12 Fla. L. Weekly Supp. 792b
Insurance — Personal injury protection — Coverage — Affirmative defenses — Amendment — Timeliness of motion — Where case had already been pending for 18 months when insurer filed motion to amend affirmative defenses to allege material misrepresentation, case involves relatively small amount in dispute, medical provider has already been required to come to court several times on pretrial matters at behest of insurer, and insurer is unable to advise court of legitimate reasons for significant delay in case, motion to amend affirmative defenses is denied
KAM HABIBI, D.C., P.A. (a/a/o Marie Doresca), Plaintiff, vs. ALLSTATE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-14688 COCE 53. May 31, 2005. Robert W. Lee, Judge. Counsel: Nichole S. Pacella, Fort Lauderdale, for Plaintiff. Gregory P. Hengber, Fort Lauderdale, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO AMEND AFFIRMATIVE DEFENSES
THIS CAUSE came before the Court on May 20, 2005 for hearing of the Defendant’s Motion for Leave to Amend Affirmative Defenses, and the Court’s having reviewed the Motion and entire Court file; heard argument; reviewed the relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background: This county court case was filed on July 29, 2003. On September 3, 2003, the Defendant filed an answer which asserted six affirmative defenses. By Order dated November 21, 2003, the Court entered its Order striking the affirmative defenses and providing 15 days to file an amended answer. The Defendant failed to do so. By Order dated February 27, 2004, the Court entered its second Order Striking Defendant’s Affirmative Defenses, providing twenty (20) days to file a unified answer setting forth two affirmative defenses. The Defendant once again failed to do so.
On April 16, 2004, the Court issued its Pretrial Order and Order Setting Jury Trial. On April 20, 2004, the Court issued its Order Striking Defendant’s Affirmative Defenses with prejudice and placing Defendant in a “general denial posture” at trial.
On April 27, 2004, the Defendant served its Motion for Continuance of Trial, asserting that it was unable to timely comply with the Court’s Pretrial Order.
Finally, on April 30, 2004, the Defendant served its Amended Affirmative Defenses. The same day, the Defendant served its Motion for Relief from Court’s Order Striking Defendant’s Affirmative Defenses. At a hearing held on May 20, 2004, the Court granted the Motion and deemed the Amended Affirmative Defenses filed as of May 14, 2004. On the same day, the Court granted the Defendant’s Motion for Continuance of Trial.
On May 4, 2004, the Defendant filed its Motion for Final Summary Judgment arguing that the failure to Plaintiff to have a Broward County Occupational License barred its recovery of benefits.
On June 14, 2004, the Defendant filed its Amended Motion for Final Summary Judgment which was denied by court order dated September 1, 2004, and which likewise struck the Defendant’s second affirmative defense.
On September 1, 2004, this Court entered its Order resetting trial for the week of October 25, 2004, but removed it on October 1 due to incomplete discovery.
On October 8, 2004, the Plaintiff filed its Motion for Partial Summary Judgment on the issue of whether the medical treatment rendered was reasonable, related, and necessary, and another Motion for Partial Summary Judgment on the Defendant’s first affirmative defense relating to the countersignature requirement.
On October 11, 2004, the Defendant filed its Motion for Leave to Amend Affirmative Defenses, to assert issues pertaining to recordkeeping. On October 15, the Plaintiff filed its Objection to this Motion.
On February 16, 2005, the Court heard the Plaintiff’s Motion for Partial Summary Judgment. On February 25, 2005, the Court entered an Order Granting in Part Plaintiff’s Motion on several matters pertaining to reasonable, related, and necessary. [12 Fla. L. Weekly Supp. 495a]
On March 9, 2005, the Plaintiff filed its further Motion for Partial Summary Judgment. The Court set the matter for hearing for April 18, 2005, after which the Court entered an Order Granting Plaintiff’s Motion.
At no point prior to this did the Defendant set its Motion to Amend Affirmative Defenses for hearing.
On April 27, 2005, after completion of mediation and arbitration, the Defendant served another Motion for Leave to Amend Affirmative Defenses based on an alleged material misrepresentation. The matter was heard before the Court on May 20, 2005. At the hearing, defense counsel was unable to reasonably explain the lengthy delay in seeking to assert this defense. Moreover, the information presented at the hearing revealed that the Defendant had been aware of the substance of the proffered affirmative defenses for quite some time, but has been unreasonably dilatory in seeking to amend its answer.
Conclusions of Law: As pertains to this case, “a party may amend a pleading only by leave of court or by written consent of the adverse party. Leave of court shall be given freely when justice so requires.” Rule 1.190(a), Fla. R. Civ. P. The Plaintiff has strongly objected to the amendment. Granting or denying a motion to amend a complaint lies with the discretion of the court. B.P. Development and Management Corp. v. P. Lafer Enterprises, Inc., 538 So.2d 1379, 1382 (Fla. 5th DCA 1989). In exercising such discretion, the Court must consider the prejudice, if any, to the Defendant if the amendment is permitted. Rule 1.190(a), author’s comment (1967). The test of prejudice is the primary, but not only, consideration. New River Yachting Center, Inc. v. Bacchiochi, 407 So.2d 607, 609 (Fla. 4th DCA 1981); Cousins Restaurant Associates v. TGI Friday’s, Inc., 843 So.2d 980, 982 (Fla. 4th DCA 2003).
In considering prejudice, the Court must consider the timeliness of the motion. A motion to amend a complaint must be made promptly. Griffin v. Societe Anonyme, 53 Fla. 801, 830, 44 So. 342, 351 (1907). As noted by the Third District Court of Appeal:
While the policy of Florida is to liberally allow amendments to pleadings where justice so requires, [. . .] a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished [. . .]. [T]here is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached.
Alvarez v. DeAguirre, 395 So.2d 213, 216 (Fla. 3d DCA 1981). In one case, a seven-month delay in filing a motion to amend warranted the denial of the motion. New River Yachting, 407 So.2d at 608-09. In another, an eight month delay warranted denial. Avis Rent A Car Systems, Inc. v. Hubbell, 11 Fla. L. Weekly Supp. 257 (Broward Cty. Ct. 2004).
The Court also keeps in mind that this is a civil case, with a recommended resolution standard of 18 months. Rule 2.085(e)(1)(B). In the instant case, the matter had already been pending for the 18 month period when the Defendant served its Motion. Additionally, as a county court case, this case involves a relatively small amount in dispute. Moreover, the Plaintiff has already had to come to court several times on pretrial matters at the behest of the Defendant. The Defendant was unable to advise the Court as to the legitimate reasons for the significant delay in this case. For all these reasons, and considering the case law cited above, the Court declines to exercise its discretion to allow the Defendant to file an amended affirmative defense. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion to Amend Affirmative Defenses is DENIED.
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