19 Fla. L. Weekly Supp. 395a
Online Reference: FLWSUPP 1905FRIEInsurance — Personal injury protection — Affirmative defenses — Amendment — Motion to amend affirmative defenses is denied where insurer was aware of defenses over a year prior to filing original answer and medical provider would be prejudiced by allowing amendments — No merit to affirmative defense asserting that claim should have been included in prior litigation where demand letter for claim was sent after prior litigation was dismissed and, therefore, claim was not ripe at time that litigation was pending
ORTHOPAEDIC CLINIC OF DAYTONA BEACH, P.A., as assignee of Robert Frierson, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2011 30996 COCI, Division 84. January 17, 2012. Honorable Stasia Warren, Judge. Counsel: Wendelyn L. Gowen, Bradford Cederberg, P.A., Orlando, for Plaintiff. Amanda H. Reher, The Rock Law Group, P.A., Maitland, for Defendant.
ORDER ON DEFENDANT’S MOTION TO AMENDANSWER, AFFIRMATIVE DEFENSES,AND DEMAND FOR JURY TRIAL
THIS MATTER having come before this Honorable Court on Defendant’s Motion to Amend Answer, Affirmative Defenses, and Demand for Jury Trial, and this Honorable Court having heard arguments of counsel and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED that:
1. Defendant’s Motion to Amend Answer, Affirmative Defenses, And Demand for Jury Trial is hereby DENIED.
2. The Court finds that Defendant’s Fifth Affirmative Defense was not plead with specificity as is required by Florida case law. The Third District Court of Appeal stated:
[T]he certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence. Zito v. Washington Fed. Savings Loan Assoc. of Miami Beach, 318 So. 2d 175, 176 (Fla. 3d DCA 1975), cert denied, 330 So. 2d 23 (Fla. 1976).
An affirmative defense that simply pleads “conclusions of law unsupported by allegations of ultimate fact is legally insufficient.” Cady v. Chevy Chase Sav. & Loan, Inc., 528 So. 2d 136 (Fla. 4th DCA 1988); Bliss v. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982); see also Ellison v. City of Fort Lauderdale, 175 So. 2d 198 (Fla. 1965).
3. The Court finds that Defendant’s Fourth Affirmative Defense is without merit as the claim at issue was not ripe until thirty (30) days after Plaintiff mailed its Notice of Intent to Initiate Litigation/Demand Letter, See Fla, Stat. §627.736. Under Fla. Stat. §627.736(10), there is a required condition precedent that a Notice of Intent to Initiate Litigation/Demand Letter must be properly mailed to the insurer and the insurer must be given thirty (30) days to respond prior to a party being able to properly file a PIP lawsuit. As the Notice of Intent to Initiate Litigation/Demand Letter in this matter was not mailed until 1/18/11, it could not have been included in the case dismissed on 3/17/10. The Fifth District Court of Appeal in Florida Medical & Injury Center, Inc. v. Progressive Express Insurance Company, stated, “[t]he Florida Legislature certainly knows how to create a condition precedent. Subsection [10] of the same statute expressly says: ‘As a condition precedent to filing an action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation.’ ” 29 So. 3d 329 (Fla. 5th DCA 2010). Thus, Plaintiff’s claim at issue in this lawsuit was not ripe at the time of the prior pending litigation and therefore could not have been included in that litigation.
4. The Court further finds as to Defendant’s Fourth and Third Affirmative Defenses that they are untimely and Defendant waived its right to assert these defenses/affirmative defenses as Defendant was aware of these potential defenses/affirmative defenses one year and five months prior to filing Defendant’s original Answer. Florida Rule of Civil Procedure 1.140(h)(1) states “[a] party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).” Under FRCP 1.140(h)(1), the Defendant has waived its right to assert these defenses/affirmative defenses. FRCP 1.140(b) further states that “[e]very defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading. . . .” See also Douglas Rapid Rehabilitation, Inc. a/a/o Nicole Bowen v. United Automobile Insurance Company, 18 Fla. L. Weekly Supp. 312b (Broward Cty. 2010). Defendant did not raise these defenses/affirmative defenses in its original Answer. Furthermore, the Supreme Court of Florida defined waiver as “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.” Raymond James Financial Services, Inc. v. Saldukas, 896 So. 2d 707 (Fla. 2005) [30 Fla. L. Weekly S115a]. The Court notes that Defendant did not raise these potential defenses/affirmative defenses until two years after Donna Tepper mailed the bill at issue with the medical records. This matter has also been litigated for more than 10 months. Defendant did not include these defenses/affirmative defenses in its 2/16/11 or 2/28/11 response to Plaintiff’s Notice to Intent to Initiate Litigation/Demand Letter, in its 4/25/11 Answer, in Defendant’s Response to Plaintiff’s Request to Produce served on 5/16/11 or in its Verified Answers to Plaintiff’s First Set of Interrogatories served on 6/10/11. Further, the Court notes that Plaintiff served its Motion for Final Summary Judgment on 9/23/11 with the supporting Affidavit of Donna Tepper, that the deposition of Mauricio Valenzuela took place on 10/24/11 and Defendant served Defendant’s Response to Plaintiff’s Motion for Final Summary Judgment on 11/28/11. Additionally, Plaintiff and Defendant have responded to all written discovery. The Fifth District Court of Appeal in Florida Medical & Injury Center, Inc. stated that “the beginning of [the] sentence in [627.736(4)(b)] lists the claims that may be made at any time, even after payment. They are that the claim was ‘unrelated,’ ‘not medically necessary’ or ‘unreasonable.’ ” 29 So. 3d 329 (Fla. 5th DCA 2010). The Fifth District Court of Appeal continued and stated, “[i]f the Legislature intended for subsection (4)(b) to say what Defendant reads it to say, the Legislature could simply have done that by allowing the assertion of ‘all claims or charges. . .”. Id. Thus, Defendant at this late time in the litigation is barred from raising these defenses/affirmative defenses.
5. The Court also finds that as to Defendant’s Fourth and Third Affirmative Defenses that the Plaintiff would be prejudiced by the allowing of these amendments. As stated in Affiliated Healthcare Centers, Inc. a/a/o Joseph Mora v. United Automobile Insurance Company, “[t]he 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 . . . .The Court also keeps in mind that this is a civil case, with a recommended resolution standard of 18 months.” 19 Fla. L. Weekly Supp. 143a (Broward Cty. 2011); see also Hallandale Beach Orthopedics, Inc. a/a/o David Bendahan v. State Farm Mutual Automobile Insurance Company, 18 Fla. L. Weekly Supp. 559a (Broward Cty. 2011). Additionally, the Court recognizes that “[g]ranting or denying a motion to amend . . . lies within the discretion of the Court . . . . [and] 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).” See also Affiliated Healthcare Centers, Inc. a/a/o Jonathan Ponce v. United Automobile Insurance Company, 18 Fla. L. Weekly Supp. 485b (Broward Cty. 2010). Based on the amount of litigation that has already occurred in this lawsuit, and the fact that there is an outstanding Proposal for Settlement, which may subject Plaintiff to attorney’s fees and costs should Plaintiff not prevail in this lawsuit, Defendant is estopped from asserting these defenses/affirmative defenses at this time in the litigation.
6. Finally, the Court finds that the Defendant shall not materially change its position at this point in the litigation when Defendant was aware of theses defenses/affirmative defenses prior to even responding to Plaintiff’s Notice of Intent to Initiate Litigation.
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