20 Fla. L. Weekly Supp. 997b
Online Reference: FLWSUPP 2010MOORInsurance — Affirmative defenses — Purported affirmative defense reserving right to amend defenses pending further discovery is stricken as legally insufficient
DOCTOR REHAB CENTER, INC. (Kristen Moorehead), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division, Small Claims. Case No. 13-5023-SP-05(04). July 9, 2013. Lourdes Simon, Judge. Counsel: Daniel Martinez, Jose O. Diaz & Stuart Koenigsberg, The Diaz Law Firm, P.A., Hialeah, for Plaintiff. Kimberly Plunkett, Office of the General Counsel, for Defendant.
ORDER GRANTING MOTION TO STRIKEIMPROPER “RESERVATION OF RIGHTS”
THIS CAUSE having come before the Court on the Motion to Strike Improper “Reservation of Rights” (the “Motion”) filed by Plaintiff, DOCTOR REHAB CENTER, INC., and the Court having reviewed the Motion and the Court file and being otherwise duly advised in the premises, finds:
1. Plaintiff filed the instant action for the breach of an insurance contract pursuant to Section 627.730-7405, Florida Statues (2008)
2. In response to the Complaint, Defendant filed its Answer, which did not include any affirmative defenses. The Answer, however, included in paragraph 32 the following purported “reservation of rights:”
Defendant reserves the right to Amend his [sic] Affirmative Defenses pending further Discovery and in compliance with applicable Florida Rules of Civil Procedure.
3. The purported “reservation of rights” in paragraph 32 of the Answer is improper and cannot constitute a legally sufficient affirmative defense, because it does not in any way respond to Plaintiff’s Complaint or raise any facts to negate Plaintiff’s claims. See e.g., Greentree Servicing, LLC v. Decanio, 2005 WL 6426814 (Fla. 5th Cir. Ct. 2005) [32 Fla. L. Weekly D551b] (purported affirmative defense reserving rights to amend or supplement response to complaint with additional affirmative defenses was stricken); Perez-Nunez v. North Broward Hospital District, 2009 WL 723873 (S.D. Fla. 2009) [21 Fla. L. Weekly Fed. D650a] (same); Gonzalez v. Spears Holdings, Inc., 2009 WL 2391233 (S.D. Fla. 2009) (same); Curry v. High Springs Family Practice Clinic and Diagnosis Center, Inc., 2008 WL 5157683 *5 (N.D. Fla. 2008) (reservation “to assert any and all additional defenses as maybe determined necessary during the court of discovery” was properly stricken as insufficient as a matter of law).
It is thereupon ORDERED AND ADJUDGED that:
1. The Motion is hereby GRANTED.
2. The paragraph 32 of the Answer is hereby STRICKEN.
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