20 Fla. L. Weekly Supp. 678a
Online Reference: FLWSUPP 2007FLINInsurance — Personal injury protection — Affirmative defenses — Amendment — Motion to amend affirmative defenses is denied where insurer was aware of defense two years before filing original answer and medical provider would be prejudiced by allowing amendment
WELLNESS CHIROPRACTIC CARE CENTER, INC. a/a/o ROBINSON SAINT FLINA, Plaintiff, v. FIRST ACCEPTANCE INSURANCE COMPANY, INC., Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 10-CC-16776. September 13, 2013. Honorable Faye Allen, Judge.
ORDER ON DEFENDANT’S MOTION FOR LEAVETO FILE ITS SECOND AMENDED ANSWERAND AFFIRMATIVE DEFENSES
THIS CAUSE came on for consideration by the undersigned on Defendant’s Motion for Leave to File Its Second Amended Answer and Affirmative Defenses, a hearing was held on July 26, 2012, and this Court having reviewed the file, received case law, heard argument and considered the motion under advisement, it is hereby ORDERED AND ADJUDGED that:
1. Defendant’s Motion for Leave to File its Second Amended Answer and Affirmative Defenses is hereby DENIED.
2. The Court finds that Defendant’s Fifth Affirmative Defense is untimely and that Defendant waived its right to assert this defense as Defendant was aware of the potential defense for almost one year before Defendant filed its original Answer and Affirmative Defenses. The Court also finds that Plaintiff would be prejudiced by allowing the amendment.
PROCEDURAL BACKGROUND
3. Plaintiff filed its Complaint on or about October 19, 2010 seeking No-Fault benefits from the Defendant regarding an accident that is alleged to have occurred on December 5, 2009.
4. Defendant filed its Answer and Affirmative Defenses on or about November 24, 2010 and its Amended Answer and Affirmative Defenses a year later on October 13, 2011. Neither the Answer nor the Amended Answer and Affirmative Defenses included the affirmative defense that Defendant is now seeking to add.1
5. On October 20, 2011, a Uniform Order Regarding Setting Case for Jury Trial and Pre-Trial Conference and Requiring Pre-Trial Matters to Be Completed Together with Private Mediation was entered. However, a trial date was never set.
6. On May 17, 2012, Defendant filed the subject Motion for Leave to File its Second Amended Answer and Affirmative Defenses. Defendant’s Motion for Leave seeks to add the following Affirmative Defense to its operative Answer and Affirmative Defenses:
The Plaintiff’s bills were not lawfully rendered. At the time the bills were submitted Judith McKenzie was held out to the public as the sole owner of the Plaintiff corporation. In fact the Plaintiff corporation was beneficially owned by Pierre Moise. As such the Plaintiff was required to be registered with the agency for Health Care Administration. The Plaintiff was not so licensed on [sic] violation of Florida law. As the Plaintiff was not properly licensed the bills were not lawful and therefore nothing is owed to the Plaintiff for the services allegedly rendered.
7. Plaintiff opposed the Motion alleging that the Defendant has waived its right to assert the foregoing defense and Plaintiff argues that allowing such waiver would result in substantial prejudice to the Plaintiff such that the foregoing affirmative should be disallowed.
LEGAL ANALYSIS
8. According to Rule 1.140(h), a “party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule, or if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2). Rule 1.190 states that a “party may amend a pleading once as a matter of course at any time before a responsive pleading is served . . . [O]therwise a party may amend a pleading only by leave of court or by written consent of the adverse party. Fl. R. Civ. P. 1.190(a). Leave to amend should be freely given unless it appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or the amendment would be futile. Hutson v. Plantation Open MRI, LLC, 66 So. 3d 1042 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1682a].
9. Prejudice is the primary consideration in determining whether a motion for leave to amend should be granted or denied. Leavitt v. Garson, 528 So. 2d 108 (Fla. 4th DCA 1988). In considering prejudice, the Court must consider the timeliness of the motion. Affiliated Healthcare Centers, Inc. a/a/o Joseph Mora v. United Automobile Insurance Company, 19 Fla. L. Weekly Supp. 143a (Broward County 2011).
10. Another consideration when determining whether a motion for leave to amend should be granted or denied is whether the defense has been waived by the moving party. The Florida Supreme Court has defined waiver as the “voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right. Raymond James Financial Services, Inc. v. Saldukas, 896 So. 2d 707 (Fla. 2005) [30 Fla. L. Weekly S115a]. A party may waive any rights to which it is legally entitled by actions or conduct warranting an inference that a known right has been relinquished. Hammond v. DSY Developers, LLC., 951 So. 2d 985 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D708a].
FINDINGS
11. Defendant’s corporate representative testified that the accident at issue in this case occurred on December 5, 2009. There is testimony from the Defendant that this claim was referred to the Defendant’s Special Investigations Unit shortly after the accident was reported, one of the reason being that the Defendant had concerns with the ownership of the Plaintiff. On December 18, 2009, Thomas Steineck2, an investigator in the Special Investigations Unit for Defendant, requested that the claims adjuster handling the file request information from the Plaintiff pursuant to §627.736(6)(b). While he worked on the file, Mr. Steineck testified that there were concerns as to who owned the clinic and whether the clinic was owned by somebody that could lawfully own a clinic. No request was ever sent by Defendant.
12. On May 7, 2010, Defendant sent Plaintiff correspondence informing Plaintiff that the subject claim was still under investigation and that payment would not be made at that time for the bills submitted by Plaintiff. There was no mention of the Defendant’s issue with the ownership of the Plaintiff.
13. On or about June 15, 2012, Defendant sent correspondence to Robinson St. Flina informing him that his claim was denied because he failed to attend two scheduled examinations under oath. Again, there was no mention of the Defendant’s issue with the ownership of the Plaintiff.
14. On or about September 16, 2010, Defendant sent correspondence to Plaintiff in response to Plaintiff’s Pre-Suit Demand Letter informing Plaintiff that the subject claim was denied because Robinson St. Flina failed to appear at two scheduled examinations under oath. Again, there was no mention of the Defendant’s issue with the ownership of the facility.
15. Defendant filed an Answer and Affirmative Defenses on November 29, 2011 and a subsequent Amended Answer and Affirmative Defense on October 12, 2011 and also responded to Interrogatories in December 2010. In its pre-suit correspondence to Plaintiff and during the pendency of this case, Defendant has never raised the defense of clinic ownership/licensure although if it truly is an issue, it was known to Defendant as early as December 18, 2009.
16. Defendant has served and the Plaintiff has rejected, by way of non-acceptance, a proposal for settlement which would potentially subject Plaintiff to attorney’s fees should it ultimately not prevail in this action. At the time the Defendant served its proposal and at the time the Plaintiff rejected the proposal there were no allegations at all similar or related in any manner to those set forth in the affirmative defense sought to be asserted by the Defendant at this time.
17. Two and half years after Defendant was first notified of the subject claim and nearly two years since this present action was filed by Plaintiff, Defendant has now requested that this Court grant its Motion for Leave to File its Second Amended Answer and Affirmative Defenses to assert the defense set forth above.
18. This Court is persuaded by the reasoning set forth by the Seventh Judicial Circuit in Orthopaedic Clinic of Daytona Beach, P.A. v. United Services Automobile Association, 19 Fla. L. Weekly Supp. 395a (Volusia County, 7th Judicial Circuit, January 17, 2012) which dealt with nearly identical circumstances and facts.
19. In Orthopaedic Clinic of Daytona Beach, P.A. v. United Services Automobile Association, the Court found that the defendant waived its right to assert affirmative defenses where the defendant was aware of the supporting facts surrounding those affirmative defenses for one year and five months prior to the filing of the defendant’s answer. 19 Fla. L. Weekly Supp. 395a. The Orthopaedic Clinic Court further noted, in support of its ruling, that the case had been litigated for more than ten months at the time of the Court denying the defendant’s motion to amend its complaint. Id.
20. Further, the Orthopedic Clinic Court found that Plaintiff would be prejudiced by allowing the subject amendments because a significant amount of litigation had already taken place when the defendant moved for leave of court to file its amended affirmative defenses and the Plaintiff had rejected a proposal for settlement which was presented to the Plaintiff before the motion to amend was filed. Id. The Court ruled that a defendant shall not materially change its position at such a late stage in the litigation process when a defendant is aware of the facts supporting the affirmative defenses prior to suit even being filed. Id.
21. This Court hereby finds that the Defendant is barred from raising this defense this late in the litigation and that Defendant shall not materially change its position at this stage in this litigation. Not only is this defense waived by the Defendant, but the Court finds that the Plaintiff would be prejudiced by allowing these amendments. Based on the amount of litigation and discovery which has occurred in the pendency of this nearly two (2) year old case (including twelve (12) depositions, ten (10) of which have been taken by the Defendant), the fact that there is an expired Proposal for Settlement, the Defendant is barred from asserting this defense.
22. Defendant’s Motion for Leave to File Second Amended Answer and Affirmative Defenses is hereby DENIED.
__________________
1Defendant originally asserted as an Affirmative Defense in both its Answer and its Amended Answer that the Assignor, Robinson St. Flina, failed to appear for two scheduled examinations under oath. Defendant, however, withdrew its “EUO” defense on December 5, 2012.
2Thomas Steineck works in the Special Investigations Unit for First Acceptance Insurance Company, Inc. When the subject claim was first reported, he requested an investigation into the claim. His deposition was taken on October 11, 2011and was taken because the Defendant’s Corporate Representative, Rebecca Guido, who was deposed on March 7, 2011, testified that Mr. Steineck was the person with the most knowledge of the claim regarding the investigation.
* * *
