18 Fla. L. Weekly Supp. 485b
Online Reference: FLWSUPP 1805PONC Insurance — Personal injury protection — Affirmative defenses — Motion to amend affirmative defenses by asserting two new defenses over one year after initiation of PIP suit is denied where proposed amendment is untimely, case has been noticed for trial and is awaiting court-ordered non-binding arbitration, and medical provider has incurred deposition costs and rejected a proposal for settlement
AFFILIATED HEALTHCARE CENTERS, INC., as Assignee of Jonathan Ponce, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 09-02254 COCE (55). March 4, 2010. Honorable Sharon L. Zeller, Judge. Counsel: Emilio R. Stillo and Garrett T. Zediker, for Plaintiff. Majid Vossoughi, Miami, for Defendant.
ORDER ON DEFENDANT’S MOTION TOAMEND 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 February 24, 2010.
Background. The Plaintiff filed suit for personal injury protection benefits on February 19, 2009. In March 2009, the Defendant filed a Motion for Extension of Time to Confer with the client prior to filing an Answer and Affirmative Defenses. On or about April 16, 2009, the Defendant filed its Answer and Affirmative Defenses.
On September 10, 2009, Plaintiff’s counsel took the deposition of the adjuster with the most knowledge. The following are questions and answers from the deposition:
Q: You agree that Affiliated Healthcare Centers has complied with all conditions precedent in this action?
A: Yes.
Q: Do you agree that Affiliated Healthcare Centers is properly licensed?
A: Yes.
On or about September 11, 2009, the Defendant filed its Motion to Amend Answer and Affirmative Defenses seeking to add two (2) new affirmative defenses. The Defendant’s Motion states that subsequent to filing its Answer and Affirmative Defenses, the Defendant “noticed” there are additional viable defenses which consist of failure to maintain a massage establishment license pursuant to Florida Statute § 480.043(1) and defective demand letter. On September 11, 2009, the Defendant also served a proposal for settlement. The Court notes this same counsel “noticed” this proposed amended affirmative defense of failing to maintain a massage establishment license pursuant to Florida Statute § 480.043 (1) on August 21, 2009 in a different matter between these two same parties. Affiliated Healthcare Centers, Inc. (Marie Gabriel) vs. United Automobile Insurance Company, 17 Fla. L. Weekly Supp. 121a (Miami-Dade County Court, September 8, 2009, Judge Shelley J. Kravitz). Defendant’s motion to amend was also denied in that case.
Conclusions of Law. As pertains to this case, “a party may amend a pleading only be 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. Bacchiochi, 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 over a year, has been noticed for trial and is awaiting court ordered non-binding arbitration. Moreover, the Plaintiff has incurred deposition costs and rejected a proposal 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.
