16 Fla. L. Weekly Supp. 505a
Online Reference: FLWSUPP 166ORELL
Insurance — Personal injury protection — Affirmative defenses — Striking — Fraud — Error to strike affirmative defenses of fraud where insurer alleged all essential elements of fraud and defenses were not redundant, repetitive, sham or frivolous pleading — Insurer listed inconsistencies between medical bills and insured’s statements regarding treatment received, stated reason for insurer’s belief that acts or omissions in claim for benefits were misleading, and claimed that insurer’s reliance on misrepresentations caused damage in form of expense of litigating case
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. JOSE ORELLANA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case Nos. 06-316 AP and 06-443 AP. L.C. Case No. 02-009341 SP 25. April 2, 2009. An Appeal from Final Judgment and award of attorney’s fees of the County Court for Miami-Dade County. Counsel: Michael J. Neimand and Angelica D. Zayas, Office of the General Counsel, for Appellant. G. Bart Billbrough and Geoffrey B. Marks, Billbrough & Marks, P.A., and Fernando Freire, for Appellee.
(Before MARIA M. KORVICK, NORMAN S. GERSTEIN and JUDITH L. KREEGER, JJ.)
(PER CURIAM). Appellee Orellana filed a complaint against Appellant United Automobile Insurance Company (“United”) for Breach of Contract of non-payment of PIP benefits. United filed its answer which denied the claims were past due, and its affirmative defense which claimed the Appellee did not list all household residents in their application. United amended its affirmative defense and raised two separate issues of fraud by the Appellee’s medical provider. A motion to strike United’s fraud affirmative defenses was filed by the Appellee. It was denied by the trial court; however Appellant was granted leave to amend its fraud defenses.
United amended its fraud defenses to specifically detail the alleged fraud. United’s first fraud defense claimed that the Appellee’s medical provider submitted fraudulent bills, and particularly averred that Appellee’s affidavit stated that he received certain treatments and United was billed for additional treatments. Further, United claimed that it was billed for treatment of the Appellee three times a week by the medical provider when the Appellee testified he received treatment twice a week. United’s second fraud defense stated that the Appellee submitted fraudulent bills for physical therapy, since the notes do not match services billed to United. Appellee moved to strike the affirmative defenses relating to fraud. The trial court granted the motion. The matter proceeded to trial with the issue of whether the bills were reasonable, related or necessary and a directed verdict was entered in favor of the Appellee. Appellee then sought attorney’s fees and a judgment was entered thereon. United appeals the trial court’s decision to strike its fraud affirmative defenses, and its award of attorney’s fees based on the underlying judgment in favor the Appellee.
The standard of review for an order granting a motion to strike is abuse of discretion. Upland Dev. of Cent. Florida, Inc. v. Bridge, 910 So. 2d 942, 944 (Fla. 5th DCA 2005). Florida Rule of Civil Procedure 1.140(f), Motion to Strike, states “[a] party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” A motion to strike may be directed against an affirmative defense sought to be raised in an answer. Tower Estates, Inc. v. Slewett, 346 So. 2d 637, 638 (Fla. 3d DCA 1977). A motion to strike a defense tests only the legal sufficiency of the defense, and it is reversible error for a trial court to strike a defense where evidence may be presented to support it. See Burns v. Equilease Corp., 357 So. 2d 786 (Fla. 3d DCA 1978). When a party asserts fraud as a defense, all of the essential elements of fraudulent conduct must be stated. Cocoves v. Campbell, 819 So. 2d 910, 912 (Fla. 4th DCA 2002). An affirmative defense of fraud or misrepresentation should specifically identify the misrepresentations or omissions of fact and how those acts or omissions were false or misleading. Id. When fraud is asserted to have been effected by a misrepresentation, the pleading generally must set out clearly and distinctly the representation relied on. American Intern. Land Corp. v. Hanna, 323 So. 2d 567, 569 (Fla. 1975).
In this case, United asserted two separate affirmative defenses for fraud as a result of the inconsistencies in the Appellee’s affidavit and the medical provider’s billing and physical therapy notes. United’s affirmative defenses specifically list the medical provider’s notes and compared them to the Appellee’s statements for treatment received. Furthermore, United listed the bills received from the medical provider and compared them to the statements made by the Appellee. United’s affirmative defenses stated the reasons for its beliefs that the acts or omissions were misleading in the Appellee’s claims for benefits. United claimed to have relied on these misrepresentations, which caused it damage in the form of the expense of litigating this case. As a result, United’s affirmative defenses for fraud met the essential elements of fraudulent conduct and were not redundant, repetitive, a sham, or frivolous pleading. Therefore, the trial court abused its discretion when it denied United its defenses. Accordingly, we REVERSE the trial court’s decision to strike the fraud affirmative defenses and REMAND this case for proceedings consistent with this opinion.
Additionally, where a final judgment is no longer enforceable, an attorney’s fee award based on that judgment is likewise not enforceable. See Nevarez v. Friskney, 819 So. 2d 992, 992-93 (Fla. 5th DCA 2002); Marty v. Bainter, 727 So. 2d 1124, 1125 (Fla. 1st DCA 1999). Therefore, the attorney’s fee awarded below in Appellee’s favor is REVERSED.
As to Appellee’s motion for appellate attorney’s fees, it is hereby DENIED.
