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Filing # 60288353 E-Filed 08/11/2017 01:03:16 PM
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR ORANGE
COUNTY, FLORIDA
CASE NO: 2017-CA-3902-O
AURORA ANN PORTER,
Plaintiff,
vs.
ORLANDO UTILITIES COMMISSION,
Defendant.
____________________________________/
ORLANDO UTILITIES COMMISSION’S ANSWER AND AFFIRMATIVE DEFENSES
TO PLAINTIFF’S COMPLAINT
COMES NOW the Defendant, ORLANDO UTILITIES COMMISSION (hereinafter
“OUC”), by and through its undersigned attorney(s), and hereby files this Answer and Affirmative
Defenses to Complaint for damages (the “Complaint”) filed by Plaintiff, AURORA ANN
PORTER and would say:
1. The Defendant admits, for jurisdictional purposes only, the allegations contained
in paragraph 1 of the Complaint that the Plaintiff purports to allege a cause of action for damages
which exceeds Fifteen Thousand Dollars ($15,000.00), excluding interest, costs and attorney
fees.
2. Defendant is without sufficient knowledge and therefore, denies the allegations
contained in paragraph 2 of the Complaint.
3. Defendant admits the allegations contained in paragraph 3 of the Complaint.
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4. Defendant is without sufficient knowledge and therefore, denies the allegations
contained in paragraph 4 of the Complaint.
5. Defendant admits the allegations contained in paragraph 5 of the Complaint.
6. Defendant admits the allegations contained in paragraph 6 of the complaint.
7. Defendant admits the allegations contained in paragraph 7 of the Complaint
8. Defendant denies the allegations contained in paragraph 8 of the Complaint and
demands strict proof thereof.
9. Defendant denies the allegations contained in paragraph 9 of the Complaint and
demands strict proof thereof.
Each and every allegation not specifically admitted hereto is hereby denied and strict proof
thereof is demanded.
AFFIRMATIVE DEFENSES
Having answered the Complaint, Defendant, OUC, asserts the following enumerated
Affirmative Defenses.
FIRST AFFIRMATIVE DEFENSE
As the First Affirmative Defense, Defendant affirmatively alleges and asserts that its
liability to Plaintiff, if any, is limited by the doctrine of sovereign immunity. Accordingly,
Defendant affirmatively alleges and asserts the defense of sovereign immunity and that its
liability to Plaintiff is limited by the terms and provisions of Section 768.28 of the Florida
Statutes, and applicable law, and hereby asserts and raises all defenses available thereunder.
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SECOND AFFIRMATIVE DEFENSE
As the Second Affirmative Defense, Defendant affirmatively alleges and asserts that its
liability to Plaintiff, if any, is limited by the terms of the Florida Statutory provisions concerning
negligence and damages, including Fla. Stat. §768.76, Fla. Stat. §768.79, and Fla. Stat. §768.81,
and Defendant hereby asserts and raises all defenses available to it pursuant to those statutory
provisions, as applicable to this matter.
THIRD AFFIRMATIVE DEFENSE
As the Third Affirmative Defense, the Defendant asserts that Plaintiff’s alleged damages
were caused, in whole or in part, as a result of Plaintiff’s own negligence, therefore, Plaintiff’s
recovery, if any, should be denied in its entirety or reduced in proportion to the negligence
attributable to Plaintiff under the Doctrine of Comparative Negligence.
FOURTH AFFIRMATIVE DEFENSE
As the Fourth Affirmative Defense, Defendant affirmatively alleges and asserts that in the
event Plaintiff failed to use an available and operational shoulder restraint and/or seatbelt, and as
a proximate result of the Plaintiff’s failure to do so, was the cause of the injuries, losses and
damages alleged, or alternatively, aggravated and/or exacerbated the injuries, damages and losses
alleged, Plaintiff’s recovery is barred in its entirety or diminished based on Plaintiff’s failure to
use said operational and available shoulder restraint and/or operational and available seatbelt.
FIFTH AFFIRMATIVE DEFENSE
As the Fifth Affirmative Defense, Defendant affirmatively alleges and asserts that Plaintiff’s
claims are subject to set-off pursuant to Section 768.76 of the Florida Statutes. If it is determined
that Defendant, OUC, is liable to Plaintiff for any damages, any corresponding award is to be
reduced by the total of all amounts which have been paid for the benefit of Plaintiff, or which are
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otherwise available to Plaintiff, from all collateral sources. Defendant affirmatively alleges and
asserts that the Plaintiff has available to her certain insurance, Personal Injury Protection (PIP)
benefits and/or other collateral sources which have been paid or are payable to the Plaintiff, or on
her behalf, in the past, present, or in the future, in connection with the injuries and damages
allegedly sustained as a result of the incident which is the subject of this Complaint. Accordingly,
Defendant is entitled to have said benefits entered into evidence and is further entitled to a credit
and/or set-off in the amount of any and all said insurance, PIP benefits, collateral sources and all
other benefits paid and/or payable from any verdict or judgment which may be rendered in favor
of the Plaintiff.
SIXTH AFFIRMATIVE DEFENSE
As the Sixth Affirmative Defense, Defendant affirmatively alleges and asserts that in
connection with any claim for property damage, the recovery of Plaintiff, if any, is limited to the
reasonable cost of repairing said vehicle, or the reasonable market value of the vehicle at the time
of the loss, whichever is less. Further, Defendant is entitled to set-off or reduction for any
insurance or collateral sources paid or payable to Plaintiff in connection with property damage.
SEVENTH AFFIRMATIVE DEFENSE
As the Seventh Affirmative Defense, Defendant affirmatively alleges and asserts that to
the extent that Plaintiff failed to make any reasonable attempt to mitigate his damages, Defendant
OUC is not responsible to the extent that Plaintiff could have mitigated the alleged damages and
is entitled to a set-off and as such, any damages actually sustained by the Plaintiff should be
reduced proportionally for the failure to mitigate such losses.
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EIGHTH AFFIRMATIVE DEFENSE
As the Eighth Affirmative Defense, Defendant affirmatively alleges and asserts any charges
for treatment incurred by the Plaintiff are subject to the fee schedule described in §627.736, Fla.
Stat. Any such charges that are in excess of the statutory fee schedule are not a recoverable item
of damage from this Defendant.
RESERVATION OF RIGHT TO SUPPLEMENT DEFENSES
As the facts have not been fully developed, the Defendant reserves the right to supplement
this Answer with any additional Affirmative Defenses it may assert.
JURY TRIAL
Defendant, OUC, hereby demands a trial by jury of all issues.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 11, 2017, I electronically filed the foregoing with
the Clerk of the Orange County Court by using the Florida Courts E-Filing Portal. I further
certify that I emailed the foregoing document to Matthew A. Rabin, ESQ., mrabin@rtrlaw.com
and LSepot-Green@rtrlaw.com.
/s Carlos L. Woody, Esquire
CARLOS L. WOODY, Esq., B.C.S.
Florida Bar No: 0014077
TERRIE L. TRESSLER, Esq.
Florida Bar No: 0015809
Attorneys for Defendant
ORLANDO UTILITIES COMMISSION
100 W. Anderson Street
P.O. Box 3193
Orlando, Florida 32801
Telephone: (407) 434-2162
Facsimile: (407) 434-2220
Email for Service: cwoody@ouc.com,
ttressler@ouc.com and kplajstek@ouc.com
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Preview
Filing # 60288353 E-Filed 08/11/2017 01:03:16 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CASE NO: 2017-CA-3902-O AURORA ANN PORTER, Plaintiff, vs. ORLANDO UTILITIES COMMISSION, Defendant. ____________________________________/ ORLANDO UTILITIES COMMISSION’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT COMES NOW the Defendant, ORLANDO UTILITIES COMMISSION (hereinafter “OUC”), by and through its undersigned attorney(s), and hereby files this Answer and Affirmative Defenses to Complaint for damages (the “Complaint”) filed by Plaintiff, AURORA ANN PORTER and would say: 1. The Defendant admits, for jurisdictional purposes only, the allegations contained in paragraph 1 of the Complaint that the Plaintiff purports to allege a cause of action for damages which exceeds Fifteen Thousand Dollars ($15,000.00), excluding interest, costs and attorney fees. 2. Defendant is without sufficient knowledge and therefore, denies the allegations contained in paragraph 2 of the Complaint. 3. Defendant admits the allegations contained in paragraph 3 of the Complaint. 1 4. Defendant is without sufficient knowledge and therefore, denies the allegations contained in paragraph 4 of the Complaint. 5. Defendant admits the allegations contained in paragraph 5 of the Complaint. 6. Defendant admits the allegations contained in paragraph 6 of the complaint. 7. Defendant admits the allegations contained in paragraph 7 of the Complaint 8. Defendant denies the allegations contained in paragraph 8 of the Complaint and demands strict proof thereof. 9. Defendant denies the allegations contained in paragraph 9 of the Complaint and demands strict proof thereof. Each and every allegation not specifically admitted hereto is hereby denied and strict proof thereof is demanded. AFFIRMATIVE DEFENSES Having answered the Complaint, Defendant, OUC, asserts the following enumerated Affirmative Defenses. FIRST AFFIRMATIVE DEFENSE As the First Affirmative Defense, Defendant affirmatively alleges and asserts that its liability to Plaintiff, if any, is limited by the doctrine of sovereign immunity. Accordingly, Defendant affirmatively alleges and asserts the defense of sovereign immunity and that its liability to Plaintiff is limited by the terms and provisions of Section 768.28 of the Florida Statutes, and applicable law, and hereby asserts and raises all defenses available thereunder. 2 SECOND AFFIRMATIVE DEFENSE As the Second Affirmative Defense, Defendant affirmatively alleges and asserts that its liability to Plaintiff, if any, is limited by the terms of the Florida Statutory provisions concerning negligence and damages, including Fla. Stat. §768.76, Fla. Stat. §768.79, and Fla. Stat. §768.81, and Defendant hereby asserts and raises all defenses available to it pursuant to those statutory provisions, as applicable to this matter. THIRD AFFIRMATIVE DEFENSE As the Third Affirmative Defense, the Defendant asserts that Plaintiff’s alleged damages were caused, in whole or in part, as a result of Plaintiff’s own negligence, therefore, Plaintiff’s recovery, if any, should be denied in its entirety or reduced in proportion to the negligence attributable to Plaintiff under the Doctrine of Comparative Negligence. FOURTH AFFIRMATIVE DEFENSE As the Fourth Affirmative Defense, Defendant affirmatively alleges and asserts that in the event Plaintiff failed to use an available and operational shoulder restraint and/or seatbelt, and as a proximate result of the Plaintiff’s failure to do so, was the cause of the injuries, losses and damages alleged, or alternatively, aggravated and/or exacerbated the injuries, damages and losses alleged, Plaintiff’s recovery is barred in its entirety or diminished based on Plaintiff’s failure to use said operational and available shoulder restraint and/or operational and available seatbelt. FIFTH AFFIRMATIVE DEFENSE As the Fifth Affirmative Defense, Defendant affirmatively alleges and asserts that Plaintiff’s claims are subject to set-off pursuant to Section 768.76 of the Florida Statutes. If it is determined that Defendant, OUC, is liable to Plaintiff for any damages, any corresponding award is to be reduced by the total of all amounts which have been paid for the benefit of Plaintiff, or which are 3 otherwise available to Plaintiff, from all collateral sources. Defendant affirmatively alleges and asserts that the Plaintiff has available to her certain insurance, Personal Injury Protection (PIP) benefits and/or other collateral sources which have been paid or are payable to the Plaintiff, or on her behalf, in the past, present, or in the future, in connection with the injuries and damages allegedly sustained as a result of the incident which is the subject of this Complaint. Accordingly, Defendant is entitled to have said benefits entered into evidence and is further entitled to a credit and/or set-off in the amount of any and all said insurance, PIP benefits, collateral sources and all other benefits paid and/or payable from any verdict or judgment which may be rendered in favor of the Plaintiff. SIXTH AFFIRMATIVE DEFENSE As the Sixth Affirmative Defense, Defendant affirmatively alleges and asserts that in connection with any claim for property damage, the recovery of Plaintiff, if any, is limited to the reasonable cost of repairing said vehicle, or the reasonable market value of the vehicle at the time of the loss, whichever is less. Further, Defendant is entitled to set-off or reduction for any insurance or collateral sources paid or payable to Plaintiff in connection with property damage. SEVENTH AFFIRMATIVE DEFENSE As the Seventh Affirmative Defense, Defendant affirmatively alleges and asserts that to the extent that Plaintiff failed to make any reasonable attempt to mitigate his damages, Defendant OUC is not responsible to the extent that Plaintiff could have mitigated the alleged damages and is entitled to a set-off and as such, any damages actually sustained by the Plaintiff should be reduced proportionally for the failure to mitigate such losses. 4 EIGHTH AFFIRMATIVE DEFENSE As the Eighth Affirmative Defense, Defendant affirmatively alleges and asserts any charges for treatment incurred by the Plaintiff are subject to the fee schedule described in §627.736, Fla. Stat. Any such charges that are in excess of the statutory fee schedule are not a recoverable item of damage from this Defendant. RESERVATION OF RIGHT TO SUPPLEMENT DEFENSES As the facts have not been fully developed, the Defendant reserves the right to supplement this Answer with any additional Affirmative Defenses it may assert. JURY TRIAL Defendant, OUC, hereby demands a trial by jury of all issues. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 11, 2017, I electronically filed the foregoing with the Clerk of the Orange County Court by using the Florida Courts E-Filing Portal. I further certify that I emailed the foregoing document to Matthew A. Rabin, ESQ., mrabin@rtrlaw.com and LSepot-Green@rtrlaw.com. /s Carlos L. Woody, Esquire CARLOS L. WOODY, Esq., B.C.S. Florida Bar No: 0014077 TERRIE L. TRESSLER, Esq. Florida Bar No: 0015809 Attorneys for Defendant ORLANDO UTILITIES COMMISSION 100 W. Anderson Street P.O. Box 3193 Orlando, Florida 32801 Telephone: (407) 434-2162 Facsimile: (407) 434-2220 Email for Service: cwoody@ouc.com, ttressler@ouc.com and kplajstek@ouc.com 5