23 Fla. L. Weekly Supp. 644a
Online Reference: FLWSUPP 2306CONSInsurance — Personal injury protection — Med pay — Exhaustion of policy limits — Motion to amend affirmative defenses to plead either exhaustion of PIP benefits or exhaustion of Med pay benefits is denied where PIP benefits and Med pay benefits were exhausted 1,245 days and 62 days, respectively, before filing of motion to amend, and no credible explanation was given for delay
HEALTH DIAGNOSTICS OF ORLANDO, LLC, d/b/a STAND UP MRI OF ORLANDO, a/a/o Paula Constantini, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO12-10970(73). September 30, 2015. Honorable Steven P. DeLuca, Judge. Counsel: Andrew J. Weinstein, Weinstein Law Firm, Coral Springs, for Plaintiff. Christopher Saunders, Matt Hellman, P.A., Plantation, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORLEAVE TO AMEND AFFIRMATIVE DEFENSES
THIS CAUSE having come on to be heard on December 10, 2014, on Defendant’s Motion for Leave to Amend Affirmative Defenses and the Court having heard argument of counsel, having reviewed the Court file, and being otherwise advised in the Premises, it is hereupon ORDERED AND ADJUDGED as follows:
1. This case involves a lawsuit for unpaid personal injury protection benefits in the amount of $593.98.
2. The Court is mindful of the fact that this is a civil case with a recommended resolution standard of 18 months. Fla. R. Jud. Admin 2.250(a)(1)(B).
3. As of the date of the hearing, this lawsuit is 743 days old.
4. On April 01, 2013, Defendant filed an answer and affirmative defense, which made no mention of benefits being exhausted.
5. On April 23, 2013, Defendant filed a second answer and affirmative defense, which made no mention of benefits being exhausted.
6. In fact, Defendant did not notify the Plaintiff of the exhaustion until September 29, 2014, when Defendant sent a letter to Plaintiff indicating, “Personal Injury Protection (PIP) benefits and the Medical Payments Coverage (MPC) benefits under said policy were exhausted on or about July 30th of 2014.”
7. Defendant filed its motion for leave to amend on September 30, 2014, which is the first time that Defendant attempted to raise either exhaustion of PIP benefits or exhaustion of medical payment benefits in this lawsuit.
8. According to the payment log attached to Defendant’s motion, PIP benefits exhausted on or about May 04, 2011 — 1,245 days before Defendant filed its motion for leave to amend — and MPC benefits exhausted on July 30, 2014 — 62 days before Defendant filed its motion for leave to amend.
9. At the hearing, the Plaintiff strongly objected to the amendment as being untimely and prejudicial.
10. It is well settled that the test of prejudice is the primary, but not only consideration. See e.g., 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 must be made promptly. Quantum Imaging Holdings, LLC (a/ a/ o Kent Moses) v. State Farm Mutual Auto. Ins. Co., 20 Fla. L. Weekly Supp. 936b (Fla. Broward Cty. Ct. 2012) citing Alvarez v. De Aguirre, 395 So. 2d 213, 216 (Fla. 3d DCA 1981).
11. This Court adopts the well-reasoned decision in Stand-Up MRI of Fort Lauderdale, P.A., (a/a/o Jo Lynn Whitmer) v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 583a (Fla. Broward Cty. Ct. 2005) where the Honorable Robert W. Lee denied Defendant’s motion for leave to amend in a case that had been pending for 18 months when Defendant served its motion, the amount in dispute was relatively small, the Plaintiff had already had to come to court several times, and the Defendant was unable to explain the reasons for the significant delay.
12. At the hearing for the case at bar, no credible explanation was given by the Defendant for the lengthy delay in raising the proposed exhaustion defense nor as to its omission in the first and second answer and affirmative defenses which were filed in this matter.
13. The Court finds that Defendant’s proposed Amended Affirmative Defense is untimely, that Defendant waived its right to assert this defense, and that Plaintiff would be prejudiced by allowing the amendment.
14. For the reasons set forth above and for the reasons stated in Court, Defendant’s motion is denied.
