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Filing # 75405554 E-Filed 07/24/2018 10:49:16 AM
IN THE CIRCUIT COURT OF THE NINTH
JUDICIAL CIRCUIT IN AND FOR
ORANGE COUNTY, FLORIDA
CASE NO: 2017-CA-007422-O
JEAN DUME,
Plaintiff,
vs.
JONATHAN BURGIEL JR. and
JONATHAN BURGIEL, SR.,
Defendants.
_____________________________________/
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S AMENDED
COMPLAINT
Defendant, Jonathan Burgiel Jr. and Jonathan Burgiel Sr., files this their Answer, Affirmative
Defenses and Demand for Jury Trial to the Amended Complaint filed herein as follows:
1. Defendants admit the allegations in paragraphs 1, 2, 3, 4 and 5 for jurisdictional purposes only
and admit the allegations in paragraph 6
2. Defendants deny the allegations in paragraphs 7, 11, 12, 15, 17, 18, and 19.
3. As to the allegations in paragraph 8, Defendants are without knowledge as to the truth or falsity
of the allegations and therefore deny same and demand strict proof thereof.
4. As to the allegations in paragraphs 9 and 13, Defendant adopt and reallege their answers to all
paragraphs referenced therein as if set forth here and in full.
5. As to the allegations in paragraphs 10 and 14, Defendants admit there is a reciprocal duty on all
operators of motor vehicles to comply with Florida law and otherwise denies said allegations.
6. As to the allegations in paragraph 16 of Plaintiff’s Amended Complaint, Defendant Jonathan
Burgiel Sr admits that Jonathan Burgiel Jr. was a permissive user of the referenced motor
vehicle on the date of the accident in this case.
7. Each and every allegation not specifically admitted is hereby denied and strict proof thereof is
demanded.
AFFIRMATIVE DEFENSES
1. Defendant(s) affirmatively alleges that at the time and place so alleged, the Plaintiff's own
carelessness and/or negligence was the sole cause or a contributing cause of the alleged accident and injuries
allegedly sustained therein and, therefore, the Plaintiff is precluded from recovery herein or said recovery
shall be reduced in proportion to said negligence.
2. Defendant(s) affirmatively alleges that the Plaintiff's own actions in failing to use an available and
fully operational seat belt/safety harness, or other passive restraint system, was the sole cause and/or
contributed to the cause of the accident and/or contributed to the cause or solely caused the alleged injuries
sustained.
3. Defendant(s) affirmatively alleges that at all times material hereto, the within accident was caused by
the negligent and careless actions or occurrences of third persons and conditions beyond the control of the
Defendant(s) herein. Therefore, the Plaintiff is precluded from recovery against the Defendant(s) herein or
said recovery shall be reduced accordingly.
4. Defendant(s) affirmatively alleges that the Plaintiff's alleged injuries and damages have not exceeded
the threshold of the Florida No Fault Act, nor has Plaintiff suffered any permanent injury, other injury,
disability or disfigurement within a reasonable degree of medical certainty or probability as is required by
said Act, and therefore the Plaintiff is barred from recovery against the Defendant for those damages to which
the Act applies.
5. Defendant(s) affirmatively alleges that in the event that the Plaintiff elected a deductible on the
policy of insurance providing personal injury protection benefits, pursuant to Florida Statute §627.739, one
may not claim or recover any damages for medical expenses or lost wages to the extent of said deductible.
6. Defendant(s) affirmatively alleges that pursuant to Florida Statute §768.76(1993), Defendant is
entitled to a set off from any recovery by the Plaintiff to the extent and value of benefits paid or payable to or
on behalf of Plaintiff from any collateral source.
7. Defendant(s) affirmatively alleges that in the event Plaintiff is awarded damages in this action, the
Court should enter judgment against this Defendant on the basis of each party's or nonparty's percentage of
fault and not on the basis of the doctrine of joint and several liability, to the extent and in the manner provided
by Florida Statute §768.81 and Fabre v. Marin, 623 So 2d. 1182 (Fla. 1993).
8. Defendant(s) affirmatively alleges that the plaintiff has failed to mitigate his/her damages and,
therefore, any award should be reduced accordingly.
9. That the Plaintiff’s damages are based on medical treatment and expenses that were/are not related,
reasonable customary or necessary and as such Plaintiff is not entitled to reimbursement for unreasonable,
unrelated, unnecessary expenses.
DEMAND FOR JURY TRIAL
Defendant(s) hereby request trial by jury on all issues triable as of right by jury..
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
Electronic Mail on this the 24th day of July, 2018 to the following designated service email address(es):
Jeremy L. Hogan, Esq., Hogan & Hogan, P.A., jhogan@hoganlegal.com, scunningham@hoganlegal.com,
rcho@hoganlegal.com.
Law Office of Deborah N. Hartwell
/s/ Michael Whitaker
Michael W. Whitaker Esq.
(Employees of the GEICO General Insurance Company)
Florida Bar No.: 717843
1000 Legion Place, Suite 850
Orlando, FL 32801
Phone: (407) 648-8236
Facsimile: (407) 648-2650
Attorney for Defendant(s): Jonathan Burgiel, Sr. and
Jonathan Burgiel, Jr.
Service Email: orlandogeico@geico.com
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Filing # 75405554 E-Filed 07/24/2018 10:49:16 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CASE NO: 2017-CA-007422-O JEAN DUME, Plaintiff, vs. JONATHAN BURGIEL JR. and JONATHAN BURGIEL, SR., Defendants. _____________________________________/ DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S AMENDED COMPLAINT Defendant, Jonathan Burgiel Jr. and Jonathan Burgiel Sr., files this their Answer, Affirmative Defenses and Demand for Jury Trial to the Amended Complaint filed herein as follows: 1. Defendants admit the allegations in paragraphs 1, 2, 3, 4 and 5 for jurisdictional purposes only and admit the allegations in paragraph 6 2. Defendants deny the allegations in paragraphs 7, 11, 12, 15, 17, 18, and 19. 3. As to the allegations in paragraph 8, Defendants are without knowledge as to the truth or falsity of the allegations and therefore deny same and demand strict proof thereof. 4. As to the allegations in paragraphs 9 and 13, Defendant adopt and reallege their answers to all paragraphs referenced therein as if set forth here and in full. 5. As to the allegations in paragraphs 10 and 14, Defendants admit there is a reciprocal duty on all operators of motor vehicles to comply with Florida law and otherwise denies said allegations. 6. As to the allegations in paragraph 16 of Plaintiff’s Amended Complaint, Defendant Jonathan Burgiel Sr admits that Jonathan Burgiel Jr. was a permissive user of the referenced motor vehicle on the date of the accident in this case. 7. Each and every allegation not specifically admitted is hereby denied and strict proof thereof is demanded. AFFIRMATIVE DEFENSES 1. Defendant(s) affirmatively alleges that at the time and place so alleged, the Plaintiff's own carelessness and/or negligence was the sole cause or a contributing cause of the alleged accident and injuries allegedly sustained therein and, therefore, the Plaintiff is precluded from recovery herein or said recovery shall be reduced in proportion to said negligence. 2. Defendant(s) affirmatively alleges that the Plaintiff's own actions in failing to use an available and fully operational seat belt/safety harness, or other passive restraint system, was the sole cause and/or contributed to the cause of the accident and/or contributed to the cause or solely caused the alleged injuries sustained. 3. Defendant(s) affirmatively alleges that at all times material hereto, the within accident was caused by the negligent and careless actions or occurrences of third persons and conditions beyond the control of the Defendant(s) herein. Therefore, the Plaintiff is precluded from recovery against the Defendant(s) herein or said recovery shall be reduced accordingly. 4. Defendant(s) affirmatively alleges that the Plaintiff's alleged injuries and damages have not exceeded the threshold of the Florida No Fault Act, nor has Plaintiff suffered any permanent injury, other injury, disability or disfigurement within a reasonable degree of medical certainty or probability as is required by said Act, and therefore the Plaintiff is barred from recovery against the Defendant for those damages to which the Act applies. 5. Defendant(s) affirmatively alleges that in the event that the Plaintiff elected a deductible on the policy of insurance providing personal injury protection benefits, pursuant to Florida Statute §627.739, one may not claim or recover any damages for medical expenses or lost wages to the extent of said deductible. 6. Defendant(s) affirmatively alleges that pursuant to Florida Statute §768.76(1993), Defendant is entitled to a set off from any recovery by the Plaintiff to the extent and value of benefits paid or payable to or on behalf of Plaintiff from any collateral source. 7. Defendant(s) affirmatively alleges that in the event Plaintiff is awarded damages in this action, the Court should enter judgment against this Defendant on the basis of each party's or nonparty's percentage of fault and not on the basis of the doctrine of joint and several liability, to the extent and in the manner provided by Florida Statute §768.81 and Fabre v. Marin, 623 So 2d. 1182 (Fla. 1993). 8. Defendant(s) affirmatively alleges that the plaintiff has failed to mitigate his/her damages and, therefore, any award should be reduced accordingly. 9. That the Plaintiff’s damages are based on medical treatment and expenses that were/are not related, reasonable customary or necessary and as such Plaintiff is not entitled to reimbursement for unreasonable, unrelated, unnecessary expenses. DEMAND FOR JURY TRIAL Defendant(s) hereby request trial by jury on all issues triable as of right by jury.. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Electronic Mail on this the 24th day of July, 2018 to the following designated service email address(es): Jeremy L. Hogan, Esq., Hogan & Hogan, P.A., jhogan@hoganlegal.com, scunningham@hoganlegal.com, rcho@hoganlegal.com. Law Office of Deborah N. Hartwell /s/ Michael Whitaker Michael W. Whitaker Esq. (Employees of the GEICO General Insurance Company) Florida Bar No.: 717843 1000 Legion Place, Suite 850 Orlando, FL 32801 Phone: (407) 648-8236 Facsimile: (407) 648-2650 Attorney for Defendant(s): Jonathan Burgiel, Sr. and Jonathan Burgiel, Jr. Service Email: orlandogeico@geico.com