17 Fla. L. Weekly Supp. 1061a
Online Reference: FLWSUPP 1711TRIAInsurance — Personal injury protection — Standing — Assignment — Abuse of discretion to deny medical provider’s motion to amend complaint to add as plaintiff physician in whose favor assignment was executed personally prior to provider becoming legal entity where provider had not abused privilege to amend and there was no showing that amendment would be futile or that insurer would suffer prejudice — Abuse of discretion to refuse to accept and consider provider’s written response and legal authority in opposition to insurer’s motion for summary judgment based on ground that response was not timely filed and served
MANUEL FRADE M.D. P.A. a/a/o Daniel Triana, Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-423 AP. L.C. Case No. 06-3440-CC-25. September 3, 2010. On Appeal from the County Court for Miami-Dade County, Florida, Jacqueline Schwartz, Judge. Counsel: Donald R. Kerner, Jr., Donald R. Kerner, Jr. P.A., for Appellant. Michael J. Neimand, General Counsel of United Automobile Insurance Company, for Appellee.
CORRECTED AS TO APPELLANT’S ATTORNEY NAME ONLY
HEARING ON: June 16, 2010
(Before KREEGER, BAGLEY and LANGER, JJ.)
(BAGLEY, Judge.) We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030 (c) (1) (A).
The Plaintiff/Appellant, Manuel Frade M.D. P.A. (Provider), as assignee of Daniel Triana (Insured) appeals the trial courts’ award of summary judgment based on lack of standing in favor of Defendant/Appellee, United Automobile Insurance Company (Insurer).
In the underlying action, Insured filed a claim for personal injury protection (P.I.P.) automobile insurance benefits based on an automobile accident. Insured executed an “Assignment of Policy Benefits and/or Settlement or Judgment Money” in favor of Manuel H. Frade, M.D. in his individual capacity in 2001. Provider was not a legal entity until 2002. An issue in dispute was whether Provider lacked standing to sue Insurer.
Before Insurer moved for summary judgment based on its defense that Provider lacked standing, Provider moved for leave to amend its complaint to add Dr. Frade as a party plaintiff. At the hearing on Insurer’s motion for summary judgment, Provider requested leave to amend its complaint. Said motion was denied but an order was not issued by the court. Subsequently, the trial court heard argument on Insurer’s motion for summary judgment based on lack of standing. Following Insurer’s argument, Provider asserts that it presented the trial court a written response, along with copies of Florida case law and statutes, to Insurer’s motion. Although not supported by a transcript of the hearing, the Provider asserts that the trial court refused to review or consider Provider’s written response and supporting case law as well as refused to allow provider an opportunity to argue in opposition of the Insurer’s motion for summary judgment. The Provider states that the trial court refused it an opportunity to be heard based on its noncompliance with the Florida Rules of Civil Procedure by not timely filing and serving the aforementioned written response to the court.
Provider filed a motion for rehearing and/or reconsideration and a subsequent motion to vacate the order granting final summary judgment. An order from the trial court denying the latter was issued after this Court remanded jurisdiction to the trial court to hold a hearing and issue a ruling on Provider’s motion to vacate the final summary judgment. Consequently, the trial court issued orders denying Provider’s motions for leave to amend complaint, rehearing and reconsideration and to vacate order granting final summary judgment.
Provider claims it was denied due process and that the trial court abused its discretion.
An order on a motion to amend is reviewed under the abuse of discretion standard. As a general rule, refusal to allow amendment constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice opposing party, privilege to amend has been abused, or amendment would be futile. According to Florida Rule of Civil Procedure 1.190 (a), “Leave of court [to amend pleadings] shall be given freely when justice so requires.” Further, public policy favors the liberal granting of leave to amend where the failure to do so will likely prevent the cause from being resolved on its merits. Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So.2d 1135, 1135 (Fla. 5th DCA 1998)
In this case, Provider had not abused the privilege to amend and there was no showing that amendment would be futile or that Insurer would suffer prejudice. See Unitech Corp. v. Atlantic Nat. Bank of Miami, 472 So.2d 817, 818 (Fla. 3DCA 1985)
Furthermore, the entry of the summary judgment in favor of the Insurer on the issue of standing, without affording Provider an opportunity to amend the complaint, effectively precluded Provider from a full civil proceeding on all issues to which it was entitled. The trial court incorrectly refused Provider the right to file its first amended complaint when it did not conclude Provider abused the amendment privilege or that an amendment would be futile. This constitutes an abuse of discretion, denying Provider the opportunity to show that it is entitled to a trial on the merits. See Cardona v. Benton Exp., Inc., 804 So.2d 505 (Fla. 3d DCA 2001) at 507; Assad v. Mendell, 550 So.2d 52 (Fla. 3d DCA 1989) at 54 (A party may, with leave of court, amend a pleading at or even after a hearing and ruling on a motion for summary judgment.)
Furthermore, we accept the Provider’s contention that the trial judge abused her discretion when she refused to accept, review and consider Provider’s written response, case law and statutes submitted, at the time of the hearing, in opposition to Insurer’s motion for summary judgment.
The order on review is therefore quashed with this matter remanded to the county court to grant summary judgment giving Provider leave to amend the complaint.
As such, this matter is REVERSED and REMANDED to the trial court for proceedings consistent with this opinion.
Appellant’s Motion for Attorney’s Fees and costs are granted.
