Filing 83012909 E-Filed 01/08/2019 01:32:10 PM FORM 1.997. CIVIL COVER SHEET The civil cover sheet and the information contained in it neither replace nor supplement the ?ling and service of pleadings or other documents as required by law. This form must be ?led by the plaintiff or petitioner for the use of the Clerk of Court for the purpose of reporting judicial workload data pursuant to section 25.075. Florida Statutes. (See instructions for completion.) I. CASE STYLE IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA Case No.: Judge: Edgar Monserratt as PR of Estate of EM. Martinez Plaintiff vs. Tesla Inc. James Constantino Defendant II. TYPE OF CASE Non-homestead residential foreclosure Condominium $250.00 or more Q- Contracts and indebtedness Other real property actions $0 $50,000 Eminent domain Other real property actions $50,001 - $249,999 Auto negligence Other real property actions $250,000 or more Negligence - other . Business govemanoe Professronal malpractice El Business torts Malpractice business Environmental/Toxic tort Malpractice medical . Third party indemni?cation Malpractice - other professronal Construction defect Other El Mass tort Antitrust/Trade Regulation Negligent security Business Transaction Nursing home negligence Circuit Civil - Not Applicable Premises liability commercial Constitutional challenge-statute or Premises liability - residential El Products liability Constitutional challenge-proposed amendment Real Property/Mortgage foreclosure Corporate Trusts 9- Commercial foreclosure $0 $50300 Discrimination-employment or other Commercial foreclosure $50,001 - $249,999 Insurance claims Commercral foreclosure $250,000 or more Intellectual property Homestead residential foreclosure $0 - 50,000 Libel/Slander resrdentral foreclosure $50,001 - Shareholder derivative action El Homestead residential foreclosure $250,000 or Secuntres litigation more Trade secrets Non-homestead residential foreclosure $0 - Trust litigation $50,000 Non-homestead residential foreclosure $50,001 - $249,999 COMPLEX BUSINESS COURT This action is appropriate for assignment to Complex Business Court as delineated and mandated by the Administrative Order. Yes No Ill. REMEDIES SOUGHT (check all that apply): Monetary; Non-monetary declaratory or injunctive relief; Punitive IV. NUMBER OF CAUSES OF ACTION: (Specify) V. IS THIS CASE A CLASS ACTION Yes No VI. HAS NOTICE OF ANY KNOWN RELATED CASE BEEN No .8. Yes If ?yes? list all related cases by name, case number and court: VII. IS JURY TRIAL DEMANDED IN Yes No CERTIFY that the information I have provided in this cover sheet is accurate to the best of my knowledge and belief, and that have read and will comply with the requirements of Florida Rule of Judicial Administration 2.425. Signature 3/ Zane Berg FL Bar No.: 91317 Attorney or party (Bar number, if attorney) Zane Berg 01/08/2019 (Type or print name) Date Filing 83012909 E-Filed 01/08/2019 01:32: 10 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: EDGAR MONSERRATT, as Personal Representative of THE ESTATE OF EDGAR MONSERRATT MARTINEZ, Deceased, Plaintiff, v. TESLA, INC. a/k/a TESLA FLORIDA, INC. and JAMES CONSTANTINO, Defendants. COMPLAINT COMES NOW the Plaintiff, EDGAR MONSERRATT, as Personal Representative of the ESTATE OF EDGAR MONSERRATT MARTINEZ, Deceased, by and through his undersigned attorneys, and sues the Defendants, TESLA, INC. a/k/a TESLA FLORIDA, INC. and JAMES CONSTANTINO, as grounds therefore would state: 1. This is an action for damages that exceeds Fifteen Thousand Dollars exclusive of costs and fees. 2. At all times alleged herein the Plaintiff, EDGAR MONSERRATT has been or will be duly appointed as the personal representative of THE ESTATE OF EDGAR MONSERRATT MARTINEZ, and litigates this wrong?il death action on behalf of the ESTATE OF EDGAR MONSERRATT MARTINEZ and on behalf of all survivors. 3. EDGAR MONSERRATT MARTINEZ, died on May 8, 2018 as a result of injuries suffered in an automobile crash in the 1300 block of Seabreeze Boulevard in Fort Lauderdale, Broward County, Florida caused by the Defendants alleged in this Complaint. 3. At the time of the death of EDGAR MONSERRATT MARTINEZ was 18 years old and was not married and had no children. 4. EDGAR MONSERRATT MARTINEZ is survived by his natural parents, EDGAR MONSERRATT and ESPERANZA MARTINEZ DE MONSERRATT, who are survivors under the Florida Wrong?il Death Act. 5. At all times material to this action, the Defendant, TESLA, INC. a/k/a TESLA FLORIDA, INC. (hereinafter referred to as was a foreign corporation licensed and authorized to do business in the State of Florida. 6. At all times hereina?er mentioned and at the time of the incident complained of, the Defendant, TESLA, had an of?ce for the transaction of its customary business in Broward County, Florida, had agents and other representatives in Broward County, Florida, and was actually doing business in Broward County, Florida by virtue of its designing, assembling, manufacturing, and/or shipping automobiles into Broward County, Florida. 7. At all times hereinafter mentioned and at the time of the incident complained of, the Defendant, TESLA, was in the business of designing, testing, inspecting, manufacturing, distributing, selling, maintaining, repairing and otherwise placing into the stream of commerce, and causing same to come into the State of Florida, certain automobiles, including a certain speci?c automobile designated and described as a 2014 Tesla Model S, VIN: 5YJSA1H24EFP62693 (Hereinafter described as the ?Vehicle?). 8. At all times material to this action Defendant, JOSEPH CONSTANTINO, was an employee and agent of TESLA and acting in the full course and scope of his responsibilities for TESLA. 9. At all times hereina?er mentioned and at the time of the incident complained of, JOSEPH CONSTANTINO was suijuris and a resident of Broward County, Florida. 10. At all times material to this action, JAMES B. RILEY was a registered owner of the Vehicle. 1 1. At all times material to this action, the Vehicle was kept and maintained at the home of JAMES B. RILEY and JENNY B. RILEY and they maintained custody, possession, and control of the Vehicle. 12. BARRETT RILEY, deceased, was the son of JAMES B. RILEY and JENNY B. RILEY. 13. That on May 8, 2018 the decedent, EDGAR MONSERRATT MARTINEZ, was the ?'ont seat passenger in the Vehicle which was then operated by BARRETT RILEY southbound in the 1300 block of Seabreeze Boulevard, in Fort Lauderdale, Florida. 14. That at that time and place, BARRETT RILEY lost control of the automobile, resulting in the Vehicle striking a wall on the west side of the road. The Vehicle then re-entered the roadway, mounted the curb on the east side of the street, and struck a metal light pole and wall. The Vehicle then erupted in ?ames. 15. EDGAR MONSERRATT MARTINEZ perished as a result of injuries he sustained in the crash. COUNT I MONSERRATT v. TESLA and CONSTANTINO SUPERIOR The Plaintiff, EDGAR MONSERRATT, as Personal Representative of THE ESTATE OF EDGAR MONSERRATT MARTINEZ, Deceased, realleges each and every allegation contained in paragraphs 1 through 15, and, by reference, further states: 16. The Vehicle was traveling at a speed in excess of 116 when BARRETT RILEY lost control of the vehicle immediately before the crash. 17. Prior to May 8, 2018, BARRETT RILEY had a history of negligent operation of motor vehicles, including speeding and, in particular, speeding in the Tesla Model S, which endangered his passengers and the general public. 18. On March 3, 2018, approximately two months prior to the automobile crash, BARRETT RILEY, was clocked at 112 on a Florida highway and ticketed for such. 19. As a result of BARRETT traf?c citation, his parents, JAMES B. RILEY and/or JENNY B. RILEY, sought to limit the top speed of the Vehicle in an effort to improve its safety and safe operation for the bene?t of their son and any passengers in the Vehicle. 20. JAMES B. RILEY and/or JENNY B. RILEY then requested that Defendant, TESLA install a speed limiter/govemor on the Vehicle which would limit its top speed to 85 mph. 21. On or about March 6, 2018 the Defendant, TESLA, through its employees or agents, installed the 85 speed limiter/govemor on the Vehicle limiting any driver to going a maximum of 85 mph. 22. Between March 29, 2018 and April 3, 2018, while the Vehicle was in for service at Defendant Bahia Beach, Broward County service center, Defendant TESLA, through its agent CONSTANTINO, improperly removed the 85 speed limiter/governor without the permission and consent of JAMES B. RILEY or JENNY B. RILEY. 23. The 85 speed limiter/governor was never reinstalled prior to the May 8, 2018 crash. 24. Neither JAMES B. RILEY nor JENNY B. RILEY were ever made aware by TESLA that the 85 speed limiter/governor had been removed from the Vehicle until after the May 8, 2018 crash. 25. Had JAMES B. RILEY or JENNY B. RILEY been made aware of the fact that the 85 speed limiter/governor had been improperly removed, they would not have permitted their son, BARRETT RILEY, to operate the vehicle. 26. The Defendants, TESLA, by and through its agent, CONSTANTINO, and COSANTINO individually, owed a duty of care not to remove the speed limiter/governor in the Vehicle in any manner which could potentially affect its safe operation, or the safety of any passengers who may ride within it. 27. The Defendants, TESLA and CONSANTINO, breached their duties of care by negligently removing the 85 speed limiter/governor and thereby endangering any passengers who may have ridden in the Vehicle, including the decedent, EDGAR MONSERRATT MARTINEZ. 28. Had the 85 speed limiter/governor not been improperly removed by Defendants, TESLA and CONSANTINO, the Vehicle would not have exceeded 85 and BARRET RILEY would not have lost control of the vehicle. 29. Had the 85 speed limiter/govemor not been improperly removed by the Defendants, TESLA and its agent, CONSTANTINO, the May 8, 2018 crash would not have occurred and EDGAR MONSERRATT MARTINEZ would not have died. 30. As a direct and proximate cause of the negligence of TESLA and its agent, CONSTANTINO, the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages and EDGAR MONSERRATT as personal representative of the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, seeks the following damages on behalf of the ESTATE OF EDGAR MONSERRATT MARTINEZ: a) Funeral and burial expenses, b) Loss of net accumulations that would have been available to the Estate had the decedent lived for the duration of his natural life. 31. As a direct and proximate cause of the negligence of Defendant TESLA and its agent, CONSTANTINO, the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages and EDGAR MONSERRATT as personal representative of the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, seeks the following damages on behalf of EDGAR MONSERRATT as surviving father of EDGAR MONSERRATT MARTINEZ: a) EDGAR mental pain and suffering, mental anguish, inconvenience and loss of his son?s companionship and affection from the date of his death up and through EDGAR normal life expectancy. 32. As a direct and proximate cause of the negligence of Defendant, TESLA, and its agent, CONSTANTINO, the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages and EDGAR MONSERRATT as personal representative of the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, seeks the following damages on 6 behalf of ESPERANZA MARTINEZ DE MONSERRATT as surviving mother of EDGAR MONSERRATT MARTINEZ: a) ESPERANZA MARTINEZ DE mental pain and suffering, mental anguish, inconvenience and loss of her son?s companionship and affection from the date of his death up and through ESPERANZA MARTINEZ DE normal life expectancy. WHEREFORE, the Plaintiff, EDGAR MONSERRATT, as Personal Representative of the ESTATE OF EDGAR MONSERRATT MARTINEZ, Deceased, demands judgment against the Defendant, TESLA, INC. a/k/a TESLA FLORIDA, INC., for compensatory damages together with post-judgment interest and taxable costs incurred in this action. COUNT II MONSERRATT v. TESLA STRICT LIABILITY IN TORT The Plaintiff, EDGAR MONSERRATT, as Personal Representative of THE ESTATE OF EDGAR MONSERRATT MARTINEZ, Deceased, realleges each and every allegation contained in paragraphs 1 through 15, and, by reference, further states: 33. The Vehicle as hereinabove described was designed, manufactured, assembled, serviced, repaired, placed within the stream of commerce and market place, and/or allowed to be used therein by the said Defendant, TESLA. 34. The Vehicle as previously described was defective when it le? the possession of the Defendant, TESLA, and was in a condition that was unreasonably dangerous to foreseeable users, and said Vehicle was expected to and did reach foreseeable users without substantial change affecting its condition. 35. The Vehicle as hereinabove described was defective and unreasonably dangerous at the time it was so designed, manufactured, assembled, sold, distributed, marketed, promoted, placed within the stream of commerce and market place, and allowed to be used therein, in the ways set forth hereinThe Vehicle was not crashworthy; The Vehicle?s batteries were inherently unstable and subject to explosion and spontaneous ?re; The Vehicle?s batteries were inadequately protected and shielded; to wit: the battery pack of the Tesla Model was not treated with an intumescent material to protect and provide protection ?om the propagation of thermal runaway from one cell to adjacent cells; The Vehicle had inadequate measures to prevent a post-collision ?re; to wit: the battery pack of the Tesla Model was not treated with an intumescent material to protect and provide protection from the propagation of thermal runaway from one cell to adjacent cells; The Vehicle had inadequate measures to contain or extinguish any ?re; The Vehicle was prone to extremely intense ?res incapable of being timely extinguished; Failed to contain a warning to end users and their passengers of the defective and unreasonably dangerous condition of the Vehicle; Was otherwise defective in ways which will be demonstrated by the evidence adduced during discovery. The aforesaid defects existed at the time of the design, manufacture, and assembly of 8 said Vehicle, continued to remain an integral characteristic of said vehicle at the time it was sold, distributed, placed within the stream of commerce and market place, and allowed to be used therein by the Defendant TESLA and remained as such up to and including the time that EDGAR MONSERRATT MARTINEZ perished by said defects, and, as a result, the Defendant, TESLA, is strictly liable to the Plaintiff. 37. The decedent, EDGAR MONSERRATT MARTINEZ, was unaware of the aforesaid defects and dangerousness of said product, which made such product unsafe for its intended and foreseeable use, nor were such defects apparent by reasonable inspection. 38. As a direct and proximate cause of the defects in the Vehicle, the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages and EDGAR MONSERRATT as personal representative of the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, seeks the following damages on behalf of the ESTATE OF EDGAR MONSERRATT MARTINEZ: a) Funeral and burial expenses, b) Loss of net accumulations that would have been available to the Estate had the decedent lived for the duration of his natural life. 39. As a direct and proximate cause of the defects in the Vehicle, the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages and EDGAR MONSERRATT, as personal representative of the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, seeks the following damages on behalf of EDGAR MONSERRATT as surviving father of EDGAR MONSERRATT MARTINEZ: a) EDGAR mental pain and suffering, mental anguish, inconvenience and loss of his son?s companionship and affection ?'om the date of his death up and 9 through EDGAR normal life expectancy. 40. As a direct and proximate cause of the defects in the Vehicle, the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages and EDGAR MONSERRATT, as personal representative of the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, seeks the following damages on behalf of ESPERANZA MARTINEZ DE MONSERRATT as surviving mother of EDGAR MONSERRATT MARTINEZ: a) ESPERANZA MARTINEZ DE mental pain and suffering, mental anguish, inconvenience and loss of her son?s companionship and affection from the date of his death up and through ESPERANZA MARTINEZ DE normal life expectancy. WHEREFORE, the Plaintiff, EDGAR MONSERRATT, as Personal Representative of the ESTATE OF EDGAR MONSERRATT MARTINEZ, Deceased, demands judgment against the Defendant, TESLA, INC. a/k/a TESLA FLORIDA, INC., for compensatory damages together with post-judgment interest and taxable costs incurred in this action. COUNT 111 NEGLIGENCE FAILURE TO WARN The Plaintiff, EDGAR MONSERRATT, as Personal Representative of THE ESTATE OF EDGAR MONSERRATT MARTINEZ, Deceased, realleges each and every allegation contained in paragraphs 1 through 15, and, by reference, further states: 41. At all times relevant herein, it was the duty of Defendant TESLA to exercise due care in the design, manufacture, assembly, distribution, and/or sale of the Vehicle, and in placing such Vehicle into the stream of commerce, so that such Vehicle would be reasonably safe for its 10 intended use and for other uses that were foreseeably probable. 42. At all times relevant herein, it was the duty of Defendant TESLA to ensure that the Vehicle that it placed in the stream of commerce was safe for use by its intended users and those persons who may foreseeably come into close proximity to it, such as the decedent, EDGAR MONSERRATT MARTINEZ. 43. At all times hereina?er mentioned and at the time of the incident complained of, Defendant TESLA failed to warn that the vehicle was defective in the manners and ways set forth herein: d) The Vehicle was not crashworthy; The Vehicle?s batteries were inherently unstable and subject to explosion and spontaneous ?re; The Vehicle?s batteries were inadequately protected and shielded; to wit: the battery pack of the Tesla Model was not treated with an intumescent material to protect and provide protection from the propagation of thermal runaway ?om one cell to adjacent cells; The Vehicle had inadequate measures to prevent a post-collision ?re; to wit: the battery pack of the Tesla Model was not treated with an intumescent material to protect and provide protection ?'om the propagation of thermal runaway from one cell to adjacent cells; The Vehicle was prone to extremely intense fires incapable of being timely extinguished; Defendant TESLA failed to warn anyone of the defective and unreasonably dangerous condition of the Vehicle; 11 g) The Vehicle was otherwise defective in ways which will be demonstrated by the evidence adduced during discovery. 44. Defendant TESLA designed, manufactured, assembled, distributed, sold and placed within the stream of commerce and market place the Vehicle, as hereinabove speci?cally described, the Vehicle intended to be used by the ultimate consumer, and TESLA knew, or with the exercise of reasonable care should have known, that the said Vehicle was negligently designed, manufactured and assembled. 45. Defendant TESLA negligently failed to give proper warnings to any purchaser or user of the Vehicle concerning its dangerous condition and propensities, or the fact that the Vehicle was unreasonably dangerous during use, and, as such, could cause injury to those persons in close proximity thereto. 46. Defendant TESLA negligently designed, manufactured, assembled, marketed, sold, and/or allowed to be used in the market place the aforesaid Vehicle without warnings as to its dangers and as to its proper use, and knew or should have known the aforesaid Vehicle, when used within the purposes for which it was designed, manufactured, and intended, was unreasonably dangerous and hazardous to those persons in close proximity thereto. 47. Defendant TESLA negligently failed to warn the consumer, user, operator, and those in the vicinity of said Vehicle of its extremely dangerous and hazardous characteristics, propensities, and defects, and, after placing said Vehicle on the market and allowing its use therein, failed to recall the said Vehicle ?om the market, said recall being necessitated because of said unreasonably dangerous and hazardous defects contained therein. 48. The decedent, EDGAR MONSERRATT MARTINEZ, was unaware of the aforesaid defects and dangerousness of said product which made such product unsafe for its intended and 12 foreseeable use, nor were such defects apparent by reasonable inspection. 49. As a direct and proximate cause of the negligence of Defendant the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages and EDGAR MONSERRATT as personal representative of the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, seeks the following damages on behalf of the ESTATE OF EDGAR MONSERRATT MARTINEZ: a) Funeral and burial expenses, b) Loss of net accumulations that would have been available to the Estate had the decedent lived for the duration of his natural life. 50. As a direct and proximate cause of the negligence of Defendant, TESLA, the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages and EDGAR MONSERRATT as personal representative of the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, seeks the following damages on behalf of EDGAR MONSERRATT as surviving father of EDGAR MONSERRATT MARTINEZ: a) EDGAR mental pain and suffering, mental anguish, inconvenience and loss of his son?s companionship and affection ?'om the date of his death up and through EDGAR normal life expectancy. 51. As a direct cause of the negligence of Defendant, TESLA, as afore alleged, the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, suffered the following damages and EDGAR MONSERRATT as personal representative of the ESTATE OF EDGAR MONSERRATT MARTINEZ, deceased, seeks the following damages on behalf of ESPERANZA MARTINEZ DE MONSERRATT as surviving mother of EDGAR MONSERRATT MARTINEZ: a) ESPERANZA MARTINEZ DE mental pain and suffering, mental 13 anguish, inconvenience and loss of her son?s companionship and affection ?om the date of his death up and through ESPERANZA MARTINEZ DE normal life expectancy. WHEREFORE, the Plaintiff, EDGAR MONSERRATT, as Personal Representative of the ESTATE OF EDGAR MONSERRATT MARTINEZ, Deceased, demands judgment against the Defendant, TESLA, INC. a/k/a TESLA FLORIDA, INC., for compensatory damages together with post-judgment interest and taxable costs incurred in this action. [Remainder of Page Intentionally Blank] l4 DEMAND FOR JURY TRIAL The Plaintiff in the above styled cause hereby demands a trial byjury of all of the issues triable by right. DATED this 8th day ofJanuary, 2019. Respect?illy submitted, ls/ Scott P. Schlesinger SCHLESIN GER LAW OFFICES, P.A. Scott P. Schlesinger, Esq. Florida Bar No.: 444952 scott@schlesingerlaw.com Jonathan R. Gdanski, Esq. Florida Bar No.: 0032097 ionathan@schlesingerlawcom Zane Berg, Esq. Florida Bar No.: 91317 zane@schlesin2erlaw.com 1212 SE. 3rd Avenue Fort Lauderdale, FL 33316 Telephone: 954.467.8800 Facsimile: 954.320.9509 -and- Philip Harnett Corbov. Jr. CORBOY DEMETRIO, RC. Philip Harnett Corboy, Jr. Pro-Hac Vice anticipated Illinois Bar No.: 3121633 fhc@corbovdemetrio.com 33 N. Dearborn Street Chicago, IL 60602 Telephone: (312) 346-3191 A TTORNEYS FOR PLAINTIFF