13 Fla. L. Weekly Supp. 960a
Insurance — Personal injury protection — Affirmative defenses — Striking — Abuse of discretion to sua sponte strike affirmative defense during pre-jury conference — Pleadings — Amendment — Abuse of discretion to not allow insurer to amend defenses to include other insurance where motion to amend was insurer’s first attempt to amend pleadings and amendment would not be unduly prejudicial, was significantly related to original claims and would not radically alter nature and scope of litigation — Summary judgment — Factual issue — Abuse of discretion to grant medical provider’s motion for summary judgment on issue of whether treatment was reasonable, related and necessary and deny insurer’s motion for summary judgment based on provider’s alleged improper use of portable x-ray machine where insurer’s motion presented material issue of disputed fact as to whether x-ray services were reasonable, related and necessary — Trial court erred in denying motion for rehearing of orders striking fraud defense and orders granting and denying motions for summary judgment where insurer presented sufficient circumstantial evidence in affidavit regarding material factual issue to grant motion for rehearing
ALLSTATE INSURANCE COMPANY, Appellant, vs. DIGITAL MEDICAL DIAGNOSTIC, (a/a/o Rosario Alvarez), Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 05-112 AP. L.T. Case No. 03-001633 SP 23. July 17, 2006. On appeal from the County Court for Miami-Dade County. Honorable Myriam Lehr. Counsel: Jacqueline G. Emanuel, for Appellant. Marlene S. Reiss, for Appellee.
(Before STUART M. SIMONS, JON I. GORDON, MARIA M. KORVICK, JJ.)
(PER CURIAM.) Appellant, Allstate Insurance Company, appeals the trial court’s order entered on April 29, 2004, the order denying Appellant’s summary judgment motion, the November 2, 2004 order granting of final summary judgment in favor of Digital Medical Diagnostic a/a/o Rosario Alvarez, Appellee, and the final judgment. This court has jurisdiction pursuant to Fla. R. App. P. 9.030(c)(1)(A) (2006). We reverse.
Standard of Review
The standard of review of an order granting summary judgment is de novo requiring the evidence be viewed in the light most favorable to the non-moving party. Sierra v. Shevin, 767 So. 2d 524 (Fla. 3d DCA 2000). A summary judgment requires there be no material issues of fact. Fla. R. Civ. P. 1.510(c) (2004). On review of an order of summary judgment the only question before the appellate court is whether “the record reflects the existence of any genuine issue of material fact, or possibility of an issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Christian v. Overstreet Paving Company, 679 So. 2d 839 (Fla. 2d DCA 1996).
Pre-Jury Conference
On April 29, 2004, the trial court sua sponte struck the Appellant’s fraud defense at the pre-jury conference. The trial court order stated that the only issue for trial was whether the treatment rendered was reasonable, related, and necessary. On June 8, 2004, the court heard the Appellant’s motion for rehearing of the April 29, 2004 court order. On June 9, 2004, the court denied the motion for rehearing stating:
The issue of the fraud defense was presented and discussed at the January 8, 2004 pre-jury conference with attorneys for both parties. After the court advised the parties that the evidence pertaining to the fraud defense presented was insufficient, the court granted defendant a continuance to explore alternative defenses.
On April 29, 2004, the matter of the fraud defense was presented and discussed again at the pre-jury conference. An order was entered striking the fraud defense. (R. 93-94.)
The trial court cannot sua sponte strike an affirmative defense during a pre-jury conference, unless a motion has been made by a party to strike the affirmative defenses. Bay Colony Office Bldg. Joint Venture v. Wachovia Mortg. Co., 342 So. 2d 1005, 1006 (Fla. 4th DCA 1977). Due process requirements are satisfied only where the parties were fully notified that the court would conduct the hearing, unless the parties waived notice. Muncey v. Star Brite Distributors, Inc.,378 So. 2d 1326 (Fla. 3d DCA 1980); Sharpe v. Sentry Drugs,505 So. 2d 618 (Fla. 3d DCA 1987); Lombard v. Executive Elevator Service, Inc., 545 So. 2d 453, 455 (Fla. 3d DCA 1989); United States Fidelity and Guaranty Company v. State Supply Company,548 So. 2d 893 (Fla. 3d DCA 1989); White v. Soni,550 So. 2d 75 (Fla. 3d DCA 1989); Farrel v. Republic of Columbia,589 So. 2d 972 (Fla. 3d DCA 1991); Fouts v. Bowling,596 So. 2d 95 (Fla. 3d DCA 1992). In the instant case, the trial court abused its discretion when it sua sponte struck the Appellant’s affirmative defenses.
During the pre-jury conference of April 29, 2004, the Appellant made an ore-tenus motion to amend its affirmative defense to include other applicable insurance, which they contend would be a complete bar to Plaintiff’s claim. (R. 87-88.) The trial court denied the ore-tenus motion to amend the answer at the pre-jury conference stating that the “[d]efense of other available insurance is stricken and excluded.” The ability to amend the pleadings after a responsive pleading has been served rests within the discretion of the court. Brown v. Montgomery Ward,252 So. 2d 817 (Fla. 1st DCA 1971). The Third District Court of Appeals noted that the general rule favors amendment in the interests of justice, however, when the amendment is unduly prejudicial, not significantly related to the original claims, or radically alters the nature and scope of litigation, the amendment should not be granted. Fla. R. Civ. P. 1.190 (2004); Carib Ocean Shipping, Inc. v. Armas,854 So. 2d 234 (Fla. 3d DCA 2003). This was the Appellant’s first attempt to amend his pleadings, and the amendment to include the other insurance would not be unduly prejudicial, was significantly related to the original claims, and would not radically alter the nature and scope of litigation. The trial court abused its discretion when it did not allow the Appellant to amend its defenses to include other insurance. Costa Bella Development Corp. v. Costa Development Corp.,445 So. 2d 1090 (Fla. 3d DCA 1984).
Summary Judgment
On May 27, 2004, Appellant filed a Motion for Summary Judgment. On July 21, 2004, Appellee filed a Motion for Final Summary Judgment. Both summary judgment motions were heard on October 25, 2004. On November 2, 2004, the trial court granted Appellee’s Motion for Final Summary Judgment on the remaining issue of whether the treatment was reasonable, related, and necessary. The record is void of any evidence that the trial court ruled upon the Appellant’s motion for summary judgment. According to the Appellant, the trial court denied his motion for summary judgment. Appellant’s motion for summary judgment was based upon the Appellee’s improper use of a portable or hand held x-ray machine for examinations in violation of the Florida Administrative Code. The Florida Administrative Code permits the use of portable or hand held x-ray machines for examinations “where it is impracticable to transfer the patient to a stationary radiographic installation.” Fla. Admin. Code § 64E-5.502(1)(a)(8)(c) (2004). The Appellee’s alleged use of the x-ray machine in violation of the law would go to whether the treatment was reasonable, related, and necessary. Appellant’s aforementioned argument presented a material issue of fact, because if proven, the Appellant would not be obligated to pay the Appellee for services rendered. Thus, we hold that the trial court abused its discretion when it granted Appellee’s motion for summary judgment, and denied Appellant’s motion for summary judgment.
On November 4, 2004, the Appellant filed a motion for rehearing on the trial court’s April 29, 2004 order, the order denying Appellant’s summary judgment motion, and the November 2, 2004 order granting final summary judgment. On February 1, 2005, the trial court denied the motion for rehearing. The trial court erred in denying the motion for rehearing, as the Appellant presented enough circumstantial evidence in its affidavit1 of the existence of a material factual issue to grant the motion for rehearing. Fla. R. Civ. P. 1.530 (2004); Mendez v. West Flagler Family Ass’n, Inc.,303 So. 2d 1 (Fla. 1974) (Motions for rehearing of summary judgments are allowable under Fla. R. Civ. P. 1.530.); McGowan v. Miami-Dade County, 724 So. 2d 683 (Fla. 3d DCA 1999) (The affidavits submitted with the motion for rehearing established a basis to reverse the trial court’s summary judgment order.).
The January 24, 2004 order, the order denying Appellant’s Summary Judgment, the order granting Appellee’s Final Summary Judgment, and the order of Final Judgment are vacated. Appellee’s motion for appellate attorney’s fees is denied. This cause is reversed and remanded to the trial court for further proceedings in accordance with this opinion.
REVERSED AND REMANDED.
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1The affidavit filed on November 4, 2004, along with the motion for rehearing provides that:
Ana Fernandez was the driver of a vehicle involved in an accident of June 25, 2002. She received chiropractic treatment from No More Pain Clinic, a clinic that is no longer operating. Danielle Morse, D.C. prescribed X-rays for Ms. Fernandez that were taken on a portable X-ray machine by Digital Medical Diagnostic. Ms. Fernandez assigned here rights for payment of the X-rays to Digital Medical Diagnostic. Allstate refused payment of the Digital bill. The Court in ruling at Pre-jury hearing on April 2004 did not consider the testimony of the Allstate adjuster David Bierman whose deposition was taken on August 6, 2003. Mr. Bierman testified that the Digital bills were not paid for the following reasons: “One is that Ms. Rosario lived with her brother, has two cats. And two, we reason to believe this auto accident was a staged event.” (Tr. Depo Bierman 7:23 to 8:1.) The driver of the rented U-Haul truck, Daniel Rodriguez lived at. . . .the same address as Digital’s assignor, Ana Fernandez. Mr. Bierman investigated the claim and has communicated with the Miami-Dade State Attorney’s Office concerning similar claims involving U-Haul trucks that have been involved in staged accidents. According to this witness, the accident involving Ana Fernandez has several indicia of fraud. The court was not provided with this testimony or the evidence of fraud before striking this defense because counsel for Allstate was not given appropriate notice that the defense was subject to being stricken at the Pre-Jury Conference. (R. 121-124.)
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