13 Fla. L. Weekly Supp. 645a
Insurance — Personal injury protection — Pleadings — Answer — Amendment — Timeliness — Motion to amend answer and affirmative defenses is denied — PIP suit had been pending for more than recommended resolution standard of 18 months at time insurer served motion to amend, case involves relatively small amount in dispute, medical provider already has been required to come to court several times on pretrial matters at behest of insurer and has incurred expenses of preparing for and attending mediation and arbitration, and insurer is unable to advise court as to legitimate reasons for significant delay in case
PHYSICIAN’S FIRST CHOICE INTERPRETATION, INC. (a/a/o Lisa Audevert), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 03-6788 COCE 53. March 27, 2006. Robert W. Lee, Judge. Counsel: Amir Fleischer, Fort Lauderdale, for Plaintiff. Wendy Brewster-Maroun, Coral Gables, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO AMEND ANSWER AND AFFIRMATIVE DEFENSES
THIS CAUSE came before the Court on March 24, 2006 for hearing of the Defendant’s Motion for Leave to Amend 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 involves a $300.00 dispute filed under the small claims rules on April 9, 2003. On May 21, 2003, the Defendant filed an answer which asserted three affirmative defenses. The case progressed through discovery. On August 26, 2004, the Plaintiff served its Notice of Trial. On September 1, 2004, this Court entered an Order striking one of Defendant’s three defenses as “not a valid defense.”
Just over two years after the case was filed, on May 20, 2005, this Court referred the matter to mediation, which was set for June 21, 2005. The Defendant failed to appear, and on July 8, 2005, this Court imposed sanctions against the Defendant. Mediation was reset to August 9, 2005, but the case did not settle.
On August 11, 2005, the Court referred the matter to arbitration, which was set by the arbitrator for October 13, 2005, then later reset to October 28, 2005, and then again to January 4, 2006. On January 17, 2006, the arbitrator served his sealed decision. On January 25, 2006, the Defendant filed its Motion for Trial de Novo.
The Defendant did not seek any depositions until December 1, 2005.
On January 27, 2006, the Court entered its Order Setting Pretrial Conference for March 29, 2006. On the same day, the Defendant filed its Motion for Leave to Amend Answer and Affirmative Defenses, which was set for hearing for March 24, 2006. The motion seeks to add defenses based on illegal patient brokering and/or fee-splitting in violation of Florida Statute §§817.505 and 627.736(5)(b)(1); another defense based on failure to maintain a medical director; and a third new defense based on insurance fraud.
On February 9, 2006, the Plaintiff filed its Motion for Final Summary Judgment, which was set for hearing for March 24, 2006.
The Motion to Amend was heard before the Court on March 24, 2006. At the hearing, defense counsel was unable to reasonably explain the lengthy delay in seeking to assert these defenses. The proffered defenses have been available for several years, and the Defendant significantly delayed taking depositions in this case. Moreover, the information presented at the hearing revealed that the Defendant had been or should have 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 far more than the 18-month period when the Defendant served its Motion. Additionally, as a county court case originally filed under the small claims rules, 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, including a sanction hearing for failure to comply with a court order. Moreover, the Plaintiff has already incurred the expense of preparing for and attending a mediation; preparing for and participating in an arbitration; preparing for and participating in a hearing on motion for summary judgment; and preparing for a pretrial conference.
The Defendant was unable to advise the Court as to any 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 amended affirmative defenses, almost three years after a case has been filed and is ready for trial. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Defendant’s Motion to Amend Answer and Affirmative Defenses is DENIED.
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