22 Fla. L. Weekly Supp. 643a
Online Reference: FLWSUPP 2205CEASInsurance — Affirmative defenses — Amendment — Motion to amend affirmative defenses filed when case had been pending for 14 months and after issuance of pre-trial order and completion of mediation and arbitration is denied as untimely — Further, amendment to assert defense of improper record-keeping would be futile since this is not valid defense
COAST CHIROPRACTIC CENTER A/A/O ROSEMA CEASAR, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-22205 COCE 53. October 14, 2014. Honorable Robert W. Lee, Judge. Counsel: Ross Abramowitz, Law Office of Ross Abramowitz, Fort Lauderdale, for Plaintiff. William S. Gutek, IV, Bronstein & Carmona, P.A., Fort Lauderdale, for Defendant.
ORDER ON STATE FARM’S MOTION FOR LEAVE TO AMEND AFFIRMATIVE DEFENSES
THIS MATTER having come before the Court for hearing on October 3, 2014, on Defendant’s Motion for Leave to Amend Affirmative Defenses, and the Court having reviewed the Court file, including all record evidence presented, the parties’ motions and supporting documents, and the Court having heard argument of counsel and being otherwise fully advised in the premises, it is hereby ORDERED and ADJUDGED as follows:
1. This is a County Court case that was filed on November 14, 2012. On February 28, 2013, Defendant filed their Answer and Affirmative Defenses. Approximately a year and a half later, on July 25, 2014, Defendant filed a Motion for Leave to Amend Affirmative Defenses.
2. In considering prejudice to the plaintiff, the Court must consider the timeliness of the motion. A motion to amend a complaint must be made promptly. Griffin v. Societe Anonyme, 53 Fla. 801, 830, 44 So. 342, 351 (1907).
3. At this point in the litigation the Court had already issued its pre-trial order and mediation and arbitration had already been completed.
4. In one case, a seven (7) month delay in filing a motion to amend warranted the denial of the motion. New River Yachting, 407 So. 2d at 608-09. In another, an eight (8) month delay warranted denial. Avis Rent A Car Systems, Inc. v. Hubbell, 11 Fla. L. Weekly Supp. 257a (Broward Cty. Ct. 2004).
5. The Court takes into account that as a County Court case, this case involved a relatively small amount in dispute. Additionally, the court notes that this is a civil case, with a recommended resolution standard of eighteen (18) months. Florida Rule of Judicial Administration 2.085 (e)(1)(B).
6. In the instant case, the matter had been pending for almost twenty-four (24) months when the Defendant served its motion to amend its amended answer. The Defendant was unable to advise the Court as to the legitimate reasons for the significant delay in this case.
7. For all these reasons, and considering the case law cited above, the Court hereby finds that the Plaintiff would suffer substantial prejudice in allowing the Defendant to amend their amended answer and affirmative defenses and declines to exercise its discretion to allow the Defendant to file an amended affirmative defense.
8. Furthermore, even if the Court was to consider the affirmative defense of improper record keeping regarding unlawfully rendered services, this affirmative defense is deemed futile as this Court does not find improper record keeping a valid affirmative defense. Defendant’s case law in support of improper record keeping, 21 Fla. L. Weekly Supp. 239a, does not established a defensive basis for the affirmative defense. The affirmative defense would therefore be futile.
9. Accordingly, it is hereby ORDERED AND ADJUDGED that the Defendant’s motion for leave to file an amended answer and affirmative defenses is hereby DENIED.
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