17 Fla. L. Weekly Supp. 1172a
Online Reference: FLWSUPP 1712DVAL
NOT FINAL VERSION OF OPINION
Subsequent Changes at 19 Fla. L. Weekly Supp. 617a
Insurance — Personal injury protection — Affirmative defenses — Amendment — In small claims case, trial court did not err in striking affirmative defense and denying leave to amend it on first day of trial, particularly as to defense of fraud that insurer repeatedly denied that it was alleging or pleading — No merit to claim that trial court erred in refusing to allow reading of deposition of unavailable witness where there was no limitation on reading of deposition imposed
STATE FARM FIRE & CASUALTY COMPANY, Appellant, v. BEST THERAPY CENTER, a/a/o DAVID VALERA, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-508 AP. L.C. Case No. 05-2586 SP 25. August 13, 2010. On appeal from a final judgment rendered by the Miami-Dade County Court, Hon. Don S. Cohn. Counsel: Hinda Klein, Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., for Appellant. Stuart B. Yanofsky, Stuart B. Yanofsky, P.A., for Appellee.
QUASHED. 36 Fla. L. Weekly D2072a
Opinion on remand: 19 Fla. L. Weekly Supp. 617a
(Before MUIR, SHAPIRO, and COHEN LANDO, JJ.)
(PER CURIAM.) This is an appeal from a directed verdict in a case filed by the provider of physical therapy services on behalf of claimant David Valera against State Farm Fire and Casualty Company (“State Farm”) When the automotive accident occurred, David Valera (“claimant”) occupied the vehicle and sustained injuries. He sought medical care with Best Therapy Center (“Best Therapy”) for his injuries. He assigned his insurance benefits to Best Therapy.
Best Therapy filed a complaint against State Farm. State Farm filed an answer and three affirmative defenses. The trial court permitted State Farm to supplement its affirmative defenses with a new affirmative defense: fraud. Best Therapy moved the trial court to strike the fraud affirmative defense. The county court struck State Farm’s fraud affirmative defense. State Farm then moved the trial court for leave to amend its affirmative defense. The trial court did not permit amendment to the fraud affirmative defense.
Jurisdiction lies with us to review this post-judgment appeal pursuant to section 26.012(1), Florida Statutes. On appeal, a presumption of correctness clothes a trial court’s order, and the appellant maintains the burden to demonstrate reversible error. United Auto. Ins. Co. v. Mercedes Vila, 13 Fla. L. Weekly Supp. 552a (Fla. 11th Cir. Ct. March 15, 2006), cert. denied, 3D06-1249 (Fla. 3d DCA 2006). Even if the trial court arrives at a correct result but for an incorrect reason, we will affirm the order if the appellate record supports it. Id.
In its summary of argument, State Farm argued that the trial court erred in granting on the first day of trial Best Therapy’s motion to strike State Farm’s affirmative defense (“fraud”) on the ground that it was improperly pled. State Farm asserts that the court should have given leave to amend once the affirmative defense of “fraud” was stricken.
In a typical case, an appellant in this situation would argue that with a pending motion to strike the affirmative defense, the case was not “at issue” and hence should never have been set for trial. Trawick’s Practice and Procedure suggests as follows:
An action is at issue when all pleadings have been served and any motions directed to the pleadings (except a motion to strike redundant, immaterial, impertinent or scandalous matters, which can be done at any time) have been determined unless a decision was deferred until trial. Issue means when the answer is served and any motion to strike affirmative defenses has been determined. If a reply is served, it becomes the last pleading and any motion to strike defenses in the reply must be determined before coming to issue. Henry P. Trawick, Jr., Florida Practice and Procedure, Section 22.2 (2010).
This is not a typical case. Although the plaintiff medical provider sought damages above $10,000, it filed a small claims case with lower jurisdictional limits. Answers are not required in a small claims case. Instead, “Defensive pleadings” under Florida Small Claims Rule 7.090(c) provides that unless required by order of court, written pretrial motions and defensive pleadings are not necessary. The trial date is set at a pretrial conference.
As to amendment of pleadings, Florida Rule of Civil Procedure 1.190(e) applies in small claims cases, and “(a)t any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties. See Fla. Sm. Cl. R. 7.020(a).
There was a motion to invoke the rules of civil procedure; however, the trial judge granted it only as to Florida Rule of Civil Procedure 1.442 (proposals for settlement) on June 2, 2005.
State Farm successfully limited the plaintiff’s claim for damages at trial to the jurisdictional amount for small claims, $5,000 (it appears that amounts awarded at a summary judgment hearing were added to a directed verdict limited to the $5,000 within the jurisdictional limits of small claims.)
Defensive pleadings are not essential in small claims procedures. To claim the trial judge erred by failing to allow an amendment, when an answer is not even required by the Florida Small Claims Rules appears to be inviting the trial court to make an uneven application of procedural rules.
We agree with appellant that amendment of pleadings should normally be liberally granted; however, the closer to the date of trial, permission to amend pleadings is often withheld to avoid prejudice to the opposing party. Accordingly, we find no error in striking an affirmative defense and denying leave to amend it on the first day of trial, particularly to raise a defense of “fraud.”
On page thirteen (13) of State Farm’s initial brief, the appellant indicated that the trial judge erred in granting Best Therapy’s motion for leave to amend its claim on the first day of trial to double the amount of damages it was seeking. We do not agree that the trial court was uneven in allowing amendments. After considering that the pleadings could be conformed to the evidence, and commenting on Judge Jacqueline Schwartz’s partial summary judgment dated May 18, 2006, in favor of the plaintiff as to some of Best Medical’s bills, the trial court allowed the plaintiff to proceed on a claim for $6,772. See page 37, Volume IV, Transcript of Proceedings. The defense motion to limit damages to $5,000, plus the amount awarded by summary judgment was agreed to by counsel for the plaintiff. See page 38, Volume IV, Transcript of Proceedings.
This court has determined that not only did the trial court rule correctly as to leave to amend the pleadings, but State Farm has waived the affirmative defense of “fraud.” During the argument on motions in limine, co-counsel for State Farm stated:
It doesn’t say fraud in our affirmative defense. . .it’s an allegation saying that we have testimony that states that they were never injured; David Valera was never injured in the accident and never received treatment at Best Therapy. However, that may appear as fraud, we haven’t pled it so specifically because of the required intent elements. However, this is a breach of contract.
See page 75, Volume IV, Transcript of Proceedings. In response, the court asked, is your client alleging fraud, yes or no? The answer was no. Id.
As to State Farm’s second point on appeal, the refusal to allow the reading of the deposition of the claimant, David Valera, who was not timely served with a subpoena for trial, State Farm is incorrect. At the conclusion of the testimony of the witness (from the other insurance company), an attorney said, “I do have to read the deposition of Mr. Valera.” At no time was there a limitation on the reading of the claimant’s deposition. The trial judge granted the motion to allow the use of David Valera’s deposition after discussing at length the issue of unavailability. See page 176; 209, Volume IV, Transcript of Proceedings.
The trial court granted Best Therapy’s motion for directed verdict, finding that there was no evidentiary basis supporting State Farm’s “sole remaining defense.” It should be noted that the defense witness for another insurance company would not commit to State Farm’s theory that coverage was available to pay Best Therapy’s bills through that other company. That obviously disappointing testimony from the defense witness should be the source of State Farm’s lack of a remaining defense, not the trial court’s directed verdict.
The factual issues of where the claimant lived, whether he owned a car, which are issues that support the validity of the medical provider’s claim for its services against State Farm could have been decided by the jury. See pages 145-147, Volume V, Transcript of the Proceedings.
State Farm stipulated to the issues that the medical services rendered were “reasonable, related and medically necessary.” See page 143, Volume V, Transcript of the Proceedings.
State Farm could have presented interrogatory verdict forms to resolve issues of fact raised by the testimony of the claimant, David Valera. David Valera testified that he lived from time to time with his mother, his father, and his girlfriend during the period in question. He had been involved in two accidents close in time, and was not certain when he was deposed where he lived at the time of the crash in which he sustained the injuries. His confusing testimony could have been resolved by the jury’s verdict, had the issues been pursued.
Despite the striking of the appellee’s brief by our colleagues and the appellant’s arguments, we affirm the directed verdict and final judgment and grant the Appellee’s motion for attorney’s fees, and remand the matter to the trial court to assess the amount, pursuant to Florida Statute 627.428. The appellant’s motion for attorneys’ fees is denied.
Affirmed.
