17 Fla. L. Weekly Supp. 121a
Online Reference: FLWSUPP 1702GABRInsurance — Personal injury protection — Affirmative defenses — Motion to amend affirmative defenses by asserting 6 new defenses 36 months after initiation of PIP suit is denied where proposed amendment is untimely, and medical provider who has prepared for trial several times, attended mediation and numerous hearings and rejected several proposals for settlement would be prejudiced by amendment
AFFILIATED HEALTHCARE CENTERS, INC., as Assignee of Marie Gabriel, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 06-4148 SP 05. September 21, 2009. Shelley J. Kravitz, Judge. Counsel: Emilio R. Stillo and Garrett T. Zediker, Florida Trial Team, LLC, Miami, for Plaintiff. Majid Vossoughi, Majid Vossoughi, P.A., Miami, for Defendant.
ORDER ON DEFENDANT’S MOTION TO AMEND ANSWER AND AFFIRMATIVE DEFENSES
THIS CAUSE, having come before the Court for consideration on Defendant’s, United Automobile Insurance Company’s Motion to Amend Answer and Affirmative Defenses on September 8, 2009.
Background. The Plaintiff filed suit for personal injury protection benefits for dates of service 6/3/5 to 8/2/5. The Plaintiff filed suit on March 16, 2006. On June 1, 2006, the Defendant filed its Answer and Affirmative Defenses. As itssole affirmative defense, the Defendant alleged the Plaintiff failed to comply with Florida Statute § 627.736(5)(e). On or about June 27, 2006, the Plaintiff filed her reply to the Defendant’s lone affirmative defense.
On October 19, 2006, the Plaintiff noticed the matter for trial. On November 20, 2006, the Defendant served a proposal for settlement. The case was set for jury trial the week of April 23, 2007 but not reached. On June 13, 2007, the Defendant filed another proposal for settlement. On August 9, 2007, the Plaintiff re-noticed for trial. On May 19, 2008, the matter was re-noticed for trial. On December 22, 2008 and April 7, 2009, the Plaintiff re-noticed for trial. The case was set for trial the weeks of July 9, 2009 aswell as August 17, 2009. The case was not tried during these trial periods and has been reset to the next trial docket. On April 22, 2009, the Plaintiff also filed her motion for Final Summary Judgment which attaches the deposition transcript of the litigation adjuster taken on May 8, 2008,1 The matter is set for Final Summary Judgment on September 21, 2009.
On or about August 19, 2009, the Defendant filed its Motion to Amend Answer and Affirmative Defenses seeking to add six (6) affirmative defenses.2 The Defendant’s Motion states that subsequent to filing its Answer and Affirmative Defenses, the Defendant “noticed” there are additional viable defenses which include: failure to maintain a massage establishment license pursuant to Florida Statute § 480.043(1) and late billing.
During the pendency of this case the Defendant has employed three (3) different firms for the defense of this action: Office of the General Counsel of United Automobile Insurance Company, Pacheco Perez Ortiz PA and Majid Vossoughi PA. The following are a list of some of the attorneys who have handled this matter on behalf of the Defendant: Leonard Jackson, Esq. Thayer Musa, Esq. Stacey Reade, Esq. Michelle Ortiz, Esq. Mitzi Espino, Esq. and Majid Vossoughi, Esq.
At the hearing of September 8, 2009, defense counsel was unable to reasonably explain the lengthy delay in seeking to assert these defenses. 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 within the discretion of the Court. West Gables Open MRI Services, Inc. (Maria Velazquez) v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp. 482a (Fla. 11th Circuit, Miami-Dade County, Judge Pando, February 28, 2008), Physician’s First Choice Interpretation, Inc. (a/a/o Lisa Audevert) v. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 645a (Fla. 17th Circuit, Broward County, Judge Robert W. Lee, March 27, 2006) citing B.P. Development and Management Corp. v. P. Lafer Enterprises, Inc., 538 So.2d 1379, 1382 (Fla. 5th DCA 1989).
The test of prejudice is the primary, but not only consideration. New River Yachting Center, Inc. v. Bacchiocchi, 407 So.2d 607, 609 (Fla. 4th DCA 1981). In considering prejudice, the Court must consider the timeliness of the motion. A motion to amend a complaint must be made promptly. West Gables Open MRI and Physician’s First Choice citing Alvarez v. De Aguirre, 395 So.2d 213, 216 (Fla. 3d DCA 1981).
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 36 months prior to Defendant’s motion. Additionally, as a county court case filed under the small claims rules, the case involves a relatively small amount in dispute. Moreover, the Plaintiff has been preparing the case for trial several times since 2007, attended mediation, attended numerous court hearings and calendar calls as well as rejecting several proposals for settlement.
Florida appellate Courts have consistently affirmed the denial of untimely motions to amend. West Gables MRI and Physician’s First Choice citing New River Yachting v. Bacchiocchi, 407 So.2d at 608-09 (Fla. 4th DCA 1981).
ORDERED AND ADJUDGED that said Motion is hereby DENIED. The Court finds the proposed amendment to be untimely as well as the Plaintiff would be prejudiced by the proposed amendment. This order shall be substituted for the handwritten order of September 8, 2009.
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1The Defendant’s litigation adjuster withdrew the sole affirmative defense of failing to comply with FS § 627.736(5)(e) (page 19, line 9).
2Defendant’s proposed Amendment also sought to include the Disclosure Defense which was previously withdrawn at the deposition of the adjuster. Further, the Defendant’s adjuster testified at deposition that the bills were received timely (p.33, line 22).
