23 Fla. L. Weekly Supp. 587a
Online Reference: FLWSUPP 2306JFRAInsurance — Personal injury protection — Answer — Amendment — Timeliness — Motion to amend answer and affirmative defenses is denied — PIP action has been pending for four years, insured has incurred deposition costs and has filed motion for summary judgment, trial date is set, and insurer was unable to advise court of legitimate reason for significant delay in case
JEFFREY FRANCO, Plaintiff, vs. VICTORIA SELECT INSURANCE COMPANY, Defendant. County Court, 9th Judicial Circuit in and for Orange County. Case No. 2011-CC-008967-O. October 8, 2015. Jeanette D. Bigney, Judge. Counsel: Jennifer M. Andrews and Jeffrey M. Byrd, P.A., Orlando, for Plaintiff. Marci L. Matonis, Lukes Santaniello Petrillo & Jones, Orlando, for Defendant.
ORDER ON DEFENDANT’S MOTIONFOR LEAVE TO AMEND ANSWERAND AFFIRMATIVE DEFENSES
This cause came to be heard before the Court on Defendant’s Motion for Leave to File an Amended Answer before Honorable Jeanette D. Bigney, in Room 370 at the Orange County Courthouse, 425 N. Orange Ave., Orlando, FL on Monday, October 5, 2015, at 1:45 p.m., and the Court having considered the pleadings and arguments presented, this Court makes the following findings of fact and conclusions of law:
1. This is a breach of contract action for the payment of Personal Injury Protection benefits.
2. This lawsuit was filed on June 17, 2011.
3. Defendant filed its Answer and Affirmative Defenses on August 30, 2011, and took the deposition of Plaintiff, Jeffrey Franco, on January 16, 2013, wherein he was asked about the execution of an assignment of benefits to Waterford Lakes Wellness.
4. On April 23, 2014, Plaintiff filed a Notice for Trial.
5. On November 18, 2014, Defendant filed the deposition transcript of Jeffrey Franco.
6. On August 6, 2015, the court issued a Uniform Order Setting the Case for Jury Trial.
7. On August 28, 2015, Defendant filed its Motion to Amend Answer and Affirmative Defenses.
8. On September 1, 2015, the parties had a meeting of attorneys pursuant to the Uniform Order Setting the Case for Jury Trial.
9. According to Fla. R. Civ. P. 1.190(a), a party may amend a pleading only by leave of court or by written consent of the adverse party. Leave of court shall be given freely when justice so requires.
10. It is well settled that Courts should liberally grant Motions to Amend pleadings if such amendments are sought prior to hearing motions for Summary Judgment as is the case here. FRCP Rule 1.190(a); Leavitt v. Garson, 528 So. 2d 108 (Fla. 4th DCA 1988).
11. Granting or denying a motion to amend a complaint lies within the discretion of the Court. West Gables Open MRI Services, Inc. (Maria Velazquez) v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp. 482a (Fla. 11th Circuit, Miami-Dade County, Judge Pando, February 28, 2008), Physician’s First Choice Interpretation, Inc. (a/a/o Lisa Audevert) v. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 645a (Fla. 17th Circuit, Broward County, Judge Robert W. Lee, March 27, 2006) citing B.P. Development and Management Corp. v. P. Lafer Enterprises, Inc. 538 So.2d 1379, 1382 (Fla. 5th DCA 1989).
12. However, the test of prejudice is the primary, but not the only consideration. New River Yachting Center, Inc. v. Bacchiochi, 407 So.2d 607, 609 (Fla. 4th DCA 1981)(Where the court ruled that a seven month delay in filing a Motion to Amend warranted denial of the same). In considering prejudice, the Court must consider the timeliness of the motion and a motion to amend a complaint must be made promptly. Griffen v. Societe Anonyme, 53 Fla. 801, 830 (1907).
13. The Court considered this action has been pending since 2011, the Plaintiff has incurred deposition costs, and on September 28, 2015 (notably after the filing of the Defendant’s Motion to Amend), filed their Motion for Summary Judgment. It is currently set for trial on December 8, 2015.
14. Additionally, the Defendant was unable to advise the Court as to any legitimate reasons for the significant delay in this case. See Physician’s First Choice Interpretation, Inc. (a/a/o Lisa Audevert) v. United Automobile Insurance Company, 13 Fla. L. Weekly Supp. 645a (Fla. 17th Circuit, Broward County, Judge Robert W. Lee, March 27, 2006).
It is therefor, ORDERED and ADJUDGED that the Defendant’s Motion for Leave to File and Amended Answer hereby be DENIED for the reasons state above.
