19 Fla. L. Weekly Supp. 174a
Online Reference: FLWSUPP 1903GONZInsurance — Personal injury protection — Answer — Amendment — Abuse of discretion to deny insurer leave to file amended answer to assert statutory defense of late billing where amendment would not be futile, insurer had not previously amended answer, medical provider was not prejudiced by fact that motion to amend was not calendared prior to summary judgment hearing, and amendment will not cause delay because case must be set for trial due to reversal and remand on another issue
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. U.S. MEDICAL ASSOCIATES, INC., A/A/O ALEJANDRO GONZALEZ, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 08-501 AP. L.C. Case No. 06-13047 CC-25. November 28, 2011. On appeal from a final summary judgment of the County Court in and for Miami-Dade County. Andrew S. Hague, Judge. Counsel: Lara J. Edelstein, Office of General Counsel United Automobile Insurance Company, for Appellant. Christian Carrazana, for Appellee. Appellee precluded from oral argument.
(Before MILLER, ARZOLA, and RUIZ-COHEN, JJ.)
(PER CURIAM.) United Automobile Insurance Company (“United Auto”) appeals a final summary judgment entered in favor of the insured’s assignee, U.S. Medical Associates, Inc. (“U.S. Medical”) for personal injury protection benefits.
United Auto raised two issues on appeal. On the first issue, regarding the trial court’s failure to consider the peer review and report, upon appellee’s confession of error, this Court reversed the entry of summary judgment and remanded the cause based upon United Auto. Ins. Co. v. Santa Fe Med., Inc., a/a/o Telmo Lopez, 21 So. 3d 60 (Fla. 3d DCA 2009) [34 Fla. L. Weekly D2051b].1 The second issue, addressing the trial court’s denial of United Auto’s motion to file an amended answer, is addressed in this opinion. We have jurisdiction. See §26.012(1), Fla. Stat. (2011); Fla. R. App. P. 9.030(c)(1)(A). Because we find that the trial court abused its discretion in denying United Auto’s leave to file an amended answer, we reverse.I. Facts
Alejandro Gonzalez (“Gonzalez”) was involved in a motor vehicle accident on December 6, 2005. U.S. Medical provided treatment to Gonzalez for injuries arising from the accident. U.S. Medical, as the assignee of Gonzalez, filed an action for recovery of personal injury protection benefits against United Auto.
On March 1, 2007, U.S. Medical deposed United Auto’s litigation adjuster. On March 2, 2007, United Auto filed a motion to amend its answer based upon the litigation adjuster’s deposition. The amended answer alleged that U.S. Medical failed to timely furnish charges of claimant services to United Auto. On Aug. 28, 2008, after granting U.S. Medical’s motion for summary judgment, the trial court entertained and then denied United Auto’s motion to amend, on the basis of prejudice. Subsequently, the trial court entered a final summary judgment in favor of U.S. Medical. This appeal timely followed.II. Standard of review
Florida Rule of Civil Procedure 1.190 provides, in regard to the amendment of pleadings, that “[l]eave of court shall be given freely when justice so requires.” Fla. R. Civ. P. 1.190 (a). A lower court’s decision to deny an amendment to pleadings will not be disturbed on appeal absent an abuse of discretion. Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So. 2d 1132 (Fla. 5th DCA 1998) [23 Fla. L. Weekly D1955b]. Generally, a denial to allow the amendment constitutes an abuse of discretion unless it clearly appears from the record that (1) the amendment would be futile; (2) the privilege to amend the pleading has been abused; or (3) the amendment would have prejudiced the opposing party. Yun Enterprises, LTD. v. Graziani, 840 So. 2d 420 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D781a].III. Discussion
In this case, United Auto sought leave to amend its answer to assert the statutory defense of late billing. See § 627.736(5)(c)(1), Fla. Stat. (2005);2 United Auto. Ins. Co. v. Eduardo J. Garrido, D.C. P.A., 990 So. 2d 574, 575 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1846b] (“[u]nder section 627.736(5)(e)(1), an insurer has no obligation to pay late-filed bills.”). United Auto ascertained this defense upon its litigation adjuster’s deposition. The assertion of this defense was material to the issues before the trial court and is a defense to which United Auto is entitled by statute. Therefore, the amendment was not futile.
Additionally, United Auto did not abuse its privilege to amend as this was its first motion to amend its answer. See PNC Bank, N.A. v. Progressive Employer Serv. II, 55 So. 3d 655, 660 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D369c]; Dieudonne v. Publix Super Markets, Inc., 994 So. 2d 505 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2692a].
Lastly, allowing the amendment would not have prejudiced U.S. Medical. The record shows that the reasons for the trial court’s decision that the amendment was prejudicial were: (1) that the court had already disposed of the issues of the case by summary judgment; and (2) that the motion was never calendared notwithstanding having being filed for over a year. The trial court was understandably frustrated with the apparent delay in calendaring the motion. However, “[a] party may, with leave of court, amend a pleading at or even after a hearing and ruling on a motion for summary judgment.” Cardona v. Benton Express, Inc., 804 So. 2d 505, 507 (Fla. 3d DCA 2001) [27 Fla. L. Weekly D76a]. As such, if leave to amend can be sought at or after a hearing and ruling on summary judgment, we find it difficult to conclude that because the motion was not calendared prior to the summary judgment hearing the amendment was prejudicial.
In addition, notwithstanding that U.S. Medical asserted that all the parties needed their day in court, no argument was made as to the cause being delayed to conduct further discovery in light of the amendment. See Newman v. State Farm Mut. Auto. Ins. Co., 858 So. 2d 1205 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2590a]. In fact, U.S. Medical was fully aware of the billing issue upon United Auto’s litigation adjuster’s deposition. See Newman, 858 So. 2d at 1206 (“If the amendment simply restates an issue already present in the case of which the opposing party is aware and needs no extensive preparation for trial, then there may be no prejudice to the opposing party and great prejudice to the moving party to deny the amendment.”). Furthermore, in light of the fact that the case has been remanded to the trial court due to the reversal on the first issue and that the matter needs to he set for trial, U.S. Medical will not be prejudiced if United Auto is permitted to amend its answer to assert the statutory defense of late billing.IV. Conclusion
Based on the foregoing, we conclude that the trial court abused its discretion in denying United Auto’s leave to amend its answer. We reverse and remand this cause with instructions to the trial court to grant United Auto’s leave to amend to assert the late billing defense.
REVERSED and REMANDED.
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1The Order on Limited Confession of Error was rendered on April 9, 2010. The order also precluded U.S. Medical from oral argument or filing an answer brief addressing the second issue on appeal.
2Generally, the statute in effect at the time of the execution of the insurance contract governs any issues arising from the contract. Hassen v. State Farm Mut. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996) [21 Fla. L. Weekly S102c]; Lumbermens Mut. Cas. Co. v. Ceballos, 440 So. 2d 612 (Fla. 3d DCA 1983). The effective date of the insurance policy contract between United Auto and the insured is unknown as it is not part of the record. However, the insurance policy was in effect at the time the accident occurred on December 6, 2005. As such, we referenced the 2005 version of the statute in this opinion. See generally Perry v. Munger, 730 So. 2d 393, 395 n.1 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D925c].
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