Reply: TO DEFENDANT, HALSTON LOYD'S, ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S FIRST AMENDED COMPLAI
T 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, HALSTON LOYD’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, HALSTON LOYD’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 #3-8 of the defendant’s affirmative defenses are denied.
6. The allegations of paragraph #9 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 #10-12 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. Halston Loyd 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:
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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, HALSTON LOYD’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, HALSTON LOYD’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 #3-8 of the defendant’s affirmative defenses are denied.
6. The allegations of paragraph #9 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 #10-12 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. Halston Loyd 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:
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