Reply: TO DEFENDANT, TESLA, INC. a/k/a TESLA FLORIDA, INC.'S, ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF
S FIRST AMENDED COMPLAINT AND MOTION TO STRIKE CERTAIN AFFIRMATIVE DEFENSES
Page 1 Filing # 85846023 E-Filed 03/04/2019 07:03:45 PM
IN THE CIRCUIT COURT OF THE
1777 JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE-19-
EDGAR MONSERRATT, as _ Personal
Representative of THE ESTATE OF
EDGAR MONSERRATT MARTINEZ,
Deceased,
Plaintiff,
Vv.
TESLA, INC. a/k/a TESLA FLORIDA,
INC., HALSTON LOYD, JAMES B.
RILEY, individually, JAMES B. RILEY as
the Personal Representative of THE
ESTATE OF BARRETT RILEY, Deceased,
and JR CORPORATE SERVICES GROUP
LLC, a Florida limited liability company,
Defendants.
/
PLAINTIFF’S REPLY TO DEFENDANT, TESLA, INC. a/k/a TESLA FLORIDA, INC.’S,
ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S FIRST AMENDED
COMPLAINT AND MOTION TO STRIKE CERTAIN AFFIRMATIVE DEFENSES
COMES NOW, Plaintiff, EDGAR MONSERRATT, as Personal Representative of the
ESTATE OF EDGAR MONSERRATT MARTINEZ, Deceased, by and through undersigned
counsel and files this reply to Defendant, TESLA, INC. a/k/a TESLA FLORIDA, INC.’s, Answer
and Affirmative Defenses to Plaintiff's First Amended Complaint and Motion to Strike Certain
Affirmative Defenses as follows:
1. All affirmative defenses raised in the answer of the defendant are denied and Plaintiffs
demand strict proof thereof.
* FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 3/4/2019 7:03:45 PM.***%*Page 2 2. All affirmative defenses raised in the answer of the defendant not admitted are hereby
expressly denied.
3. The allegations of paragraph #1 of the defendant’s affirmative defenses are denied.
4. The allegations of paragraphs #2-3 of the defendant’s affirmative defenses are denied.
Plaintiff's decedent was merely a passenger in the subject Tesla and Plaintiff was not involved in
the crash whatsoever. Under such circumstances Plaintiff and his decedent were incapable of any
comparative negligence.
5. The allegations of paragraph #4-11 of the defendant’s affirmative defenses are denied.
6. The allegations of paragraph #12 of the defendant’s affirmative defenses seeking to set
forth a collateral source defense are denied. Insurance benefits, if any, are paid by entities which
have a lien against any recovery in this action and which are not a collateral sources pursuant to
FSA $768.76. Osler v. Collins, 870 Sol2d 65 (Fla. 2" D., 2003); Centex-Rodgers Construction vs.
Herrera, M.D., 816 So.2d 1206 (Fla. 4" D., 2002); Centex-Rodgers Construction vs. Herrera, So.2d 1215 (Fla. 4™ D., 2000).
7. The allegations of paragraph #13-14 of the defendant’s affirmative defenses are denied.
PLAINTIFFS’ MOTION TO STRIKE FABRE AFFIRMATIVE DEFENSES
FOR FAILURE TO NAME THIRD PARTIES AND TO ALLEGE NEGLIGENCE
Comes now the plaintiff, by and through his undersigned counsel, and moves this Court to
strike the allegations of the defendant’s second and third affirmative defenses raised in the answer
of the defendant for failure to allege any negligence on behalf of the Fabre third parties or to name
them or state a cause of action against them. Fla. Rule of Civ. Proc. 1.140(b). The affirmative
defenses fail to allege what the identified parties did that was negligent and fail to allege how their
negligence caused the plaintiffs’ injuries as required by the Florida Supreme Court opinions ofPage 3 Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) and Nash v. Wells Fargo Guard Service, Inc., So.2d 1262 (Fla. 1996) interpreting F'SA$768.8/.
The defendant’s second and third affirmative defenses state:
2. Plaintiff's decedent, the driver of the subject vehicle, and the owners of the
subject vehicle, so carelessly and negligently conducted themselves and caused and
contributed to the incident or damages complained of, thus barring or proportionately
reducing all claims for damages against Tesla.
3. Tesla contends that this incident gives rise to an apportionment of damages,
if any, in relation to the degree of fault of the parties, persons, or employers, pursuant to
the Florida Supreme Court decision of Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). In
compliance with Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla. 1996),
Halston Loyd identifies the following persons or entities as party and non-party tortfeasors
in this case: (1) Edgar Monserratt; (2) Edgar Monserratt Martinez; (3) Barrett Riley; (4)
James B. Riley; (5) Jenny B. Riley; (6) JR Corporate Services Group; and (7) Any other
currently unidentified parties, persons, firms, or corporations over whom Halston Loyd had
no control or duty to control, and for whose actions Halston Loyd cannot be held
responsible or legally liable. Halston Loyd reserves the right to amend this affirmative
defense to identify any additional individuals or entities responsible, in whole or in part,
for Plaintiff's alleged damages as they are revealed through investigation and discovery in
this case.
The Florida Supreme Court’s opinions in Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) and
Nash v. Wells Fargo Guard Service, Inc., 678 So.2d 1262 (Fla. 1996) state that when defendants
seek to assert that third parties are liable for the plaintiff's injuries the defendants have the burden
of alleging and proving who they are and how the third parties were negligent and how those acts
caused the plaintiff's injury. The burden of pleading and proof is the same for the defendants
raising the defense as it would be for the plaintiff suing the third party directly. Fla. Rule of Civ.
Proc. 1.110 & 1.140. The defendant cannot give themselves a “wild card” by reserving the right
to name someone as a Fabre non-party in the future.
In the case of Nash v. Wells Fargo Guard Service, Inc., 678 So.2d 1262 (Fla. 1996), the
Florida Supreme Court stated:Page 4 We agree and now hold that in order to include a nonparty on the
verdict form pursuant to Fabre, the defendant must plead as an
affirmative defense the negligence of the non-party and specifically
identify the non-party. The defendant may move to amend
pleadings to assert the negligence of a nonparty subject to the
requirements of Florida Rule of Civil Procedure 1.190. However,
notice prior to trial is necessary because the assertion that
noneconomic damages should be apportioned against a nonparty
may affect both the presentation of the case and the trial court’s
rulings on evidentiary issues.
In addition to the pleading requirement, the defendant has the
burden [FN 1] of presenting at trial that the non-party’s fault
contributed to the accident in order to include the nonparty’s name
on the jury verdict. See W.R. Grace & Co.- - Conn. v. Dougherty,
636 So.2d 746, 748 (Fla. 2d DCA) (without evidence of the nonparty
defendant’s negligence, the named defendant has “not established
the foundation necessary for a jury to receive jury instructions and a
verdict form to decide the case pursuant to section 768.81, Florida
Statutes (1991) and Fabre’), review denied, 645 So.2d 457 (Fla.
1994). We further hold that the named defendant cannot rely on the
vicarious liability of a nonparty to establish the nonparty’s fault.
678 So.2d 1262 at p. 1264. (Emphasis Added).
* oR OK
The Third District Court of Appeal in Bogosian vy. State Farm Mutual Automobile
Insurance Co., 817 So.2d 968 (Fla. 3“ D., 2002), has ruled that defendants who seek to assert the
negligence of a Fabre non-party as an affirmative defense cannot simply refer to a pleading filed
by the plaintiff but have an independent obligation to identify the name of the third party and to
properly plead the elements of negligence and causation of the non-party by stating:
*
The pleadings must be perfected to give the plaintiff fair notice that
the defendant intends to try to prove culpability on the part of a
nonparty Fabre defendant, in this case D.O.T. It is true that the
plaintiff was thoroughly familiar with Mr. Bynum’s opinions
regarding D.O.T.’s negligence. However the prejudice to plaintiff
arises because, in the absence of a pleading creating fair notice,
plaintiff had no opportunity to plan a defense or gather evidence andPage 5 witnesses in opposition to State Farm’s position. [FN3].
FN3. In a nutshell, plaintiff would have introduced
evidence to show that even with the alleged design
and signage flaws, most motorists in the left-hand
land stay there and do not abruptly change lanes,
striking other motorists. Plaintiff's argument would
be that the main responsibility for the accident was
that of the phantom driver, not D.O.T. 877 So.2d at p. 970-971.
The defendant also has the burden of affirmatively pleading the names of any third parties
it claims were negligent and caused all or part of the plaintiff's injuries in compliance with Fila.
Rule of Civ. Proc. 1.190 ona timely basis. Loureiro v. Pools by Greg, 698 So.2d 1262 (Fla. 4" D.,
1997). If the defendant wishes to assert such a defense it must be done before the case is set for
trial in order to be in compliance with Fla. Rule of Civ. Proc. 1.190.
Wherefore the allegations of the defendant’s second and third affirmative defenses fail to
comply with the pleading requirements of the cited cases and should be stricken pursuant to
Florida Rule of Civil Procedure 1.140(b) for failure to allege a lawful defense.
[Remainder of Page Intentionally Blank]Page 6 CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing document has been
furnished via E-mail and facsimile to all counsel identified on the below Service List on this 4"
day of March, 2019.
SCHLESINGER LAW OFFICES, P.A.
Attorneys for Plaintiffs
1212 SE Third Avenue
Fort Lauderdale, Florida
/s/ Zane Ber
Scott P. Schlesinger, Esq.
Florida Bar No.: scott@schiesingerlaw.com
Jonathan R. Gdanski, Esq.
Florida Bar No.: jonathan@éschlesingerlaw.com
Zane Berg, Esq.
Florida Bar No.: zane(schiesingcriaw.com
-and-
/s/ Philip Harnett Corboy, Jr.
CORBOY & DEMETRIO, P.C.
Philip Harnett Corboy, Jr. — Pro-Hac Vice anticipated
Illinois Bar No.:
fhe@corboydemetrio.com
33 N. Dearborn Street
Chicago, IL
Telephone: (312) 346-3191Page 7 SERVICE LIST
Robert J. Rudock
Whitney V. Cruz
BOWMAN AND BROOKE LLP
Two Alhambra Plaza, Suite
Coral Gables, FL
Tel: (305) 995-
Fax: (305) 995-
Robert.Rudock(bowmanandbrooke.com
Whitney.Cruz@bowmanandbrooke.com
Attorneys for Defendant, Tesla, Inc. a/k/a Tesla Florida, Inc. and Halston Loyd
Laurie A. Primus, Esq.
SELLARS, MARION & BIACHI, P.A.
811 N. Olive Avenue
West Palm Beach, FL
Tel: (561) 655-
Fax: (561) 655-
Iprimus@smb-law.com
Attorneys for Riley Defendants and JR Corporate Services Group LLC
PDF Page 1
PlainSite Cover Page
PDF Page 2
Filing # 85846023 E-Filed 03/04/2019 07:03:45 PM
IN THE CIRCUIT COURT OF THE
1777 JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE-19-000422
EDGAR MONSERRATT, as _ Personal
Representative of THE ESTATE OF
EDGAR MONSERRATT MARTINEZ,
Deceased,
Plaintiff,
Vv.
TESLA, INC. a/k/a TESLA FLORIDA,
INC., HALSTON LOYD, JAMES B.
RILEY, individually, JAMES B. RILEY as
the Personal Representative of THE
ESTATE OF BARRETT RILEY, Deceased,
and JR CORPORATE SERVICES GROUP
LLC, a Florida limited liability company,
Defendants.
/
PLAINTIFF’S REPLY TO DEFENDANT, TESLA, INC. a/k/a TESLA FLORIDA, INC.’S,
ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S FIRST AMENDED
COMPLAINT AND MOTION TO STRIKE CERTAIN AFFIRMATIVE DEFENSES
COMES NOW, Plaintiff, EDGAR MONSERRATT, as Personal Representative of the
ESTATE OF EDGAR MONSERRATT MARTINEZ, Deceased, by and through undersigned
counsel and files this reply to Defendant, TESLA, INC. a/k/a TESLA FLORIDA, INC.’s, Answer
and Affirmative Defenses to Plaintiff's First Amended Complaint and Motion to Strike Certain
Affirmative Defenses as follows:
1. All affirmative defenses raised in the answer of the defendant are denied and Plaintiffs
demand strict proof thereof.
* FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 3/4/2019 7:03:45 PM.***%*
PDF Page 3
2. All affirmative defenses raised in the answer of the defendant not admitted are hereby
expressly denied.
3. The allegations of paragraph #1 of the defendant’s affirmative defenses are denied.
4. The allegations of paragraphs #2-3 of the defendant’s affirmative defenses are denied.
Plaintiff's decedent was merely a passenger in the subject Tesla and Plaintiff was not involved in
the crash whatsoever. Under such circumstances Plaintiff and his decedent were incapable of any
comparative negligence.
5. The allegations of paragraph #4-11 of the defendant’s affirmative defenses are denied.
6. The allegations of paragraph #12 of the defendant’s affirmative defenses seeking to set
forth a collateral source defense are denied. Insurance benefits, if any, are paid by entities which
have a lien against any recovery in this action and which are not a collateral sources pursuant to
FSA $768.76. Osler v. Collins, 870 Sol2d 65 (Fla. 2" D., 2003); Centex-Rodgers Construction vs.
Herrera, M.D., 816 So.2d 1206 (Fla. 4" D., 2002); Centex-Rodgers Construction vs. Herrera, 761
So.2d 1215 (Fla. 4™ D., 2000).
7. The allegations of paragraph #13-14 of the defendant’s affirmative defenses are denied.
PLAINTIFFS’ MOTION TO STRIKE FABRE AFFIRMATIVE DEFENSES
FOR FAILURE TO NAME THIRD PARTIES AND TO ALLEGE NEGLIGENCE
Comes now the plaintiff, by and through his undersigned counsel, and moves this Court to
strike the allegations of the defendant’s second and third affirmative defenses raised in the answer
of the defendant for failure to allege any negligence on behalf of the Fabre third parties or to name
them or state a cause of action against them. Fla. Rule of Civ. Proc. 1.140(b). The affirmative
defenses fail to allege what the identified parties did that was negligent and fail to allege how their
negligence caused the plaintiffs’ injuries as required by the Florida Supreme Court opinions of
PDF Page 4
Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) and Nash v. Wells Fargo Guard Service, Inc., 678
So.2d 1262 (Fla. 1996) interpreting F'SA$768.8/.
The defendant’s second and third affirmative defenses state:
2. Plaintiff's decedent, the driver of the subject vehicle, and the owners of the
subject vehicle, so carelessly and negligently conducted themselves and caused and
contributed to the incident or damages complained of, thus barring or proportionately
reducing all claims for damages against Tesla.
3. Tesla contends that this incident gives rise to an apportionment of damages,
if any, in relation to the degree of fault of the parties, persons, or employers, pursuant to
the Florida Supreme Court decision of Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). In
compliance with Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla. 1996),
Halston Loyd identifies the following persons or entities as party and non-party tortfeasors
in this case: (1) Edgar Monserratt; (2) Edgar Monserratt Martinez; (3) Barrett Riley; (4)
James B. Riley; (5) Jenny B. Riley; (6) JR Corporate Services Group; and (7) Any other
currently unidentified parties, persons, firms, or corporations over whom Halston Loyd had
no control or duty to control, and for whose actions Halston Loyd cannot be held
responsible or legally liable. Halston Loyd reserves the right to amend this affirmative
defense to identify any additional individuals or entities responsible, in whole or in part,
for Plaintiff's alleged damages as they are revealed through investigation and discovery in
this case.
The Florida Supreme Court’s opinions in Fabre v. Marin, 623 So.2d 1182 (Fla. 1993) and
Nash v. Wells Fargo Guard Service, Inc., 678 So.2d 1262 (Fla. 1996) state that when defendants
seek to assert that third parties are liable for the plaintiff's injuries the defendants have the burden
of alleging and proving who they are and how the third parties were negligent and how those acts
caused the plaintiff's injury. The burden of pleading and proof is the same for the defendants
raising the defense as it would be for the plaintiff suing the third party directly. Fla. Rule of Civ.
Proc. 1.110 & 1.140. The defendant cannot give themselves a “wild card” by reserving the right
to name someone as a Fabre non-party in the future.
In the case of Nash v. Wells Fargo Guard Service, Inc., 678 So.2d 1262 (Fla. 1996), the
Florida Supreme Court stated:
PDF Page 5
We agree and now hold that in order to include a nonparty on the
verdict form pursuant to Fabre, the defendant must plead as an
affirmative defense the negligence of the non-party and specifically
identify the non-party. The defendant may move to amend
pleadings to assert the negligence of a nonparty subject to the
requirements of Florida Rule of Civil Procedure 1.190. However,
notice prior to trial is necessary because the assertion that
noneconomic damages should be apportioned against a nonparty
may affect both the presentation of the case and the trial court’s
rulings on evidentiary issues.
In addition to the pleading requirement, the defendant has the
burden [FN 1] of presenting at trial that the non-party’s fault
contributed to the accident in order to include the nonparty’s name
on the jury verdict. See W.R. Grace & Co.- - Conn. v. Dougherty,
636 So.2d 746, 748 (Fla. 2d DCA) (without evidence of the nonparty
defendant’s negligence, the named defendant has “not established
the foundation necessary for a jury to receive jury instructions and a
verdict form to decide the case pursuant to section 768.81, Florida
Statutes (1991) and Fabre’), review denied, 645 So.2d 457 (Fla.
1994). We further hold that the named defendant cannot rely on the
vicarious liability of a nonparty to establish the nonparty’s fault.
678 So.2d 1262 at p. 1264. (Emphasis Added).
* oR OK
The Third District Court of Appeal in Bogosian vy. State Farm Mutual Automobile
Insurance Co., 817 So.2d 968 (Fla. 3“ D., 2002), has ruled that defendants who seek to assert the
negligence of a Fabre non-party as an affirmative defense cannot simply refer to a pleading filed
by the plaintiff but have an independent obligation to identify the name of the third party and to
properly plead the elements of negligence and causation of the non-party by stating:
*
The pleadings must be perfected to give the plaintiff fair notice that
the defendant intends to try to prove culpability on the part of a
nonparty Fabre defendant, in this case D.O.T. It is true that the
plaintiff was thoroughly familiar with Mr. Bynum’s opinions
regarding D.O.T.’s negligence. However the prejudice to plaintiff
arises because, in the absence of a pleading creating fair notice,
plaintiff had no opportunity to plan a defense or gather evidence and
PDF Page 6
witnesses in opposition to State Farm’s position. [FN3].
FN3. In a nutshell, plaintiff would have introduced
evidence to show that even with the alleged design
and signage flaws, most motorists in the left-hand
land stay there and do not abruptly change lanes,
striking other motorists. Plaintiff's argument would
be that the main responsibility for the accident was
that of the phantom driver, not D.O.T. 877 So.2d 968
at p. 970-971.
The defendant also has the burden of affirmatively pleading the names of any third parties
it claims were negligent and caused all or part of the plaintiff's injuries in compliance with Fila.
Rule of Civ. Proc. 1.190 ona timely basis. Loureiro v. Pools by Greg, 698 So.2d 1262 (Fla. 4" D.,
1997). If the defendant wishes to assert such a defense it must be done before the case is set for
trial in order to be in compliance with Fla. Rule of Civ. Proc. 1.190.
Wherefore the allegations of the defendant’s second and third affirmative defenses fail to
comply with the pleading requirements of the cited cases and should be stricken pursuant to
Florida Rule of Civil Procedure 1.140(b) for failure to allege a lawful defense.
[Remainder of Page Intentionally Blank]
PDF Page 7
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing document has been
furnished via E-mail and facsimile to all counsel identified on the below Service List on this 4"
day of March, 2019.
SCHLESINGER LAW OFFICES, P.A.
Attorneys for Plaintiffs
1212 SE Third Avenue
Fort Lauderdale, Florida 33316
/s/ Zane Ber
Scott P. Schlesinger, Esq.
Florida Bar No.: 444952
scott@schiesingerlaw.com
Jonathan R. Gdanski, Esq.
Florida Bar No.: 0032097
jonathan@éschlesingerlaw.com
Zane Berg, Esq.
Florida Bar No.: 91317
zane(schiesingcriaw.com
-and-
/s/ Philip Harnett Corboy, Jr.
CORBOY & DEMETRIO, P.C.
Philip Harnett Corboy, Jr. — Pro-Hac Vice anticipated
Illinois Bar No.: 3121633
fhe@corboydemetrio.com
33 N. Dearborn Street
Chicago, IL 60602
Telephone: (312) 346-3191
PDF Page 8
SERVICE LIST
Robert J. Rudock
Whitney V. Cruz
BOWMAN AND BROOKE LLP
Two Alhambra Plaza, Suite 800
Coral Gables, FL 33134
Tel: (305) 995-5600
Fax: (305) 995-6090
Robert.Rudock(bowmanandbrooke.com
Whitney.Cruz@bowmanandbrooke.com
Attorneys for Defendant, Tesla, Inc. a/k/a Tesla Florida, Inc. and Halston Loyd
Laurie A. Primus, Esq.
SELLARS, MARION & BIACHI, P.A.
811 N. Olive Avenue
West Palm Beach, FL 33401
Tel: (561) 655-8111
Fax: (561) 655-4994
Iprimus@smb-law.com
Attorneys for Riley Defendants and JR Corporate Services Group LLC
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