Edgar Monserratt v. Tesla Inc, et al Document 44

County Court in and for Broward County, Florida
Case No. CACE19000422
Filed September 4, 2019

Response to Affirmative Defenses

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Page 1 Filing # 95157764 E-Filed 09/04/2019 02:52:21 PM
IN THE CIRCUIT COURT OF THE 17! JUDICIAL CIRCUIT,
IN AND FOR BROWARD COUNTY, FLORIDA
EDGAR MONSERRATT, as Personal
Representative of THE ESTATE OF
EDGAR MONSERRATT MARTINEZ,
Deceased,
CASE NO.: CACE-19-Plaintiff,
V.
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 lability company,
Defendants.
/
DEFENDANTS’, TESLA, INC. a/k/a TESLA FLORIDA, INC. AND HALSTON LOYD,
RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTIONS TO STRIKE FABRE
AFFIRMATIVE DEFENSES FOR FAILURE TO NAME THIRD PARTIES
AND TO ALLEGE NEGLIGENCE
Defendants, Tesla, Inc. a/k/a Tesla Florida, Inc. and Halston Loyd, (hereinafter collectively
“the Tesla Defendants”), file their Response in Opposition to Plaintiff's Motions to Strike Fabre
Affirmative Defenses for Failure to Name Third Parties and to Allege Negligence, and state as
follows:
1. This is a product liability action in which Plaintiff asserts that “the Decedent, Edgar
Monserratt Martinez, was the front seat passenger in the Vehicle which was then operated by Barrett
Riley southbound in the 1300 block of Seabreeze Boulevard, in Fort Lauderdale, Florida. That at the
time and place, Barrett Riley lost control of the automobile, resulting in the Vehicle striking a wall
on the west side of the road. The Vehicle then re-entered the roadway, mounted the curb on the east
*4k FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/04/2019 02:52:21 PM.****
Page 2 side of the street, and struck a metal light pole and wall. The Vehicle then erupted in flames. The
Vehicle was traveling at a speed in excess of 116 mph when Barrett Riley lost control of the vehicle
immediately before the crash...Edgar Monserratt Martinez perished as a result of injuries he
sustained in the crash.”
2. Plaintiff filed almost identical Motions to Strike two (2) affirmative defenses
asserted by the Tesla Defendants in their respective Answers.
3. The Tesla Defendants’ defenses are legally cognizable and reasonably stated, and
Plaintiff's Motions should be denied.
ARGUMENT
Affirmative Defense No.2 Plaintiffs 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.
Affirmative Defense No.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 entities, 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), Tesla 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 Tesla had no
control or duty to control, and for whose actions Tesla cannot be held responsible
or legally liable. Tesla 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.

For its second and third defenses, the Tesla Defendants alleged that Plaintiff's damages
were caused by the negligence of others. Plaintiff asserts that these defenses fail to comply with
the requirements of Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla. 1996) by
failmg to specifically identify the nonparty alleged to have been negligent in causing or
Page 3 contributing to the damages alleged. Contrary to Plaintiff’s assertions, the Tesla Defendants have
identified six (6) individuals and entities as party and non-party tortfeasors. Additionally, Plaintiff
alleges Tesla failed to comply with the requirements of Nash by failing to allege “what the
identified parties did that was negligent and... how their negligence caused the plaintiffs’ injuries”
as required by Fabre v. Marin, 623 So.2d 1182 (Fla. 1933) and Nash. Plaintiffs assertion is once
again misplaced. The Tesla Defendants have fully satisfied Florida law as stated in Nash:
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.
Nash v. Wells Fargo Guard Services, Inc., 678 So.2d at 1264.
In addition to identifying six (6) individuals and entities as party and non-party tortfeasors,
the Tesla Defendants also included in their affirmative defense “other currently unidentified
parties, persons, firms, or corporations over whom Tesla had no control or duty to control, and for
whose actions Tesla cannot be held responsible or legally liable.” Plaintiff’s contention that the
Tesla Defendants should be precluded from asserting this affirmative defense unless they can
identify the person or entity at fault by name is completely without merit. For example, the Florida
Supreme Court relied on and cited with approval, case law allowing a "phantom" driver involved
in amotor vehicle accident to be placed on the verdict form in Nash. The court held that a nonparty
Fabre defendant must be specifically identified, however, the court also recognized that this does
not mean that the identity of a nonparty must be discovered in order to be considered by the jury
and allocated fault. In referring to the defendant's obligations to specifically identify a nonparty,
the court recognized the defendant's right to plead the negligence of a non-party phantom driver.
Id. at 1264, n. 1, citing McGraw v. Sanders Company Plumbing and Heating, Inc., 667 P.2d
(1983). Indeed, the Nash court specifically recognized that "the defense that a phantom driver
Page 4 contributed to the plaintiff's injuries is arguably a matter constituting an avoidance ...." /d. at
1264, n. 1.
Moreover, a defendant's right to identify a nonparty for the apportionment of fault, even
where it is unable to name or provide a specific description of the nonparty, is recognized by
statute. See Fla. Stat. §768.81(3)(a)1. As specifically recognized in §781.81, a party is required
to "...identify the nonparty, if known, or describe the nonparty as specifically as practicable...."
Moreover, Fla. Stat. §768.81(3)(a)2 provides that "[iJn order to allocate any or all fault to a
nonparty and include the named or unnamed nonparty on the verdict form for purposes of
apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the
fault of the nonparty in causing the plaintiff's injuries."
The rationale behind Fabre and Nash is to allow all persons or entities that were negligent
in causing a plaintiff's injuries to be considered by the jury. Discovery is ongoing and the Tesla
Defendants have not yet conducted discovery as to the facts of the subject accident. The Tesla
Defendants will seek to discover this information through written discovery to Plaintiff and Co-
defendants, depositions of the parties and first responders, non-party subpoenas for records, and
expert discovery. If through this discovery the identities of additional individuals or entities that
were responsible in whole or in part for Plaintiff's damages are identified, the Tesla Defendants
will amend their Affirmative Defenses to specifically plead this additional information. However,
given the knowledge and information available to the Tesla Defendants at the present time, they
have identified as "specifically as practicable" those persons and entities who are nonparties to
whom the jury should apportion fault.
In Bogosian v. State Farm Mut. Auto. Ins. Co., cited by Plaintiff in his Motion, the Court
ordered a new trial where the defendant added a third-party to the verdict form at trial and put on
Page 5 evidence against the third-party, but failed to assert a /‘abre affirmative defense. This is precisely
what the Tesla defendants are trying to avoid. The Tesla defendants have asserted the relevant
affirmative defenses and have plead the negligence of third-parties as specifically as possible at
this stage of the litigation.
WHEREFORE, Defendants, Tesla, Inc. d/b/a Tesla Florida, Inc. and Halston Loyd
respectfully submit that Plaintiff's Motions to Strike should be denied. Alternatively, if the Court
is inclined to grant Plaintiff's Motions to Strike as to a particular defense, they should be granted
without prejudice, and Defendants should be allowed to amend or later add defenses in
conformance with the evidence.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on September 4, 2019, a true and correct copy of the
foregoing document was filed with the Clerk of Court using the Florida Courts e-Filing Portal
which will send an automatic e-mail message to all parties who have registered with the e-Filing
Portal.
/s/ Robert J. Rudock
VINCENT GALVIN
Pro Hac Vice
ROBERT J. RUDOCK
Florida Bar No.
WHITNEY V. CRUZ
Florida Bar No.
BOWMAN & BROOKE LLP
Two Alhambra Plaza, Suite
Coral Gables, Florida
Tel: 305-995-5600/Fax: 305-995-Attorneys for Defendants,
Tesla, Inc. a/k/a Tesla Florida, Inc. and
Halston Loyd
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