13 Fla. L. Weekly Supp. 797a
Insurance — Personal injury protection — Complaint — Amendment — Medical provider’s name — Abuse of discretion to deny medical provider’s motion to amend complaint to correct omission of word “Centers” from provider’s name and to enter summary judgment in favor of insurer based on named plaintiff, which is real corporation, not being real party in interest and not suffering any damages — Fact that insurer correctly named provider in caption to its response to request for admissions established that insurer had no illusions as to identity of proper plaintiff
MOBILE DIAGNOSTIC CENTERS, INC., (captioned in this action as MOBILE DIAGNOSTICS, INC.), a/a/o Susan Shepard, Appellant, vs. GEICO INDEMNITY COMPANY, Appellee. Circuit Court, 18th Judicial Circuit (Appellate) in and for Seminole County. Case No. 05-126-AP. May 16, 2006. Appeal from the County Court for Seminole County, Honorable John R. Sloop, County Court Judge. Counsel: Thomas A. Player, Weiss Legal Group, P.A., Maitland, for Appellant. Robert D. Bartels, Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellee.
[Lower court order at 12 Fla. L. Weekly Supp. 890b.]
(NELSON, D., J.) Appellant Mobile Diagnostic Centers, Inc. (“MDC”) appeals from a Final Summary Judgment for Appellee Geico Indemnity Company (“Geico”) and the denial of MDC’s motion for leave to amend its complaint. This Court reverses and remands.
During discovery, it came to the attention of MDC’s attorney that there had been a scrivener’s error in the caption of MDC’s complaint, which erroneously omitted part of MDC’s name from the caption. Coincidentally, the resulting name of “Mobile Diagnostics, Inc.” is a different corporation that is not a party to this suit.
MDC’s motion for leave to amend the complaint and Geico’s motion for summary judgment were heard on June 9, 2005 by Judge Sloop. Judge Sloop denied the motion for leave to amend, holding that this would not merely correct a scrivener’s error, but would substitute parties and circumvent the pre-suit requirements of Florida Statute §627.736. Judge Sloop granted Geico’s motion for summary judgment, finding that the plaintiff was the Pensacola corporation and not MDC.
The case of Emerson Realty Group, Inc. v. Schanze, 572 So.2d 942 (Fla. 5th DCA 1990) is identically on point with this case. In Emerson, the word “Group” was erroneously omitted in the caption. The resulting “Emerson Realty, Inc.” was coincidentally a real corporation located in Gainesville which had nothing to do with the pending suit. The Fifth District Court of Appeals held “The two corporations were entirely different, and were not related in any way. After three years of litigation and discovery, not one defendant can claim surprise or prejudice. Everyone knew who the real plaintiff in this lawsuit was. A simple amendment to add the additional word ‘Group’ to the plaintiff’s corporate name in the pleadings would have sufficed.” Id.
“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 Co-op Bank, 592 So.2d 302, 305 (Fla. 1st DCA 1991). Courts should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment. Id. Refusal to allow amendment of a pleading “constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.” Id. No such criteria have been demonstrated here, and as such, the denial of the motion for leave to amend was an abuse of discretion.
Geico filed an affidavit in support of its motion for summary judgment provided by Mobile Diagnostics, Inc. (the company whose name resulted from the erroneous omission in the caption). The affidavit establishes that Mobile Diagnostics did not file this action. Further, Geico correctly named MDC in the caption of its response to MDC’s request for admissions. Geico continued to litigate this action for two years prior to moving for summary judgment. Geico’s very own evidence establishes that they had no illusions as to the identity of the proper party plaintiff, and instead go to great lengths to avoid a decision on the merits of the case.
The trial court based its findings in granting summary judgment for Geico on the conclusion that Plaintiff (the erroneously-named Mobile Diagnostics) was “not the real party in interest,” “has not sustained any damages,” and “failed to satisfy conditions precedent.” These conclusions resulted from the fact that Mobile Diagnostics was not the proper Plaintiff in this case. Both parties and the court were aware of the error, which MDC attempted to correct by filing its motion for leave to amend. The court improperly denied this motion, and subsequently erroneously entered summary judgment in favor of Geico. Had the pleadings been amended, the case could have been properly decided on its merits.
ACCORDINGLY the Final Summary Judgment is REVERSED, and the case REMANDED for proceedings not inconsistent with this decision.1
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1The Court also notes that it is within the Court’s discretion to order sanctions for any further abuse of the Rules of Appellate Procedure.
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