20 Fla. L. Weekly Supp. 936b
Online Reference: FLWSUPP 2009MOSEInsurance — Personal injury protection — Affirmative defenses — Amendment — Second motion to amend answer and affirmative defenses to assert defenses of deficient demand letter and exhaustion of benefits is denied where insurer filed motion seven months after exhaustion occurred and medical provider would be substantially prejudiced by amendment
QUANTUM IMAGING HOLDINGS LLC, as Assignee of Kent Moses, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 11-8571 COCE 53. November 30, 2012. Honorable Robert W. Lee, Judge. Counsel: Emilio R. Stillo, for Plaintiff. Michael Rosenberg, for Defendant.
[Editor’s note: Final judgment in favor of plaintiff was entered in this case on May 20, 2013, and was affirmed on appeal. FLWSUPP 2609MOSE (State Farm Mutual Automobile Ins. Co. v. Quantum Imaging Holdings, LLC (a/a/o Kent Moses), Case No. CACE13-019202 (AP) (17th Jud. Circuit), 11-15-2018)]
ORDER ON DEFENDANT’S MOTIONSECOND MOTION TO AMEND ANSWERAND AFFIRMATIVE DEFENSES
THIS CAUSE, having come before the Court for Defendant’s Second Motion to Amend Answer and Affirmative Defenses.
Background: The Plaintiff filed suit for unpaid PIP benefits on May 23, 2011. The Defendant filed an Answer and Affirmative Defense on September 8, 2011 stating it paid the allowable amounts. On July 3, 2012, based on the pending state of the pleadings, the Plaintiff noticed and began preparing for trial. On or about July 29, 2012, the Defendant filed a Motion to Amend Answer and Affirmative Defenses raising for the first time a purported deficiency with the Plaintiff’s Pre-Suit Demand Letter. The Defendant did not set their motion for hearing. On or about August 19, 2012, the Defendant filed a Second Motion to Amend Answer and Affirmative Defenses now raising the purported deficiency with the Pre-Suit Demand Letter as well as a purported exhaustion defense as of January 11, 2012. The Defendant did not set their second motion to amend affirmative defenses for hearing until November 30, 2012. As of the date of the hearing of November 30, 2012 on Defendant’s Second Motion to Amend Answer and Affirmative Defenses, the Plaintiff had already obtained a Final Summary Judgment as to all issues except reasonableness, relatedness and the medical necessity of the MRI. All other litigation has concluded, the matter has been mediated, the Plaintiff has rejected a proposal for settlement, conducted extensive discovery, the case is in a trial posture, the case is set for arbitration December 13, 2012 and both parties have already filed their Expert Witness Disclosures in accord with the Court’s Pretrial Order setting Case for Trial. Further, Plaintiff has filed a Motion for Final Summary Judgment as to the sole remaining issue of reasonableness, relatedness and medical necessity. The Plaintiff has retained an Expert Witness as to medical necessity for which an affidavit has already been filed with the Court in support of Plaintiff’s Motion for Final Summary Judgment.
No credible explanation was given by the Defendant for the lengthy delay in raising the proposed purported exhaustion defense nor as to its omission in the First Proposed Amended Answer and Affirmative Defenses which was filed six months after the purported exhaustion.
Conclusions of Law. A party may amend a pleading only by leave of court or by written consent of the adverse party. Leave of court shall be given freely when justice so requires. Rule 1.190(a), Fla. R. Civ. P. The Plaintiff strongly objects to the amendment as being untimely and prejudicial. Granting or denying a motion to amend a complaint lies within the discretion of the Court. Physician’s First Choice Interpretation, Inc. (a/a/o Lisa Audevert) v. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 645a (Fla. 17th Circuit, Broward County, Judge Robert W. Lee, March 27, 2006) citing B.P. Development and Management Corp. v. P. Lafer Enterprises, Inc. 538 So.2d 1379, 1382 (Fla. 5th DCA 1989).
The test of prejudice is the primary, but not only consideration. New River Yachting Center, Inc. v. Bacchiochi, 407 So.2d 607, 609 (Fla. 4th DCA 1981). In considering prejudice, the Court must consider the timeliness of the motion. A motion to amend must be made promptly. Physician’s First Choice citing Alvarez v. De Aguirre, 395 So.2d 213, 216 (Fla. 3d DCA 1981). The Court also keeps in mind that this is a civil case, with a recommended resolution standard of 18 months. Rule 2.085(e)(1)(B). In the instant case, the matter has already been pending for approximately 18 months and the Plaintiff has incurred mediation costs as well as rejecting a proposal for settlement, preparing for arbitration and preparing for trial. Affiliated Healthcare Centers, Inc. (Jonathan Ponce), v. United Automobile Insurance Company, 18 Fla. L. Weekly Supp. 485b (Fla. 17th Judicial Circuit in and for Broward County, March 4, 2010). Florida appellate Courts have consistently affirmed the denial of untimely motions to amend. Physician’s First Choice citing New River Yachting v. Bacchiocchi, 407 So.2d. at 608-09 (Fla. 4th DCA, 1981); Hallandale Beach Orthopedics Inc. (David Bendahan) v. State Farm Mutual Automobile Insurance Company, 18 Fla. L. Weekly Supp. 559a (Broward County Court, Judge Robert W. Lee, 2011).
The Court finds the Second Motion to Amend Answer and Affirmative Defenses both untimely and as well as substantially prejudicial to the Plaintiff.
ORDERED AND ADJUDGED that said Motion is hereby DENIED
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