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Filing # 115597637 E-Filed 10/26/2020 01:26:42 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CASE NO.: 2020CA010576XXXXMB
DIVISION: AH
BERNARD SUSSMAN and
FRANCINE SUSSMAN,
Plaintiff(s),
vs.
BCMB ENTERPRISES, INC d/b/a
A BETTER WAY HOME CARE,
Defendant.
/
DEFENDANT’S, BCMB ENTERPRISES, INC d/b/a A BETTER WAY HOME CARE.
ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT
Defendants, A Better Way Home Care (hereinafter referred to as “Defendant”), by and
through the undersigned, hereby respond to Plaintiffs’ Complaint as follows:
THE PARTIES AND JURISDICTION
1. Admitted for jurisdictional purposes only; otherwise denied.
2. Admitted for jurisdictional purposes only; otherwise denied.
3. Admitted for jurisdictional purposes only; otherwise denied.
4. Admitted for jurisdictional purposes only; otherwise denied.
5. Admitted that this court has jurisdiction over this matter only; otherwise denied.
GENERAL ALLEGATIONS
6. Denied.
7. Denied.
8. Denied as phrased.
CUCN. DAIAARCACUAAIINTY Cl CUADAND ANAY FLED Aninainnen n4.9e@-A9 DAA
PILL. PALE BLAU VUUINE TT, EL, OHI. DUUN, ULL, bueueuey U.cu.te ivi29.
30.
Denied as phrased.
. Denied.
. Denied.
. Denied.
. Denied as phrased.
. Denied.
. Denied.
FACTUAL ALLEGATIONS SURROUNDING CORONAVIRUS
. Without knowledge, therefore, denied.
. Without knowledge, therefore, denied.
. Without knowledge, therefore, denied.
Withont knawledoe therefore denied inclidine enhnarte (a) — fv)
TY ARO tty SLO VT ARs MERE ACES GEC Kty LRA LEEDS WEEP OES Ray Lye
. Denied.
. Denied.
. Denied as phrased.
. Denied.
. Denied.
. Denied.
. Denied.
. Denied.
. Denied.
Denied.
Denied.COUNT I - NEGLIGENCE
31. Defendant re-alleges and re-incorporates paragraphs | through 28 as stated above as if each
were separately and fully set forth herein.
32. Denied as phrased.
33. Denied.
34. Denied, including subparts (a) — (v).
35. Denied.
36. Denied.
37. Denied.
38. Denied, including subparts (a) — (b).
As to the unnumbered wherefore clause following paragraph 38, denied, including subparts (a) —
fe)
we
COUNT II — NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
39. Defendant re-alleges and re-incorporates paragraphs | through 28 as stated above as if each
ware canarataly and fully cat farth harain
Were oupuateay Guu 1uuy OE torts tec
40. Denied.
41. Denied.
42. Denied.
43. Denied.
44. Denied, including subparts (a) — (b).
As to the unnumbered wherefore clause following paragraph 44, denied, including subparts (a) —
(e).COUNT II - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
45. Defendant re-alleges and re-incorporates paragraphs | through 28 as stated above as if each
were separately and fully set forth herein.
46. Denied.
47. Denied.
48. Denied.
49. Denied.
50. Denied, including subparts (a) — (b).
As to the unnumbered wherefore clause following paragraph 50, denied, including subparts (a) —
(e).
AFFIRMATIVE DEFENSES
1. Defendant asserts Plaintiffs have failed to state a cause of action and have failed to
sufficiently plead a basis upon which relief can be granted. Plaintiffs fail to allege with
specificity the factual basis to establish the requisite elements of Plaintiffs’ allegations.
Furthermore, Plaintiffs fail to set forth any ultimate facts to show that Plaintiffs are entitled to
the relief sought within Plaintiffs’ Complaint.
2. Defendant states that any and all of Plaintiffs’ claims against Defendant are barred in whole
or in part by the doctrine of sovereign immunity and federal law.
3. Defendant asserts that Piaintifis knew of any and aii risks associated with receiving the
services of the Defendant, to include nursing care, home health aides, respite care,
compassion care, or other home medical care, and with that knowledge willingly and
knowingly assumed these risks, deciding to proceed with a receiving Defendant’s services,
notwithstanding these risks.10.
Defendant, including but not limited to its employees, agents, nurses, home health aides, or
other healthcare providers, did not have subjective knowledge of a risk of harm to Plaintiffs.
Defendant, including but not limited to its employees, agents, nurses, home health aides, or
other healthcare providers, did not disregard a risk of harm to Plaintiffs of which Defendant,
its employees, agents, nurse, home health aides, or other healthcare providers, had subjective
knowledge.
Defendant asserts that Plaintiffs, knew of any and all risks associated with the receiving of
Defendant’s services in Plaintiffs’ home, and with that knowledge willingly and knowingly
assumed these risks, deciding to proceed with receiving Defendant’s services in Plaintiffs’
home, notwithstanding these risks.
Defendant asserts that Plaintiffs were negligent and that Plaintiffs’ negligence was the sole
cause or contributed substantially to causing the alleged damages. Plaintiffs’ negligence is a
bar to any claim for damages brought by Plaintiffs. Alternatively, Plaintiffs’ negligence
should proportionately reduce any recovery by Plaintiffs in this case.
Defendant asserts that Plaintiffs failed to mitigate any damages allegedly sustained. As such,
any damages aciuaily sustained by Piaintitis should be reduced proportionaily for the failure
to mitigate such damages.
The injuries suffered by Plaintiffs, if any, were the result of an unforeseeable accident and
not of the acts or omissions of the Defendant.
Defendant asserts that it is entitled to a set-off for all sums paid, payable, or due to be paid to
or on behalf of Plaintiffs from any source considered to be a collateral source, including, but
not limited to, health or accident insurance companies, life insurance companies, worker’s11.
12.
13.
14.
15.
16.
17.
compensation insurance companies, Social Security Administration, or those whose acts or
omissions caused or contributed to Plaintiffs’ damages.
Defendant asserts that it is entitled to a set-off for any past awards, verdicts, settlements,
disability ratings, disability payments, Medicare payments, Medicaid payments, or any other
awarded income pertaining to Plaintiffs’ claim or for any of the damages asserted within
Plaintiffs’ Complaint.
. Defendant asserts that it is entitled to a set-off for any and all collateral source payments
made, or to be made in the future in accordance with the provisions of the applicable Florida
Statutes.
Defendant asserts that the injuries and damages alleged by Plaintiffs are as a result of acts or
omissions by other persons, corporations, third parties, or professional associations or entities
other than Defendant, for which Defendant has no control, and is not responsible.
Defendant asserts that its conduct was neither negligent nor causative of Plaintiffs’ alleged
damages.
Defendant asserts that it is entitled to have Plaintiffs’ damages, if any, apportioned amongst
ail persons or entities responsibie pursuant to §768.8i, Florida Statutes and the appitcabie
case law found in Messmer v. Teachers Insurance Company, 597 So. 2d 10 (Fla. Sth DCA
1991) and Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993) and subsequent case law interpreting
same.
Any claim that Plaintiffs may have for medical expenses should be limited to the amounts
actually paid or amount of any liens and not the amount of the bill incurred.
Any and all treatment provided to Plaintiffs by Defendant was provided in a safe and
aninvahla mannar eancictant with the nravailina nrnfaccinnal otandard af nara
nyo yao manner COnsisviie Wiul ule prcYauiig proivooioua stamuala Or Care.18. Defendant asserts that any allegation within the Complaint not expressly admitted to by
Defendant is hereby denied.
19. Defendant reserves the right to add affirmative defenses upon the discovery of additional
facts.
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that on the 26" of October, 2020, a true and correct copy of the
foregoing has been furnished via the Florida e-filing portal: Dave K. Roy, Esq., Roy &
Associates, P.A., 1665 Palm Beach Lakes Blvd., Suite 1010, West Palm Beach, FL 33401;
info@daveroylaw.com
QUINTAIROS, PRIETO, WOOD & BOYER, P.A.
/s/ Robin N. Khanal
ROBIN N. KHANAL, ESQUIRE
Florida Bar No.: 0571032
CHRISTOPHER N. GONSALVES, ESQUIRE
Florida Bar No.: 1018014
255 S. Orange Ave., Suite 900
Orlando, Florida 32801
Tel: (407) 872-6011
Fax: (407) 872-6012
Attorneys for Defendant
Pieading designation:
RNK.Pleadings@qpwblaw.com
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Filing # 115597637 E-Filed 10/26/2020 01:26:42 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2020CA010576XXXXMB DIVISION: AH BERNARD SUSSMAN and FRANCINE SUSSMAN, Plaintiff(s), vs. BCMB ENTERPRISES, INC d/b/a A BETTER WAY HOME CARE, Defendant. / DEFENDANT’S, BCMB ENTERPRISES, INC d/b/a A BETTER WAY HOME CARE. ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFFS’ COMPLAINT Defendants, A Better Way Home Care (hereinafter referred to as “Defendant”), by and through the undersigned, hereby respond to Plaintiffs’ Complaint as follows: THE PARTIES AND JURISDICTION 1. Admitted for jurisdictional purposes only; otherwise denied. 2. Admitted for jurisdictional purposes only; otherwise denied. 3. Admitted for jurisdictional purposes only; otherwise denied. 4. Admitted for jurisdictional purposes only; otherwise denied. 5. Admitted that this court has jurisdiction over this matter only; otherwise denied. GENERAL ALLEGATIONS 6. Denied. 7. Denied. 8. Denied as phrased. CUCN. DAIAARCACUAAIINTY Cl CUADAND ANAY FLED Aninainnen n4.9e@-A9 DAA PILL. PALE BLAU VUUINE TT, EL, OHI. DUUN, ULL, bueueuey U.cu.te ivi29. 30. Denied as phrased. . Denied. . Denied. . Denied. . Denied as phrased. . Denied. . Denied. FACTUAL ALLEGATIONS SURROUNDING CORONAVIRUS . Without knowledge, therefore, denied. . Without knowledge, therefore, denied. . Without knowledge, therefore, denied. Withont knawledoe therefore denied inclidine enhnarte (a) — fv) TY ARO tty SLO VT ARs MERE ACES GEC Kty LRA LEEDS WEEP OES Ray Lye . Denied. . Denied. . Denied as phrased. . Denied. . Denied. . Denied. . Denied. . Denied. . Denied. Denied. Denied.COUNT I - NEGLIGENCE 31. Defendant re-alleges and re-incorporates paragraphs | through 28 as stated above as if each were separately and fully set forth herein. 32. Denied as phrased. 33. Denied. 34. Denied, including subparts (a) — (v). 35. Denied. 36. Denied. 37. Denied. 38. Denied, including subparts (a) — (b). As to the unnumbered wherefore clause following paragraph 38, denied, including subparts (a) — fe) we COUNT II — NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 39. Defendant re-alleges and re-incorporates paragraphs | through 28 as stated above as if each ware canarataly and fully cat farth harain Were oupuateay Guu 1uuy OE torts tec 40. Denied. 41. Denied. 42. Denied. 43. Denied. 44. Denied, including subparts (a) — (b). As to the unnumbered wherefore clause following paragraph 44, denied, including subparts (a) — (e).COUNT II - INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 45. Defendant re-alleges and re-incorporates paragraphs | through 28 as stated above as if each were separately and fully set forth herein. 46. Denied. 47. Denied. 48. Denied. 49. Denied. 50. Denied, including subparts (a) — (b). As to the unnumbered wherefore clause following paragraph 50, denied, including subparts (a) — (e). AFFIRMATIVE DEFENSES 1. Defendant asserts Plaintiffs have failed to state a cause of action and have failed to sufficiently plead a basis upon which relief can be granted. Plaintiffs fail to allege with specificity the factual basis to establish the requisite elements of Plaintiffs’ allegations. Furthermore, Plaintiffs fail to set forth any ultimate facts to show that Plaintiffs are entitled to the relief sought within Plaintiffs’ Complaint. 2. Defendant states that any and all of Plaintiffs’ claims against Defendant are barred in whole or in part by the doctrine of sovereign immunity and federal law. 3. Defendant asserts that Piaintifis knew of any and aii risks associated with receiving the services of the Defendant, to include nursing care, home health aides, respite care, compassion care, or other home medical care, and with that knowledge willingly and knowingly assumed these risks, deciding to proceed with a receiving Defendant’s services, notwithstanding these risks.10. Defendant, including but not limited to its employees, agents, nurses, home health aides, or other healthcare providers, did not have subjective knowledge of a risk of harm to Plaintiffs. Defendant, including but not limited to its employees, agents, nurses, home health aides, or other healthcare providers, did not disregard a risk of harm to Plaintiffs of which Defendant, its employees, agents, nurse, home health aides, or other healthcare providers, had subjective knowledge. Defendant asserts that Plaintiffs, knew of any and all risks associated with the receiving of Defendant’s services in Plaintiffs’ home, and with that knowledge willingly and knowingly assumed these risks, deciding to proceed with receiving Defendant’s services in Plaintiffs’ home, notwithstanding these risks. Defendant asserts that Plaintiffs were negligent and that Plaintiffs’ negligence was the sole cause or contributed substantially to causing the alleged damages. Plaintiffs’ negligence is a bar to any claim for damages brought by Plaintiffs. Alternatively, Plaintiffs’ negligence should proportionately reduce any recovery by Plaintiffs in this case. Defendant asserts that Plaintiffs failed to mitigate any damages allegedly sustained. As such, any damages aciuaily sustained by Piaintitis should be reduced proportionaily for the failure to mitigate such damages. The injuries suffered by Plaintiffs, if any, were the result of an unforeseeable accident and not of the acts or omissions of the Defendant. Defendant asserts that it is entitled to a set-off for all sums paid, payable, or due to be paid to or on behalf of Plaintiffs from any source considered to be a collateral source, including, but not limited to, health or accident insurance companies, life insurance companies, worker’s11. 12. 13. 14. 15. 16. 17. compensation insurance companies, Social Security Administration, or those whose acts or omissions caused or contributed to Plaintiffs’ damages. Defendant asserts that it is entitled to a set-off for any past awards, verdicts, settlements, disability ratings, disability payments, Medicare payments, Medicaid payments, or any other awarded income pertaining to Plaintiffs’ claim or for any of the damages asserted within Plaintiffs’ Complaint. . Defendant asserts that it is entitled to a set-off for any and all collateral source payments made, or to be made in the future in accordance with the provisions of the applicable Florida Statutes. Defendant asserts that the injuries and damages alleged by Plaintiffs are as a result of acts or omissions by other persons, corporations, third parties, or professional associations or entities other than Defendant, for which Defendant has no control, and is not responsible. Defendant asserts that its conduct was neither negligent nor causative of Plaintiffs’ alleged damages. Defendant asserts that it is entitled to have Plaintiffs’ damages, if any, apportioned amongst ail persons or entities responsibie pursuant to §768.8i, Florida Statutes and the appitcabie case law found in Messmer v. Teachers Insurance Company, 597 So. 2d 10 (Fla. Sth DCA 1991) and Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993) and subsequent case law interpreting same. Any claim that Plaintiffs may have for medical expenses should be limited to the amounts actually paid or amount of any liens and not the amount of the bill incurred. Any and all treatment provided to Plaintiffs by Defendant was provided in a safe and aninvahla mannar eancictant with the nravailina nrnfaccinnal otandard af nara nyo yao manner COnsisviie Wiul ule prcYauiig proivooioua stamuala Or Care.18. Defendant asserts that any allegation within the Complaint not expressly admitted to by Defendant is hereby denied. 19. Defendant reserves the right to add affirmative defenses upon the discovery of additional facts. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that on the 26" of October, 2020, a true and correct copy of the foregoing has been furnished via the Florida e-filing portal: Dave K. Roy, Esq., Roy & Associates, P.A., 1665 Palm Beach Lakes Blvd., Suite 1010, West Palm Beach, FL 33401; info@daveroylaw.com QUINTAIROS, PRIETO, WOOD & BOYER, P.A. /s/ Robin N. Khanal ROBIN N. KHANAL, ESQUIRE Florida Bar No.: 0571032 CHRISTOPHER N. GONSALVES, ESQUIRE Florida Bar No.: 1018014 255 S. Orange Ave., Suite 900 Orlando, Florida 32801 Tel: (407) 872-6011 Fax: (407) 872-6012 Attorneys for Defendant Pieading designation: RNK.Pleadings@qpwblaw.com