20 Fla. L. Weekly Supp. 873a

Online Reference: FLWSUPP 2009KOVANOT FINAL VERSION OF OPINION
Subsequent Changes at 20 Fla. L. Weekly Supp. 1152aInsurance — Personal injury protection — Answer — Amendment — Abuse of discretion to deny insurer’s motion to amend answer to assert potentially conclusive defense of res judicata based on class action settlement where insurer had not previously sought to amend answer, amendment would not have been futile as motion was supported by settlement documents and would constitute complete defense if proven, and medical provider would not have been prejudiced by granting motion filed before trial and summary judgment hearing to add issue that had been raised numerous times before motion was filed

UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant, v. UNIVERSITY CHIROPRACTIC CENTER, INC. a/a/o Melissa Kovach, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. 11-08820CACE(21). L.T. Case No. 09-16032COCE(53). May 23, 2013. Counsel: Douglas H. Stein, Seipp & Flick, LLP, Miami, for Appellant. Kevin B. Weiss, Weiss Legal Group, P.A., Maitland, for Appellee.

[Opinion on remand at 22 Fla. L. Weekly Supp. 391a.]

OPINION

(MURPHY, III, Judge.) THIS CAUSE is before the court, sitting in its appellate capacity, upon appeal by Appellant, United Services Automobile Association, of the trial court’s Final Judgment in favor of Appellee, University Chiropractic Center, Inc. Having carefully considered the briefs filed by the parties, the record, the supplemental authority filed by Appellee on January 15, 2013 and January 23, 2013, and applicable law, the court dispenses with oral argument and decides as follows:

This Court finds no merit in Appellant’s second argument on appeal. However, this Court agrees with Appellant that the trial court abused its discretion when it denied Appellant’s motion to amend its answer to assert the potentially conclusive defense of res judicata. Florida courts follow a longstanding policy of freely allowing amendments to pleadings so that cases may be decided on their merits. See Life Gen. Sec. Ins. Co. v. Horal, 667 So. 2d 967, 969 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D434a]; Turner v. Trade-Mor, Inc., 252 So. 2d 383, 384 (Fla. 4th DCA 1971); Fla. R. Civ. P. 1.190(a) (“Leave of court [to amend pleadings] shall be given freely when justice so requires.”). “[C]ourts ‘should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment.’ ” Hutson v. Plantation Open MRI, LLC, 66 So. 3d 1042, 1044 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1682a] (quoting Quality Roof Servs., Inc. v. Intervest Nat. Bank, 21 So. 3d 883, 885 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2205d]); see Soucy v. Casper, 658 So. 2d 1017, 1018 (Fla. 4th DCA 1995) [20 Fla. L. Weekly D198c]; Leavitt v. Garson, 528 So. 2d 108, 110-11 (Fla. 4th DCA 1988). Consequently, refusal to allow an amendment constitutes an abuse of discretion unless the privilege to amend has been abused, the amendment would be futile, or the amendment would prejudice the opposing party. Hutson, 66 So. 3d at 1044-45; Horal, 667 So. 2d at 969.

In this case, the record does not show that any of the three exceptions to the liberal amendment policy existed. First, Appellant had not abused its privilege to amend because it had not sought leave to amend its answer at any time prior to the filing of the motion at issue. Second, the amendment would not have been futile because the defense was supported by the affidavit of the class action administrator and settlement documents, and, if proven, would constitute a complete defense to the cause of action. Last, the record does not show that Appellee would have been prejudiced by the amendment. The motion to amend was filed the day of the pre-trial conference, which was four (4) days before the case was set for trial, three (3) weeks before Appellee filed its motions for summary judgment, more than one (1) month before the summary judgment hearing, and approximately seven (7) weeks before the scheduled trial date. In addition, the record shows that Appellant raised the class action settlement issue numerous times before it filed the motion to amend.¹ Therefore, Appellee cannot claim to have been surprised by the issue. Because the defense was supported by the affidavit of the class action administrator and the settlement documents, leave to amend was sought before the summary judgment hearing, and there was no showing that Appellee would have been prejudiced by the amendment, the denial of the motion to amend was an abuse of discretion. See Leavitt, 528 So. 2d at 110-11 (finding that the trial court erred in denying defendant’s motion to amend answer to assert statute of frauds defense where motion was filed prior to summary judgment hearing and before case had been set for trial and there was no showing of prejudice to plaintiff); Gusow v. A.B.C. Elec. Contractors, Inc., 524 So. 2d 1109, 1110 (Fla. 4th DCA 1988) (“[W]here facts appear in affidavits upon motion for a summary judgment which would justify an amendment of the pleadings, such amendment should not be prevented by the entry of a final judgment.” (quoting Curley v. Finest Homes, Inc., 167 So. 2d 739 (Fla. 2d DCA 1964)); Carib Ocean Shipping, Inc. v. Armas, 854 So. 2d 234, 236-37 & n.2 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D2055a] (holding that the trial court abused its discretion when it precluded defendant from amending its answer to raise potentially conclusive defense of immunity where the motion was filed “shortly before trial” and the plaintiff made no showing of prejudice); Wayne Creasy Agency, Inc. v. Maillard, 604 So. 2d 1235, 1236 (Fla. 3d DCA 1992) (holding that the trial court abused its discretion when it denied defendant’s motion to amend its answer to assert defense of laches where motion was filed less than one month before trial and there was no showing that plaintiff would have been prejudiced).

Accordingly, it is hereby

ORDERED AND ADJUDGED as follows:

1. The trial court’s Final Judgment in favor of Appellee is REVERSED and the cause is REMANDED to the trial court for further proceedings consistent with this opinion.

2. Appellee’s Motion for Attorney Fees is DENIED.

3. Appellant’s Motion for Attorney’s Fees Pursuant to Proposal for Settlement is CONDITIONALLY GRANTED. Appellant is entitled to appellate attorney fees only if the trial court on remand finds the proposed settlement satisfied the requirements of section 768.79, Florida Statutes and Florida Rule of Civil Procedure 1.442.

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¹On January 22, 2010, Appellant sent Appellee a letter requesting voluntary dismissal of the case pursuant to the class action settlement. On February 10, 2010, Appellant filed an affidavit by the class action administrator stating Appellee was notified of the class action and failed to opt out. On July 23, 2010, Appellant filed a motion for summary judgment predicated on the class action settlement. On September 16, 2010, Appellant filed a motion to dismiss predicated on the class action settlement. The Arbitration Order filed on October 21, 2010 found that the case was barred pursuant to the class action settlement. On December 17, 2010, Appellant moved for sanctions against Appellee who instructed a deponent to not respond to questions regarding the class action and ultimately terminated the deposition.

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