19 Fla. L. Weekly Supp. 143a
Online Reference: FLWSUPP 1902MORAInsurance — Pleadings — Amendment — Insurer’s motion to amend answer and affirmative defenses is denied where medical provider would be substantially prejudiced by amendment, and amendment is untimely
AFFILIATED HEALTHCARE CENTERS, INC. (a/a/o Joseph Mora) vs. UNITED AUTOMOBILE INSURANCE COMPANY. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09-03192 COCE (50). August 2, 2011. Honorable Peter B. Skolnik, Judge. Counsel: Emilio Rolando Stillo, Weston, for Plaintiff. Terri Kim, Miami, for Defendant.
ORDER DENYING 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 August 2, 2011.
Background. The Plaintiff filed suit for personal injury protection benefits on March 12, 2009. During the course of the litigation, the Defendant violated five court orders (April 21, 2009, August 6, 2009, January 6, 2011, February 2, 2011, February 25, 2011) for which the Plaintiff has a pending Motion to Strike Pleadings. On June 22, 2010, the Defendant was monetarily sanctioned $ 187.50 for violations of Court Orders of April 21, 2009 and August 6, 2009. On March 8, 2011 the matter was noticed for trial. The case was arbitrated in June 2011 and the Defendant filed a trial de novo. The Defendant served a proposal for settlement on July 1, 2011 which the Plaintiff has rejected. The case is presently set for Jury Trial on August 26, 2011 for which the parties executed a Joint Pretrial Stipulation on July 1, 2011.
On or about August 2, 2011, the Defendant filed its Motion to Amend Answer and Affirmative Defenses. The Plaintiff consented to it being heard that day as all pending motions were before the Court. The Court notes this Defendant has routinely sought untimely amendments in other cases with this same Plaintiff. 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). Affiliated Healthcare Centers Inc. (Jonathan Ponce) v. United Automobile Insurance Company, 18 Fla. L. Weekly Supp. 485b (Broward County Court 2010, Judge Sharon L. Zeller).
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). In this case, a substantial amount of time elapsed prior to the motion to amend being filed.
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 two years, has been arbitrated and is awaiting trial in a matter of weeks. Moreover, the Plaintiff has incurred arbitration costs, attended arbitration, attended several Court hearings, rejected a proposal for settlement and has prepared for trial set for August 26, 2011. The Court finds the Plaintiff would be substantially prejudiced by amendment as well as finding the amendment untimely.
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.
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