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Filing # 63654638 E-Filed 11/02/2017 11:27:59 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
CIVIL DIVISION
FRANCES BARONE and GABRIEL
BARONE, Case No.: 2017-CA-003882-O
Plaintiffs,
v.
ASHFORD TRS WQ LLC, a foreign liability
company d/b/a WORLD QUEST RESORT
a/k/a WORLDQUEST ORLANDO RESORT,
ASHFORD WQ LICENSEE, LLC, a foreign
Limited liability company and ASHFORD
TRS CORPORATION, a foreign profit
corporation,
Defendants.
_____________________________________/
DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S FIRST
AMENDED COMPLAINT
DefendantS, ASHFORD TRS WQ LLC d/b/a WORLD QUEST RESORT a/ka
WORLDQUEST ORLANDO RESORT, ASHFORD WQ LICENSEE, LLC and
ASHFORD TRS CORPORATION, by and through their undersigned attorneys, hereby file
this Answer and Affirmative Defenses to Plaintiffs', FRANCES BARONE AND GABRIEL
BARONE, Complaint as follows:
GENERAL ALLEGATIONS
1. Admitted for jurisdictional purposes only.
2. Without knowledge, therefore denied.
3. Without knowledge, therefore denied.
4. Denied.
5. Without knowledge, therefore denied.
Page 1 of 6
6. Without knowledge, therefore denied.
COUNT I – NEGLIGENCE OF WORLDQUEST DEFENDANTS
7. Defendant incorporates by reference its answers to paragraphs 1 through 6 as if
fully set forth herein.
8. Denied as phrased.
9. Without knowledge, therefore denied.
10. In response to paragraph 10 and its subparts a through d, Defendants admit they
have duties imposed on them under Florida law. To the extent Plaintiff attempts to extend those
duties, it is denied.
11. Paragraph 11 and its subparts (a) through (d), denied.
12. Paragraph 12 and its subparts (a) through (d), denied.
13. Paragraph 13 and its subparts (a) through (i), denied.
14. Denied.
15. Denied.
COUNT II – LOSS OF CONSORTIUM AS TO GABRIEL BARONE
16. Defendant incorporates by references it responses to paragraphs 1 through 15 as if
full set forth herein.
17. Denied.
18. Denied.
19. Without knowledge, therefore denied.
Page 2 of 6
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
As its first defense, Defendants would state that at the time and on the occasion set out in
the complaint, Plaintiff was negligent and careless in the matter in which she conducted herself
and said negligence and carelessness was the sole and proximate cause of the accident so as to
bar recovery by Plaintiff or proximately caused or contributed to Plaintiff’s damages, if any.
SECOND AFFIRMATIVE DEFENSE
As its second defense, Defendants would state that the alleged dangerous condition
referred to in the complaint was patent and obvious and Plaintiff, in the exercise of due care,
should have avoided tripping on the alleged dangerous condition. Her carelessness was the sole
cause of any damages alleged in the complaint.
THIRD AFFIRMATIVE DEFENSE
As its third defense, Defendants would state that Defendants had no actual notice of the
cause alleged in the complaint and said alleged dangerous condition had not been in place long
enough to impute constructive knowledge of said cause to Defendants.
FOURTH AFFIRMATIVE DEFENSE
That at the time and on the occasion set out in the complaint, Defendants did not have
actual or constructive knowledge of the alleged dangerous condition that Plaintiff alleged she
tripped over so as to be liable to her.
Page 3 of 6
FIFTH AFFIRMATIVE DEFENSE
Defendants allege that Plaintiffs have received collateral source payments, and that
Plaintiffs’ damages, if any, should be reduced by the amount of such collateral source payments
made and by the amount of any collateral source payments available to Plaintiffs as a result of
the accident in question.
SIXTH AFFIRMATIVE DEFENSE
That Defendants assert all provisions of §768.81 of the Florida Statutes, and the
principles of law as announced in Fabre v. Marin, it is responsible only for its percentage of
fault, if any, as compared to all other entities or persons who contributed to Plaintiff’s claimed
damages, regardless of whether they have been or could have been joined as defendants.
Defendants would assert that it is not responsible for fault in causing Plaintiff’s injuries
complained of and upon information and belief, Plaintiff’s alleged fall was caused or contributed
to by the negligence of other unnamed parties to wit: unknown third party.
SEVENTH AFFIRMATIVE DEFENSE
That Defendants assert all provisions of Fla. Stat. § 768.0755 that are factually and
legally applicable herein. Defendant avers that it made reasonable efforts to keep its premises
free from transitory foreign objects or substances. As a result, Defendants are not liable to
Plaintiff because Plaintiff cannot prove that Defendants acted negligently by failing to exercise
reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the
premises.
Page 4 of 6
EIGHTH AFFIRMATIVE DEFENSE
Plaintiffs had a duty to mitigate their damages in this matter, and carelessly and
negligently failed to do so, and the Defendants are not responsible for any damages that
reasonably could have been avoided by the Plaintiffs.
NINTH AFFIRMATIVE DEFENSE
To the extent Plaintiff is insured with health insurance coverage, and to the extent that
any of Plaintiff’s medical providers maintained contracts with Plaintiff’s health insurance carrier,
Plaintiff’s providers must submit all bills for services rendered to Plaintiff’s health insurer and
Plaintiff’s provider must accept the contracted amount in full payment of all charges for
treatment rendered pursuant to Fla. Stat. § 641.3154. If any such provider has failed to properly
submit bills in violation of a contractual provision in such a health insurance contract such that
Plaintiff does not owe those monies to Plaintiff’s medical provider, then those items of damages
do not exist and cannot be recovered from these Defendants. Defendants are entitled to any and
all health insurance contractual adjustments.
Defendants reserve the right to amend and/or supplement their answers and affirmative
defenses.
WHEREFORE, having fully answered the complaint and set forth defenses thereto,
Defendants respectfully requests a trial by jury on all issues so triable.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via E- Mail on this 2nd day of November 2017, to the following: Anthony J. Manganiello, III,
Esquire, Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 2033 Main Street, Suite 600,
Page 5 of 6
Postal Drawer 4195, Sarasota, Florida 34237, Amanganiello@icardmerrill.com,
Mlelinho@icardmerrill.com, Lpierce@icardmerrill.com.
WILLIAM G.K. SMOAK
Florida Bar No.: 645028
KELLY CHARLES-COLLINS
Florida Bar No.:56261
Smoak, Chistolini & Barnett, PLLC
320 W. Kennedy Blvd.
4th Floor
Tampa, FL 33606
(813) 221-1331 Telephone
(813) 223-7881 Facsimile
courtdocuments@flatrialcounsel.com
Counsel for Defendants
Page 6 of 6
Preview
Filing # 63654638 E-Filed 11/02/2017 11:27:59 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CIVIL DIVISION FRANCES BARONE and GABRIEL BARONE, Case No.: 2017-CA-003882-O Plaintiffs, v. ASHFORD TRS WQ LLC, a foreign liability company d/b/a WORLD QUEST RESORT a/k/a WORLDQUEST ORLANDO RESORT, ASHFORD WQ LICENSEE, LLC, a foreign Limited liability company and ASHFORD TRS CORPORATION, a foreign profit corporation, Defendants. _____________________________________/ DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S FIRST AMENDED COMPLAINT DefendantS, ASHFORD TRS WQ LLC d/b/a WORLD QUEST RESORT a/ka WORLDQUEST ORLANDO RESORT, ASHFORD WQ LICENSEE, LLC and ASHFORD TRS CORPORATION, by and through their undersigned attorneys, hereby file this Answer and Affirmative Defenses to Plaintiffs', FRANCES BARONE AND GABRIEL BARONE, Complaint as follows: GENERAL ALLEGATIONS 1. Admitted for jurisdictional purposes only. 2. Without knowledge, therefore denied. 3. Without knowledge, therefore denied. 4. Denied. 5. Without knowledge, therefore denied. Page 1 of 6 6. Without knowledge, therefore denied. COUNT I – NEGLIGENCE OF WORLDQUEST DEFENDANTS 7. Defendant incorporates by reference its answers to paragraphs 1 through 6 as if fully set forth herein. 8. Denied as phrased. 9. Without knowledge, therefore denied. 10. In response to paragraph 10 and its subparts a through d, Defendants admit they have duties imposed on them under Florida law. To the extent Plaintiff attempts to extend those duties, it is denied. 11. Paragraph 11 and its subparts (a) through (d), denied. 12. Paragraph 12 and its subparts (a) through (d), denied. 13. Paragraph 13 and its subparts (a) through (i), denied. 14. Denied. 15. Denied. COUNT II – LOSS OF CONSORTIUM AS TO GABRIEL BARONE 16. Defendant incorporates by references it responses to paragraphs 1 through 15 as if full set forth herein. 17. Denied. 18. Denied. 19. Without knowledge, therefore denied. Page 2 of 6 AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE As its first defense, Defendants would state that at the time and on the occasion set out in the complaint, Plaintiff was negligent and careless in the matter in which she conducted herself and said negligence and carelessness was the sole and proximate cause of the accident so as to bar recovery by Plaintiff or proximately caused or contributed to Plaintiff’s damages, if any. SECOND AFFIRMATIVE DEFENSE As its second defense, Defendants would state that the alleged dangerous condition referred to in the complaint was patent and obvious and Plaintiff, in the exercise of due care, should have avoided tripping on the alleged dangerous condition. Her carelessness was the sole cause of any damages alleged in the complaint. THIRD AFFIRMATIVE DEFENSE As its third defense, Defendants would state that Defendants had no actual notice of the cause alleged in the complaint and said alleged dangerous condition had not been in place long enough to impute constructive knowledge of said cause to Defendants. FOURTH AFFIRMATIVE DEFENSE That at the time and on the occasion set out in the complaint, Defendants did not have actual or constructive knowledge of the alleged dangerous condition that Plaintiff alleged she tripped over so as to be liable to her. Page 3 of 6 FIFTH AFFIRMATIVE DEFENSE Defendants allege that Plaintiffs have received collateral source payments, and that Plaintiffs’ damages, if any, should be reduced by the amount of such collateral source payments made and by the amount of any collateral source payments available to Plaintiffs as a result of the accident in question. SIXTH AFFIRMATIVE DEFENSE That Defendants assert all provisions of §768.81 of the Florida Statutes, and the principles of law as announced in Fabre v. Marin, it is responsible only for its percentage of fault, if any, as compared to all other entities or persons who contributed to Plaintiff’s claimed damages, regardless of whether they have been or could have been joined as defendants. Defendants would assert that it is not responsible for fault in causing Plaintiff’s injuries complained of and upon information and belief, Plaintiff’s alleged fall was caused or contributed to by the negligence of other unnamed parties to wit: unknown third party. SEVENTH AFFIRMATIVE DEFENSE That Defendants assert all provisions of Fla. Stat. § 768.0755 that are factually and legally applicable herein. Defendant avers that it made reasonable efforts to keep its premises free from transitory foreign objects or substances. As a result, Defendants are not liable to Plaintiff because Plaintiff cannot prove that Defendants acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the premises. Page 4 of 6 EIGHTH AFFIRMATIVE DEFENSE Plaintiffs had a duty to mitigate their damages in this matter, and carelessly and negligently failed to do so, and the Defendants are not responsible for any damages that reasonably could have been avoided by the Plaintiffs. NINTH AFFIRMATIVE DEFENSE To the extent Plaintiff is insured with health insurance coverage, and to the extent that any of Plaintiff’s medical providers maintained contracts with Plaintiff’s health insurance carrier, Plaintiff’s providers must submit all bills for services rendered to Plaintiff’s health insurer and Plaintiff’s provider must accept the contracted amount in full payment of all charges for treatment rendered pursuant to Fla. Stat. § 641.3154. If any such provider has failed to properly submit bills in violation of a contractual provision in such a health insurance contract such that Plaintiff does not owe those monies to Plaintiff’s medical provider, then those items of damages do not exist and cannot be recovered from these Defendants. Defendants are entitled to any and all health insurance contractual adjustments. Defendants reserve the right to amend and/or supplement their answers and affirmative defenses. WHEREFORE, having fully answered the complaint and set forth defenses thereto, Defendants respectfully requests a trial by jury on all issues so triable. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via E- Mail on this 2nd day of November 2017, to the following: Anthony J. Manganiello, III, Esquire, Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 2033 Main Street, Suite 600, Page 5 of 6 Postal Drawer 4195, Sarasota, Florida 34237, Amanganiello@icardmerrill.com, Mlelinho@icardmerrill.com, Lpierce@icardmerrill.com. WILLIAM G.K. SMOAK Florida Bar No.: 645028 KELLY CHARLES-COLLINS Florida Bar No.:56261 Smoak, Chistolini & Barnett, PLLC 320 W. Kennedy Blvd. 4th Floor Tampa, FL 33606 (813) 221-1331 Telephone (813) 223-7881 Facsimile courtdocuments@flatrialcounsel.com Counsel for Defendants Page 6 of 6