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Filing# 175939620 E-Filed 06/22/2023 04:03:51 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORDIA
CIRCUIT CIVIL DIVISION
CITY OF POMPANO BEACH, FLORIDA,
Plaintiff,
V. Case No.: CACE 22-00010514(25)
FLORIDA DEPARTMENT OF
TRANSPORTATION, and ANZAC
CONTRACTORS, INC.
Defendants.
I
PLAINTIFF'S RESPONSE TO FLORIDA DEPARTMENT OF
TRANSPORTATION'S MOTION TO DISMISS AMENDED COMPLAINT
Plaintiff,City of Pompano Beach, Florida (the "City"),by and through the
undersigned counsel, hereby files its response to Defendant Florida Department of
Transportation's ("FDOT's") Motion to Dismiss Plaintiffs First Amended Complaint
and states as follows:
Introduction
On April 7,2023, the City filed its First Amended Complaint against FDOT
.., "
and Anzac Contractors, Inc. ("Anzad') to recover damages associated with the
destruction of the City's subaqueous water main (the "Water Main") located in close
proximity to a bridge in the City of Lighthouse Point, Florida (the "Ibis Bridge").
The City alleged that FDOT and Anzac, its contractor, damaged the Water Main
during pile driving operations associated with the reconstruction of the Ibis Bridge.
FDOT was rebuilding the Ibis Bridge for the City of Lighthouse Point, Florida. The
Ibis Bridge is not a state road under FDOT's jurisdiction.The First Amended
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/22/2023 04:03:51 PM.****
Complaint asserted two causes of action against both defendants for negligence and
strict liability.
The Defendants' motions address the City's First Amended Complaint, which
contained four counts: a negligence cause of action against FDOT (Count D, a
negligence cause of action against Anzac (Count II),a strict liabilitycause of action
against FDOT (Count III),and a strict cause of action against Anzac (Count
liability
IV). On April 20,2023, FDOT filed a motion to dismiss the First Amended
Complaint, and claimed that FDOT was not liable because (1) FDOT enjoyed
doctrine of sovereign immunity; (2) Anzac was primarily liable as an independent
contractor; and (3) FDOT was not strictlyliable for the pile-drivingoperations.
FDOT also moved to strike Paragraph 23 of the First Amended Complaint, which
referenced a prior incident in which FDOT ruptured the City's underground sewer
main at a separate location.
The First Amended Complaint alleges that FDOT was more than a merely
passive participant in the Ibis Bridge project.Rather, FDOT effectivelyacted as a
general contractor through its efforts to locate the Water Main and its control of the
means and methods of the work of its subcontractors of the Ibis Bridge replacement
project.The subject Ibis Bridge replacement did not involve a state road under
FDOT's jurisdictionbut was constructed under an agreement between FDOT and
the City of Lighthouse Point. These are operational-level activities for which
sovereign immunity does not apply. FDOT controlled every aspect of the project.
The First Amended Complaint alleges facts sufficient to support the conclusion that
the FDO T is not immune from liabilityin connection with the Ibis Bridge Project.
In its Motion to Dismiss FDOT asserts that because Anzac was an
independent contractor, FDOT could not be liable for negligence. This is an
affirmative defense and not a basis for a motion to dismiss.
2
The First Amended Complaint alleges,and the evidence will show, that the
activities undertaken by FDOT and Anzac were ultrahazardous and done
negligently. Therefore, when FDOT asserts the affirmative defense of independent
contractor in its answer, the City will reply that FDOT could not delegate its duty to
exercise reasonable care to Anzac. Additionally, the City will reply that FDOT
supervised and controlled the means and methods of this project thereby
undermining Anzac's independent contractor status. FDOT's motion to dismiss
should be denied.
Legal Standard
Under Florida law, it is well settled that the primary purpose of a motion to
dismiss is to determine whether the complaint has alleged a cause of action upon
which relief can be granted. Prouence u. Palm Beach Tauerns, Inc., 676 So.2d 1022,
1024 (Fla. 4th DCA 1996) (citingAlexander Hamilton Corp. u. Leeson, 508 So.2d 513
(Fla. 4th DCA 1987)). "[T]he allegations of the complaint must be taken as true and
all reasonable inferences therefrom construed in favor of the nonmoving party." The
Florida Bar u. Greene, 926 So.2d 1195, 1199 (Fla. 2006). A motion to dismiss must
be denied if"the pleader could prove any set of facts whatsoever in support of the
claim." Wausau Ins. Co. u. Haynes, 683 So.2d 1123, 1124 (Fla. 4th DCA 1996)
(emphasis added).
Florida trial courts "should look only to the four corners of the pleading and
the allegations should be taken as true without regard of abilityof pleader to prove
the same." Gamma Development Corp. u. Steinberg, 621 So.2d 718, 719 (Fla. 4th
DCA 1993) (citingGilbert u. Oil Conservation, Inc., 460 So.2d 1027 (Fla. 4th DCA
1984). Trial courts "must accept the facts alleged in a complaint and exhibits
attached to the complaint as true." Samuels u. King Motor Co. of Fort Lauderdale,
782 So.2d 489, 494 (Fla. 4th DCA 2001). In ruling on a motion to dismiss, Florida
3
courts cannot rely on a movant's "unsworn statements as the basis for making
factual determinations." Leon Shaffer Golnick Advertising, Inc. u. Cedar, 423 So.2d
1015, 1017 (Fla. 4th DCA 1982). Rather, a motion to dismiss should only be
determined "by looking exclusively at the pleading itself,without reference to any
defensive pleadings or evidence in the case. Haynes, 683 So.2d at 1125.
Stated simply, the trial court must "draw all inferences in favor of the
pleader, and accept as true all well-pleaded allegations."Newberry Square Florida
Laundromat, LLC u. Jim's Coin Laundry and Dry Cleaners, Inc., 296 So.3d 584,589
(Fla. 1st DCA 2020).
Argument
I. Based On The Allegations Of The First Amended Complaint
The Sovereign Immunity Doctrine Does Not Shield FDOT From
Liability For The City's Claims.
Under Section 768.28(1), Florida Statutes, the Florida legislature waived
sovereign immunity of liabilityfor tortious acts committed by state agencies and
provided that actions to recover damages in tort may be brought against a state
agency in certain circumstances. While state agencies enjoy sovereign immunity
from liabilityfrom judgmental, planning-level decisions, they remain subject to tort
liabilityfor operational activities. Trianon Park Condominium Ass'n, Inc. u. City of
Hialeah, 468 So.2d 912 (Fla. 1985). FDOT asserts that "[alllactions on the part of
FDOT in this matter were inherently planning, judgmental level decision (sic)by a
uniquely government entity, protected by the Doctrine of Sovereign Immunity."
(FDOT Motion, 1[10).
In support, FDOT primarily relies on Department of Transp. u. Stevens, 630
So.2d 1160, 1162 (Fla. 2d DCA 1993). In Stevens, the court stated that "[alsa
general proposition, the decision to build or change a road and all the
determinations inherent in such a decision are of a judgmental, planning-level type
for which the state is immune." (emphasis added.) However, the Stevens court also
4
noted that "a governmental entity may not create a known hazard or trap and then
claim immunity from suit for injuries resulting from that hazard on the grounds
that it arose from a judgmental, planning-level decision." 630 So.2d at 1162 (quoting
City of St. Petersburg u. Collom, 419 So.2d 1082, 1086 (Fla. 1982)). The question
therefore is whether the activity described in the First Amended Complaint with
respect to FDOT are merely the decision to build the bridge based upon a judge-
mental, planning-level decision or operational activities which may result in
liabilityfor negligence.
As alleged in the First Amended Complaint, the City of Lighthouse Point had
.,
jurisdictionover the Ibis Bridge at all relevant times and the project was 'off-
system'
- i.e.,a project not located on the State Highway System under FDOT's
jurisdiction."(Am. Complaint, 1[10.)On August 28, 2018, the City of Lighthouse
Point entered into a Memorandum of Agreement ("MOA") with FDOT, in which
FDOT agreed to demolish and reconstruct the Ibis Bridge. (Am. Complaint, 1[8.)The
First Amended Complaint states:
Under the MOA, FDOT agreed to reconstruct certain
roadway and bridge improvements to the Ibis Bridge. In
effect,FDOT acted as a design-build contractor for the
project and assumed responsibilityfor the design and
construction of the Ibis Bridge project."
(Am. Complaint, 1[9.)
FDOT's involvement with the Ibis Bridge project was not a simple exercise of
its "discretionary functions" because absent the MOA, FDOT had no jurisdiction
over the Ibis Bridge. Rather, FDOT acted as design-build contractor for the project
and assumed responsibility for the construction of the Ibis Bridge project. (Am.
Complaint, 1[9.)The First Amended Complaint further explains that FDOT
activities were operational in nature:
5
In order to locate the utilitypipelines in the area of the
Ibis Bridge Project, during 2018 FDOT engaged various
surveying and engineering companies who, with the
assistance of the City, attempted to locate the utilitypipes
in the area of the bridge project. These efforts were
unsuccessful and the exact location of the City'swater
main was unknown at the time that bids were solicited by
FDOT for the construction of the project. (Am.Complaint,
1[16.)
e During the bidding process FDOT advised potential
bidders that the location of the said subaqueous facilities
were located by FDOT-commissioned surveys and not as
built"drawings provided by the utilities. Indeed, FDOT
advised bidders that the City'sfacilities had not been
located but could be damaged as the result of the
construction project. (Am. Complaint, 1[17.)
On or around April 3, 2019, FDOT executed a contract
with Anzac to perform demolition and reconstruction of
the Ibis Bridge. At the time that the contract was
executed by FDOT with Anzac, both Anzac and FDOT
knew that the exact location of the City's water main was
undetermined. (Am. Complaint, 1[18.)
. In recognition of the high risk of harm its construction
activities would pose to the City's subaqueous water
main, FDOT retained surveyors to deploy specialized
equipment to determine the precise location and depth of
the City's infrastructure in the Ibis Waterway. (Am.
Complaint, 1[26.)
FDOT surveyors completed their work attempting to
locate the City's subaqueous infrastructure in September
2019. The City accommodated the FDOT surveyors by
providing access to its water main on the land-side of the
subaqueous crossing so that the surveyors could use their
specialized line tracing technology. (Am. Complaint, 1[27.)
o After FDOT surveyors completed their work attempting
to locate the City'ssubaqueous water main, FDOT
provided the information to its structural engineer to
evaluate the bridge's proposed support structures in
relation to the City's infrastructure. Unfortunately, the
precise location of the City'sinfrastructure was not
6
correctly determined at the time of construction of the
project. Both Anzac and FDOT knew that proceeding
with the piledriving activities jeopardized the City's
subaqueous facilities. (Am. Complaint, 1[28.)
FDOT delayed Anzac's construction work by several months
specificallyto complete its surveying and engineering work in an
attempt to ensure that reconstruction of the bridge would not damage
the City'swater main. (Am. Complaint, 1[29.)
In its motion to dismiss, FDOT characterizes its activities as simple "pre-
construction planning and site examination before determining the acceptable
method for this project."(FDOT Motion, 1[10.)1However, the First Amended
Complaint explains that FDOT was intimately involved with engaging surveyors,
communicating with the City regarding the location of the Water Main, and
relaying that information to Anzac. FDOT's involvement with the Ibis Bridge
project went far beyond the type of"judgmental, planning-level decisions" shielded
by sovereign immunity. See Department of Transp. V. Webb, 409 So.2d 1061 (Fla.
1st DCA 1981) (holding FDOT was not entitled to sovereign immunity where it
could not demonstrate its actions or inaction at a railroad crossing were based upon
"basic governmental policy").
Rather, FDOT's activities were clearly operational in nature and it cannot
rely on the doctrine of sovereign immunity to See Marion
escape liability. u. City of
Boca Raton, 47 So.3d 334 (Fla. 4th DCA 2010) (holding city'salleged failure to
properly maintain traffic light was an operational decision, rather than a policy
decision, and thus the city was not entitled to sovereign immunity); Simmonds u.
State Dept. of Transp., 946 So.2d 1246 (Fla. 1st DCA 2007) (holding FDOT's
knowledge of a hazard but failed to correct it or warn of the danger "encompass an
1
Florida courts must accept all well-pleaded allegations in the Complaint as true. Newberry Square,
296 So.3d at 589. FDOT's unsworn and unsupported factual allegations should be disregarded. See
Cedar, 423 So.2d at 1017.
7
operational-level function to which sovereign immunity does not apply");Ferla u.
Metropolitan Dade County, 374 So.2d 64 (Fla. 3d DCA 1979), cert. denied, 385 So.2d
759 (Fla. 1980) (holding held that the county's design and construction of a median
strip along the causeway represented an operational act which was actionable);
Glasier u. Florida Board of Regents, 636 So.2d 58 (Fla. 2d DCA 1994) (holding that
when a governmental entity creates a known hazardous condition, a duty at the
operational-level arises protect the public of the known danger).
In any event, the City'sallegations regarding the extent of FDOT's
involvement with the Ibis Bridge project raise an issue of material fact that cannot
be resolved on a motion to dismiss. See, e.g., Krol u. City of Orlando, 778 So.2d 490
(Fla. 5th DCA 2010) (holding that evidence of the city'sawareness of a known
hazard raised a disputed issue of material fact,therefore issue of whether city's
actions were discretionary for the purposes of sovereign immunity could not be
properly decided on summary judgment). Sovereign immunity does not shield
FDOT from liabilityfor its negligence.
II. FDOT Cannot Avoid Liability Based On The Independent
Contractor Defense.
FDOT also argues that it cannot be held liable for the negligence of its
contractor, Anzac. Citing Coudry u. City of Titusuille,438 So.2d 197 (Fla. 5th DCA
1983), claims that "[t]heresponsibilityfor the activities on the construction site
which are the alleged cause of the resultant damage was not with FDOT, but rather
with the independent contractor." (FDOT Motion, 1[21.)2This argument is
misplaced.
2
FDOT's Motion to Dismiss the First Amended Complaint references five documents, none of which
have been provided to the City or this Court. (FDOT's Motion, 1[1[3-6.)Because these materials are
outside the "four corners of the complaint," they cannot be considered on a motion to dismiss.
Haynes, 683 So.2d at 1125; see also Cedar, 423 So.2d at 1017 (holding Florida trial courts cannot rely
on a movant's "unsworn statements as the basis for making factual determinations").
8
Coudry is easily distinguishable from this matter. In Coudry, the City of
Titusville contracted with an independent contractor to construct improvements to
the City'sproperty, including surface water drains and sewers. The independent
contractor allegedly left a mound of dirt in the street without adequate barricades
or warnings, which led to the plaintiffleaving the roadway and suffering injuries.
The court held that the "cityis not an insurer against the independent negligent
acts of others, including its own independent contractor, merely because their
negligence occurs on or in a city street." 438 So.2d at 199. This case is different. As
noted above, the Ibis Bridge remained under the jurisdictionof the City of
Lighthouse Point, and FDOT only became involved after contracting with the City
of Lighthouse Point to design and build the replacement bridge. FDOT acted as
design-build contractor for the project and assumed responsibilityfor the
construction of the Ibis Bridge project. (Am. Complaint, l[9.)FDOT was not merely a
passive government entity
- it was extensively involved with the Ibis Bridge
project,including the attempts to locate the Water Main, which led to the City's
damages.
FDOT also cites Skow u. Department of Transp., 468 So.2d 422 (Fla. 1st DCA
1985) which is similarly distinguishable. In Skow, FDOT owned the bridge and
retained a private contractor to perform the work. Here, however, FDOT was not
merely contracting with a private contractor to perform work on a bridge under its
jurisdiction.Rather, FDOT acted as a general contractor on behalf of the City of
Lighthouse Point. The Skow court also held that FDOT did not exercise an amount
of control legally sufficient to make FDOT liable for injuries suffered by the private
contractor's employee. Relying on Skow, FDOT claims "[tlhere is no indication in
this record that FDOT, created or contributed to the dangerous condition alleged to
have caused the damages...in the instant matter." (FDOT Motion, 1[19.)However,
the First Amended Complaint specificallyalleges that FDOT was extensively
9
involved with the unsuccessful attempts to locate the Water Main and directed
Anzac to proceed anyway. Moreover, after Anzac initiallybreached the Water Main
on March 11, 2020, FDOT directed Anzac to proceed with the pile-driving
operations with full knowledge that additional construction activities could result in
further damage 31, 37.) Predictably, FDOT's
to the City'sfacilities. (Complaint, 1[1[
instructions to continue pile-drivingoperations led to a second breach of the Water
Main on April 20,2020. (Complaint, l[37.)FDOT was not merely a passive actor -
its negligent acts led directlyto the damage to the City'sWater Main.
This matter is more akin to Bialkowicz u. Pan Am. Condominium No. 3, Inc.,
215 So.2d 767 (Fla. 3d DCA 1968). In Bialkowicz, a building owner sustained
property damage from pile-drivingactivities on an adjacent property. The plaintiff
sued the adjacent owner, general contractor, and the subcontractor. The Third
District held that the adjacent owner, general contractor, and subcontractor were
liable for the injuries as joint tortfeasors. The court further stated:
The duty of care, with respect
the property of others,
to
imposed by a city building permit upon a general
contractor cannot be delegated to an independent sub-
contractor. Rather, the law implies that both of these
parties were to use a degree of skill adequate to the
competent performance of this operation.
215 So.2d at 771-72. As noted above, the City alleges that FDOT was acting as a
general contractor in performing the Ibis Bridge reconstruction on behalf of the City
of Lighthouse Point. (Am. Complaint, 1[9.)In addition, Bialkowicz held that the
"task of installingthe supporting piles is one which falls into the category of
"'
'inherently dangerous activities.' 215 So.2d at 772. Therefore, the court found that
the duty to exercise reasonable care could not be delegated to independent
contractors, and held that the general contractor and subcontractor were jointly
liable. The same is true here. In its role as a "de facto" general contractor, FDOT
10
could not delegate its duty to exercise reasonable care to Anzac. Therefore, FDOT
and Anzac remain jointlyliable. See American Home Assur. Co. u. National
Railroad Passenger Corp., 908 So.2d 459,468 (Fla. 2005) ("[A] party who 'employs
an independent contractor to do work involving a special danger to others which the
employer knows...tobe inherent in or normal to the work...is subject to liability
for physical harm caused to such others by the contractor's failure to take
reasonable precautions against such danger.") (citingRestatement (Second) of
Torts, §427 (1965)).Moreover, FDOT's independent contractor defense is an
affirmative defense that is "not properly considered on a motion to dismiss." Powers
u. Aberdeen Golf & Country Club, Inc.,886 So.2d 312, 315 (Fla. 4th DCA 2004); see
also L.E. Myers Co. u. Young, 165 So.3d 1, 6 (Fla. 2d DCA 2015) ("However, naore
commonly the question of whether a particular activity is inherently dangerous is
one for the jury, to be determined based on all of the circumstances surrounding the
activity in question.").
Under Section 768.28(1), Florida Statutes, "Actions at law against the state .
.. for money damages... for injury or loss of property, personal injury, or death
caused by the negligent or wrongful act or omission of any employee of the agency . .
. under circumstances in which the state. .
., if a private person, would be liable to
the claimant, in accordance with the general laws of this state, may be prosecuted
subject to the limitations specifiedin this act." The allegations of the First
Amended Complaint alleged circumstances under which a private person would be
liable for their actions. As such, FDOT's Motion to Dismiss should be denied.
III. Count III Of The First Amended Complaint States A Viable
Cause Of Action For Strict Liability For Ultrahazardous
Activities.
FDOT further moved to dismiss the City's strict liabilitycount for abnormally
dangerous or ultrahazardous activity (Count III).FDOT claims that the City "has
11
failed to sufficientlyallege a strict liability
claim because breaching a water main
through direct contact is entirely outside the abnormal risk of harm posed by
[FDOT's] alleged ultrahazardous activity,which in the case of pile driving, are
vibrations." (FDOT Motion, 1[24.)This argument is unavailing.
Hutchinson u. Capeletti Bros., Inc., 397 So.2d 952 (Fla 4th DCA 1981) is
instructive. In Hutchison, the court held that an FDOT contractor that conducted
pile driving operations associated with a bridge project was subject to strict liability
for damage to an adjacent property. 397 So.2d at 953. The court analyzed the
following factors:
(1) Whether the activityinvolves a high degree of risk
or harm to the property of others;
(2) Whether the potential harm is likely to be great;
(3) Whether the risk can be eliminated by the exercise
of reasonable care;
(4) Whether the activity is a matter of common usage;
(5) Whether the activity is inappropriate to the place
where it is conducted; and
(6) Whether the activityhas substantial value to the
community.
Id. Finding that the pile-driving operations involved a high degree of risk of harm to
the property of others, the Fourth District concluded that "it is appropriate that the
loss occasioned by that non-negligent activitybe shifted to the [defendant]."Id. at
953-54.3
FDOT did not cite any case law supporting its assertion that the "abnormal
risk of harm" posed by the pile-drivingactivities is limited to vibrational damage
3
The City does not concede that FDOT and Anzac were "non-negligent" in the Complaint. Rather,
the City alleges that both Defendants acted negligently and also alleges that the risk of harm to the
Water Main could not be eliminated by the exercise of due care for strict liabilitypurposes. Such a
practice is expressly permitted under Florida law. See Fla. R. Civ. P. 1.110(g); see also Belz Inuestco
Ltd. Partnership u. Groupo Immobiliano Cababie, S.A., 721 So.2d 787 (Fla. 3d DCA 1998) (holding
that the Florida Rules of Civil Procedure "permit a plaintiffto state causes of action in the
alternative... even where the alternative allegations are completely inconsistent with one
another.")
12
and does not include the breach of the Water Main through direct contact.
Hutchison makes no distinction between vibrational damage and direct breach for
the purposes of strict liability.
Accepting FDOT's unsupported argument would lead
to an absurd result - strict liabilitywould only apply for pile-drivingactivities if the
damages stemmed from vibrations, but not if the operations resulted in direct
contact with the property of others. The facts alleged in the First Amended
Complaint establish that FDOT authorized its contractor to begin the pile-driving
activity while uncertainty remained as to the location of the City'sWater Main.
Blindly pile driving is per se abnormally dangerous.
FDOT was well-aware that conducting pile-drivingoperations in such close
proximity would likelyresult in damage to the Water Main. (Am. Complaint, 1[1[17,
20.) The City cooperated with FDOT in attempting to locate the Water Main, and
FDOT delayed the construction activities for several months in "an attempt to
ensure that reconstruction of the bridge would not damage the [Water Main]." (Am.
Complaint, 1[1[27-28.)Even though it could not correctlydetermine the precise
location of the Water Main, FDOT chose to proceed. (Am. Complaint, 1[1[28,30.)
Like in Hutchinson, FDOT knew the Ibis Bridge project involved a high degree of
risk or harm to the Water Main and yet proceeded anyway.
The First Amended Complaint states a viable cause of action for strict
FDOT has not presented any authority to the contrary. Therefore,
liability. FDOT's
motion must be denied. See Newberry Square, 296 So.3d at 589 (holding a trial court
must "draw all inferences in favor of the pleader, and accept as true all well-pleaded
allegations.").
IV. FDOT's Motion To Strike Also Fails.
In its motion, FDOT moved to strike Paragraph 23 of the First Amended
Complaint - which states that "just three months prior, FDOT contractors ruptured
13
an underground sewer force main belonging to the City, releasing over 50 million
gallons of raw sewage into local waterways"
- as immaterial and impertinent under
Florida Rule of Civil Procedure 1.140(f).
Nothing in Paragraph 23 of the First Amended Complaint suggests that
FDOT has "a propensity for faulty construction work." (FDOT's Motion, 1[27.)
Indeed, Paragraph 23's reference to the sewer main incident specificallystates that
"FDOT contractors" ruptured the sewer main. FDOT's involvement with the sewer
main rupture - which occurred just three months prior to the damage to the Water
Main - demonstrates that FDOT were keenly aware of the risks posed by
construction activities in close proximity to the City's underground facilities. As
such, FDOT's awareness is absolutely relevant to both the negligence and strict
liabilitycounts in the First Amended Complaint. This Court should deny FDOT's
motion to strike Paragraph 23 of the First Amended Complaint. See Hulley u. Cape
Kennedy Leasing Corp., 376 So.2d 884, 885 (Fla. 5th DCA 1979) ("[sltrikingof
pleadings is not favored and is an action to be used sparingly by the courts, with
any doubts to be resolved in favor of the pleadings.")
WHEREFORE, the City respectfullyrequests this Court deny FDOT's Motion
to Dismiss and that the Defendant FDOT be directed to file an answer to the First
Amended Complaint and for such other relief as this Court deems just and proper.
14
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was
furnished by E-service pursuant to Rule 2.516(b)(1) toi Matthew J. Wildner, Esq.,
James M. Fishman, Esq.,
jfishman.pleadings@qpwblaw.com: james.fishman@qpwblaw.com: and
patricia.huerta@qpwblaw.com on this 22nd day of June, 2023.
/sl Aaron J. Brock
Brian A. Bolves, FBN 367079
Aaron J. Brock, FBN 112858
MANSON BOLVES DONALDSON TANNER, PA.
109 N. Brush Street, Suite 300
Tampa, FL 33602
P: 813-514-4700
F: 813-514-4701
bbolves@mansonbolves.com
abrock@mansonbolves.com
Counsel for Plaintiff
15
Preview
Filing# 175939620 E-Filed 06/22/2023 04:03:51 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORDIA CIRCUIT CIVIL DIVISION CITY OF POMPANO BEACH, FLORIDA, Plaintiff, V. Case No.: CACE 22-00010514(25) FLORIDA DEPARTMENT OF TRANSPORTATION, and ANZAC CONTRACTORS, INC. Defendants. I PLAINTIFF'S RESPONSE TO FLORIDA DEPARTMENT OF TRANSPORTATION'S MOTION TO DISMISS AMENDED COMPLAINT Plaintiff,City of Pompano Beach, Florida (the "City"),by and through the undersigned counsel, hereby files its response to Defendant Florida Department of Transportation's ("FDOT's") Motion to Dismiss Plaintiffs First Amended Complaint and states as follows: Introduction On April 7,2023, the City filed its First Amended Complaint against FDOT .., " and Anzac Contractors, Inc. ("Anzad') to recover damages associated with the destruction of the City's subaqueous water main (the "Water Main") located in close proximity to a bridge in the City of Lighthouse Point, Florida (the "Ibis Bridge"). The City alleged that FDOT and Anzac, its contractor, damaged the Water Main during pile driving operations associated with the reconstruction of the Ibis Bridge. FDOT was rebuilding the Ibis Bridge for the City of Lighthouse Point, Florida. The Ibis Bridge is not a state road under FDOT's jurisdiction.The First Amended *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/22/2023 04:03:51 PM.**** Complaint asserted two causes of action against both defendants for negligence and strict liability. The Defendants' motions address the City's First Amended Complaint, which contained four counts: a negligence cause of action against FDOT (Count D, a negligence cause of action against Anzac (Count II),a strict liabilitycause of action against FDOT (Count III),and a strict cause of action against Anzac (Count liability IV). On April 20,2023, FDOT filed a motion to dismiss the First Amended Complaint, and claimed that FDOT was not liable because (1) FDOT enjoyed doctrine of sovereign immunity; (2) Anzac was primarily liable as an independent contractor; and (3) FDOT was not strictlyliable for the pile-drivingoperations. FDOT also moved to strike Paragraph 23 of the First Amended Complaint, which referenced a prior incident in which FDOT ruptured the City's underground sewer main at a separate location. The First Amended Complaint alleges that FDOT was more than a merely passive participant in the Ibis Bridge project.Rather, FDOT effectivelyacted as a general contractor through its efforts to locate the Water Main and its control of the means and methods of the work of its subcontractors of the Ibis Bridge replacement project.The subject Ibis Bridge replacement did not involve a state road under FDOT's jurisdictionbut was constructed under an agreement between FDOT and the City of Lighthouse Point. These are operational-level activities for which sovereign immunity does not apply. FDOT controlled every aspect of the project. The First Amended Complaint alleges facts sufficient to support the conclusion that the FDO T is not immune from liabilityin connection with the Ibis Bridge Project. In its Motion to Dismiss FDOT asserts that because Anzac was an independent contractor, FDOT could not be liable for negligence. This is an affirmative defense and not a basis for a motion to dismiss. 2 The First Amended Complaint alleges,and the evidence will show, that the activities undertaken by FDOT and Anzac were ultrahazardous and done negligently. Therefore, when FDOT asserts the affirmative defense of independent contractor in its answer, the City will reply that FDOT could not delegate its duty to exercise reasonable care to Anzac. Additionally, the City will reply that FDOT supervised and controlled the means and methods of this project thereby undermining Anzac's independent contractor status. FDOT's motion to dismiss should be denied. Legal Standard Under Florida law, it is well settled that the primary purpose of a motion to dismiss is to determine whether the complaint has alleged a cause of action upon which relief can be granted. Prouence u. Palm Beach Tauerns, Inc., 676 So.2d 1022, 1024 (Fla. 4th DCA 1996) (citingAlexander Hamilton Corp. u. Leeson, 508 So.2d 513 (Fla. 4th DCA 1987)). "[T]he allegations of the complaint must be taken as true and all reasonable inferences therefrom construed in favor of the nonmoving party." The Florida Bar u. Greene, 926 So.2d 1195, 1199 (Fla. 2006). A motion to dismiss must be denied if"the pleader could prove any set of facts whatsoever in support of the claim." Wausau Ins. Co. u. Haynes, 683 So.2d 1123, 1124 (Fla. 4th DCA 1996) (emphasis added). Florida trial courts "should look only to the four corners of the pleading and the allegations should be taken as true without regard of abilityof pleader to prove the same." Gamma Development Corp. u. Steinberg, 621 So.2d 718, 719 (Fla. 4th DCA 1993) (citingGilbert u. Oil Conservation, Inc., 460 So.2d 1027 (Fla. 4th DCA 1984). Trial courts "must accept the facts alleged in a complaint and exhibits attached to the complaint as true." Samuels u. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 494 (Fla. 4th DCA 2001). In ruling on a motion to dismiss, Florida 3 courts cannot rely on a movant's "unsworn statements as the basis for making factual determinations." Leon Shaffer Golnick Advertising, Inc. u. Cedar, 423 So.2d 1015, 1017 (Fla. 4th DCA 1982). Rather, a motion to dismiss should only be determined "by looking exclusively at the pleading itself,without reference to any defensive pleadings or evidence in the case. Haynes, 683 So.2d at 1125. Stated simply, the trial court must "draw all inferences in favor of the pleader, and accept as true all well-pleaded allegations."Newberry Square Florida Laundromat, LLC u. Jim's Coin Laundry and Dry Cleaners, Inc., 296 So.3d 584,589 (Fla. 1st DCA 2020). Argument I. Based On The Allegations Of The First Amended Complaint The Sovereign Immunity Doctrine Does Not Shield FDOT From Liability For The City's Claims. Under Section 768.28(1), Florida Statutes, the Florida legislature waived sovereign immunity of liabilityfor tortious acts committed by state agencies and provided that actions to recover damages in tort may be brought against a state agency in certain circumstances. While state agencies enjoy sovereign immunity from liabilityfrom judgmental, planning-level decisions, they remain subject to tort liabilityfor operational activities. Trianon Park Condominium Ass'n, Inc. u. City of Hialeah, 468 So.2d 912 (Fla. 1985). FDOT asserts that "[alllactions on the part of FDOT in this matter were inherently planning, judgmental level decision (sic)by a uniquely government entity, protected by the Doctrine of Sovereign Immunity." (FDOT Motion, 1[10). In support, FDOT primarily relies on Department of Transp. u. Stevens, 630 So.2d 1160, 1162 (Fla. 2d DCA 1993). In Stevens, the court stated that "[alsa general proposition, the decision to build or change a road and all the determinations inherent in such a decision are of a judgmental, planning-level type for which the state is immune." (emphasis added.) However, the Stevens court also 4 noted that "a governmental entity may not create a known hazard or trap and then claim immunity from suit for injuries resulting from that hazard on the grounds that it arose from a judgmental, planning-level decision." 630 So.2d at 1162 (quoting City of St. Petersburg u. Collom, 419 So.2d 1082, 1086 (Fla. 1982)). The question therefore is whether the activity described in the First Amended Complaint with respect to FDOT are merely the decision to build the bridge based upon a judge- mental, planning-level decision or operational activities which may result in liabilityfor negligence. As alleged in the First Amended Complaint, the City of Lighthouse Point had ., jurisdictionover the Ibis Bridge at all relevant times and the project was 'off- system' - i.e.,a project not located on the State Highway System under FDOT's jurisdiction."(Am. Complaint, 1[10.)On August 28, 2018, the City of Lighthouse Point entered into a Memorandum of Agreement ("MOA") with FDOT, in which FDOT agreed to demolish and reconstruct the Ibis Bridge. (Am. Complaint, 1[8.)The First Amended Complaint states: Under the MOA, FDOT agreed to reconstruct certain roadway and bridge improvements to the Ibis Bridge. In effect,FDOT acted as a design-build contractor for the project and assumed responsibilityfor the design and construction of the Ibis Bridge project." (Am. Complaint, 1[9.) FDOT's involvement with the Ibis Bridge project was not a simple exercise of its "discretionary functions" because absent the MOA, FDOT had no jurisdiction over the Ibis Bridge. Rather, FDOT acted as design-build contractor for the project and assumed responsibility for the construction of the Ibis Bridge project. (Am. Complaint, 1[9.)The First Amended Complaint further explains that FDOT activities were operational in nature: 5 In order to locate the utilitypipelines in the area of the Ibis Bridge Project, during 2018 FDOT engaged various surveying and engineering companies who, with the assistance of the City, attempted to locate the utilitypipes in the area of the bridge project. These efforts were unsuccessful and the exact location of the City'swater main was unknown at the time that bids were solicited by FDOT for the construction of the project. (Am.Complaint, 1[16.) e During the bidding process FDOT advised potential bidders that the location of the said subaqueous facilities were located by FDOT-commissioned surveys and not as built"drawings provided by the utilities. Indeed, FDOT advised bidders that the City'sfacilities had not been located but could be damaged as the result of the construction project. (Am. Complaint, 1[17.) On or around April 3, 2019, FDOT executed a contract with Anzac to perform demolition and reconstruction of the Ibis Bridge. At the time that the contract was executed by FDOT with Anzac, both Anzac and FDOT knew that the exact location of the City's water main was undetermined. (Am. Complaint, 1[18.) . In recognition of the high risk of harm its construction activities would pose to the City's subaqueous water main, FDOT retained surveyors to deploy specialized equipment to determine the precise location and depth of the City's infrastructure in the Ibis Waterway. (Am. Complaint, 1[26.) FDOT surveyors completed their work attempting to locate the City's subaqueous infrastructure in September 2019. The City accommodated the FDOT surveyors by providing access to its water main on the land-side of the subaqueous crossing so that the surveyors could use their specialized line tracing technology. (Am. Complaint, 1[27.) o After FDOT surveyors completed their work attempting to locate the City'ssubaqueous water main, FDOT provided the information to its structural engineer to evaluate the bridge's proposed support structures in relation to the City's infrastructure. Unfortunately, the precise location of the City'sinfrastructure was not 6 correctly determined at the time of construction of the project. Both Anzac and FDOT knew that proceeding with the piledriving activities jeopardized the City's subaqueous facilities. (Am. Complaint, 1[28.) FDOT delayed Anzac's construction work by several months specificallyto complete its surveying and engineering work in an attempt to ensure that reconstruction of the bridge would not damage the City'swater main. (Am. Complaint, 1[29.) In its motion to dismiss, FDOT characterizes its activities as simple "pre- construction planning and site examination before determining the acceptable method for this project."(FDOT Motion, 1[10.)1However, the First Amended Complaint explains that FDOT was intimately involved with engaging surveyors, communicating with the City regarding the location of the Water Main, and relaying that information to Anzac. FDOT's involvement with the Ibis Bridge project went far beyond the type of"judgmental, planning-level decisions" shielded by sovereign immunity. See Department of Transp. V. Webb, 409 So.2d 1061 (Fla. 1st DCA 1981) (holding FDOT was not entitled to sovereign immunity where it could not demonstrate its actions or inaction at a railroad crossing were based upon "basic governmental policy"). Rather, FDOT's activities were clearly operational in nature and it cannot rely on the doctrine of sovereign immunity to See Marion escape liability. u. City of Boca Raton, 47 So.3d 334 (Fla. 4th DCA 2010) (holding city'salleged failure to properly maintain traffic light was an operational decision, rather than a policy decision, and thus the city was not entitled to sovereign immunity); Simmonds u. State Dept. of Transp., 946 So.2d 1246 (Fla. 1st DCA 2007) (holding FDOT's knowledge of a hazard but failed to correct it or warn of the danger "encompass an 1 Florida courts must accept all well-pleaded allegations in the Complaint as true. Newberry Square, 296 So.3d at 589. FDOT's unsworn and unsupported factual allegations should be disregarded. See Cedar, 423 So.2d at 1017. 7 operational-level function to which sovereign immunity does not apply");Ferla u. Metropolitan Dade County, 374 So.2d 64 (Fla. 3d DCA 1979), cert. denied, 385 So.2d 759 (Fla. 1980) (holding held that the county's design and construction of a median strip along the causeway represented an operational act which was actionable); Glasier u. Florida Board of Regents, 636 So.2d 58 (Fla. 2d DCA 1994) (holding that when a governmental entity creates a known hazardous condition, a duty at the operational-level arises protect the public of the known danger). In any event, the City'sallegations regarding the extent of FDOT's involvement with the Ibis Bridge project raise an issue of material fact that cannot be resolved on a motion to dismiss. See, e.g., Krol u. City of Orlando, 778 So.2d 490 (Fla. 5th DCA 2010) (holding that evidence of the city'sawareness of a known hazard raised a disputed issue of material fact,therefore issue of whether city's actions were discretionary for the purposes of sovereign immunity could not be properly decided on summary judgment). Sovereign immunity does not shield FDOT from liabilityfor its negligence. II. FDOT Cannot Avoid Liability Based On The Independent Contractor Defense. FDOT also argues that it cannot be held liable for the negligence of its contractor, Anzac. Citing Coudry u. City of Titusuille,438 So.2d 197 (Fla. 5th DCA 1983), claims that "[t]heresponsibilityfor the activities on the construction site which are the alleged cause of the resultant damage was not with FDOT, but rather with the independent contractor." (FDOT Motion, 1[21.)2This argument is misplaced. 2 FDOT's Motion to Dismiss the First Amended Complaint references five documents, none of which have been provided to the City or this Court. (FDOT's Motion, 1[1[3-6.)Because these materials are outside the "four corners of the complaint," they cannot be considered on a motion to dismiss. Haynes, 683 So.2d at 1125; see also Cedar, 423 So.2d at 1017 (holding Florida trial courts cannot rely on a movant's "unsworn statements as the basis for making factual determinations"). 8 Coudry is easily distinguishable from this matter. In Coudry, the City of Titusville contracted with an independent contractor to construct improvements to the City'sproperty, including surface water drains and sewers. The independent contractor allegedly left a mound of dirt in the street without adequate barricades or warnings, which led to the plaintiffleaving the roadway and suffering injuries. The court held that the "cityis not an insurer against the independent negligent acts of others, including its own independent contractor, merely because their negligence occurs on or in a city street." 438 So.2d at 199. This case is different. As noted above, the Ibis Bridge remained under the jurisdictionof the City of Lighthouse Point, and FDOT only became involved after contracting with the City of Lighthouse Point to design and build the replacement bridge. FDOT acted as design-build contractor for the project and assumed responsibilityfor the construction of the Ibis Bridge project. (Am. Complaint, l[9.)FDOT was not merely a passive government entity - it was extensively involved with the Ibis Bridge project,including the attempts to locate the Water Main, which led to the City's damages. FDOT also cites Skow u. Department of Transp., 468 So.2d 422 (Fla. 1st DCA 1985) which is similarly distinguishable. In Skow, FDOT owned the bridge and retained a private contractor to perform the work. Here, however, FDOT was not merely contracting with a private contractor to perform work on a bridge under its jurisdiction.Rather, FDOT acted as a general contractor on behalf of the City of Lighthouse Point. The Skow court also held that FDOT did not exercise an amount of control legally sufficient to make FDOT liable for injuries suffered by the private contractor's employee. Relying on Skow, FDOT claims "[tlhere is no indication in this record that FDOT, created or contributed to the dangerous condition alleged to have caused the damages...in the instant matter." (FDOT Motion, 1[19.)However, the First Amended Complaint specificallyalleges that FDOT was extensively 9 involved with the unsuccessful attempts to locate the Water Main and directed Anzac to proceed anyway. Moreover, after Anzac initiallybreached the Water Main on March 11, 2020, FDOT directed Anzac to proceed with the pile-driving operations with full knowledge that additional construction activities could result in further damage 31, 37.) Predictably, FDOT's to the City'sfacilities. (Complaint, 1[1[ instructions to continue pile-drivingoperations led to a second breach of the Water Main on April 20,2020. (Complaint, l[37.)FDOT was not merely a passive actor - its negligent acts led directlyto the damage to the City'sWater Main. This matter is more akin to Bialkowicz u. Pan Am. Condominium No. 3, Inc., 215 So.2d 767 (Fla. 3d DCA 1968). In Bialkowicz, a building owner sustained property damage from pile-drivingactivities on an adjacent property. The plaintiff sued the adjacent owner, general contractor, and the subcontractor. The Third District held that the adjacent owner, general contractor, and subcontractor were liable for the injuries as joint tortfeasors. The court further stated: The duty of care, with respect the property of others, to imposed by a city building permit upon a general contractor cannot be delegated to an independent sub- contractor. Rather, the law implies that both of these parties were to use a degree of skill adequate to the competent performance of this operation. 215 So.2d at 771-72. As noted above, the City alleges that FDOT was acting as a general contractor in performing the Ibis Bridge reconstruction on behalf of the City of Lighthouse Point. (Am. Complaint, 1[9.)In addition, Bialkowicz held that the "task of installingthe supporting piles is one which falls into the category of "' 'inherently dangerous activities.' 215 So.2d at 772. Therefore, the court found that the duty to exercise reasonable care could not be delegated to independent contractors, and held that the general contractor and subcontractor were jointly liable. The same is true here. In its role as a "de facto" general contractor, FDOT 10 could not delegate its duty to exercise reasonable care to Anzac. Therefore, FDOT and Anzac remain jointlyliable. See American Home Assur. Co. u. National Railroad Passenger Corp., 908 So.2d 459,468 (Fla. 2005) ("[A] party who 'employs an independent contractor to do work involving a special danger to others which the employer knows...tobe inherent in or normal to the work...is subject to liability for physical harm caused to such others by the contractor's failure to take reasonable precautions against such danger.") (citingRestatement (Second) of Torts, §427 (1965)).Moreover, FDOT's independent contractor defense is an affirmative defense that is "not properly considered on a motion to dismiss." Powers u. Aberdeen Golf & Country Club, Inc.,886 So.2d 312, 315 (Fla. 4th DCA 2004); see also L.E. Myers Co. u. Young, 165 So.3d 1, 6 (Fla. 2d DCA 2015) ("However, naore commonly the question of whether a particular activity is inherently dangerous is one for the jury, to be determined based on all of the circumstances surrounding the activity in question."). Under Section 768.28(1), Florida Statutes, "Actions at law against the state . .. for money damages... for injury or loss of property, personal injury, or death caused by the negligent or wrongful act or omission of any employee of the agency . . . under circumstances in which the state. . ., if a private person, would be liable to the claimant, in accordance with the general laws of this state, may be prosecuted subject to the limitations specifiedin this act." The allegations of the First Amended Complaint alleged circumstances under which a private person would be liable for their actions. As such, FDOT's Motion to Dismiss should be denied. III. Count III Of The First Amended Complaint States A Viable Cause Of Action For Strict Liability For Ultrahazardous Activities. FDOT further moved to dismiss the City's strict liabilitycount for abnormally dangerous or ultrahazardous activity (Count III).FDOT claims that the City "has 11 failed to sufficientlyallege a strict liability claim because breaching a water main through direct contact is entirely outside the abnormal risk of harm posed by [FDOT's] alleged ultrahazardous activity,which in the case of pile driving, are vibrations." (FDOT Motion, 1[24.)This argument is unavailing. Hutchinson u. Capeletti Bros., Inc., 397 So.2d 952 (Fla 4th DCA 1981) is instructive. In Hutchison, the court held that an FDOT contractor that conducted pile driving operations associated with a bridge project was subject to strict liability for damage to an adjacent property. 397 So.2d at 953. The court analyzed the following factors: (1) Whether the activityinvolves a high degree of risk or harm to the property of others; (2) Whether the potential harm is likely to be great; (3) Whether the risk can be eliminated by the exercise of reasonable care; (4) Whether the activity is a matter of common usage; (5) Whether the activity is inappropriate to the place where it is conducted; and (6) Whether the activityhas substantial value to the community. Id. Finding that the pile-driving operations involved a high degree of risk of harm to the property of others, the Fourth District concluded that "it is appropriate that the loss occasioned by that non-negligent activitybe shifted to the [defendant]."Id. at 953-54.3 FDOT did not cite any case law supporting its assertion that the "abnormal risk of harm" posed by the pile-drivingactivities is limited to vibrational damage 3 The City does not concede that FDOT and Anzac were "non-negligent" in the Complaint. Rather, the City alleges that both Defendants acted negligently and also alleges that the risk of harm to the Water Main could not be eliminated by the exercise of due care for strict liabilitypurposes. Such a practice is expressly permitted under Florida law. See Fla. R. Civ. P. 1.110(g); see also Belz Inuestco Ltd. Partnership u. Groupo Immobiliano Cababie, S.A., 721 So.2d 787 (Fla. 3d DCA 1998) (holding that the Florida Rules of Civil Procedure "permit a plaintiffto state causes of action in the alternative... even where the alternative allegations are completely inconsistent with one another.") 12 and does not include the breach of the Water Main through direct contact. Hutchison makes no distinction between vibrational damage and direct breach for the purposes of strict liability. Accepting FDOT's unsupported argument would lead to an absurd result - strict liabilitywould only apply for pile-drivingactivities if the damages stemmed from vibrations, but not if the operations resulted in direct contact with the property of others. The facts alleged in the First Amended Complaint establish that FDOT authorized its contractor to begin the pile-driving activity while uncertainty remained as to the location of the City'sWater Main. Blindly pile driving is per se abnormally dangerous. FDOT was well-aware that conducting pile-drivingoperations in such close proximity would likelyresult in damage to the Water Main. (Am. Complaint, 1[1[17, 20.) The City cooperated with FDOT in attempting to locate the Water Main, and FDOT delayed the construction activities for several months in "an attempt to ensure that reconstruction of the bridge would not damage the [Water Main]." (Am. Complaint, 1[1[27-28.)Even though it could not correctlydetermine the precise location of the Water Main, FDOT chose to proceed. (Am. Complaint, 1[1[28,30.) Like in Hutchinson, FDOT knew the Ibis Bridge project involved a high degree of risk or harm to the Water Main and yet proceeded anyway. The First Amended Complaint states a viable cause of action for strict FDOT has not presented any authority to the contrary. Therefore, liability. FDOT's motion must be denied. See Newberry Square, 296 So.3d at 589 (holding a trial court must "draw all inferences in favor of the pleader, and accept as true all well-pleaded allegations."). IV. FDOT's Motion To Strike Also Fails. In its motion, FDOT moved to strike Paragraph 23 of the First Amended Complaint - which states that "just three months prior, FDOT contractors ruptured 13 an underground sewer force main belonging to the City, releasing over 50 million gallons of raw sewage into local waterways" - as immaterial and impertinent under Florida Rule of Civil Procedure 1.140(f). Nothing in Paragraph 23 of the First Amended Complaint suggests that FDOT has "a propensity for faulty construction work." (FDOT's Motion, 1[27.) Indeed, Paragraph 23's reference to the sewer main incident specificallystates that "FDOT contractors" ruptured the sewer main. FDOT's involvement with the sewer main rupture - which occurred just three months prior to the damage to the Water Main - demonstrates that FDOT were keenly aware of the risks posed by construction activities in close proximity to the City's underground facilities. As such, FDOT's awareness is absolutely relevant to both the negligence and strict liabilitycounts in the First Amended Complaint. This Court should deny FDOT's motion to strike Paragraph 23 of the First Amended Complaint. See Hulley u. Cape Kennedy Leasing Corp., 376 So.2d 884, 885 (Fla. 5th DCA 1979) ("[sltrikingof pleadings is not favored and is an action to be used sparingly by the courts, with any doubts to be resolved in favor of the pleadings.") WHEREFORE, the City respectfullyrequests this Court deny FDOT's Motion to Dismiss and that the Defendant FDOT be directed to file an answer to the First Amended Complaint and for such other relief as this Court deems just and proper. 14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by E-service pursuant to Rule 2.516(b)(1) toi Matthew J. Wildner, Esq., James M. Fishman, Esq., jfishman.pleadings@qpwblaw.com: james.fishman@qpwblaw.com: and patricia.huerta@qpwblaw.com on this 22nd day of June, 2023. /sl Aaron J. Brock Brian A. Bolves, FBN 367079 Aaron J. Brock, FBN 112858 MANSON BOLVES DONALDSON TANNER, PA. 109 N. Brush Street, Suite 300 Tampa, FL 33602 P: 813-514-4700 F: 813-514-4701 bbolves@mansonbolves.com abrock@mansonbolves.com Counsel for Plaintiff 15