12 Fla. L. Weekly Supp. 40a
Insurance — Personal injury protection — Complaint — Amendment — Denial — Abuse of discretion to deny medical provider’s motion to amend complaint where provider had filed only one original complaint which it sought to amend once, and there was no surprise or prejudice to insurer since allegations in amended complaint were identical to those of original complaint and proposed amendment was to assert valid cause of action for breach of contract to which insurer had already raised defenses in answer to original complaint — Claims — HCFA form — Countersignature — Error to enter summary judgment against provider on claim for declaratory relief on issue of necessity of countersignature on HCFA forms where courts have uniformly interpreted countersignature provision in section 627.736(5)(a) as permitted, not mandatory, mechanism that does not require insured’s signature when benefits have been assigned to provider
D & S CHIRO REHAB CENTER, INC., a/a/o/ Jose Oliva, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-502 AP. L.C. Case No. 01-17288 SP (23). October 19, 2004. An Appeal from the County Court for Miami-Dade County, Linda Singer Stein, Judge. Counsel: Kate G. Burnett of Kate G. Burnett, P.A., for Appellant. Erick G. Belsky, for Appellee.
(Before CARNEY, RODRIGUEZ and MURPHY, JJ.)
(MURPHY, Judge.) Appellant, D & S Chiro Rehabilitation Center Inc., appeals the trial court’s orders denying its Motion to Amend the Complaint, Motion for Attorney’s Fees and granting Appellee’s, United Automobile Insurance Company’s Motion for Final Summary Judgment.
Jose Oliva sustained injuries in an automobile accident while insured by Appellee, United Auto. He sought medical treatment for his injuries at Appellant, D & S Chiro’s, facility. Thereafter, Mr. Oliva assigned his benefits under Appellee’s policy to Appellant. Subsequent to the assignation, D & S Chiro submitted medical bills to Appellee for the medical treatment that it provided to Oliva. United Auto denied payment.
Due to Appellee’s failure to pay, Appellant filed a complaint for personal injury protection insurance benefits, PIP. Appellee, then, filed an Answer denying the allegations within Appellant’s complaint, and asserting inter alia as an affirmative defense, that Appellant’s claims forms submitted for payment failed to contain Oliva’s signature attesting to the fact that he received the alleged treatments.
Thereafter, Appellee filed a Motion to Dismiss alleging a prior pending duplicate action. The trial court denied the motion. Consequently, Appellee filed another motion to dismiss alleging that Appellant had no standing to sue. The trial court also denied this motion. Notwithstanding the prior filed motion to dismiss, Appellee filed yet another motion to dismiss alleging failure to state a cause of action. Accordingly, Appellant agreed to voluntarily dismiss its counts for conversion and civil theft. The trial court then entered its order denying Appellee’s motion with respect to Appellant’s count for declaratory relief.
Shortly thereafter, Appellee filed its Motion for Summary Judgment and Applicable Law in Support Thereof as to Appellant’s declaratory relief count. Subsequently, Appellant filed its Motion to Amend along with an Amended Complaint. Thereafter, Appellee filed a Memorandum of Law in Opposition to Appellant’s Motion to Amend Complaint. Accordingly, the trial court entered an order denying Appellant’s Motion to Amend Complaint and granting Appellee’s Motion for Final Summary Judgment. Consequently, Appellant filed its Motion for Rehearing Clarification Renewed Motion for Leave to Amend and a Motion for Entry of Judgment in Appellant’s Favor. The trial court denied Appellant’s motions. This appeal followed.
Appellant alleges that the trial court abused its discretion by not granting the requested leave to amend. We agree. Pursuant to Fla. R. Civ. P. 1.190(a), “leave of the court [to amend pleadings] shall be given freely when justice so requires”. “Ordinarily, a ruling on a motion to amend the pleadings rest within the sound discretion of the trial court . . . which will not be overturned unless abuse is demonstrated.” Holy Temple Church of God in Christ, Inc. v. Maxwell, 578 So. 2d 877, 878 (Fla. 1st DCA 1991); Azemco (North America), Inc. v. Brown, 553 So. 2d 1245 (Fla. 3d DCA 1989); Horacio O. Ferrea N. Am. Div., Inc. v. Moroso Performance Prods., Inc., 553 So. 2d 336, 337 (Fla. 4th DCA 1989). However, “all doubts should be resolved in favor of allowing amendment. It is the public policy of this state to freely allow amendments to pleadings so that cases may be resolved upon their merits.” Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Cooperative Bank, 592 So. 2d 302, 305 (Fla. 1st DCA 1991), rev. dismissed, 598 So. 2d 76 (Fla. 1992) (quoting Adams v. Knabb Turpentine Co., 435 So. 2d 944, 946 (Fla. 1st DCA 1983)).
In this instance, the trial court abused its discretion by not granting the requested leave to amend. Courts should be especially liberal when leave to amend “is sought at or before a hearing on a motion for summary judgment.” Montero v. Compugraphic Corp., 531 So. 2d 1034, 1036 (Fla. 3d DCA 1988). Appellant clearly has not abused its amendment privilege having filed only one original complaint which it sought to amend once. Even though abuse of the privilege to amend does not rest on the number of chances a party has been given to amend, but on the possible prejudice to the non-moving party, it is worth noting here that Appellant was not permitted to amend its complaint. See Penn Cork & Closures, Inc. v. Piggyback Shippers Ass’n of Florida, Inc., 281 So. 2d 46, 47 (Fla. 3d DCA 1973).
Further, it is hard to conclude, after reviewing the record below, how the proposed amendment could have prejudiced Appellee. The Appellant’s allegations in the proposed amended complaint were identical to that of the original complaint. In fact, the only reason for the proposed amendment was to assert a valid cause of action for breach of contract. Appellee could not have been surprised or prejudiced by Appellant’s breach of contract claim as Appellee raised defenses to such claims earlier in its answer to the complaint. See, Pasekoff v. Kaufman, 392 So. 2d 971, 976 (Fla. 3d DCA 1981); Plyser v. Hados, 388 So. 2d 1284 (Fla. 3d DCA 1980).
Appellant further argues that the trial court erred in granting Appellee’s motion for final summary judgment. Specifically, Appellee failed to demonstrate that Appellant’s claim for declaratory relief on the countersignature issue failed as a matter of law. We agree with Appellant’s contention.
The standard of review for a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524, 525 (Fla. 3d DCA 2000). It is well settled that the moving party has the initial burden of demonstrating the nonexistence of a genuine issue of material fact. Ramos v. Wright Superior Inc., 610 So. 2d 46, 48 (Fla. 3d DCA 1992). Thus, summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c).
In the instant case, the trial court erred in granting Appellee’s motion for final summary judgment. The record below indicates that there was a genuine issue as to the interpretation of the countersignature requirement in section 627.736(5)(a). Contrary to Appellant’s position, Appellee argued below that section 627.736(5)(a) requires that all HCFA forms 1500 submitted by Appellant be countersigned by the insured before its obligation to pay arises.
Appellee’s argument fails as a matter of law. Circuit courts have uniformly interpreted the countersignature provision in section 627.736(5)(a) as a permitted, not mandatory, mechanism that does not require the insured’s signature on the reimbursement form, where the insured has assigned their benefits to the medical provider. See Hialeah Med. Assocs., Inc. v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 738b (Fla. 11th Cir. Ct. 2002); Total Health Care of Fla., Inc. v. United Auto Ins. Co., 9 Fla. L. Weekly Supp. 659a (Fla. 11th Cir. Ct. 2002), cert. denied 848 So. 2d 330 (Fla. 3d DCA 2003). Likewise, county courts are in near unanimous agreement that section 627.736(5)(a) does not require HCFA form 1500 to be countersigned by the insured prior to the insurance company acquiring an obligation to pay. See, e.g., Medical Specialist v. United Auto. Ins. Co., 9 Fla. L. Weekly Supp. 708 (Fla. Orange Cty. Ct. 2002); USA Diagnostics, Inc. v. Star Casualty, 9 Fla. L. Weekly Supp. 410b (Fla. Broward Cty. Ct. 2002); South Florida Open MRI v. United Auto Ins. Co., 9 Fla. L. Weekly Supp. 397 (Fla. Dade Cty. Ct. 2002); Choice Medical Center v. Seminole Cas. Ins. Co., 9 Fla. L. Weekly Supp. 196 (Fla. Palm Beach Cty. Ct. 2002). In the face of such law, the Fourth District Court of Appeal has refused certiorari review observing that “given the plethora of cases uniformly interpreting the statute, we elect not to exercise our discretionary jurisdiction.” Star Cas. v. U.S.A. Diagnostics, Inc., 855So.2d 251, 253 (Fla. 4th DCA 2003).
Moreover, it is important to note that although there exists a small number of cases which may be interpreted to support the Appellee’s position, these cases are distinguishable from the present facts. See Hartford Ins. v. St. Mary’s Hospital, 771 So. 2d 1210 (Fla. 4th DCA 2000) (an employee of the hospital signed the assignment of benefits on behalf of the insured due to the insured’s condition); Security National Ins. Co. v. Biotronix, 6Fla. L. Weekly Supp. 314 (Fla. 11th Cir. Ct. 1999) (court found that a form with “signature on file” did not attest to anything and the provider did not reveal that there was an assignment of benefits until three months after it had filed suit).
In light of the above, Oliva’s failure to countersign the HCFA forms does not discharge Appellee’s obligation to pay PIP benefits for the medical care and treatment provided by Appellant. Thus, the trial court erred in granting Appellee’s Motion for Summary Judgment, and its ruling is reversed.
Lastly, Appellant’s motion for Appellant’s attorney’s fees is granted conditioned up the trial court finding in its favor on the initial cause of action. Section 627.428 of the Florida Statute states in pertinent part:
(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had. Fla. Stat. § 627.428 (1995).
The plain language of the statute authorizes the appellate court to “adjudge or decree against the insurer and in favor of the insured or its beneficiary a reasonable sum as fees or compensation when prosecuting the suit in which recovery is had.” Section 627.428(1), Fla. Stat. (1995). When examining the plain language of Section 627.428(1), the insured must prevail with a recovery on the policy to be entitled to attorney’s fees. Further, appellate attorney’s fees may not be awarded prior to resolution of a case on its merits. Allstate Ins. Co. v. De La Fe, 647 So. 2d 965 (Fla. 3d DCA 1994). In short, a court should grant attorney’s fees conditioned upon the insured ultimately prevailing with a recovery on the policy. Tench v. American Reliance Ins. Co., 671 So. 2d 801, 802 (Fla. 3d DCA 1996).
Here, Appellant D & S Chiro accepted an assignment of benefits from the insured, Oliva, thereby retaining all the legal rights of the insured. Clearly, this action falls within the scope of section 627.428 of the Florida Statutes. Thus, Appellant D & S Chiro is entitled to attorney’s fees under this section if it ultimately prevails with a recovery on the policy.
Based on the foregoing, we REVERSE the trial court’s order and REMAND this matter for further proceedings consistent herewith. (CARNEY, and RODRIGUEZ, JJ., concur.)
* * *
