21 Fla. L. Weekly Supp. 699a
Online Reference: FLWSUPP 2107MAMOInsurance — Personal injury protection — Complaint — Amendment — Substitution of insurer — Motion to amend complaint to substitute insurer that is entirely separate and distinct corporate entity from insurer against whom action has been pending is denied
MDC CHIROPRACTIC, INC. A/A/O MARCUS AMORIM, Plaintiff, v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 2012-CC-17578. February 10, 2014. Honorable Nancy Perez, Judge. Counsel: Donald J. Masten, Masten, Peterson & Denbo, LLC, Orlando, for Plaintiff. Chad Barr, Eiffert & Associates, P.A., Orlando, for Defendant.
ORDER ON PLAINTIFF’S MOTION FORLEAVE TO AMEND COMPLAINT
THIS CAUSE having come before the Court on December 4, 2013 on Plaintiff’s Motion to Amend Complaint, and the Court, having heard argument of counsel, and being otherwise fully advised of the premises, the court makes the following findings:
1. Plaintiff filed a complaint against Defendant’s on or about December 17, 2012.
2. Plaintiff sent a Presuit Demand Letter to Defendant dated September 22, 2009.
3. Plaintiff was informed that Allstate Insurance Company issued the policy of insurance at issue in this case through correspondence dated October 8, 2009. This correspondence was filed with the court July 24, 2013.
4. In its Answer and Affirmative Defenses filed June 17, 2013, Allstate Property and Casualty Insurance Company stated Allstate Insurance Company was the correct party.
5. On June 17, 2013, Allstate Property and Casualty Insurance Company served its F.S. §57.105 Motion for Entitlement to Attorney’s Fees and Cost on Plaintiff, again stating that Allstate Property and Casualty Insurance Company was not the correct party in this case.
6. Plaintiff was given notice of the correct Defendant on numerous occasions prior to June 19, 2013.
7. Allstate Property and Casualty Insurance Company and Allstate Insurance Company are separate and distinct corporate entities.
8. In One Call Property Services Inc. (A/A/O Sally Hubbard) v. USAA Casualty Insurance Company, 20 Fla. L. Weekly Supp. 829b, the court held that the substitution of one entirely separate and distinct legal entity for another does not involve the mere correction of a scrivener’s error. Therefore, the court denied Plaintiff’s motion for leave to amend its complaint. This case is nearly identical to the case before this court.
9. The cases cited by Plaintiff in support of its motion are distinguishable based on factual circumstances and therefore do not apply. In Darden v. Beverly Health & Rehabilitation, 763 So.2d 542 (Fla. 5th DCA 2000) [25 Fla. L. Weekly D1802a], the court found that the Plaintiff may substitute Beverly Health & Rehabilitation Services Inc. (Beverly Health) with Beverly Enterprises-Florida, Inc. (Beverly Enterprises) because Beverly Enterprises was a parent corporation for Beverly Health. The court also found that Beverly Health actively defended the suit for nine months. Neither is true in the present case. There has been no showing that Allstate Insurance Company is a parent Company for Allstate Property and Casualty Insurance Company. Furthermore, Allstate Property and Casualty Insurance Company has never defended this suit in place of Allstate Insurance Company. From the inception of the case, Allstate Property and Casualty Insurance Company has continued to inform Plaintiff that it is not the correct party.
10. Roback v. Cassaro, 837 So.2d 1061 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D153a], also does not apply to the instant case. In Roback, the court addresses “relation back” to the original pleading in order that a party will not have its action quashed for lack of compliance with the statute of limitations. There is no allegation that Plaintiff is outside that statute of limitation in the instant case. Defendant continues to maintain that Plaintiff has litigated this action against the incorrect party. Plaintiff ignored multiple notices that it was litigating against the incorrect party. Now, Plaintiff want to treat its request to amend its complaint as a “scrivener’s error”, which is not the case. As stated in Roback, Plaintiff must demonstrate that the parties will not be prejudiced by its amendment. That is not the case here. Since plaintiff has insisted on litigating against the incorrect party despite notice, Plaintiff has knowingly conducted discovery against the wrong party including the scheduling of the wrong party’s corporate representative. Allstate Property and Casualty Insurance Company would be prejudiced greatly if it were dismissed as a party before that issue is resolved.
11. The correct procedure for the Plaintiff would not be to amend the complaint the complaint, but to dismiss against the current Defendant and refile against the proper party. Such action would not be barred by the statute of limitation.
It is hereby ORDERED and ADJUDGED that Plaintiff’s Motion to Amend Complaint is DENIED. The Court shall reserve jurisdiction as to Defendant’s attorney’s fees and costs associated with defending this case before the Court, and for such other relief as this Honorable Court deems just and proper.
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