DaimlerChrysler files affirmative defenses
(Melbourne, Florida) 12/06/2006 Answer to wrongful death complaint in the Brevard County court of Dolores J. Morelock Vs. William D Lane and DaimlerChrysler Corporation.
William McCandless, attorney for the defendant, DaimlerChrysler Corporation filed an answer in the civil suit against the company and Billy Lane for the Wrongful Death of Gerald Morelock. The document was filed on November 15, 2006 with the Brevard Clerk of Courts and a copy has been served on Nance, Cacciatore and Hamilton, the attorneys for the plaintiff.
Before I get into the answer, I want to add to the top of this post, the definition of the legal term that you will see used throughout the text of this document. The legal term definitions used on this blog are provided by law.com.
affirmative defenses: part of an answer to a charge or complaint in which a defendant takes the offense and responds to the allegations with his/her own charges, which are called “affirmative defenses.” These defenses can contain allegations, take the initiative against statements of facts contrary to those stated in the original complaint against them, and include various defenses based on legal principles. Many of these defenses fall into the “boilerplate” (stated in routine, non-specific language) category, but one or more of the defenses may help the defendant.
Below you will find the notice transposed in its entirety.
NOTICE OF AFFIRMATIVE DEFENSES OF DEFENDANT, DAIMLERCHRYSLER CORPORATION
NOW COMES the Defendant, DaimlerChrysler Corporation (“DC”), by counsel, and asserts the following Affirmative Defenses:
- No Negligence. Defendant DC was not guilty of any negligence which was a legal cause of any damages allegedly sustained by Plaintiffs’ decedent.
- Comparative Negligence. In the event that discovery demonstrates that Plaintiffs’ decedent was guilty of negligence which was the sole proximate cause of any damages allegedly sustained, plaintiffs’ recovery is therefore barred. Alternatively, in the event that discovery demonstrates that plaintiff’s decedents own negligence substantially contributed to the damages allegedly sustained, the recovery of plaintiff’s, if any, should be reduced proportionately.
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Third party fault. In the alternative, while continuing to deny any and all liability, DC asserts that plaintiff’s decedent’s alleged damages may have been the result of the negligence of third party over whom DC had no control and was not legally responsible. DC cannot identify such parties until discovery has been conducted. DC relies upon the doctrine of Fabre v. Marin, 623 So.2d1182 (Fla. 1993).
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Collateral source set-off. DC is entitled to a set-off for all payments made by collateral sources for bills, expenses, or other obligations which have been paid, or are payable to Plaintiff’s herein. Further, DC is entitled to a set-off for any settlements or compensation Plaintiffs may have received regarding the subject incident.
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Tort Reform and Insurance Act of 1986. Additionally, DC asserts that the incident herein falls under the provisions of the “Tort Reform and Insurance Act of 1986”. which said act specifically addresses, but is not limited to, joint and several liability and non-duplication of benefits. DC affirmatively pleads all of the defenses and rights available to it under said statute.
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Federal Pre-emption. Additionally, DC affirmatively states that it is entitled to any and all rights and privileges available to it under the Federal Pre-emption Doctrine.
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Apportionment of damages. Additionally, DC asserts that it is entitled to an Apportionment of damages in relation to the degree of fault of all parties, persons, companies or employers, whether joined as co-defendant or not.
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Mitigation of damages. In the event that discovery demonstrates that Plaintiffs failed to mitigate their alleged damages, the recovery of plaintiffs, if any, should be reduced accordingly.
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Intervening/superseding cause. In the event that discovery demonstrates that Plaintiff’s claim arose from a superseding and intervening causes unrelated to DC, then Plaintiffs claims are barred.
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Limitations of liability. Any recovery by Plaintiffs’ is limited by F.S.A. 324.021(9)(b).
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Failure to state a cause of action. Plaintiffs’ fail to plead the requisite elements of negligence to support a cause of action as required by Simon V. Tampa Electric Company. 202 So.2d209, 213 (Fla. 2d DCA 1967).
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Additional Affirmative Defenses. DC reserves the right to amend its answer to assert any additional affirmative defenses based upon either the law of Florida or facts and circumstances which may be disclosed throughout the course of discovery herein.
WHEREFORE, Defendant, DaimlerChrysler Corporation demands that plaintiffs’ Complaint be dismissed with prejudice and costs assessed against plaintiffs and further demands a trial by jury.
DENARDIS, MCCANDLESS & MILLER, P.C.
Signed by William McCandless
END OF DOCUMENT
Further research:
Norman Gregory Fernandez, ESQ article entitled YOU BETTER CHECK OUT THE PERSON THAT YOU LOAN YOUR CAR TO; YOU COULD BE HELD LEGALLY LIABLE FOR THEIR ACTIONS. This article shows why Dodge may be held responsible in the case.
I posted the original civil action complaint against Billy Lane and Dodge on October 6th entitled Wrongful death complaint cites Billy Lane acted outrageously.
The complete wrongful death complaint with the answer from Dodge
December 10th, 2006 at 11:15 pm
Where is the truck that Billy totaled when he killed Gerry Morelock? I see you have posted a picture of the totaled truck at a junk yard or dealership. Great photography. The article on your wife Cindi’s lupus was well written.
December 10th, 2006 at 11:25 pm
That truck I would imagine went to the insurance auction.
But, you know, I was just wondering about the other two vehicles today! What brought them to mind was that I thought I had seen the car being driven down in Ft. Lauderdale this morning when we went to the toys in the sun run.
I would think that the vehicles would have the custom decals removed before resale though. I am sure it was my eyes playing tricks on me.
Thanks for visiting and the compliments : )
December 11th, 2006 at 7:01 pm
I had to read the lupus article myself. I never heard of that before. I say lets do a poker run and raise some money!!! I would also think that the decals would be removed before resale…….but someone might want to have the vehicle that Billy Lane used and the decals. I saw on Ebay a old car that Billy souped up and had the Choppers Inc. logo on it and a picture of Billy sitting in it. It had not met the reserve on it at the time……..early November….I think was when I saw it on Ebay.
December 11th, 2006 at 8:05 pm
Funny you should suggest that Sandie. I am working on that very idea in the past few months. Did I see you raise your hand as a volunteer? LOL : )
I will keep you posted on the progress.
I will say that I hope to name it “the sun run” and make it an annual event.
January 8th, 2007 at 2:01 pm
Dear Mike,
Thank you so very much for caring about my family and how we are getting thru all this crap with Lane / Dc.
Seany and I had a difficult time with the hollow holidays.
Thanks also for educating everyone about the situation that Daimler has with Lane (loan of 3 vehicles).
Sincerely,
Byron Morelock
February 8th, 2007 at 7:15 am
You know that DC has got to have somebodies head on a platter. Looks like nobody kept up with Lane’s driving record or was aware of the North Carolina incident in which Lane’s license were suspended. Mike Odom: is it true that if you refuse sobriety tests twice you lose your license for life? I was reading up on implied consent and that is the drift I got from what I was reading. What do you say??
February 8th, 2007 at 12:50 pm
Sandie,
I am sure that the law governing implied consent varies from state to state. Because in Lane’s case it was in two different states, I do not think that a lifetime revocation would or could be in effect.
I would think that it would be easier to look at habitual offender guidelines to revoke his driver license.