20 Fla. L. Weekly Supp. 499a
Online Reference: FLWSUPP 2005REEVInsurance — Amendment of statement of claim — Substitution of defendant — On reconsideration, court concludes that it properly denied plaintiff’s motion to amend statement of claim to substitute an entirely new party to the lawsuit in place of the defendant against whom the action had been pending — Denial is without prejudice to plaintiff’s filing an amended motion to amend statement of claim, if appropriate and not barred by the statute of limitations or other affirmative defense, seeking to add defendant as a party defendant pursuant to Rule 1.250(c)
RAVELING CHIROPRACTIC CENTER (a/a/o SHARON REEVES), Plaintiff, v. USAA CASUALTY INSURANCE COMPANY, Defendant. Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 52 2012CC004418XXCOCO, Section 41. February 8, 2013. Honorable Myra Scott McNary, Judge.
ORDER DENYING DEFENDANT’S MOTION TOSTRIKE; GRANTING IN PART/DENYING IN PARTPLAINTIFF’S MOTION FOR RECONSIDERATION;AMENDING NOVEMBER 9, 2012, ORDER
THIS CAUSE came before the Court on Plaintiff Raveling Chiropractic Center (a/a/o Sharon Reeves)’s “Motion for Rehearing and/or Reconsideration;” and Defendant USAA Casualty Insurance Company’s “Motion to Strike and Response in Opposition” to the motion. A hearing was conducted on January 29, 2013. Having considered the motions, the court file, argument of counsels, and applicable law, the Court finds as follows:
In the motion to strike, Defendant correctly states that motions for rehearing are properly directed only to final orders and that motions for reconsideration are not authorized for nonfinal orders. However, at all times prior to entry of the final order terminating an action, the Court has inherent authority to reconsider any of its nonfinal rulings, and, if in its discretion it deems it appropriate, to alter or retract them. Hunter v. Dennies Contracting Co., 693 So. 2d 615, 616 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D796b]. Defendant’s motion to strike is denied.
Upon review of the court file, the Court notes that on December 7, 2011, the Statement of Claim was filed in Palm Beach County, Florida. On February 24, 2012, Defendant filed a “Motion to Dismiss for Incorrect Named Entity.” In the motion, Defendant states that USAA Casualty Insurance Company did not issue the underlying contract of insurance, but “is informed and believes” the contract of insurance was issued by non party United Services Automobile Association. Defendant requested that Plaintiff file an amended complaint “for which the undersigned [Palm Beach County Attorney] will accept service, or in the alternative, moves to dismiss the present complaint.” It does not appear that this motion was called for hearing as there is no order ruling on the motion.
Thereafter, on April 16, 2012, Defendant filed the Response to Request for Admissions and the Response to Plaintiff’s Request for Production, both of which stated that USAA Casualty Insurance Company did not insure Plaintiff, but United Services Automobile Association issued the insurance policy at issue.
On April 26, 2012, an order was entered transferring this case to Pinellas County, Florida. On August 6, 2012, new counsel was substituted for Defendant and the Answer and Affirmative Defenses was served on September 21, 2012. In the first Affirmative Defense, Defendant states that USAA Casualty Insurance Company did not insure Plaintiff on the date of the accident, but United Services Automobile Association issued the policy.
On September 24, 2012, and October 5, 2012, Plaintiff filed motions for leave to amend the statement of claim. Attached to the October 5, 2012, motion is the proposed Amended Statement of Claim which seeks to substitute United Services Automobile Association as defendant in place of USAA Casualty Insurance Company. The motion does not seek merely to add a new party.
The law distinguishes between the substitution of parties (as a result of mistake or misnomer) and the addition of parties. Graney v. Caduceus Properties, LLC, 91 So. 3d 220, 228 (Fla. 1st DCA 2012) [37 Fla. L. Weekly D892a]. The Court concludes that it properly denied the motion to amend to substitute an entirely new party to the law suit in place of the Defendant against whom the action had been pending.
On rehearing, Plaintiff apparently seeks to assert bad faith on the part of USAA Casualty Insurance Company when she states that Defendant waited a year after it responded to Plaintiff’s November 18, 2011, Demand before it informed Plaintiff that United Services Automobile Association issued the insurance policy at issue.
As detailed above, this assertion is incorrect. On February 24, 2010, in the first response by Defendant after the Statement of Claim was filed, counsel for USAA Casualty Insurance Company filed a Motion to Dismiss informing Plaintiff that the wrong entity had been sued and offered to accept service on behalf of United Services Automobile Association. The discovery responses reiterated that fact.
Plaintiff represents in her motion for rehearing that in the present case the statute of limitations has not expired and that United Services Automobile Association will not be prejudiced by an amendment/substitution of party relating to the Statement of Claim. The Court holds that this statement is incorrect in that Defendant could be prejudiced because granting a motion for substitution of parties rather than to add a new party defendant could impact USAA Casualty Insurance Company’s right to attorney’s fees and costs for this litigation.
The Court grants in part Plaintiff’s “Motion for Reconsideration.” The November 9, 2012, “Order On Plaintiff’s Motion for Leave to Amend Statement of Claim” is hereby amended to the extent the Motion for Leave to Amend Statement of Claim is denied without prejudice to file an Amended Motion to Amend Statement of Claim, (if appropriate and not barred by the statute of limitations or other affirmative defense), seeking to add United Services Automobile Association as a party defendant pursuant to Florida Rule of Civil Procedure 1.250(c). Accordingly, it is hereby:
ORDERED AND ADJUDGED as follows:
1. Plaintiff Raveling Chiropractic Center’s “Motion for Reconsideration” is GRANTED IN PART as detailed above, and otherwise DENIED.
2. Defendant USAA Casualty Insurance Company’s “Motion to Strike” is DENIED.
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