Filing #30311155 E-Filed 07/30/2015 04:54:12 PM
`
`SUSAN ONORI and RAYMOND ONORI,
`her husband.
`
`IN THE CIRCUIT COURT OF THE 15TH
`JUDICIAL CIRCUIT IN AND FOR
`PALM BEACH COUNTY, FLORIDA
`
`CASE NO.: 50-2014-CA-006527-XXXX MB
`
`Plaintiffs,
`
`vs.
`
`UNITED IRON WORKS, INC.,
`
`Defendants.
`__________________________ /
`
`SUSAN ONORI and RAYMOND ONORI,
`her husband,
`
`IN THE CIRCUIT COURT OF THE 15TH
`JUDICIAL CIRCUIT IN AND FOR
`PALM BEACH COUNTY, FLORIDA
`
`CASE NO.: 2014-CA-010092-XXXX MB
`
`Plaintiffs,
`
`vs.
`
`SAN LAZARO FENCING SUPPLIES,
`INC.,
`
`Defendants.
`__________________________ /
`
`NOT A CERTIFIED COPY
`
`IN THE CIRCUIT COURT OF THE 15TH
`JUDICIAL CIRCUIT IN AND FOR
`PALM BEACH COUNTY, FLORIDA
`
`SUSAN ONORI and RAYMOND ONORI,
`her husband,
`
`CASE NO.: 2014-CA-010085
`
`Plaintiffs,
`
`vs.
`
`MGS DEVELOPER GROUP, LLC, and
`CHARTER PB BOYNTON, LLC,
`
`Defendants.
`
`/
`
`*** FILED: PALM BEACH COUNTY, FL SHARON R BOCK, CLERK. 7/30/2015 4:54:12 PM ***
`
`

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`CASE NO.: 50-2014-CA-006527-XXXX MB
`Page 2
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`DEFENDANT, MG3 DEVELOPER GROUP, LLC’S,
`MOTION FOR LEAVE TO FILE AMENDED ANSWER AND
`AFFIRMATIVE DEFENSES TO PLAINTIFFS’ AMENDED COMPLAINT AND
`CROSS-CLAIM AGAINST CO-DEFENDANT, UNITED IRON WORKS, INC.
`
`COMES NOW the Defendant, MGS DEVELOPER GROUP, LLC (hereinafter
`
`“MGS”), by and through its undersigned counsel, pursuant to the applicable rule of the
`
`Florida Rules of Civil Procedure and hereby files its Motion for Leave to File Amended
`
`Answer and Affirmative Defenses to Plaintiffs’ Amended Complaint and Cross-Claim
`
`Against Co-Defendant, United Iron Works, Inc., and in support thereof would state as
`
`follows:
`
`1.
`
`On or about February 24, 2015, the Plaintiffs filed an Amended Complaint
`
`against various Defendants, including MGS, stemming from an alleged personal injury
`
`accident that occurred on August 18, 2010, on or about the property known as Imagine
`
`Charter School, located at 3333 High Ridge Road in Boynton Beach, Florida.
`
`2.
`
`In its original Answer and Affirmative Defenses to the Plaintiffs Amended
`
`Complaint, MG3 specifically identified the Plaintiffs employer, Imagine Charter Schools
`
`Chancellor Campus, as a Fabre Defendant based on its negligent maintenance and/or
`
`inspection of the subject rolling fence/gate at issue in this matter. MG3 also identified “John
`
`Doe,” the unknown driver of a vehicle that allegedly came into contact with the subject
`
`rolling fence/gate at issue in this case, as has been alleged by Co-Defendant, UNITED IRON
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`NOT A CERTIFIED COPY
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`WORKS.
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`3.
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`However, MG3 has learned through discovery that the alleged failure of the
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`rolling fence/gate at issue in this matter resulting in the accident claimed by the Plaintiffs
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`may have been caused by one or more of the following non-parties: 1) Gustavo J. Carbonell,
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`P.A., as the architect of the Imagine Charter School construction project based on the
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`negligent design of the rolling fence/gate in question as alleged by the Plaintiffs; and 2)
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`COL-USA Cleaning Services, Inc., whose employees’ operation of the subject rolling
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`

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`CASE NO.: 50-2014-CA-006527-XXXX MB
`Page 3
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`fence/gate preceded the Plaintiffs alleged accident. These potential third parties may share
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`in the liability for the subject accident which the jury should be permitted to apportion fault
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`against as Fabre Defendants. Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).
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`4.
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`Florida Rule of Civil Procedure 1.190(a) and the case law interpreting the rule
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`provide that leave of Court to amend “shall be given freely when justice so requires.”
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`5.
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`Furthermore, all doubts on whether to allow an amendment should be
`
`resolved in favor of allowing the amendment. See Walker Fertilizer Co., for Use and Benefit
`
`of Walker v. Cole, 197 So. 777 (Fla. 1940) (holding that the trial court should assume a
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`generous attitude in allowing amendments so that true facts may be bared and a just decision
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`reached); See also Twyman v. Livingston, 58 So. 2d 518 (Fla. 1952).
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`6.
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`MG3 previously filed its Fabre affirmative defense, which reads in part:
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`“would affirmatively state that the damages as claimed within the Complaint are the result of
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`the acts or omissions of other persons or entities who are not parties to this case of action.
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`This Defendant would rely upon the doctrine of Fabre v. Marin...The Defendant also relies
`
`on the provision of the Florida Tort Reform Act, Florida Statute §768.31 et. seq. and the
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`provisions of Florida’s Uniform Contribution Among Tortfeasor Act, Florida Statute §768.31
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`et. seq.”
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`7.
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`As such, MG3 requests leave to file its Amended Answer and Affirmative
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`Defenses to the Plaintiffs’ Amended Complaint, in order to specifically name and identify
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`Gustavo J. Carbonell, P.A. and COL-USA Cleaning Services, Inc., as non-party Fabre
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`Defendants to appear on the verdict form for the jury to apportion fault (if any) against them.
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`See proposed Amended Answer and Affirmative Defenses to Plaintiffs ’ Amended Complaint
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`and Cross-Claim Against Co-Defendant, United Iron Works, Inc., attached hereto as Exhibit
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`“A. ”
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`

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`CASE NO.: 50-2014-CA-006527-XXXX MB
`Page 4
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`8.
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`In World Class Yachts, Inc. v. Murphy, 731 So.2d 798 (Fla. 4th DCA 1999),
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`the court stated that a motion for leave to amend should be granted unless the privilege to
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`amend has been abused, there is prejudice to the opposing party, or the amendment would be
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`futile.
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`9.
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`In the instant case, MG3 has not abused its amendment privilege, and is not
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`moving in bad faith or for dilatory purpose. Consequently, none of the factors which would
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`justify denying this motion exist.
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`10. Moreover, MG3 represents that this Motion has not been made for the
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`purpose of delay or any other improper purpose, and will not prejudice any party to this
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`cause.
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`11.
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`Furthermore, MG3, as general contractor for the construction of the Imagine
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`Charter School, subcontracted with UNITED for the installation of a perimeter fence and
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`rolling gates around the property.
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`12.
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`During the course of this litigation, MG3 has obtained specific information
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`surrounding the Plaintiffs’ allegations against the various Defendants, which include claims
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`of negligent installation of the subject rolling fence/gate that was the cause of the accident in
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`question.
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`13.
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`As a result of the contract entered into by MG3 and UNITED for the
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`installation of the subject fence/gate at issue, UNITED is potentially liable for the accident in
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`this matter, which has been alleged to be the result of negligent installation.
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`14.
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`Pursuant to Florida Rule Civ. Pro. 1.170(g), MG3 is requesting this Court to
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`allow the filing of a Cross-Claim against UNITED for a cause of action based on Breach of
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`Contract and Common Law Indemnity arising out of the same occurrence as the original
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`action.
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`CASE NO.: 50-2014-CA-006527-XXXX MB
`Page 5
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`15.
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`A proposed Cross-Claim against UNITED is attached hereto as Exhibit “A,”
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`for the Court's consideration. See proposed Amended Answer and Affirmative Defenses to
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`Plaintiffs ’ Amended Complaint and Cross-Claim Against Co-Defendant, United Iron Works,
`
`Inc., attached hereto as Exhibit “A. ”
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`16.
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`In this case, based on the contract attached to the Cross Claim, applicable
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`case law and the factual record to date, MGS is entitled to assert a cause of action against
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`UNITED.
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`NOT A CERTIFIED COPY
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`17.
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`Allowing MGS to file a Cross-Claim in this matter would not prejudice the
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`Plaintiff.
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`WHEREFORE Defendant, MGS DEVELOPER GROUP, LLC, requests that this
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`Honorable Court grant this Motion for Leave to File Amended Answer and Affirmative
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`Defenses to Plaintiffs’ Amended Complaint and Cross-Claim Against Co-Defendant, United
`
`Iron Works, Inc., and any other such relief deemed proper.
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`CERTIFICATE OF SERVICE
`
`WE HEREBY CERTIFY that a true and correct copy of the foregoing was sent via
`Email on July 30, 2015 to the parties on the attached Service List.
`
`POZO-DIAZ & POZO, P.A.
`Attorneys for the Defendant
`MGS DEVELOPER GROUP, LLC
`9260 Sunset Drive, Suite 119
`Miami, FL 33173
`Telephone: (305) 412-7360
`Facsimile: (305)412-7301
`Email Designation for Pleadings only as per
`Rule 2.516 of the Florida Rules of Judicial
`Administration: eservicetfljpdnlawyers.com
`
`By: .
`Jaime A. Pozo, Esquire
`Florida Bar No. 496561
`
`_
`
`

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`CASE NO.: 50-2014-CA-006527-XXXX MB
`Page 6
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`SERVICE LIST
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`Steven M. Singer, Esquire
`Law Office of Steven M. Singer, P.A.
`Attorneys for Plaintiff
`7901 SW 6th Court, Ste. 305
`Plantation, FL 33324
`Tel: (954) 617-1200
`Fax:(954)617-3935
`Email: pleadings.singer@gmail.com
`
`Neal Hirschfeld, Esq.
`Greenspoon & Marder
`Attorneys for Plaintiff
`100 W. Cypress Creek Road, Suite 700
`Fort Lauderdale, FL 33309
`Email: neal.hirschfeld@gmlaw.com
`Mark.Siedle@gmlaw.com
`Kay.Povev@gmlaw.com
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`NOT A CERTIFIED COPY
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`Cristina M. Diaz-Padron, Esq.
`Perez & Rodriguez
`Counsel for San Lazaro Fencing Supplies, Inc.
`95 Merrick Way, Suite 600
`Coral Gables, FL 33134
`Email: filing@prmiamilaw.com
`
`Barry L. Davis, Esquire
`Aaron P. Davis, Esquire
`Thornton, Davie & Fein, P.A.
`Counsel for United Iron Works
`80 Southwest 8th Street
`Brickell City Tower, Suite 2900
`Miami, FL 33130
`Email: davis@tdflaw.com
`adavis@tdflaw.com
`Marriott@tdflaw.com
`
`Scott A. Orth, Esquire
`Law Offices of Scott A. Orth, P.A.
`3880 Sheridan Street
`Hollywood, FL 33021
`Tel.: (305) 757-3300
`Fac.: (305) 757-0071
`scott@orthlawoffice .com
`service@orthlawoffice.com
`eServiceSAO@gmail.com
`Attorneys for Defendant, Charter PB Boynton, LLC
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`

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`NOT A CERTIFIED COPY
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`EXHIBITS
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`

`

`IN THE CIRCUIT COURT OF THE 15TH
`JUDICIAL CIRCUIT IN AND FOR
`PALM BEACH COUNTY, FLORIDA
`
`CASE NO.: 50-2014-CA-006527-XXXX MB
`
`SUSAN ONORI and RAYMOND ONORI,
`her husband.
`
`Plaintiffs,
`
`vs.
`
`UNITED IRON WORKS, INC.,
`
`Defendants.
`__________________________ /
`
`SUSAN ONORI and RAYMOND ONORI,
`her husband,
`
`IN THE CIRCUIT COURT OF THE 15TH
`JUDICIAL CIRCUIT IN AND FOR
`PALM BEACH COUNTY, FLORIDA
`
`CASE NO.: 2014-CA-010092-XXXX MB
`
`NOT A CERTIFIED COPY
`
`Plaintiffs,
`
`vs.
`
`SAN LAZARO FENCING SUPPLIES,
`INC.,
`
`Defendants.
`__________________________ /
`
`IN THE CIRCUIT COURT OF THE 15TH
`JUDICIAL CIRCUIT IN AND FOR
`PALM BEACH COUNTY, FLORIDA
`
`SUSAN ONORI and RAYMOND ONORI, CASE NO.: 2014-CA-010085
`her husband,
`
`Plaintiffs,
`
`vs.
`
`MGS DEVELOPER GROUP, LLC, and
`CHARTER PB BOYNTON, LLC,
`
`Defendants.
`_____________________________ /
`
`

`

`DEFENDANT, MG3 DEVELOPER GROUP, LLC’S AMENDED ANSWER AND
`AFFIRMATIVE DEFENSES TO PLAINTIFF’S AMENDED COMPLAINT AND
`CROSS-CLAIM AGAINST CO-DEFENDANT, UNITED IRON WORKS, INC.
`
`COMES NOW the Defendant, MGS DEVELOPER GROUP, LLC, by and through its
`
`undersigned counsel, pursuant to the applicable rule of the Florida Rules of Civil Procedure and
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`Page 2
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`hereby files its Amended Answer and Affirmative Defenses in response to the Plaintiffs
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`Amended Complaint and Cross-Claim Against Co-Defendant, United Iron Works, Inc., as
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`follows:
`
`1.
`
`The Defendant, MGS DEVELOPER GROUP, LLC, specifically denies each and
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`every allegation contained in Paragraphs 1, 5, 6, 7, 9, 9a., 9b., 9c., 9d., 9e., 9f., 9g., 9h., 10, 11,
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`12, 13, 14, 15, 19, 20, 21, 22, 23 and 24 of the Complaint as they pertain to MGS DEVELOPER
`
`GROUP, LLC, and demands strict proof thereof.
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`2.
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`The Defendant, MGS DEVELOPER GROUP, LLC, is without knowledge to
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`those allegations contained in Paragraphs 2, 8, 16, 17, 18, 18a., 18b., 18c., 18d., 18e., 18f., 18g.,
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`and 18h., of the Plaintiffs Complaint and therefore they are denied.
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`3.
`
`The Defendant, MGS DEVELOPER GROUP, LLC, admits in part that it is a
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`Florida Limited Liability Company and was the general contractor for a construction project
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`located at 3333 High Ridge Road in Boynton Beach, Florida, and is without knowledge as to the
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`remaining portions of the allegations contained in Paragraph 3 of the Plaintiffs Complaint.
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`4.
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`The Defendant, MGS DEVELOPER GROUP, LLC, admits in part that it was the
`
`general contractor for a construction project located at 3333 High Ridge Road in Boynton Beach,
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`Florida, and is without knowledge as to the remaining portions of the allegations contained in
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`Paragraph 4 of the Plaintiffs Complaint.
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`5.
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`The Defendant, MG3 DEVELOPER GROUP, LLC, specifically denies each and
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`every allegation of negligence, causation and damages.
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`

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`6.
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`The Defendant, MGS DEVELOPER GROUP, LLC, generally denies each and
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`Page 3
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`every other allegation of the Complaint not specifically admitted herein.
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`AFFIRMATIVE DEFENSES
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`7.
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`The Defendant, MGS DEVELOPER GROUP, LLC, would affirmatively state that
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`at the time and place alleged in the Complaint, the Plaintiff was guilty of negligence and/or
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`assumed the risk which proximately caused or proximately contributed to any injuries or
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`damages which she may have sustained, if any, and, therefore, any award to which the Plaintiff
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`may be entitled should be either barred or reduced accordingly, pursuant to the Doctrine of
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`Comparative Negligence.
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`8.
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`The Defendant, MGS DEVELOPER GROUP, LLC, would affirmatively state that
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`the damages as claimed within the Amended Complaint are the result of the acts or omissions of
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`other persons or entities who are not parties to this case of action. This Defendant would rely
`
`upon the doctrine of Fabre v. Martin. Specifically, the Defendant would identify the Plaintiff’s
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`employer, Imagine Charter Schools Chancellor Campus, as a Fabre Defendant based on its
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`negligent maintenance and/or inspection of the subject rolling fence/gate at issue in this matter.
`
`The Defendant would also identify John Doe, the unknown driver of a vehicle that allegedly
`
`came into contact with the subject rolling fence/gate at issue in this case, as has been alleged by
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`Co-Defendant, UNITED IRON WORKS. The Defendant would also identify architect, Gustavo
`
`J. Carbonell, P.A., as a Fabre Defendant insofar as the negligent design of the subject rolling
`
`fence/gate is at issue in this matter. Furthermore, the Defendant would also identify COL-USA
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`Cleaning Services, Inc., based on its negligent operation of the subject rolling fence/gate at issue
`
`in this matter, which preceded the incident in question. The Defendant relies on the provision of
`
`the Florida Tort Reform Act, Florida Statute §768.31 et. seq. and the provisions of Florida’s
`
`Uniform Contribution Among Tortfeasor Act, Florida Statute §768.31 et. seq.
`
`

`

`9.
`
`As an additional affirmative defense, the Defendant, MGS DEVELOPER
`
`GROUP, LLC, would affirmatively state that the Plaintiffs injuries and/or damages were solely
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`the result of negligence on the part of third parties who were not under the care, custody, control
`
`or supervision of this Defendant, or its agents or assigns and, therefore, the Plaintiff cannot
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`Page 4
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`recover against this Defendant.
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`10.
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`The Defendant, MGS DEVELOPER GROUP, LLC, would affirmatively state that
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`the Plaintiff has failed to mitigate damages as required under Florida law and any such recovery
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`should be proportionately reduced as a result of the failure heretofore alleged.
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`11.
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`The Defendant, MGS DEVELOPER GROUP, LLC, would affirmatively state it is
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`entitled to a setoff for any payments paid or payable to the Plaintiff or any damages alleged in
`
`the Amended Complaint, from any collateral source or settlement agreement.
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`12.
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`The Defendant, MGS DEVELOPER GROUP, LLC, would affirmatively state
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`that it had no constructive or actual notice of the alleged dangerous condition or defect or,
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`alternatively, that such condition or defect was open and obvious to the Plaintiff.
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`13.
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`The Defendant, MGS DEVELOPER GROUP, LLC, would affirmatively state that
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`the Plaintiff has named one or more Co-Defendants in this action and has alleged that their
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`actions or inactions were negligent and were the proximate cause of the damages alleged in the
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`Complaint. Although this Defendant is not making such a contention at this time, it reserves the
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`right to adopt and incorporate these allegations as an Affirmative Defense should the Plaintiff
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`settle with the Co-Defendants or otherwise dismiss them prior to trial.
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`14.
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`The Defendant, MGS DEVELOPER GROUP, LLC, affirmatively states that the
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`Plaintiffs alleged Medical Expenses should be reduced or eliminated due to the fact that the
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`Plaintiff failed to mitigate her damages by entering into an agreement with her medical providers
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`

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`to receive care and treatment pursuant to a “letter of protection” in lieu of submitting charges to
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`her health insurance company as required pursuant to Florida Statute §641.17-.3923.
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`15.
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`The Defendant, MG3 DEVELOPER GROUP, LLC, affirmatively states that the
`
`collateral source rule may no longer be applicable, because the Patient Protection and Affordable
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`Page 5
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`Care Act mandates that all persons obtain health insurance. Therefore, evidence relating to
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`collateral source benefits received in the past and available in the future to Plaintiffs statutory
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`survivors is admissible and such collateral source benefits shall offset and reduce any past or
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`future economic damages awarded.
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`16.
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`The Defendant, MG3 DEVELOPER GROUP, LLC, affirmatively states that to
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`the extent that Plaintiff fails to comply with the mandate of the Patient Protection and Affordable
`
`Care Act to obtain health insurance, Plaintiff has failed to mitigate her damages and Plaintiffs
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`recovery must be reduced by the amount attributable to such failure.
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`17.
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`The Defendant, MG3 DEVELOPER GROUP, LLC, reserves the right to add or
`
`amend its Affirmative Defenses.
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`DEMAND FOR JURY TRIAL
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`18.
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`The Defendant, MG3 DEVELOPER GROUP, LLC, demands a trial by jury of all
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`issues so triable.
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`DEFENDANT/CROSS-PLAINTIFF, MG3 DEVELOP GROUP, LLC.’S,
`CROSS-CLAIM AGAINST DEFENDANT, UNITED IRON WORKS, INC.
`
`COMES NOW, Defendant/Cross-Plaintiff, MG3 DEVELOPER GROUP, LLC
`
`(hereinafter “MG3”), by and through its undersigned counsel, hereby files its Cross-Claim
`
`against the Defendant, UNITED IRON WORKS, INC., (hereinafter “UNITED”), and states as
`
`follows:
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`

`

`PARTIES, JURISDICTION AND VENUE
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`19.
`
`This is an action for damages in excess of $15,000.00 exclusive of interest, costs
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`Page 6
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`and attorneys fees.
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`20.
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`At all times material hereto, the Defendant/Cross-Plaintiff, MGS, is and was a is
`
`and was a Florida corporation organized and existing under the laws of the State of Florida,
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`having its principal place of business in Broward County, Florida.
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`21.
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`At all times material hereto, the Defendant, UNITED, is and was a Florida
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`corporation organized and existing under the laws of the State of Florida, having its principal
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`place of business in Miami-Dade County, Florida.
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`22.
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`Certain claims and causes of action which are the subject of this Cross-Claim arise
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`out of a contract entered into between MGS (as general contractor) and UNITED (as subcontractor)
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`for the installation of various fences and rolling gates at a construction project located at 3333 High
`
`Ridge Road in Boynton Beach, Florida, known as Imagine Charter School.
`
`23.
`
`The Plaintiff in the underlying matter, SUSAN ONORI (hereinafter “ONORI”),
`
`originally filed three separate actions as a result of an alleged personal injury accident that
`
`occurred on August 18, 2010, on or about the property known as Imagine Charter School,
`
`located at 3333 High Ridge Road in Boynton Beach, Florida.
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`24.
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`Specifically, ONORI filed suit against UNITED individually. She also filed a
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`separate action against SAN LAZARO FENCING SUPPLIES, INC., the parts supplier from
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`which UNITED allegedly purchased at least a portion of the component parts used in the
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`installation of the subject fences and/or rolling gates. Furthermore, ONORI filed a third lawsuit,
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`which named MG3 and CHARTER PB BOYNTON, LLC, the owner/developer of the property
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`located at 3333 High Ridge Road in Boynton Beach, Florida.
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`

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`25.
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`Subsequently, the three matters were transferred and consolidated for discovery and
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`Page 7
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`trial purposes.
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`26.
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`Therefore, venue in this case is proper in Palm Beach County, Florida, based on
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`the location where the installation of the rolling fence/gate at issue was performed under the
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`contract between MGS and UNITED as well as the location of the Plaintiffs alleged accident in
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`the underlying matter.
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`27.
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`All conditions precedent to the bringing of this cause of action have occurred,
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`been performed, waived and/or excused.
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`FACTUAL ALLEGATIONS
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`NOT A CERTIFIED COPY
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`28.
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`The Plaintiff, SUSAN ONORI (hereinafter “ONORI”), has asserted claims
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`against MGS that, if valid, are in whole or in part the responsibility of the Defendant, UNITED.
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`29.
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`ONORI’S claim against MGS is based upon an injury that allegedly took place on
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`August 18, 2010, at the Imagine Charter School, located at 3333 High Ridge Road in Boynton
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`Beach, Florida.
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`30. MGS, as general contractor for the construction project known as Imagine Charter
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`School, entered into a contract with UNITED, as subcontractor, for the installation of various
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`fences and rolling gates on or about the property located at 3333 High Ridge Road in Boynton
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`Beach, Florida.
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`31.
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`On July 9, 2010, a representative from MG3 executed Estimate Number 1246,
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`which was provided by a sales person for UNITED and itemized the various fence/gate parts that
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`were to be installed at the construction project. Please See Attached Exhibit “A. ”
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`32.
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`Subsequently, Contract Number 1246 was created based on certain modifications
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`to the Estimate, including an adjustment in total price. Please See Attached Exhibit “B. ”
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`

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`33.
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`The reverse side of the Estimate/Contract contained a statement entitled “United
`
`Iron Works, Inc., Terms and Conditions.” Please See Attached Exhibit “C. ”
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`34.
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`Pursuant to the Terms and Conditions included on the reverse side of the
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`Estimate/Contract, UNITED warranted that all of its work would be “performed in a workman­
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`Page 8
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`like maimer, in accordance with standard practice in the industry.” Please See Attached Exhibit
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`“C, ” at Paragraph 10— Warranty.
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`35.
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`Among the allegations of negligence set forth by the Plaintiff against the various
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`Defendants in the underlying matter, ONORI has alleged that the subject accident was caused by
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`the negligent installation of the fence and/or rolling gate during the construction of the project
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`known as Imagine Charter School located at 3333 High Ridge Road in Boynton Beach, Florida.
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`36. While MG3 expressly denies all allegations of wrongdoing asserted against them
`
`in the Plaintiffs Amended Complaint naming this Defendant, ONORI’S allegations directly
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`involve UNITED’S installation of the subject fence and/or rolling gate.
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`37.
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`Therefore, to the extent that the subject fences and/or rolling gates were
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`negligently installed, UNITED is liable for the accident suffered by ONORI.
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`38. Moreover, to the extent that the subject fences and/or gates were negligently
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`installed, UNITED is liable to MG3 for its breach of contract with regard to the improper
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`installation, also requiring UNITED to indemnify MG3 under common law.
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`COUNT I - BREACH OF CONTRACT
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`The Plaintiff adopts and realleges the allegations contained in Paragraphs 19 through 38
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`above as though fully set forth herein.
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`39.
`
`On July 9, 2010, a representative from MG3 executed Estimate Number 1246,
`
`which was provided by a sales person for UNITED and itemized the various fence/gate parts that
`
`were to be installed at the construction project. Please See Attached Exhibit “A. ”
`
`

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`40.
`
`Subsequently, Contract Number 1246 was created based on certain modifications
`
`to the Estimate, including an adjustment in total price. Please See Attached Exhibit “B. ”
`
`41.
`
`The reverse side of the Estimate/Contract contained a statement entitled “United
`
`Iron Works, Inc., Terms and Conditions.” Please See Attached Exhibit “C. ”
`
`Page 9
`
`42.
`
`Pursuant to the Terms and Conditions included on the reverse side of the
`
`Estimate/Contract, UNITED warranted that all of its work would be “performed in a workman­
`
`like manner, in accordance with standard practice in the industry.” Please See Attached Exhibit
`
`“C, ” at Paragraph 10- Warranty.
`
`NOT A CERTIFIED COPY
`
`43. Moreover, under its Terms and Conditions, UNITED also guaranteed that its
`
`“warranty shall extend for a period of one (1) year from the date of approval of final inspection.”
`
`Please See Attached Exhibit “C, ” at Paragraph 10- Warranty.
`
`44.
`
`The alleged accident suffered by the Plaintiff occurred on August 18, 2010, just
`
`over one month after the execution of the Estimate/Contract between MGS and UNITED and on
`
`the second day in which the Imagine Charter School was open for business.
`
`45.
`
`Among the allegations of negligence set forth by the Plaintiff against the various
`
`Defendants in the underlying matter, ONORI has alleged that the subject accident was caused by
`
`the negligent installation of the fence and/or rolling gate during the construction of the project
`
`known as Imagine Charter School located at 3333 High Ridge Road in Boynton Beach, Florida.
`
`46.
`
`Based on its own warranty, UNITED was under a contractual obligation to
`
`perform the installation of the fences and rolling gates at the Imagine Charter School project in a
`
`workman-like manner and in accordance with standard practice in the industry.
`
`47.
`
`However, based on the allegations set forth by ONORI, UNITED negligently
`
`installed the fence and/or rolling gate involved in the subject accident, in violation of its own
`
`warranty.
`
`

`

`48.
`
`Therefore, to the extent that the subject fences and/or gates were negligently
`
`installed, UNITED is liable to MGS for its breach of contract with regard to the improper
`
`installation.
`
`49.
`
`As alleged herein, UNITED’S material breach of the warranty provision of the
`
`Page 10
`
`Estimate/Contract has caused MGS to suffer damages arising out of the claims made by ONORI
`
`in connection with the alleged accident involving the negligent installation of the subject fence
`
`and/or rolling gate, including, but not limited to attorney’s fees and costs incurred in defending
`
`the underlying matter as well as possible exposure to monetary damages resulting from
`
`mediation or trial.
`
`NOT A CERTIFIED COPY
`
`WHEREFORE, the Defendant/Cross-Plaintiff, MGS DEVELOPER GROUP, LLC,
`
`demands judgment against the Defendant, UNITED IRON WORKS, INC., for all damages MGS
`
`may be required to pay ONORI in the underlying lawsuit, including interest, costs, attorney’s
`
`fees incurred in defending the underlying action, and any and all additional relief that this Court
`
`finds just, equitable or appropriate.
`
`COUNT II - COMMON LAW INDEMNITY
`
`The Plaintiff adopts and realleges the allegations contained in Paragraphs 19 through 38
`
`above as though fully set forth herein.
`
`49. To the extent that ONORI is entitled to recovery of damages against MGS arising
`
`from negligence on the part of UNITED as a result of the improper installation of the subject
`
`fence and/or gate at the Imagine Charter School project located at 3333 High Ridge Road in
`
`Boynton Beach, Florida, MGS’S liability is entirely technical, vicarious and derivative of the
`
`performance of UNITED, and such damages arise solely from UNITED’S negligence, for which
`
`MGS is without fault.
`
`

`

`50. MGS is free from active negligence and wholly without fault and UNITED is
`
`responsible to indemnify MGS for any damages incurred by MGS in the underlying matter.
`
`WHEREFORE, the Defendant/Cross-Plaintiff, MGS DEVELOPER GROUP, LLC,
`
`demands judgment against the Defendant, UNITED IRON WORKS, INC., for all damages MGS
`
`Page 11
`
`may be required to pay ONORI in the underlying lawsuit, including interest, costs, attorney’s
`
`fees incurred in defending the underlying action, and any and all additional relief that this Court
`
`finds just, equitable or appropriate.
`
`DEMAND FOR JURY TRIAL
`
`Wherefore, the Defendant/Cross-claim Plaintiff, MGS DEVELOPER GROUP, LLC,
`
`requests a jury trial on all issues and claims so triable by right of jury.
`
`NOT A CERTIFIED COPY
`
`Dated: July 30, 2015.
`
`Respectfully submitted.
`
`POZO-DIAZ & POZO, P.A.
`Attorneys for the Defendant/Cross-Plaintiff
`MGS DEVELOPER GROUP, LLC
`Sunset Oaks
`9260 Sunset Drive, Suite 119
`Miami, Florida 33173
`Telephone: (305) 412-7360
`(305)412-7301
`Facsimile:
`
`By:
`
`Jaime A. Pozo, Esquire
`Florida Bar No. 496561
`
`

`

`CERTIFICATE OF SERVICE
`
`Page 12
`
`WE HEREBY CERTIFY that a true and correct copy of the foregoing was sent via Email
`, 2015 to the parties on the attached Service List.
`on July '
`
`POZO-DIAZ & POZO, P.A.
`Attorneys for the Defendant
`MG3 DEVELOPER GROUP, LLC
`9260 Sunset Drive, Suite 119
`Miami, FL 33173
`Telephone: (305) 412-7360
`Facsimile: (305)412-7301
`Email Designation for Pleadings only as per
`Rule 2.516 of the Florida Rules of Judicial
`Administration: eservice(d)pdplawyers. com
`
`By:
`
`Jaime A. Pozo, Esquire
`Florida Bar No. 496561
`
`NOT A CERTIFIED COPY
`
`

`

`SERVICE LIST
`
`Page 13
`
`Steven M. Singer, Esquire
`Law Office of Steven M. Singer, P.A.
`Attorneys for Plaintiff
`7901 SW 6th Court, Ste. 305
`Plantation, FL 33324
`Tel: (954) 617-1200
`Fax:(954)617-3935
`Email: pleadings.singer@gmail.com
`
`Neal Hirschfeld, Esq.
`Greenspoon & Marder
`Attorneys for Plaintiff
`100 W. Cypress Creek Road, Suite 700
`Fort Lauderdale, FL 33309
`Email: neal.hirschfeld@gmlaw.com
`Mark.Siedle@gmlaw.com
`Kav.Povev@gmlaw.com
`
`NOT A CERTIFIED COPY
`
`Cristina M. Diaz-Padron, Esq.
`Perez & Rodriguez
`Counsel for San Lazaro Fencing Supplies, Inc.
`95 Merrick Way, Suite 600
`Coral Gables, FL 33134
`Email: filing@prmiamilaw.com
`
`Barry L. Davis, Esquire
`Aaron P. Davis, Esquire
`Thornton, Davie & Fein, P.A.
`Counsel for United Iron Works
`80 Southwest 8th Street
`Brickell City Tower, Suite 2900
`Miami, FL 33130
`Email: davis@tdflaw.com
`adavis@tdflaw.com
`Marriott@tdflaw. com
`
`Scott A. Orth, Esquire
`Law Offices of Scott A. Orth, P.A.
`3880 Sheridan Street
`Hollywood, FL 33021
`Tel.: (305) 757-3300
`Fac.: (305) 757-0071
`scott@orthlawoffice.com
`service@orthlawoffice.com
`eServiceSAO@gmail.com
`Attorneys for Defendant, Charter PB Boynton, LLC
`
`

`

`NOT A CERTIFIED COPY
`
`EXHIBITS
`
`

`

`Estimate No:
`pate:'
`Term's:
`Sales jPersori:
`
`124g
`v/s/aoto
`
`.MIZRAjliiFERE^,
`
`tlNI'JfjEp- IRON yVOiaGS1
`.3iz4..NW:38Ui-St;
`'MIAMI Ft-gaixi'a.
`
`Phefi'e; 305 633^0-1:
`
`Ernail3®XY.(a.UiilT£DiftdmVp^pOSl
`Website: WlW.UNlTEpiRONWQItK'.CC$
`
`MG3 DEVELOPERS GROUP,.
`1930 HARRISON ST,- # 303.'
`.ko^LYWOb, FL 33030.
`954 ?29-5^i
`
`• PROJEQT; BOY.NTON.GHARTER S.CHpQp
`
`" ' " ' ’
`
`TWwM*
`
`Lpt
`
`SM.,620,0? ' $31,820.00
`
`NOT A CERTIFIED COPY
`
`- WE'HEREBY. SLigMlT E§jtMATES-AND' SPEClFipATlO^S.gQRt
`
`'THE-FURNISH 'ANpTNsTAli-AtlbH OF 84' 0 CHAlH LINK'kfeNGE AT A HIGH
`-.•i350'OF.CHAlNUNKiFENCEAT6'-HIGH. "
`-’vowmsahiw
`. 4 SLIDING GATE ■25', X-.6' HiGHl
`■ 2 DOUSLE:SW1'NG GATES S’x 'fi* AieH.
`-.2 PEDESTKIAN.G.ATES 4''X'6’HlGH^ ' '
`■'■95-OF CHAIN LINK FENCE AT X''i liGH.
`• 1 PEDESTRIAN GATE 4',X.4'.HIGH. ‘ '
`
`•.CHAIN LINK TO BE 9.GAUGE,. VINYL COATEp,
`
`•■.poN&RlsrEEOOTINGFOR 'SLIDINGGAtES .\ATRACK NOT INCLUDEb';
`...; ri/^ gt-AJT
`iW]
`
`Llt-I ,S 1 Al ION AftEA.
`
`'■■ ■ ■-
`
`■ ^PBTHE EURNfSHAND INSTALLATlpN p^;
`
`90’ O,F.CHAlNLl'NK.FENbE AT0' HipH.
`.4 DOUBLE'-SVylNG GATE 20|. JCS' KIGH
`1 PEDESTRIAN-,GATE:4'.X6>Hi.GH," '
`
`IHAft’S SKPERMifSi FOR PROJECjJ^PT INCLCiDEb;
`-------- '-:------- ------------------- —----- ■------ -■ ■ ■ ■■-.■.■
`
`.^. :/
`
`.......
`
`... 1
`
`i;oc
`
`$6,310.0c
`
`■ ■' $3,$10.00
`
`.indlertes-nou-lixuble item.
`
`Wgc.i oti'
`
`xSnblotal
`Tax.ptipSQ
`Ttital ' '
`
`'$35^30.00
`
`S^PVi.93
`
`EXHIBIT
`
`U1W000134
`
`

`

`contmct
`
`Estimate Jilot .i^.
`
`T’erius'
`.Saiesjei-sofii ^IZRAinferez-
`
`3274W38tii SL
`
`■Phdhs'.
`Fax: gps 633-2120.
`
`Website: WXW^to^frEDiROJ^YQRK.CplMf
`
`MGsPEYEIidPERS GROUP/
`igjio. HARRISON' ST; #'.303,
`IJ.QLlWpQ, FU33Q2O
`95'4 9.29-5«P9
`
`NOT A CERTIFIED COPY
`
`.
`• PROJECT: BOYNTON CHARTER SCHOOL:.........................................................
`
`-'WE'HEREBy SUBMIT E^tlMATES.ANp'SPECipC^iilpNSFQ.Rj
`
`the furnish And installation.of st a chain link fence-at a1, high with’
`PVC Si ATSrPOR PRIVACY.................................... ................ -■•
`13501 .OE CHAINLINk FENCE AT
`-iSLiDlNGG'ATEaS'Jt.ff .HIGH: . '
`• 2 DOUBLE' SWING GATES tf X 6! HlGHi
`• 2’PEDESTRIAN GATES 4’ X'6‘ HIGI.i.
`■ 95' OF CHAIN LINK FENCE AT'4' HIGH..
`1 PEDESTRIAN GATE4' XT HIGH..
`
`..CHAIN"LINKTO;BE 9 GAUGE,’VINYL-COATED;' BLACK COLORS
`--GATES' TO HAVE. STANDARD SLID INS HARDWARE,
`-.GONdRETE'EOdTiNG fSH-S'LIdKg' GATES V-TRACK NOTlNcLUDEtX
`
`-LK-'T STATION AREA,
`
`...
`
`bj?:i
`
`-W OFicriAiti LINk FENS'e ATS'HIGH; *
`-1 DOUBLE SWING' GATE20!'X'6' HIGH-.
`dfpEDESTRtANi'GATE^XglHlGH.
`
`■ FLA'N&URiPER