12 Fla. L. Weekly Supp. 583a
Insurance — Personal injury protection — Pleadings — Answer — Amendment — Motion to file second amended answer and affirmative defenses is denied where action had already been pending 18 months when motion was served, medical provider has already had to come into court several times on pretrial matters at behest of insurer, and insurer was unable to advise court of reasons for significant delay in case
STAND UP MRI OF FORT LAUDERDALE, P.A. (a/a/o Jo Lynn Whitmer), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-20004 COCE 53. March 21, 2005. Robert W. Lee, Judge. Counsel: Andrew J. Weinstein, Coral Springs, for Plaintiff. Jenna T. Hackman, Deerfield Beach, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR LEAVETO FILE SECOND AMENDED ANSWER ANDAFFIRMATIVE DEFENSES
THIS CAUSE came before the Court on March 18, 2005 for hearing of the Defendant’s Motion for Leave to File Second Amended Answer and 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 31, 2003. On October 30, 2003, the Defendant filed an answer which asserted eight affirmative defenses. On February 6, 2004, the Defendant served its Notice of Withdrawal of Affirmative Defenses. By Order dated February 24, 2004, the Court required the Defendant to file an Amended Answer within 30 days. On March 1, 2004, the Defendant served its Answer and Affirmative Defenses which asserted 3 affirmative defenses. Almost a year later, on February 7, 2005, the Defendant served its Motion for Leave to File Second Amended Answer and Affirmative Defenses. In the Motion, the Defendant requested leave to file the defense of exhaustion of benefits. The matter was set for hearing for March 18, 2005. At the hearing, defense counsel was unable to explain the delay in seeking to assert this defense.
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. 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 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
DONE AND ORDERED at Fort Lauderdale, Broward County, Florida, this 21st day of March, 2005.
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