14 Fla. L. Weekly Supp. 478a
Insurance — Personal injury protection — Discovery — Privilege — Waiver — Insurer’s work product and attorney-client privilege objections are deemed waived where insurer failed to file privilege log for more than 8 months after medical provider propounded request to produce, log produced is incomplete and confusing due to use of acronyms and abbreviations and does not contain required information necessary to distinguish between valid privileges and frivolous claims to avoid discovery, and at hearing insurer could not raise single argument that validated claim of work product privilege
MARTINEZ CHIROPRACTIC CENTER, INC., a/a/o OKSANA KOS, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-4365 CONO (70). February 20, 2007. Stephen P. DeLuca, Judge. Counsel: Andrew J. Weinstein, Weinstein & Associates, P.A., Coral Springs, for Plaintiff. Orlando Ortiz, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTION TO STRIKE DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
THIS CAUSE came before the Court on September 26, 2006 for hearing of Plaintiff’s Motion to Strike Defendant’s Third Affirmative Defense and Sanctions, the Court having reviewed the Motion and entire Court file; heard argument; reviewed relevant legal authorities; and been sufficiently advised on the premises, the Court finds as follows:
1. On February 21, 2004, Oksana Kos was involved in a motor vehicle accident in which she sustained injuries.
2. As a result of these injuries, Ms. Kos sought medical treatment from the Plaintiff, MARTINEZ CHIROPRACTIC CENTER (hereinafter “MARTINEZ”) on February 24, 2004, and executed a valid Assignment of Benefits to the Plaintiff.
3. The Plaintiff filed its complaint on October 23, 2005.
4. The Defendant filed its Amended Answer and Affirmative Defenses on January 4, 2006.
5. Defendant’s Third Affirmative Defense states, “Defendant alleges it is not responsible for the bills submitted by the provider based on fraud committed by the Plaintiff. Specifically, Defendant alleges that Plaintiff billed for services not rendered [herein Defendant lists dates of service]. . . For the listed dates, the insured has signed and dated the sign out sheet devoid of any indication that services were rendered.” Defendant contends that the insured’s signature on a sheet without a listing of treatments is tantamount to the indication that no treatments were rendered on those dates. Therefore, Defendant asserts, “Defendant is relieved of its obligation to pay based on fraud committed by the Plaintiff”.
6. Plaintiff filed a Motion to Strike Defendant’s Third Affirmative Defense and for Sanctions on September 7, 2006.
7. Florida Rule of Civil Procedure 1.120(b) states, “In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with such particularity as the circumstances may permit.” The rule in Florida has long been that, whenever fraud is relied upon, allegations thereto should be specific and facts constituting fraud should be clearly stated, Kutner v. Kalish, 173 So.2d 763 (Fla. 3rd DCA 1965). Failure to allege fraud with particularity is grounds for the dismissal of the claim, General Dynamics Corp. v. Hewitt, 225 So.2d 561 (Fla. 3rd DCA 1979). The elements of fraud are —
a. Misrepresentation of a material fact,
b. Knowledge that misrepresentation is false,
c. Intention that the other party rely,
d. Justifiable reliance, and
e. Resulting injury or damage.
See Eastern Cement v. Halliburton Co., 600 So.2d 469 (Fla. 4th DCA, 1992); Arnold v. Weck, 388 So.2d 269 (Fla. 4th DCA, 1980). All essential elements must be stated, whether on complaint or defense, Peninsular Florida Dist. Council of Assemblies of God v. Pan American Inv. & Dev. Corp., 450 So.2d 1231 (Fla. 4th DCA 1984). Pleading fraud without particularity in an affirmative defense did not raise the fraud issue for trial, Cady v. Chevy Chase S. & L. Assoc., 528 So.2d 136 (Fla. 4th DCA, 1988). Elements not pled may not be inferred from context, Myers v. Myers, 652 So.2d 1214 (Fla. 5th DCA 1995).
8. It is well established and repeatedly reinforced that the Defendant carries the burden of proof by a preponderance of the evidence in an affirmative defense. Ades v. Bank of Montreal, 542 So. 2d 1013 (Fla. 3rd DCA 1989). “Primarily it must be noted that on the issue created by an affirmative defense, notwithstanding its presentation in the case in the form of a sworn answer, the defendant has the burden of establishing the defense by preponderance of the evidence.” Boyer v. Birmelin, 227 So.2d 358 (Fla. 3rd DCA 1969).
9. Defendant’s Third Affirmative Defense fails to state all essential elements of fraud, in effect pleading fraud without particularity. Therefore, Defendant’s Third Affirmative Defense should be stricken.
10. Plaintiff is unable to properly frame a response when Defendant’s Affirmative Defenses are vague, and/or ambiguous such as in the instant case. See e.g., Zito v. Washington Federal Sav. And L. Assn. of Miami Beach, 318 So.2d 175, 176 (Fla. 3rd DCA 1975).
11. Furthermore, pursuant to Rule 2.060(d), Florida Rules of Judicial Administration, a matter should not be plead unless there is good cause to support it. Given that the facts as proffered by defense counsel at the hearing on this Motion, the Defendant can not maintain a defense based on fraud as it is unable to allege any of the elements necessary to support said claim.
12. Accordingly, Defendant’s Third Affirmative Defense is insufficient and is stricken by the court.
Accordingly, it is ORDERED and ADJUDGED, the Plaintiff’s Motion to Strike Defendant’s Third Affirmative Defense is hereby granted.
