20 Fla. L. Weekly Supp. 160a
Online Reference: FLWSUPP 2002TOWLInsurance — Personal injury protection — Motion to amend answer after two years of litigation to raise new affirmative defenses disputing standing based on final judgment in class action involving same claims is denied where insurer has no reasonable explanation for why it failed to timely notify medical provider of class action in response to demand letter
SPORTS IMAGING CENTERS, LLC d/b/a WINDSOR IMAGING, a/a/o Herbert Towler, Plaintiff, vs. PEAK PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 10-18401 COCE (55). October 18, 2012. Sharon Zeller, Judge. Counsel: Marc Finkelstein, Law Offices of Marc Finkelstein, P.A., Fort Lauderdale, for Plaintiff. Marianne Minetree, Adams & Diaco, P.A., Miami, for Defendant.
[Notice of Appeal Filed]
ORDER ON DEFENDANT’S MOTION FOR LEAVE TO FILEAMENDED ANSWER AND AFFIRMATIVE DEFENSES
THIS MATTER having come before the Court upon the Defendant’s July 13, 2012 Motion for Leave to File Amended Answer and Affirmative Defenses, the Court having heard argument, having reviewed the records and files and being duly advised, the court finds as follows:
1. The Plaintiff filed suit for personal injury protection benefits on November 16, 2010 regarding a 2008 accident. On May 24, 2010, Plaintiff served Defendant with its pre-suit demand pursuant to Florida Statute 627.736(10). Defendant responded to Plaintiff’s demand on June 21, 2010, however Defendant made no mention that the claim at issue may have been subject to any class action.
2. On February 9, 2011, Plaintiff served Defendant with its initial discovery. Defendant served its verified answers to Plaintiff’s interrogatories on February 27, 2012 wherein Defendant indicated it did not dispute standing. A party is bound by any relevant admission which either he or his agent makes. Metro Dade County v. Yearby, 580 So.2d 186, 189 (Fla. 3rd DCA 1991). Additionally, a party’s admission in response to the opposing party’s request for admission conclusively establishes the fact admitted to. Holland v. CSX Transp. Inc., 583 So.2d 777 (Fla. 2nd DCA 1991); Lutsch v. Smith, 397 So.2d 337 Fla. 1st DCA 1981).
3. On February 23, 2011 the Defendant originally filed six affirmative defenses:
a. failure to comply with a condition precedent
b. failure to comply with policy provision
c. unreasonable, unrelated and unnecessary
d. failure to submit reasonable proof of a covered loss
e. failure to comply with AMA guidelines
f. payment pursuant to the fee schedule
4. Plaintiff moved to strike affirmative defenses one through four and the parties entered an agreed order on February 20, 2012 granting Defendant 20 days to file amended affirmative defenses. Defendant failed to do so.
5. On February 7, 2012, Defendant served its notice of withdrawal of its 6th affirmative defense.
6. On March 30, 2012, Plaintiff served its Notice for Trial pursuant to Rule 1.440(b). On April 10, 2012, Defendant served its objection to Plaintiff’s Notice for Trial alleging outstanding discovery. Notwithstanding Defendant’s objection, on April 26, 2012, this Court entered an Order Setting Pretrial Deadlines with Referral to Arbitration. Pursuant to the Court’s pretrial order, the parties were to complete discovery and submit a joint pretrial stipulation within fifty (50) days, disclose their experts within thirty (30) days and complete arbitration within 90 days of the date of said order. Defendant argued that this case did not have a date for trial. As both parties know, this Court does not give a trial date until all discovery is complete and all motions have either been heard or are set to be heard within a short period of time. Once a case is set for calendar call and trial, the parties have no reason to roll it over and a trial date is immediately special set.
7. On July 12, 2012, Defendant served an amended answer at which time it raised five affirmative defenses, four of which were now presented for the first time:
a. subject matter jurisdiction
b. res judicata & collateral estoppel
c. split cause of action
d. waiver, release, stipulation, satisfaction
e. unreasonable, unrelated and unnecessary
8. The plaintiff has strongly objected to the amendments.
9. On July 16, 2012, the parties entered into a Joint Pretrial Stipulation. The Defendant claimed that additional issues of law and fact needed to be tried that had not been raised in the pleadings previously filed.
10. The parties have engaged in litigation for approximately a year and a half. Defendant made no attempt to raise its new defenses until after the Plaintiff submitted its proposed joint pretrial stipulation.
11. Arbitration was conducted on September 10, 2012. At that time, Plaintiff’s counsel was presented with a slew of additional filings by the defense that had not been previously listed as exhibits. Plaintiff had no time to prepare and was severely prejudiced.
12. The next day, at the hearing on the Motion for Leave to Amend, defense counsel was unable to reasonably explain the lengthy delay in seeking to assert these “new” defenses. The Defendant had been or should have been aware of the substance of the proffered affirmative defenses for some time. “While the policy in Florida is to liberally allow amendments to pleadings where justice so requires, a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished.” Alvarez v. DeAguirre, 395 So.2d 213 (Fla. 3rd DCA 1981). “In addition to the desirability of allowing amendments so that cases may be concluded on their merits, there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached.” Hickman v. Barclay’s Int’ Reality, 5 So.3d 804 (Fla 4th DCA 2009) [34 Fla. L. Weekly D680a]. See also Noble v. Martin Mem’s Hosp Ass’n, 710 So.2nd 567 (Fla 4th DCA 1997) [23 Fla. L. Weekly D58a]. The court also keeps in mind that under the Florida Rules of Judicial Administration, Rule 2.085, this county court case has an 18 month resolution standard.
13. The Defendant further stated that because a different attorney was handling the class action lawsuit she was not aware that Plaintiff was an alleged member of the class. In this case, the new defenses proffered by the Defendant were known or should have been known prior to the initiation of the lawsuit.
14. In ruling on a motion for leave to amend, while discretionary, the courts should allow the amendment unless it clearly appears that allowing amendment would prejudice the opposing party, the privilege to amend has been abused, or the amendment would be futile. Quality Roof Services v. Intervest National Bank, 21 So.2d 883 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2205d].
15. Under the rule, a test of prejudice is the primary consideration in determining whether a motion for leave to amend should be granted, and leave to amend should not be denied unless the privilege has been abused or the pleading is clearly not amendable. New River Yachting Center v. Bacchiocchi, 407 So.2d 607, (Fla. 4th DCA 1981).
16. In considering prejudice, the Court must consider the timeliness of the motion. A motion to amend must be made promptly. West Gables Open MRI and Physician’s First Choice citing Alvarez v. DeAguirre, 395 So.2d 213, 216 (Fla. 3rd DCA, 1981). Florida appellate courts have consistently affirmed the denial of untimely motions to amend. West Gables Open MRI and Physician’s First Choice First citing New River Yachting v. Bacchiocchi, 407 So.2d 608 (Fla. 4th DCA, 1981).
17. Counsel for Defendant has no reasonable explanation as to why litigation continued after the Notice of Class Action was allegedly mailed in August, 2009 and a Class Action Final Judgment was entered on May 5, 2010. The Defendant should have made sure that their lawyers knew of the class action. Defendants cannot be absolved of their responsibilities by simply having different lawyers for different lawsuits. Any prejudice in this case was caused by the Defendants failure to timely notify Plaintiff’s counsel, as they should have done in response to the demand letter. The Defendant’s lawyer kept litigating without telling the Plaintiff’s counsel until the eve of trial. Their actions are nothing short of dilatory. Therefore, it is hereby
ORDERED AND ADJUDGED that said Motion to Amend be, and the same is hereby DENIED.
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