19 Fla. L. Weekly Supp. 613a
Online Reference: FLWSUPP 1908AUGUInsurance — Personal injury protection — Affirmative defenses — Amendment — Where insurer knew that insured lived with family member covered under another insurance policy four years before filing answer and five years before filing motion to amend affirmative defenses to assert coverage defense based on that fact, and insurer’s failure to assert defense resulted in insured being barred from initiating claim against other insurance carrier, prejudice to insured outweighs what may have otherwise have been deemed abuse of discretion in denying motion to amend
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, vs. AUGUST CHIROPRACTIC INC, a/a/o ISMITH JACQUES, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 10-457 AP. L.C. Case No. 06 7678 SP 23. April 17, 2012. An Appeal from the County Court of Miami-Dade County. Myriam Lehr, Judge. Counsel: Michael J. Neimand, for Appellant. Marlene S. Reiss, for Appellee.
(Before FIRTEL, LINDSEY, JJ.)1
(PER CURIAM.) Appellant, United Automobile Insurance Company (“United”), appeals the trial court’s denial of its Motion for Leave to Add Supplemental Affirmative Defense and the resulting Final Judgment in favor of Appellee, August Chiropractic, Inc. We review rulings on motions to amend pleadings for an abuse of discretion. North American Specialty Ins. Co. v. Bergeron Land Development, Inc., 745 So. 2d 359 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D2195c]. In lieu of issuing a blanket per curiam affirmance, due to the facts herein presented, the Court thought it prudent to issue a written opinion explaining its decision.
Here, it is undisputed that United knew it had a basis to assert a coverage defense nearly five years before it moved for leave to add a supplemental affirmative defense. Indeed, prior to the filing this lawsuit, on August 23, 3005, United conducted the examination under oath (“EUO”) of the injured assignor Ismith Jean-Jacques. During that EUO, United discovered that Mr. Jean-Jacques lived with a family member covered under another insurance policy. Despite being armed with this information that constituted a valid coverage defense, on June 16, 2006, United filed an Answer and Affirmative Defenses that did not allege or reserve this or any other coverage defense. Thereafter, on May 18, 2010, nearly four years after filing its Answer, United moved the trial court for leave to add a supplemental affirmative defense, even though it initially became aware of the defense approximately five years earlier. Due to United’s failure to assert the defense in a timely manner, the statute of limitations ran on any claim the Plaintiff-Appellee may have had under any other insurance policy.
In a case such as here, where a litigant knew or should have known of a valid coverage defense, even if only based upon “information and belief,” but failed to assert that defense, and the litigant’s failure to assert the defense directly results in the injured-plaintiff then being barred from initiating a claim against another insurance provider, the prejudice to the injured-plaintiff outweighs what may have otherwise been deemed an abuse of discretion. See generally, Oliveros v. Adventist Health Systems, 45 So. 3d 873 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1977a]; Ingersoll v. Hoffman, 589 So. 2d 223 (Fla. 1991). Accordingly, it is hereby,
ORDERED and ADJUDGED that the Final Judgment in favor of Appellee, August Chiropractic, Inc. a/a/o Ismith Jean-Jacques, is AFFIRMED.
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1At oral argument, the parties consented a two-judge panel.
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