10 Fla. L. Weekly Supp. 345a
Insurance — Motion to strike affirmative defense that independent medical examination and additional physician’s review of injuries and treatment found that injuries were not related to motor vehicle accident — Motion to strike denied based on finding that defense presented bona fide question of fact — Affirmative defense can be revisited by court after parties conduct discovery through motion for summary judgment
JAMES B. DOLAN, M.D. a/s/o LAUREN DANIELS, Plaintiff, vs. AMERICAN INTERNATIONAL INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 02-6863 CC, Division B. March 6, 2003. Roberto A. Arias, Judge. Counsel: Kevin J. Loftus, Jacksonville, for Plaintiff. Coretta S. Anthony, Orlando, for Defendant.
ORDER DENYING MOTION TO STRIKE AFFIRMATIVE DEFENSE
THIS CAUSE came on to be heard upon the Plaintiff’s Motion to Strike the Affirmative Defense. This Court heard arguments of counsel for the Plaintiff, Kevin J. Loftus, Esquire and for Defendant, Coretta S. Anthony, Esquire. Further, the Court has reviewed the case law that was provided as support for their arguments by the respective parties’ attorneys. Based upon the arguments presented and the case law submitted, the Court finds that:
A. The Defendant has alleged an affirmative defense in which they allege facts supporting their affirmative defense that an independent medical examination by physician found that the symptoms were not related to the motor vehicle accident as well as an additional physician’s review of the injuries and treatment received by the Plaintiff which also opined that the injuries were not related to the motor vehicle accident of October 22, 1999 which formed the basis for the lawsuit.
B. This Court considers affirmative defenses to be in the nature of confession and avoidance. That is, affirmative defenses are typically ones that admit entitlement to relief by the Plaintiff, but raise defenses or facts which, if proven, would avoid the Judgment to be entered against the Defendant. Such is the case as the defenses of statute of limitations, payment, accord and satisfaction, etc. Having said that, the Court finds that the affirmative defense raised in this case alleges a sufficient defense presenting a bona fide question of fact making it improper to strike it through a Motion to Strike. Pentecostal Holy Church, Inc. v. Florida Conference of Pentecostal Holiness Church, Inc ., 270 So.2d 762 (Fla. 4th DCA 1972); Citizens in Souther Realty Investors v. Lastition, 330 So.2d 357 (Fla. 4th DCA 1976); Hulley v. Cape Kennedy Leasing Corp., 376 So.2d 884 (Fla. 5th DCA 1976). However, the affirmative defense, while not subject to being stricken by way of granting a Motion to Strike, could be revisited by this Court after the parties conduct discovery through a Motion for Summary Judgment.
For the above stated reasons, it is, hereby
ORDERED AND ADJUDGED:
The Plaintiff’s Motion to Strike is hereby DENIED.
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