14 Fla. L. Weekly Supp. 184a
Insurance — Personal injury protection — Affirmative defenses — Striking — Affirmative defense claiming insured failed to fulfill all conditions precedent by not attending sworn statement is not pled with sufficient specificity and is stricken without prejudice — Affirmative defense alleging that medical provider’s fee for MRI was not reasonable and is in excess of allowable amount under Medicare Part B fee schedule is stricken with prejudice because assertion that MRI fee is unreasonable does not excuse payment in entirety
DAMADIAN MRI IN POMPANO BEACH, P.A., d/b/a STAND UP MRI OF FORT LAUDERDALE, (Tanzara Easton, Patient), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 06007384(55). December 22, 2006. Eric Beller, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Wendy Brewster Maroun, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
THIS CAUSE came before the Court on August 28, 2006 for hearing on the Plaintiff’s Motion to Strike Defendant’s Answer and Affirmative Defenses; the Court having reviewed the Motion and entire court file; heard arguments; reviewed relevant legal authorities; and been sufficiently advised in the premises, the Court finds as follows:
Background:
1. The instant cause of action arises out of a personal matter occurring on or about June 18, 2004.
2. The Plaintiff DAMADIAN MRI IN POMPANO BEACH P.A., d/b/a STAND UP MRI OF FORT LAUDERDALE, filed its Complaint on or about November 23, 2005.
3. On or about February 28, 2006 the Defendant UNITED AUTOMOBILE INSURANCE COMPANY (hereinafter “UNITED”) filed its Answer and Affirmative Defenses to the Plaintiff’s Complaint.
4. On July 7, 2006, the Plaintiff filed a Motion to Strike Defendant’s Answer and Affirmative Defenses.
Conclusions of Law:
5. Defendant’s first affirmative defense contends that the claimant in the instant case failed to fulfill all conditions precedent by not attending a sworn statement. Courts have repeatedly reinforced that in order for conditions precedent to be properly raised they must be pled with specificity. Pursuant to Florida Rule of Civil Procedure 1.120(c), in pleading a denial of performance or occurrence of a condition precedent, it shall be made specifically and with particularity. Id. When an adverse party is claiming a condition precedent was not complied with, it must do so with detail. See San Marco Contracting Co. v. State Dept. of Trans., 386 So. 2d 615 (Fla. 5th DCA 1980). Defendant’s first affirmative defense is stricken without prejudice, and Defendant is to amend with the required specificity within 5 days.
6. Defendant’s second affirmative defense alleges that the fee regarding Plaintiff’s claim was not reasonable, and is in excess of the allowable amount under Medicare Part B Fee Schedule. Defendant’s assertion that the fees are unreasonable does not excuse payment in its entirety when the claim at issue is an MRI. “Insurer remains obligated to pay the amount allowed under the statutory fee scheme based on percentage of coverage afforded under the policy”. United Automobile Insurance Co. Inc., v. A-1 Mobile MRI, Inc., 12 Fla. L. Weekly Supp. 548b. Defendant stipulated to this at the hearing. Defendant’s second affirmative defense is stricken with prejudice.
Accordingly, it is ORDERED AND ADJUDGED, that Defendant’s First Affirmative Defense is stricken without prejudice and may be amended as set forth herein, and Defendant’s Second Affirmative Defense is stricken with prejudice.
