY COMES NOW, Defendant, MF FLAGLER, LLC, by and through the undersigned counsel and pursuant to Florida Rules of Procedure, hereby moves this Honorable Court to Dismiss Count IV, Breach of Fiduciary Duty of Plaintiff's Complaint directed against MF FLAGLER, LLC, and as grounds in support thereof states as follows. 1. On a motion to dismiss a complaint, the allegations in the complaint are viewed in the light most favorable to the plaintiff. Palm Beach-Broward Medical Imaging Center, Inc. v. Continental Grain Co., 715 So.2d 343, 344 (Fla. 4th DCA 1998). 2. In ruling upon a motion to dismiss the complaint, the issue before the court is whether the complaint states a valid cause of action. Temples v. Florida Indus. Const. Co., Inc., 310 So.2d 326, 327 (Fla. 2d DCA 1975). 3. When a trial court rules upon a motion to dismiss pursuant to Rule 1.140, Fla. R. Civ. Pro., the “court’s gaze is limited to the four corners of the complaint.” Fresh Capital Financial Services, Inc. v. Bridgeport Capital Services, Inc., 891 So.2d 1142, 1143 (Fla. 4th DCA 2005).To determine the sufficiency of plaintiff's complaint, the court must assign truth to facts alleged and determine whether the facts support an actionable case under the applicable principles of law. Binz v. Helvetia Florida Enterprises, Inc., 104 So.2d 124, 126 (Fla. 3d DCA 1958). In Count IV, Plaintiff mistakenly alleges that a “special confidence” or “special telationship” existed between Defendant, MF FLAGLER, LLC and the resident. See Exhibit A. Additionally, Plaintiff alleges that the Defendant, MF FLAGLER, LLC owed a “fiduciary duty” to the resident. The only duties owed to Plaintiff are set forth explicitly in Section 400.022, Florida Statutes (2012). Nowhere in Section 400.022, is there any indication the legislature intended skilled nursing facilities to owe a fiduciary duty to its residents. A fiduciary duty is the duty to act for someone else’s benefit while subordinating one’s personal interest to that of the other person. It is the highest standard of duty implied by law and is usually attributed to trustees, or guardians, etc. Black’s Law Dictionary, (1991). Chapter 400, Florida Statutes, should not be interpreted to mean that a nursing home owes a fiduciary duty to its residents. Under the principle of statutory construction, expressio unius est exclusio alterius, “the mention of one thing implies the exclusion of another." Moonlit Waters Apartments Inc. v. Cauley, 666 So.2d 898. 900 (Fla.1996). If the legislature intended skilled nursing facilities in Florida to be a fiduciary for its residents, it would have indicated so by expressly stating a nursing home owed a fiduciary duty to its residents.10. ll. 12. 13. 14. In fact, the legislature has indicated that nursing homes are not to be guardians, trustees, or conservators for any resident in the facility. Section 400.162(2), Florida Statutes (2012). Accordingly, the legislature has indicated the duties owed to a nursing home resident do not rise to the level of a fiduciary. More importantly, a claim for breach of fiduciary duty is based on the theory of negligence. See, Gracy v. Eaker, 837 So.2d 348 (Fla. 2002). See also, Palafrugell Holdings, Inc. v. Cassell, 825 So.2d 937 (Fla. 3d DCA 2001). If Plaintiffs rights were violated, she is entitled to file a civil action pursuant to Section 400.023, Florida Statutes, which states in pertinent part: “Sections 400.023 through 400.0238 provide the exclusive remedy for a cause of action for recovery of damages for the personal injury or death of a nursing home resident arising out of negligence or a violation of rights specified in Section 400.022.” Section 400.22, Florida Statutes (2012). (Emphasis added.) Plaintiff’s allegations contained in Count IV arise from resident’s rights set forth in Section 400.022. Count IV of Plaintiff's Complaint references several duties that are substantially similar to the nursing home resident’s rights found in §400.023. Asa tesult of the aforementioned breaches, the Plaintiff alleges that the resident suffered loss, injury, and damages. Therefore, Count IV is redundant as Section 400.023 provides Plaintiff the exclusive remedy to address any claims he may have against the Defendant. Alternatively, Plaintiff fails to adequately plead that there existed a relationship between Plaintiff and Defendant, whereby Plaintiff reposed trust and confidence in Defendant; Defendant undertook such trust and assumed a duty to advise, counsel,and/or protect Plaintiff; Defendant breach of any duty owed to Plaintiff by Defendant; and Plaintiff suffered damages because of any breach by Defendant. 15. Plaintiff has failed to produce any sworn proof with regards to each and every element of the breach of fiduciary claim alleged in Count IV and therefore the Court should dismiss Plaintiff's Breach of Fiduciary Duty Claim. 16. Florida case law has not held a nursing home facility to the standard of a fiduciary; therefore, Court IV should be dismissed under Florida law. 17. Accordingly, Count IV of Plaintiff's Complaint against Defendant, MF FLAGLER, LLC, should be dismissed with prejudice. WHEREFORE, Defendant, MF FLAGLER, LLC, moves this Honorable Court for an order dismissing Count IV, Breach of Fiduciary Duty, of Plaintiff's Complaint with prejudice, and any other relief deemed just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Electronic Mail to: Carl R. Wilander, Esq., Primary: carl@mrwlawgroup.com; Secondary: fl@mrwlawgroup.com, on this 7" day of April, 2021. QUINTAIROS, PRIETO, WOOD & BOYER, P.A. Attorney(s) for Defendant 1475 Centrepark Blvd., Suite 130 West Palm Beach, FL 33401 Telephone: 561-686-1880 Facsimile: 561-686-1886 Primary Email service: jmorrison.pleadings@qpwblaw.com Secondary Email service: rebecca.kimball@qpwblaw.com BY: _/s/ Nicole M. Healy JAMES B. MORRISON, ESQ. Florida Bar No.: 313210NICOLE M. HEALY, ESQ. Florida Bar No.: 52606 JESSICA S. HERZIG, ESQ. Florida Bar No.: 116403Filing # 119745498 E-Filed 01/15/2021 05:43:29 PM | IN THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT IN AND FOR FLAGLER COUNTY, STATE OF FLORIDA CIVIL DIVISION THE ESTATE OF HARRY JOHNSON, JR., by and through HARRIET S. JOHNSON, Personal Representative, Plaintiff, VS, MF FLAGLER, LLC; FLORIDA FACILITIES, CASE NO; 2021 CA 000028 LLC; PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC; GULF COAST HEALTH CARE HOLDINGS, LLC; NORMA ALVAREZ; and CHARLENE PETRETTI (as to FLAGLER HEALTH AND REHABILITATION CENTER), Defendants, / COMPLAINT Plaintiff, THE ESTATE OF HARRY JOHNSON, JR., by and through HARRIET S$. JOHNSON, Personal Representative, and by and through undersigned counsel, hereby sues Defendants, MF FLAGLER, LLC; FLORIDA FACILITIES, LLC; PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC; GULF COAST HEALTH CARE HOLDINGS, LLC; NORMA ALVAREZ; and CHARLENE PETRETTI, and alleges: SJORISDICTION, PARTIES AND VENUE ALLEGATIONS 1. This is an action for damages in excess of Thirty Thousand Dollars ($30,000.00). 2, On October 27, 2018, HARRY JOHNSON, JR. was admitted to FLAGLER HEALTH AND REHABILITATION CENTER, located at 300 Dr. Carter Blvd., Bunnell, FL 32110 in Flagler County, where HARRY JOHNSON, JR, remained in primary residence until he was discharged on January 24, 2019. EXHIBIT } " Q"3. Plaintiff, HARRIET S. JOHNSON, is the Personal Representative of THE ESTATE OF HARRY JOHNSON, JR.. Letters of Administration, dated June 4, 2020 evidencing HARRIET S. JOHNSON’s authority to bring this action on behalf of THE ESTATE OF HARRY JOHNSON, JR. are attached hereto as Exhibit “A.” 4. FLAGLER HEALTH AND REHABILITATION CENTER is a fictitious name owned by Defendant, MF FLAGLER, LLC. 5. Defendant, MF FLAGLER, LLC, is an active Delaware foreign limited liability company, with its principal place of business at 300 Dr. Carter Blvd., Bunnell, FL 32210, which is doing business in Florida. 6. Defendant, MF FLAGLER, LLC conducted and engaged in business activities within the State of Florida; engaged in substantial and not isolated activities within the State of Florida; and purposely availed itself of the privileges of the State of Florida, through its ownership of, leasing of, operation of, management of, and/or consultation with nursing homes, including FLAGLER HEALTH AND REHABILITATION CENTER, within the State of Florida. Accordingly, pursuant to Florida Statute §48.193, MF FLAGLER, LLC is subject to the jurisdiction of the courts of the State of Florida. 7. MF FLAGLER, LLC committed tortious acts against HARRY JOHNSON, JR. in the State of Florida. Each tortious act is specifically alleged in the subsequent counts. Accordingly, pursuant to Florida Statute §48.193(1)(b), MF FLAGLER, LLC is subject to the jurisdiction of the courts of the State of Florida. 8. MF FLAGLER, LLC is a licensee that operated the nursing home during HARRY JOHNSON, JR.’s residency and as such owed a duty to HARRY JOHNSON, JR. to exercise reasonable care in its operation according to §400.023(3), Florida Statutes.9. Defendant, FLORIDA FACILITIES, LLC is an active Delaware foreign limited liability company, with its principal place of business at 40 South Palafox Place, Suite 400, Pensacola, FL 32502, which is doing business in Florida. 10. FLORIDA FACILITIES, LLC is the sole owner of Defendant, MF FLAGLER, LLC. 11. FLORIDA FACILITIES, LLC conducted and engaged in business activities within the State of Florida; engaged in substantial and not isolated activities within the State of Florida; and purposely availed itself of the privileges of the State of Florida, through its ownership of, leasing of, operation of, management of, and/or consultation with nursing homes, including FLAGLER HEALTH AND REHABILITATION CENTER, within the State of Florida. Accordingly, pursuant to Florida Statute §48.193, FLORIDA FACILITIES, LLC is subject to the jurisdiction of the courts of the State of Florida. 12. FLORIDA FACILITIES, LLC committed tortious acts against HARRY JOHNSON, JR. in the State of Florida. Each tortious act is specifically alleged in the subsequent counts. Accordingly, pursuant to Florida Statute §48.193(1)(b), FLORIDA FACILITIES, LLC is subject to the jurisdiction of the courts of the State of Florida. 13. FLORIDA FACILITIES, LLC is an entity that owned, operated, managed, and/or controlled FLAGLER HEALTH AND REHABILITATION CENTER, and as such, owed a duty to HARRY JOHNSON, JR. to exercise reasonable care according to §400.023(3), Florida Statutes. 14. FLORIDA FACILITIES, LLC accepted certain duties and obligations owed to FLAGLER HEALTH AND REHABILITATION CENTER residents. FLORIDA FACILITIES,LLC breached or failed to perform its duties, with disregard of human rights, safety or property, during HARRY JOHNSON, JR.’s period of residency. 15. Defendant, PENSACOLA ADMINISTRATIVE SERVICES, LLC, is an active Delaware foreign limited liability company, with its principal place of business at 40 South Palafox Place, Suite 400, Pensacola, FL 32502, which is doing business in Florida as Gulf Coast Health Care, LLC, also known as Gulf Coast Health Care of Delaware, LLC. 16. | PENSACOLA ADMINISTRATIVE SERVICES, LLC serves as the home office of Defendant, MF FLAGLER, LLC. 17. PENSACOLA ADMINISTRATIVE SERVICES, LLC conducted and engaged in business activities within the State of Florida; engaged in substantial and not isolated activities within the State of Florida; and purposely availed itself of the privileges of the State of Florida, through its ownership of, leasing of, operation of, management of, and/or consultation with nursing homes, including FLAGLER HEALTH AND REHABILITATION CENTER, within the State of Florida. Accordingly, pursuant to Florida Statute §48.193, PENSACOLA ADMINISTRATIVE SERVICES, LLC is subject to the jurisdiction of the courts of the State of Florida. 18. PENSACOLA ADMINISTRATIVE SERVICES, LLC committed tortious acts against HARRY JOHNSON, JR. in the State of Florida. Each tortious act is specifically alleged in the subsequent counts. Accordingly, pursuant to Florida Statute §48.193(1)(b), PENSACOLA ADMINISTRATIVE SERVICES, LLC is subject to the jurisdiction of the courts of the State of Florida. 19. | PENSACOLA ADMINISTRATIVE SERVICES, LLC is an entity that owned, operated, managed, and/or controlled FLAGLER HEALTH AND REHABILITATIONCENTER, and as such, owed a duty to HARRY JOHNSON, JR. to exercise reasonable care according to §400.023(3), Florida Statutes. 20. Defendant, HC NAVIGATOR, LLC, also known as Health Care Navigator, LLC, is an active Delaware foreign limited liability company, with its principal place of business at 4 West Red Oak Lane, Suite 201, White Plains, NY 10604, which is doing business in Florida. 21. HC NAVIGATOR, LLC is a management consulting company providing services to Defendant, MF FLAGLER, LLC. 22. HC NAVIGATOR, LLC conducted and engaged in business activities within the State of Florida; engaged in substantial and not isolated activities within the State of Florida; and purposely availed itself of the privileges of the State of Florida, through its ownership of, leasing of, operation of, management of, and/or consultation with nursing homes, including FLAGLER HEALTH AND REHABILITATION CENTER, within the State of Florida. Accordingly, pursuant to Florida Statute §48.193, HC NAVIGATOR, LLC is subject to the jurisdiction of the courts of the State of Florida. 23. | HC NAVIGATOR, LLC committed tortious acts against HARRY JOHNSON, JR. in the State of Florida. Each tortious act is specifically alleged in the subsequent counts. Accordingly, pursuant to Florida Statute §48.193(1)(b), HC NAVIGATOR, LLC is subject to the jurisdiction of the courts of the State of Florida. 24. HC NAVIGATOR, LLC is an entity that owned, operated, managed, and/or controlled FLAGLER HEALTH AND REHABILITATION CENTER, and as such, owed a duty to HARRY JOHNSON, JR. to exercise reasonable care according to §400.023(3), Florida Statutes.25. Defendant, GULF COAST HEALTH CARE HOLDINGS, LLC, is an active Delaware domestic limited liability company, with its principal place of business at 40 South Palafox Place, Suite 400, Pensacola, FL 32502, which is doing business in Florida. 26. | GULF COAST HEALTH CARE HOLDINGS, LLC is a managing member of Gulf Coast Health Care, LLC, also known as Defendant, PENSACOLA ADMINISTRATIVE SERVICES, LLC. 27. | GULF COAST HEALTH CARE HOLDINGS, LLC conducted and engaged in business activities within the State of Florida; engaged in substantial and not isolated activities within the State of Florida; and purposely availed itself of the privileges of the State of Florida, through its ownership of, leasing of, operation of, management of, and/or consultation with nursing homes, including FLAGLER HEALTH AND REHABILITATION CENTER, within the State of Florida. Accordingly, pursuant to Florida Statute §48.193, GULF COAST HEALTH CARE HOLDINGS, LLC is subject to the jurisdiction of the courts of the State of Florida. 28. GULF COAST HEALTH CARE HOLDINGS, LLC committed tortious acts against HARRY JOHNSON, JR. in the State of Florida. Each tortious act is specifically alleged in the subsequent counts. Accordingly, pursuant to Florida Statute §48.193(1)(b), GULF COAST HEALTH CARE HOLDINGS, LLC is subject to the jurisdiction of the courts of the State of Florida. 29. | GULF COAST HEALTH CARE HOLDINGS, LLC is an entity that owned, operated, managed, and/or controlled FLAGLER HEALTH AND REHABILITATION CENTER, and as such, owed a duty to HARRY JOHNSON, JR. to exercise reasonable care according to §400.023(3), Florida Statutes.30. Defendant, NORMA ALVAREZ, was at times material hereto a resident of the State of Florida and the Administrator at FLAGLER HEALTH AND REHABILITATION CENTER. 31. NORMA ALVAREZ conducted and engaged in business activities within the State of Florida; engaged in substantial and not isolated activities within the State of Florida; and purposely availed herself of the privileges of the State of Florida. Accordingly, pursuant to Florida Statute §48.193, NORMA ALVAREZ is subject to the jurisdiction of the courts of the State of Florida. 32. NORMA ALVAREZ committed tortious acts against HARRY JOHNSON, JR. in the State of Florida. Each tortious act is specifically alleged in the subsequent counts. Accordingly, NORMA ALVAREZ is subject to the jurisdiction of the courts of the State of Florida, Fla. Stat. §48.193 (1)(b). 33. NORMA ALVAREZ owed a duty to HARRY JOHNSON, JR. to exercise reasonable care according to §400.023(3), Florida Statutes, 34. Florida Administrative Code Rule 59A-4.103 requires the licensee to designate an Administrator, “who oversees the day to day administration and operation of the facility.” 35. As the Administrator, NORMA ALVAREZ had the overall duty and responsibility for making sure the nursing home complied with all Federal, State, Local laws and professional standards under 42 CFR §483.75. 36. Defendant, CHARLENE PETRETTI, was at times material hereto a resident of the State of Florida and the Director of Nursing at FLAGLER HEALTH AND REHABILITATION CENTER.37. | CHARLENE PETRETTI conducted and engaged in business activities within the State of Florida; engaged in substantial and not isolated activities within the State of Florida; and purposely availed himself/herself of the privileges of the State of Florida. Accordingly, pursuant to Florida Statute §48.193, CHARLENE PETRETTI is subject to the jurisdiction of the courts of the State of Florida. 38. CHARLENE PETRETTI committed tortious acts against HARRY JOHNSON, JR. in the State of Florida. Each tortious act is specifically alleged in the subsequent counts. Accordingly, pursuant to Florida Statute §48.193, CHARLENE PETRETTI is subject to the jurisdiction of the courts of the State of Florida. 39. As the Director of Nursing, CHARLENE PETRETTI had the duty and responsibility and, therefore, accountability for supervision and administration of all of the nursing services provided to residents including HARRY JOHNSON, JR. under the following statutes and regulations: a. Fla. Stat. §400.462 (7) provides: “Director of Nursing means a Registered Nurse and direct employee of the agency or related business entity who is a graduate of an approved school of nursing and is licensed in this State and who oversees nursing services.” (emphasis added) b. Fla. Admin. Code Rule 59A-4.108 (1): “The Administrator of each nursing home will designate one full time registered nurse as a Director of Nursing who shall be responsible and accountable for the supervision and administration of the total nursing services program...” (emphasis added) c 42 CFR §483.30 (2) provides:“Except when waived under paragraph (c) or (d) of this section, the facility must designate a registered nurse to serve as the director of nursing on a full time basis.” (emphasis added). 40. Plaintiff has performed all conditions precedent to commencement of this action. Count I Non-Lethal Negligence Damages Against MF FLAGLER, LLC; FLORIDA FACILITIES, LLC; PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC; GULF COAST HEALTH CARE HOLDINGS, LLC; NORMA ALVAREZ; and CHARLENE PETRETTI 41. Plaintiffre-alleges Paragraphs 1 through 40 above. 42. The acts and omissions of Defendants, as set forth herein, constitute violations of the residents’ rights of HARRY JOHNSON, JR., pursuant to Florida Statute 400.022. 43. Defendants owed a duty to HARRY JOHNSON, JR. to properly hire, retain and supervise nurses on Defendants’ staff and to ensure that any such licensed nurses exercised care consistent with the prevailing professional standard of care for a nurse. 44. Defendants owed a duty to HARRY JOHNSON, JR. to properly hire, retain, and supervise the administrator(s) of FLAGLER HEALTH AND REHABILITATION CENTER and to ensure that any such licensed administrator(s) exercised care consistent with the prevailing professional standard of care for an administrator. 45. Notwithstanding the responsibility of the Defendants to provide HARRY JOHNSON, JR. with reasonable care, Defendants failed to act reasonably in the care of HARRY JOHNSON, JR. by failing to provide HARRY JOHNSON, JR. a safe environment; failing to monitor significant signs and symptoms of infection of HARRY JOHNSON, JR.; failing to provide adequate and appropriate hygiene to HARRY JOHNSON, JR.; failing to maintain appropriate records and properly document injuries for HARRY JOHNSON, JR.; failing tomonitor and adequately respond to changes in physical signs and symptoms of HARRY JOHNSON, JR.; failing to properly notify a doctor upon significant changes in HARRY JOHNSON, JR.'s condition; failing to properly follow doctor's orders for HARRY JOHNSON, JR.; failing to adequately respond to changes in HARRY JOHNSON, JR.'s dehydration and malnutrition status; failing to properly supervise staff; failing to properly train staff; failing to provide adequate and appropriate supervision to ensure HARRY JOHNSON, JR.’s safety; and, failing to provide proper nursing care, wound care, and to prescribe and administer proper medication to prevent HARRY JOHNSON, JR.’s existing medical conditions from worsening to the point of becoming life-threatening. 46. Additionally, Defendants endangered residents, including HARRY JOHNSON, JR., by failing to use reasonable care in accepting and keeping residents in order to obtain maximum census levels, which allows for increased revenues. The Defendants further endangered residents by failing to adjust staffing levels to meet the needs of the residents, including HARRY JOHNSON, JR., which significantly contributed to the following failures: failure to provide HARRY JOHNSON, JR. a safe environment; failure to monitor significant signs and symptoms of infection of HARRY JOHNSON, JR.; failure to provide adequate and appropriate hygiene to HARRY JOHNSON, JR.; failure to maintain appropriate records and properly document injuries for HARRY JOHNSON, JR.; failure to monitor and adequately respond to changes in physical signs and symptoms of HARRY JOHNSON, JR.; failure to properly notify a doctor upon significant changes in HARRY JOHNSON, JR.'s condition; failure to properly follow doctor's orders for HARRY JOHNSON, JR.; failure to adequately respond to changes in HARRY JOHNSON, JR.'s dehydration and malnutrition status; failure to properly supervise staff; failure to properly train staff; failure to provide adequate and appropriate 10supervision to ensure HARRY JOHNSON, JR.’s safety; and, failure to provide proper nursing care, wound care, and to prescribe and administer proper medication to prevent HARRY JOHNSON, JR.’s existing medical conditions from worsening to the point of becoming life- threatening. 47. Defendants each knew or should have known that the above-described failures occurred or were likely to occur thus exposing HARRY JOHNSON, JR. to injury. 48. Defendants’ breach of the duties owed to Plaintiff as set forth herein was the legal cause of the loss, injury and damages suffered by HARRY JOHNSON, JR. which included aspiration pneumonia; E. coli; MRSA; and sepsis with septic shock. 49. As a direct and proximate result of Defendants’ negligent acts and omissions, HARRY JOHNSON, JR. suffered bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, and aggravation of a previously existing condition. WHEREFORE, Plaintiff demands judgment against the Defendants for damages as stated above and further demands a trial by jury, together with such other and further relief as this Court deems appropriate. Count IL Lethal Negligence Damages Against MF FLAGLER, LLC; FLORIDA FACILITIES, LLC; ° PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC; GULF COAST HEALTH CARE HOLDINGS, LLC; NORMA ALVAREZ; and CHARLENE PETRETTI 50. Plaintiff re-alleges Paragraphs 1 through 40 above. 51. This is a claim for lethal negligence seeking survival damages.52. The acts and omissions of Defendants, as set forth herein, constitute violations of the residents’ rights of HARRY JOHNSON, JR., pursuant to Florida Statute 400.022. 53. Defendants owed a duty to HARRY JOHNSON, IR. to properly hire, retain and supervise nurses on Defendants’ staff and to ensure that any such licensed nurses exercised care consistent with the prevailing professional standard of care for a nurse. 54. Defendants owed a duty to HARRY JOHNSON, JR. to properly hire, retain, and supervise the administrator(s) of FLAGLER HEALTH AND REHABILITATION CENTER and to ensure that any such licensed administrator(s) exercised care consistent with the prevailing professional standard of care for an administrator. 55. Notwithstanding the responsibility of the Defendants to provide HARRY JOHNSON, JR. with reasonable care, Defendants failed to act reasonably in the care of HARRY JOHNSON, JR. by failing to provide HARRY JOHNSON, JR. a safe environment; failing to monitor significant signs and symptoms of infection of HARRY JOHNSON, JR.; failing to provide adequate and appropriate hygiene to HARRY JOHNSON, JR.; failing to maintain appropriate records and properly document injuries for HARRY JOHNSON, JR.; failing to monitor and adequately respond to changes in physical signs and symptoms of HARRY JOHNSON, JR.; failing to properly notify a doctor upon significant changes in HARRY JOHNSON, JR.'s condition; failing to properly follow doctor's orders for HARRY JOHNSON, JR.; failing to adequately respond to changes in HARRY JOHNSON, JR.'s dehydration and malnutrition status; failing to properly supervise staff; failing to properly train staff, failing to provide adequate and appropriate supervision to ensure HARRY JOHNSON, JR.’s safety; and, failing to provide proper nursing care, wound care, and to prescribe and administer proper 12medication to prevent HARRY JOHNSON, JR.’s existing medical conditions from worsening to the point of becoming life-threatening. 56. Additionally, Defendants endangered residents, including HARRY JOHNSON, JR., by failing to use reasonable care in accepting and keeping residents in order to obtain maximum census levels, which allows for increased revenues. The Defendants further endangered residents by failing to adjust staffing levels to meet the needs of the residents, including HARRY JOHNSON, JR., which significantly contributed to the following failures: failure to provide HARRY JOHNSON, JR. a safe environment; failure to monitor significant signs and symptoms of infection of HARRY JOHNSON, JR.; failure to provide adequate and appropriate hygiene to HARRY JOHNSON, JR.; failure to maintain appropriate records and properly document injuries for HARRY JOHNSON, IR; failure to monitor and adequately respond to changes in physical signs and symptoms of HARRY JOHNSON, JR.; failure to properly notify a doctor upon significant changes in HARRY JOHNSON, JR.'s condition; failure to properly follow doctor's orders for HARRY JOHNSON, JR.; failure to adequately respond to changes in HARRY JOHNSON, JR.'s dehydration and malnutrition status; failure to properly supervise staff; failure to properly train staff; failure to provide adequate and appropriate supervision to ensure HARRY JOHNSON, JR.’s safety; and, failure to provide proper nursing care, wound care, and to prescribe and administer proper medication to prevent HARRY JOHNSON, JR.’s existing medical conditions from worsening to the point of becoming life- threatening. 57. Defendants each knew or should have known that the above-described failures occurred or were likely to occur thus exposing HARRY JOHNSON, JR. to injury. 1358. Defendants’ breach of the duties owed to Plaintiff as set forth herein was the legal cause of the loss, injury and damages suffered by HARRY JOHNSON, JR. which included aspiration pneumonia; E. coli; MRSA; and sepsis with septic shock. 59. As a direct and proximate result of Defendants’ negligent acts and omissions, HARRY JOHNSON, JR. suffered bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, aggravation of a previously existing condition and ultimately, HARRY JOHNSON, JR. died on February 16, 2019. WHEREFORE, Plaintiff demands judgment against the Defendants for damages as stated above and further demands a trial by jury, together with such other and further relief as this Court deems appropriate. Count IT Wrongful Death Damages Against MF FLAGLER, LLC; FLORIDA FACILITIES, LLC; PENSACOLA ADMINISTRATIVE SERVICES, LLC; HC NAVIGATOR, LLC; GULF COAST HEALTH CARE HOLDINGS, LLC; NORMA ALVAREZ; and CHARLENE PETRETTI 60. Plaintiff re-alleges Paragraphs 1 through 40 above. 61. This is a claim for lethal negligence seeking wrongful death damages. 62. The acts and omissions of Defendants, as set forth herein, constitute violations of the residents’ rights of HARRY JOHNSON, JR., pursuant to Florida Statute 400.022. 63. Defendants owed a duty to HARRY JOHNSON, JR. to properly hire, retain and supervise nurses on Defendants’ staff and to ensure that any such licensed nurses exercised care consistent with the prevailing professional standard of care for a nurse. 64. Defendants owed a duty to HARRY JOHNSON, JR. to properly hire, retain, and supervise the administrator(s) of FLAGLER HEALTH AND REHABILITATION CENTER and. 14to ensure that any such licensed administrator(s) exercised care consistent with the prevailing professional standard of care for an administrator. 65. Notwithstanding the responsibility of the Defendants to provide HARRY JOHNSON, JR. with reasonable care, Defendants failed to act reasonably in the care of HARRY JOHNSON, JR. by failing to provide HARRY JOHNSON, JR. a safe environment; failing to monitor significant signs and symptoms of infection of HARRY JOHNSON, JR.; failing to provide adequate and appropriate hygiene to HARRY JOHNSON, JR.; failing to maintain appropriate records and properly document injuries for HARRY JOHNSON, JR.; failing to monitor and adequately respond to changes in physical signs and symptoms of HARRY JOHNSON, JR.; failing to properly notify a doctor upon significant changes in HARRY JOHNSON, JR.'s condition; failing to properly follow doctor's orders for HARRY JOHNSON, JR.; failing to adequately respond to changes in HARR