21 Fla. L. Weekly Supp. 373a
Online Reference: FLWSUPP 2104WALKInsurance — Personal injury protection — Affirmative defenses — Amendment — Insurer’s motion to amend affirmative defenses is denied where motion is untimely as to defenses which were known to insurer six months prior to filing answer, insurer waived right to assert defenses not raised in answer, and medical provider would be prejudiced by allowing amendment
ROACH FAMILY CHIROPRACTIC, LLC, as assignee of Matthew Walker, Plaintiff, v. DIRECT GENERAL INSURANCE COMPANY, Defendant. County Court, 18th Judicial Circuit in and for Seminole County. Case No. 2012-CC-1016. December 3, 2013. Jerri L. Collins, Judge. Counsel: Mark A. Cederberg, Orlando, for Plaintiff. Pamela J. Rakow and Dina Piedra, Adams & Diaco, P.A., Orlando, for Defendant.
ORDER ON DEFENDANT’S MOTION TO AMENDAFFIRMATIVE DEFENSES
THIS MATTER having come before this Honorable Court on November 18, 2013 on Defendant’s Motion to Amend Affirmative Defenses, and this Honorable Court having reviewed the court file, reviewed case law, heard arguments of counsel and being otherwise fully advised in the premises, it is hereby,
ORDERED AND ADJUDGED that:
1. Defendant’s Motion for Leave to Amend Affirmative Defenses is DENIED.
2. The Court finds that the Defendant’s First and Second Affirmative Defenses as outlined in Defendant’s proposed Amended Affirmative Defenses (attached to its Motion for Leave to Amend Affirmative Defenses) are untimely, that Defendant has waived its right to assert these affirmative defenses and that Plaintiff would be prejudiced by allowing the amendment.
3. Specifically, the Court finds as to Defendant’s First and Second Affirmative Defenses that they are untimely and Defendant has waived its right to assert these potential affirmative defenses as Defendant was aware of these potential affirmative defenses approximately six (6) months prior to filing Defendant’s original Answer. Florida Rule of Civil Procedure 1.140(h)(1) states “[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).” Under Fla. R. Civ. P. 1.140(h)(1), the Defendant has waived its right to assert these untimely affirmative defenses. Fla. R. Civ. P. 1.140(b) further states that “[e]very defense in law or fact to a claim for relief shall be asserted in the responsive pleading . . .” See also Douglas Rapid Rehabilitation, Inc. a/a/o Nicole Bowen v. United Automobile Ins. Co., 18 Fla. L. Weekly Supp. 312b (Broward County, 2010). Defendant did not raise these affirmative defenses in its original Answer. Furthermore, the Supreme Court of Florida 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]. The Court notes that Defendant did not raise these affirmative defenses until almost two (2) years after the Plaintiff submitted its bills for reimbursement to Defendant. This matter has been in litigation for more than twenty (20) months. The Defendant initially set up a PIP claim for Matthew Walker, requested and received PIP forms from Matthew Walker, requested and received medical bills associated with Matthew Walker’s treatment and forwarded Matthew Walker’s medical bills to a hired peer review doctor to determine if the bills were compensable under Matthew Walker’s PIP coverage. The Defendant ultimately denied payment under Matthew Walker’s PIP coverage based solely upon the peer review doctor’s opinion. The Defendant did not include or mention these affirmative defenses in its December 28, 2011 or February 23, 2012 responses to Plaintiff’s pre-suit demand letters. To the contrary, Defendant’s responses to Plaintiff’s pre-suit demand letters both stated “[w]e reviewed the Personal Injury Protection (PIP) coverage on the policy and a $1000.00 deductible was elected for Named Insured and resident relatives. The deductible does apply to this patient [Matthew Walker], who is our named insured.” The Defendant never advised Matthew Walker of these affirmative defenses. The Defendant never advised Plaintiff of these affirmative defenses in Defendant’s response to any of Plaintiff’s discovery requests. To the contrary, in response to Plaintiff’s Interrogatories, the Defendant, under oath stated that “the complete corporate name of the insurer who insures Matthew Walker in this case” is “Direct General Insurance Company.” Also, when asked about any policy defense available to the Defendant in this matter, the Defendant responded that “Plaintiff’s charges were denied based on the findings of an independent peer review.” Additionally, in response to Plaintiff’s Request to Produce, when asked to produce “any declaration of coverage page and sworn statement of a corporate officer of Defendant attesting to the coverage available to Matthew Walker for the claim that is the subject matter of this suit,” the Defendant produced a declaration page indicating that the subject policy carried $10,000.00 in PIP coverage with a $1,000.00 deductible. It was not until September 3, 2013 (approximately 1 ½ years since the suit was initially filed and Defendant filed its original Answer/Affirmative Defenses) when the Defendant first mentioned these alleged affirmative defenses. The factual issues surrounding these “new” affirmative defenses were known, or should have been known to the Defendant, back in October 2011. Thus, the Defendant’s untimely attempt to raise these defenses this late into the litigation is barred and these defenses have been waived.
4. Also, the Court finds as to Defendant’s First and Second Affirmative Defenses that the Plaintiff would be prejudiced by allowing these amendments. As stated in Affiliated Healthcare Centers, Inc. a/a/o Joseph Mora v. United Automobile Ins. Co., “[t]he test of prejudice is the primary, but not only consideration. New River Yachting Center, Inc. v. Bacchiochi, 407 So. 2d 607, 609 (Fla. 4th DCA 1981). In considering prejudice, the Court must consider the timeliness of the motion. A motion to amend a complaint must be made promptly. West Gables Open MRI and Physician’s First Choice citing Alvarez v. De Aguirre, 395 So. 2d 213, 216 (Fla. 3rd DCA 1981). Additionally, the Court recognizes that “[g]ranting or denying a motion to amend . . . lies within the discretion of the Court . . . [and] Florida appellate courts have consistently affirmed the denial of untimely motions to amend. Id. See also Affiliated Healthcare Centers, Inc. a/a/o Jonathon Ponce v. United Automobile Ins. Co., 18 Fla. L. Weekly Supp. 485b (Broward County, 2010). Based on the above, including the amount of litigation that has occurred and the fact that there is an outstanding Proposal for Settlement which may subject Plaintiff to attorneys’ fees and costs should Plaintiff not prevail in this lawsuit, Defendant is estopped from asserting these “new” affirmative defenses at this time in the litigation.
5. Lastly, the Court finds that the Defendant shall not materially change is position at this point in the litigation when the Defendant was aware of these defenses prior to even responding to Plaintiff’s Notices of Intent to Initiate Litigation.
* * *
