mark flood v. taylor: defendant answer & affirmative response to amended complaint

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IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT, IN AND FOR PINELLAS COUNTY, FLORIDA

CASE NO.: 15-007645-CI

MARK FLOOD,

Plaintiff,

v.

BLAKE TAYLOR, a/k/a BLAKE TAYLORFLOOD,

Defendant.________________________________________/

DEFENDANT BLAKE TAYLOR’SANSWER AND AFFIRMATIVE DEFENSES TO THE AMENDED COMPLAINT

Defendant Blake Taylor (“Taylor” or “Defendant”), by and through undersigned counsel,

and pursuant to Rule 1.140 of the Florida Rules of Civil Procedure hereby answers the Amended

Complaint and asserts various affirmative defenses:

ANSWER TO THE AMENDED COMPLAINT

Jurisdiction and Venue

1. Defendant admits the allegations contained in paragraph 1.


3. Defendant admits that Plaintiff has alleged the requisite jurisdictional amount for

this Court, but Defendant denies that Plaintiff is entitled to any damages.

4. Defendant admits that venue is proper in this Court, but Defendant denies any

wrongdoing or actionable conduct.

Filing # 38536094 E-Filed 03/02/2016 05:41:08 PM

Flood v. TaylorCase No. 15-007645-CIDefendant’s Answer and Affirmative Defenses

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Nature of the Proceedings

5. Defendant admits that Plaintiff is a spine surgery, but Defendant denies that

Plaintiff has an “excellent professional reputation.”




9. Defendant admits the allegations contained in the first sentence of paragraph 9.

Plaintiff denies that she “uses the Websites to direct traffic to the Twitter Account.”

10. Defendant can neither admit or deny the overbroad and compound statements in

paragraph 10 of the Amended Complaint, which uses vague, non-specific references such as “in

a variety of ways” and “numerous photographs” without meaningful limitation or description.

As phrased, Defendant is without sufficient information or knowledge to admit or deny the

allegations contained in paragraph 10; therefore, the allegations are denied.

11. Defendant denies the allegations contained in paragraph 11.

(a) Defendant admits that the statement was made, which speaks for itself, but

Defendant denies the second sentence of paragraph 11(a).

(b) Defendant admits that the statement was made, which speaks for itself.

(c) Defendant admits that the statement was made, which speaks for itself.

(d) Defendant admits that the statement was made, which speaks for itself.

12. Defendant is without sufficient information or knowledge to admit or deny the





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14. Defendant denies the allegations contained in paragraphs 14.

COUNT IDEFAMATION

15. Defendant restates her responses to paragraphs 1 through 10, and 11(b) – (d), and

12 through 14.









Defendant denies that Plaintiff is entitled to damages or relief as requested in the

“WHEREFORE” clause.

COUNT IIINVASION OF PRIVACY – PUBLIC DISCLOSURE OF PRIVATE FACTS

23. Defendant restates her responses to paragraphs 1 through 11(a) and 12 through

14.







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Defendant denies that Plaintiff is entitled to any damages or relief as requested in the

“WHEREFORE” clause.

AFFIRMATIVE DEFENSES

First Affirmative DefenseFailure to State Cause of Action – The Statements are True

Plaintiff cannot state a valid cause of action against the Defendant for defamation

because the alleged defamatory statements are true. To state a cause of action for defamation

under Florida law, a plaintiff must allege “(1) publication; (2) falsity; (3) actor must act with

knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at

least negligently on a matter concerning a private person; (4) actual damages; and (5) statement

must be defamatory.” Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008).

Second Affirmative DefenseFailure to State a Cause of Action – Failure to Demonstrate that the Statements are

Defamatory to a Reasonable Person

Plaintiff cannot state a valid cause of action for defamation because the statements are not

defamatory under a reasonable person standard. When determining whether a particular

publication is libelous, it must be examined from the perspective of a reasonable, ordinary

person, not the subjective feelings of the plaintiff. McIver v. Tallahassee Democrat, Inc., 489

So. 2d 793, 794 (Fla. 1st DCA 1986) (“The language in an allegedly libelous publication should

be construed as the common mind would naturally understand it.”).


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Third Affirmative DefenseFailure to State a Cause of Action – Statements of Pure Opinion are Not Actionable and

are Constitutionally Protected Free Speech

Plaintiff cannot state a valid cause of action for defamation because statements of pure

opinion are not actionable. White v. Fletcher, 90 So.2d 129, 131 (Fla. 1956) (noting that opinion

or inference from facts assumed to be true are immune from liability for defamation); Demby v.

English, 667 So.2d 350, 355 (Fla. 1st DCA 1996) (finding that an expression of pure opinion is

not actionable defamation). Pure opinions are protected as free speech under the United States

Constitution. See e.g. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974) (“Under the

First Amendment there is no such thing as a false idea. However pernicious an opinion may

seem, we depend for its correction not on the conscience of judges and juries but on the

competition of other ideas.”).

Similarly, the Constitution of the State of Florida affords its citizens the right to free

speech, which includes the right to express personal opinions:

Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.

Fla. Const. Art. 1 § 4. The foregoing constitutionally protected right to “discuss, comment upon,

criticize, and debate, indeed, the freedom to speak on any and all matters is extended not only to

the organized media but to all persons.” Nodar v. Galbreath, 462 So.2d 803, 808 (Fla. 1985),

superseded by Fla. Stat. § 768.095 on other grounds.


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Fourth Affirmative DefenseFailure to State a Cause of Action - Failure to Plead Special Damages

Plaintiff has not stated a valid cause of action for defamation because he has not alleged

any special damages as a result of the allegedly defamatory tweets, and the Complaint should be

dismissed. Piver v. Haberman, 220 So. 2d 408, 409 (Fla. 3d DCA 1969) (motion to dismiss

granted because “[a]n allegation of special damages is an indispensable element of a complaint if

the cause of action alleged is libel per quod.”).

Special damages are the natural result of harm caused by another that require specific

proof because they are not presumed by the law. Precision Tune Auto Care, Inc. v. Radcliffe,

804 So. 2d 1287, 1292 (Fla. 4th DCA 2002) (“Special damages are considered to be the natural

but not the necessary result of an alleged wrong or breach of contract. In other words, they are

such damages as do not follow by implication of law merely upon proof of the breach.”), quoting

Augustine v. S. Bell Tel. & Tel. Co., 91 So. 2d 320, 323 (Fla. 1956).

The vague references in the Complaint to “severe injury to his personal and professional

reputation,” “extreme personal stress,” “mental anguish,” “embarrassment,” and “lost future

potential employment and/or earning capacity” are insufficient to demonstrate special damages.

Fla. R. Civ. P. l.120(g) (“When items of special damages are claimed, they shall be specifically

stated.”) (Emphasis added).

Fifth Affirmative DefenseFailure to State a Cause of Action – Failure to Demonstrate the Invasion of Privacy is

Highly Offensive to a Reasonable Person

Plaintiff cannot state a valid cause of action against Defendant for invasion of privacy

because Plaintiff cannot demonstrate that the statements and photograph are highly offensive to a

reasonable person. Post-Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So. 2d 608, 613 (Fla.


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5th DCA 2007) (noting that to prove the tort of invasion of privacy by publication of private

facts, publication must be “highly offensive to a reasonable person.”); Cape Publications, Inc. v.

Bridges, 423 So. 2d 426, 427 (Fla. 5th DCA 1982) (“In determining the extent of the right of

privacy, the standard by which the right is measured is based upon a concept of the person of

reasonable sensibility; the hypersensitive individual will not be protected.”).

Sixth Affirmative DefenseFailure to State a Cause of Action – Failure to Demonstrate

Publicity for the Invasion of Privacy Claim

Plaintiff cannot state a cause of action for invasion of privacy because Plaintiff is unable

to establish enough publicity to make Defendant’s alleged conduct actionable for public

disclosure of private facts. Williams v. City of Minneola, 575 So. 2d 683, 689 (Fla. Dist. Ct.

App. 1991) (“. . .[T]the publicity given to private facts must be to the public at large or to so

many persons that the matter must be regarded as substantially certain to become public

knowledge.”); citing Restatement (Second) of Torts § 652D, Comment a.; Bilbrey v. Myers, 91

So. 3d 887, 892 (Fla. 5th DCA 2012).

Seventh Affirmative DefenseFailure to State a Cause of Action – Republication of Facts

Plaintiff cannot state a valid cause of action against Defendant for invasion of privacy

because the statements and photograph are facts that have been publicized elsewhere.

Republished facts cannot serve as the basis for a claim for invasion of privacy. Heath v. Playboy

Enterprises, Inc., 732 F. Supp. 1145, 1149 (S.D. Fla. 1990).

Eighth Affirmative DefenseComparative Negligence

Plaintiff was guilty of negligence, which was the sole and legal cause of the incident(s)

described in the Amended Complaint, thereby barring all claims arising therefrom, or in the


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alternative, such negligence contributed to the accident and alleged damages, thus requiring an

apportionment of Plaintiff’s damages according to Plaintiff’s degree of fault. Plaintiff failed to

take ordinary and reasonable care in conducting himself personally and professionally and in

protecting his image and reputation. Plaintiff’s failure to use all ordinary and reasonable care

was the direct and proximate cause of the Plaintiff’s damages.

Ninth Affirmative DefenseEstoppel

By his own action and inaction in addressing the statements and photograph, Plaintiff’s

claims are barred by the doctrine of estoppel. Plaintiff’s failure to use all ordinary and

reasonable care was the direct and proximate cause of the Plaintiff’s damages. Plaintiff is

estopped from claiming that Defendant is responsible for injuries and damages.

Tenth Affirmative DefenseLaches

By his own action and inaction in addressing the statements and photograph, Plaintiff’s

claims are barred by the doctrine of laches. Plaintiff’s failure to use all ordinary and reasonable

care was the direct and proximate cause of the Plaintiff’s damages. Plaintiff is estopped from

claiming that Defendant is responsible for injuries and damages.

Eleventh Affirmative DefenseIntervening and Superseding Causes

There were sufficient intervening and superseding causes, including the negligence of

other persons, parties, or entities over which this Defendant had no control. At the time and

place described in the Amended Complaint, person or persons not operating under the control

and consent of this Defendant may have carelessly and negligently conducted themselves so as to


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cause the alleged accident, injuries and damages, and such negligence was the sole and

proximate cause of the accident, thus barring all claims for damages against this Defendant.

Twelfth Affirmative DefenseLiability of Third Parties

This Defendant is entitled to have its liability reduced on a pro rata basis for the

negligence of any and all persons or entities not parties to this litigation. In accordance with

section 768.81, Florida Statutes, this Defendant is entitled to an apportionment of fault and an

apportionment of damages as the Doctrine of Joint and Several Liability has been abolished.

Defendant is entitled to a reduction of any award or judgment in the amount for which it

may be liable to the Plaintiff to the fullest extent available under the laws of indemnity,

comparative negligence, and contribution.

Thirteenth Affirmative DefenseCollateral Sources, Set-Off, and Recoupment

This Defendant is entitled to a set-off, under any other applicable Florida Statutes, for

benefits the Plaintiff has received, or is entitled to receive payment under, from a collateral

source or potential tortfeasor. This Defendant does not intend the term “collateral sources” to be

only as defined by Chapter 768. By the use of this term, this Defendant intends to assert its right

to be entitled to or given a reduction, set-off, remittitur, or other credit for any medical expense

charges which were not actually paid by the Plaintiff, which constitutes a write-off by any third

party payor, or for which no right of subrogation or reimbursement exists or is claimed. This

includes but is not limited to reduction of medical bills to liens.

Defendant asserts that it is entitled to a set-off of any contractual discount of medical bills

or expenses, negotiated write off of medical bills or expenses or negotiated agreement to pay

medical bills or other expenses in the future pursuant to the law of collateral source set-offs and


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Goble v. Frohman, 901 So.2d 830 (Fla. 2005). Alternatively, Plaintiff is not entitled to claim

bills, costs, or expenses incurred but waived or not actually incurred by the Plaintiff.

Defendant asserts that the Plaintiff’s past and future damages are reduced or set-off by

the amount of any governmental or charitable benefits available and further, that the Defendant

is entitled to a set-off by any and all payments which have been made or will be made to the

Plaintiff as a result of the injuries alleged in the Amended Complaint.

Fourteenth Affirmative DefenseFailure to Mitigate

Plaintiff failed to mitigate damages because the medical bills are not reasonable and/or

necessary; the billing is excessive; the treatment and/or billing was not casually related to the

accident; the medical providers have engaged in conduct (excessive billing or treatment) which

was not reasonably foreseeable; Plaintiff had health insurance and treated under a Letter of

Protection which is void against public policy, and Defendant is entitled to a write-down or

setoff pursuant to Section 641.3154, Florida Statutes; and if Plaintiff is a Medicare beneficiary,

this Defendant is entitled to a write-down or set-off under the Medicare fee schedule.

Additionally, Plaintiff failed to mitigate or minimize his damages and injuries by, among

other things, failing to timely appropriately demand removal of any offending statements or

photographs. Plaintiff’s failure to use all ordinary and reasonable care was the direct and

proximate cause of the Plaintiff’s damages.

Accordingly, Plaintiff’s recovery against this Defendant, if any, should be reduced and/or

precluded to the extent of the Plaintiff’s failure to mitigate his damages.


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Fifteenth Affirmative DefensePre-Existing and Subsequent Conditions

Any disability, disfigurement, injury, or damage claims alleged by Plaintiff are a result of

pre-existing conditions or were caused by a subsequent injury or injuries and were caused or

aggravated by any alleged acts of negligence of third parties.

WHEREFORE, BLAKE TAYLOR respectfully requests this Court to dismiss the

Amended Complaint in its entirety with prejudice, and to grant any other relief deemed

appropriate and just.

Dated this 2nd day of March, 2016.

Respectfully submitted,

McDonald Hopkins LLCAttorneys for Blake Taylor505 South Flagler Drive, Suite 300Telephone: (561) 472-2121Facsimile: (561) 472-2122

By: /s/ Jeremy M. ColvinChristopher B. HopkinsFlorida Bar Number: 116122Email: [email protected]

Jeremy M. ColvinFlorida Bar Number 0152226Email: [email protected]

mailto:[email protected]



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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 2nd day of March, 2016, a true and correct copy of the

foregoing was electronically filed with the Clerk of the Court using ECF. I also certify that the

foregoing document is being served on this day via E-Mail to the following: David A. Maney,

Esq., ([email protected]; [email protected]; [email protected]), Maney,

Damsker, Jones & Kuhlman, P.A., P.O. Box 172009, Tampa, FL 33672-2009.

/s/ Jeremy M. Colvin Jeremy M. Colvin




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