15 Fla. L. Weekly Supp. 482a
Insurance — Personal injury protection — Answer — Amendment — Motion to amend answer to assert defense of failure to attend examination under oath is denied as untimely where insurer did not list failure to attend EUO as basis for denial of claim in explanation of benefits or response to demand letter and did not move to amend until notice of trial was served, and medical provider would be prejudiced by amendment
WEST GABLES OPEN MRI SERVICES, INC. AS ASSIGNEE OF MARIA VELAZQUEZ, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 07-3283 SP 21. February 28, 2008. Ana Maria Pando, Judge. Counsel: Richard Shuster, Shuster & Saben, LLC, Miami. Gilda Chavez.
AMENDED ORDER DENYING DEFENDANT’S MOTION TO AMEND ANSWER
THIS MATTER having come before the Court for hearing on February 26, 2008 on Defendant’s Motion to Amend Answer, and the Court having reviewed the Court file, the Defendant’s Motion, Plaintiff’s Response to Defendant’s Motion, applicable case law, and having heard argument of counsel and being well versed in the premises, the Court makes the following findings of fact and rulings of law:
I. FINDINGS OF FACT:
1. The Plaintiff brought suit against the Defendant for unpaid P.I.P. benefits arising out of a motor vehicle collision that occurred on or about May 29, 2005.
2. The Plaintiff filed its complaint on August 1, 2007.
3. On November 15, 2007 the Defendant moved to amend its Answer to add the affirmative defense of failure to attend examination under oath.
4. The alleged failure to attend examination under oath occurred on June 24 and June 28, 2005.
5. The Defendant’s response to Plaintiff’s presuit demand letter — explanation of benefits did not list failure to attend E.U.O. as a basis for denial of the claim.
6. On November 15, 2007 the Plaintiff served and filed its notice for trial.
7. The Defendant served a proposal for settlement on January 8, 2008.
II. APPLICABLE LAW
When through the course of discovery the Defendant learns of a new defense that it could not have known when the answer was filed the rules of Civil Procedure liberally permit amendment of the answer pursuant to Rule 1.190(a), which provides in pertinent part “that 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.”
The granting or denying of a motion to amend a complaint or answer lies within the discretion of the Court. Physician’s First Choice Interpretation, Inc. (A/A/O Lisa Audevert), Plaintiff, vs. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 645a, (Fla. 17th Circuit, Broward County, 2006) citing 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. Physician’s First Choice citing New River Yachting Center, Inc. v. Bacchiochi, 407 So.2d 607, 609 (Fla. 4th DCA 1981); and 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 by made promptly. Physician’s First Choice citing Griffin v. Societe Anonyme, 53 Fla. 801, 830, 44 So. 342, 351 (1907).
The Third District Court has consistently held, “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 indulged has diminished . . . . [T]here is an equally compelling obligation on the court to see to it that the end of all litigation be reached.” See, e. g. Physician’s First Choice citing Alvarez v. DeAguirre, 395 So.2d 213, 216 (Fla. 3d DCA 1981).
Florida appellate Courts have consistently affirmed the denial of untimely motions to amend. See Physician’s First Choice citing New River Yachting v. Bacchiocchi, 407 So.2d at 608-09 (Fla. 4th DCA, 1981), holding a seven-month delay in filing a motion to amend warranted the denial of the motion.
III. RULING
1. The Court finds that the Defendant’s motion to amend is untimely.
2. The Court finds that the Plaintiff would be prejudiced by amendment.
3. The Defendant’s Motion to Amend its Answer is DENIED.
4. This order shall be substituted for the handwritten order of February 26, 2008.
