20 Fla. L. Weekly Supp. 1226a
Online Reference: FLWSUPP 2012MONTInsurance — Personal injury protection — Affirmative defenses — Purported affirmative defense that merely denies allegations of complaint already denied in answer and affirmative defense that reserves right to amend defenses pending further discovery are stricken as legally insufficient
DOCTOR REHAB CENTER, INC. (Milagros Montero), Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County, Civil Division, Small Claims. Case No. 13-01140 SP 05 (08). June 25, 2013. Wendell M. Graham, Judge. Counsel: Daniel Martinez, Jose O. Diaz & Stuart Koenigsberg, for Plaintiff. Kimberly Plunkett, Office of the General Counsel, for Defendant.
ORDER GRANTING MOTION TO STRIKE LEGALLYINSUFFICIENT AFFIRMATIVE DEFENSESAND OTHER IMPROPER MATTERS
THIS CAUSE having come before the Court on the Motion to Strike legally Insufficient Affirmative Defenses and Other Improper Matters (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), as a result of Defendant’s alleged failure to properly pay to Plaintiff personal injury protection (PIP) benefits pursuant to the subject insurance contract, including a count (Count II) for failure to properly pay PIP benefits for date of service November 30, 2009 on the basis of alleged late billing.
2. Paragraph 30 of the Complaint alleges, “The proof(s) of claim [for DOS 11/30/09] were timely submitted by Plaintiff.”
3. In response to the Complaint, Defendant filed its Answer, which denied the allegations in paragraph 30 of the Complaint and included the following purported defenses / statements:
36. Defendant reserves the right to Amend his [sic] Affirmative Defenses pending further Discovery and in compliance with applicable Florida Rules of Civil Procedure.
Affirmative Defenses As for its first affirmative defense, Defendant states that Plaintiff failed and/or refuse to comply with Florida Statute 627.736(5)(c)(1) by failing to timely submit the medical bills for date of service November 30, 2009, and as such, Defendant is not obligated to pay for charges for treatment or services rendered more than 35 days before postmark date of any and all statements forwarded to Defendant.
4. Legally cognizable affirmative defenses must be in the form of a “confession and avoidance.” See e.g. Wiggins v. Portmay Corp., 430 So. 2d 541, 542 (Fla. 1st DCA 1983) (“Affirmative defenses do not simply deny the facts of the opposing party’s claim. They raise some new matter which defeats an otherwise apparently valid claim.”); Tropical Exterminators, Inc v. Murray, 171 So. 2d 432, 433 (Fla. 2d 1965); BPS Guard Services, Inc. v. Gulf Power Co., 488 So. 2d 638, 641 (Fla. 1st DCA 1986).
5. An “affirmative defense” is legally insufficient and should be stricken if it merely denies a fact or claim and does not raise any new matters to defeat the complaint or “simply points out a defect or lack of evidence in a plaintiff’s case.” Id.; Gatt v. Keyes Corporation, 446 So. 2d 211 (Fla. 3rd DCA 1984) (trial court properly granted motion to strike defenses that “simply denied the facts contained in the [plaintiff’s] complaint and did not raise any new matters to defeat the complaint”).
6. The purported “reservation of rights” in paragraph 36 of the Answer 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 may be determined necessary during the court of discovery” was properly stricken as insufficient as a matter of law).
7. Similarly, Defendant’s purported 1st Affirmative Defense is not in the form of a “confession and avoidance” and does not raise any new matters. Instead, it only is a mere denial of paragraph 30 of the Complaint, which Defendant previously denied.
It is thereupon ORDERED AND ADJUDGED that:
1. The Motion is hereby GRANTED.
2. The paragraph 36 of the Answer and Defendant’s purported 1st Affirmative Defense in the Answer are hereby STRICKEN.
3. Timeliness of the bill for date of service 11/30/2009 remains at issue.
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