19 Fla. L. Weekly Supp. 374a
Online Reference: FLWSUPP 1905ESTIInsurance — Personal injury protection — Affirmative defenses — Amendment — Motion to amend answer to add affirmative defenses of failure to timely bill for one date of service and failure to satisfy conditions precedent relating to demand letter and examination under oath is denied — Insurer has previously amended affirmative defenses twice and has admitted in discovery that all bills were timely received, that there were no errors or defenses with regard to demand letter, and that insured cooperated in investigation of claim
TWO & TWO, LLC, d/b/a COMPLETE REHAB AND MEDICAL CENTER OF HOLLYWOOD, as assignee of Marie Estinvil, Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 08-8447 COCE (55). January 11, 2012. Sharon L. Zeller, Judge. Counsel: Todd S. Link, Boyar & Freeman, P.A., Margate, for Plaintiff. Russell Kolodziej, Office of the General Counsel, for Defendant.
ORDER ON DEFENDANT’S 9/21/11 MOTION TOAMEND ANSWER AND AFFIRMATIVE DEFENSES
THIS MATTER having come before the Court upon the DEFENDANT’S 9/21/11 MOTION TO AMEND ANSWER AND AFFIRMATIVE DEFENSES, the Court having heard argument, having reviewed the records and files and being duly advised, the court finds as follows:
1. The Plaintiff filed suit for personal injury protection benefits on May 5, 2008 regarding a 2006 accident.
2. On August 4, 2008 the Defendant originally filed three affirmative defenses:
A. A compulsory medical exam cut off
B. Charges above usual and customary, and
C. Tender
3. Plaintiff moved to strike the affirmative defenses and this Court entered an order on December 24, 2008 striking affirmative defenses 1 and 2 without prejudice, and giving Defendant until January 5, 2009 to amend. Additionally, this Court struck affirmative defense 3 with prejudice.
4. On January 5, 2009, Defendant repled an amended CME cut off affirmative defense.
5. Also on January 5, 2009 Defendant filed a motion for leave to file an additional affirmative defense predicated on failure to satisfy the condition precedent of attending an examination under oath. On February 19, 2009 an order was entered allowing Defendant to amend to add the EUO condition precedent defense. (It should be noted that this defense was not pled as a condition subsequent, nor was it pled as a breach of a cooperation clause.)
6. On May 8, 2009, Defendant changed counsel.
7. On September 21, 2011, the Defendant filed another Motion to Amend Answer and Affirmative Defenses seeking to add three (3) new affirmative defenses:
A. failure to satisfy a condition precedent related to the presuit demand letter;
B. failure to timely bill for date of service 6/12/06; and
C. failure to cooperate and satisfy a condition subsequent by not attending an examination under oath.
8. While this case has not been noticed for trial, discovery, including depositions, interrogatories, requests for production and request for admissions are complete and the case is ready for arbitration and trial. The Plaintiff has also rejected a proposal for settlement.
Conclusions of Law
9. “A party may amend a pleading only by leave of court or by written consent of the adverse party. At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceedings, pleading . . . to be amended . . .” Rule 1.190(a), Fla. R. Civ. P. The Plaintiff has strongly objected to the amendment.
10. At the hearing on December 13, 2011 defense counsel was unable to reasonably explain the lengthy delay in seeking to assert these defenses. The Defendant had been or should have been aware of the substance of the proffered affirmative defenses for some time. “While the policy in Florida is to liberally allow amendments to pleadings where justice so requires, a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished.” Alvarez v. DeAguirre, 395 So.2d 213 (Fla. 3rd DCA 1981). “In addition to the desirability of allowing amendments so that cases may be concluded on their merits, there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached.” Hickman v. Barclay’s Int’ Realty, 5 So.3d 804 (Fla 4th DCA 2009) [34 Fla. L. Weekly D680a]. See also Noble v. Martin Mem’l Hosp Ass’n, 710 So2d 567 (Fla 4th DCA 1997) [23 Fla. L. Weekly D58a]. The court also keeps in mind that under the Florida Rules of Judicial Administration, Rule 2.085, this county court case has an 18 month resolution standard.
11. In ruling on a motion for leave to amend, while discretionary, the court should allow the amendment unless it clearly appears that allowing the amendment would prejudice the opposing party the privilege to amend has been abused, or amendment would be futile. Quality Roof Services v. Intervest National Bank, 21 So.2d 883 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2205d]. “A proposed amendment is futile if it is insufficiently pled, id., or is insufficient as a matter of law,” Id. at 883.
12. The Third DCA, in Kohn v. City of Miami Beach, 611 So.2d 538 (Fla. 3rd DCA 1992), stated: While there is no magical number of amendments which are allowed, we have previously observed that with amendments [of a complaint] beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion. There is simply a point in litigation when (litigants) are entitled to be relieved from the time, effort energy, and expense of defending themselves against seemingly vexatious claims. Dimick v. Ray, 774 So.2d 830, (Fla. 4th DCA 2000) [26 Fla. L. Weekly D93a]. Here, the affirmative defenses were stricken, amended twice, and now Defendant is going for the third bite.
13. Under the rule, a test of prejudice is the primary consideration in determining whether a motion for leave to amend should be granted, and leave to amend should not be denied unless the privilege has been abused or the pleading is clearly not amendable.” New River Yachting Center v. Bacchiocchi, 407 So.2d 607, (Fla. 4thDCA 1981).
14. In considering prejudice, the Court must consider the timeliness of the motion. A motion to amend must be made promptly. West Gables Open MRI and Physician’s First Choice citing Alvarez v. De Aguirre, 395 So.2d 213, 216 (Fla. 3rd DCA, 1981). 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 608 (Fla. 4th DCA, 1981).
15. Case law has analyzed this element primarily in respect to the ability of the opposing counsel to prepare for the new allegations prior to trial on the merits. A proposed amendment made prior to trial adding a new claim or defense is only one factor in assessing “prejudice.” Carib Ocean Shipping v. Armas, 854 So.2d 234 (Fla. 3rd DCA 234) [28 Fla. L. Weekly D2055a]. Carib cites numerous cases defining when amendments should or should not be allowed including when a statute of limitations problem might arise with the potential of prejudice.
16. Through Defendant’s answers to requests for admissions, interrogatories and through deposition testimony, the Defendant has already admitted all bills at issue were timely received, that there were no defenses and no errors related to Plaintiff’s presuit demand letters, and that the insured cooperated with the Defendant in their investigation of this claim. (See response to Admissions # 7, 14, 15, 27 & 29)
17. This Court notes that a party is bound by any relevant admission which either he or his agent makes. Metro Dade County v. Yearby, 580 So.2d 186,189 (Fla. 3rd DCA 1991). Additionally, a party’s admission in response to the opposing party’s request for admission conclusively establishes the fact admitted to. Holland v. CSX Transp. Inc., 583 So.2d 777 (Fla. 2nd DCA 1991); Lutsch v. Smith, 397 So.2d 337 (Fla. 1st DCA 1981). Therefore, it is hereby
ORDERED AND ADJUDGED that Defendant’s 9/21/11 Motion to Amend be and the same is hereby DENIED.
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