23 Fla. L. Weekly Supp. 779a
Online Reference: FLWSUPP 2307LHOUInsurance — Personal injury protection — Affirmative defenses — Amendment — Denial — Motion to amend answer to assert additional affirmative defense is denied where insurer filed motion over four years after suit was filed, nothing in record demonstrates that defense was not available to insurer at time original answer was filed, and allowing new defense would prejudice medical provider and inject new issue into case that is calculated to thwart provider’s motion for summary judgment — Even if motion to amend were not untimely, amendment violates parties’ pretrial stipulation of issues
LARRY FISHMAN, LMT, P.A. a/a/o LAURA HOUSTON, Plaintiff, v. STATE FARM FIRE & CASUALTY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 11-20298 COCE 50. December 2, 2015. Honorable Peter B. Skolnik, Judge. Counsel: Emilio Roland Stillo and Kevan Carbon, for Plaintiff. Lorty Fevry, for Defendant.
ORDER ON DEFENDANT’S SECONDMOTION FOR LEAVE TO AMEND ITS ANSWERAND AFFIRMATIVE DEFENSES
THIS MATTER, having come before the Court for hearing on November 10, 2015, on Defendant’s Second Motion for Leave to Amend its Answer and 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:
BACKGROUND
The Plaintiff provided services to State Farm’s insured from April 1, 2010 to April 9, 2010. The Defendant did not pay for the services in full. The Plaintiff filed suit for PIP benefits on August 31, 2011. Approximately eleven (11) months later, on July 26, 2012, the Defendant filed its Answer and Affirmative Defenses, stating it had paid Plaintiff an appropriate and allowable amount “pursuant to the terms, conditions, limitations, and exclusions of the subject policy of insurance under which the instant claim is made, as well as Fla. Stat. §627.736(5)(a)(1). . .” On June 24, 2014, approximately two (2) years after filing its Answer and Affirmative Defenses, and approximately three (3) years after Plaintiff filed the instant lawsuit, Defendant withdrew this Affirmative Defense and filed its first Motion for Leave to Amend Answer and Affirmative Defenses. Defendant waited nearly one (1) year to set its Motion for Leave to Amend for hearing, and same was not heard until August 6, 2015. Defendant sought to add an affirmative defense asserting that Plaintiff had sued the wrong State Farm entity, and that Plaintiff’s pre-suit demand letter did not satisfy Florida Statute §627.736(10). On June 1, 2015, based on the pending state of the pleadings, the Plaintiff noticed and began preparing for trial. On June 8, 2015, this Court noticed the instant action for trial to commence during the period of October 20-30, 2015. The Court also entered its Pretrial Order Setting Jury Trial, which required discovery to be completed no later than thirty (30) days before the beginning of the trial period. On July 9, 2015, the Court referred the instant case to Arbitration, which was scheduled to occur on August 20, 2015. On July 31, 2015, the parties filed their Joint Pre-Trial Stipulation. On August 12, 2015, the parties entered into an Agreed Order, which granted the Plaintiff’s Motion to Amend Complaint through Interlineation, and resolved the issue regarding the proper State Farm entity which Defendant raised in its first Motion for Leave to Amend Affirmative Defenses.
On August 12, 2015, the parties attended the Court’s pretrial conference. At the pretrial conference there was a dispute as to the Order of depositions. The Defendant stipulated on that date that the sole remaining issues are reasonableness, relatedness and medical necessity. In consideration for this stipulation the Plaintiff agreed to provide their corporate representative for deposition prior to the Defendant having to do same.
On August 20, 2015, Plaintiff filed its Amended Motion for Final Summary Judgment and Memorandum of Law, with an affidavit of Larry Fishman attached in which he attests to the reasonableness of the charges at issue, as well as an affidavit of Plaintiff’s expert witness, Dr. Robert Frankl, D.C., in which he attests that the prices charged by Plaintiff in the instant case were reasonable, and that the services provided by Plaintiff to Laura Houston and at issue in the instant case were related and medically necessary. On September 15, 2015, the Court issued its Amended Notice of Court-Ordered Arbitration, which took place on September 30, 2015.
After all of the foregoing events and in contravention of the previous stipulation, on October 7, 2015 Defendant filed its second Motion for Leave to Amend Answer and Affirmative Defenses. The Defendant is seeking to add an affirmative defense regarding the lawfulness of Plaintiff billing CPT Code 99201. As of the date of the filing of Defendant’s second Motion for Leave to Amend Answer and Affirmative Defenses, the parties have conducted extensive discovery, have already disclosed their expert witnesses, have stipulated to the remaining issues to reasonableness, relatedness, and necessity, have filed their Joint Pretrial Stipulation, and have attended both mediation and arbitration.
Further, the case has previously been set for trial and remains in a trial posture. Moreover, the Plaintiff has articulated substantial prejudice if the Defendant was allowed to amend.
No credible explanation was given by the Defendant for the lengthy delay in raising the proposed Affirmative Defense, nor as to its omission in Defendant’s first Motion for Leave to Amend Answer and Affirmative Defenses, which Defendant filed nearly three (3) years subsequent to Plaintiff filing the instant lawsuit. Further, the Defendant provided no explanation as why they were deviating from the stipulation made between the parties and before the Court on August 11, 2015 at the pretrial conference.
CONCLUSIONS OF LAW
“While the policy in Florida is to liberally allow amendments to pleadings where justice so requires, a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished.” Hickman v. Barclay’s Int’l Realty, Inc., 5 So. 3d 804, 807 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D680a]. The decision to permit or disallow an amendment to a pleading should not be disturbed on appeal in absence of abuse of discretion. Hutson v. Plantation Open MRI, LLC, 66 So. 3d 1042 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1682a]. Refusal to allow an amendment of a pleading constitutes an abuse of discretion UNLESS it clearly appears that allowing the amendment would prejudice the opposing party, privilege to amend has been abused, or amendment would be futile. Hutson, 66 So. 3d at 1044. The primary consideration in determining whether a motion for leave to amend a pleading should be granted is a test of prejudice. Id., at 1045. The test of prejudice is the primary, but not the only consideration. Physician’s First Choice Interpreration, Inc. (a/a/o Evangelista Gilmaldo) v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 506a (Fla. Broward County, Cnty. Ct. 2006) (Lee, J.) citing 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. Affiliated Healthcare Centers, Inc. (a/a/o Joseph Mora) v. United Auto. Ins. Co., 19 Fla. L. Weekly Supp. 143a (Broward County, Cnty Ct. 2011). A motion to amend must be made promptly. Id. In one case, a seven-month delay in filing a motion to amend warranted the denial of the motion. New River Yachting, 407 So.2d at 608,609. See also Hallandale Beach Orthopedics, Inc. (a/a/o David Bendahan) v. State Farm Mutual Auto. Ins. Co., 18 Fla. L. Weekly Supp. 559a (Broward County, Cnty. Ct. 2011) (Lee, J). Florida courts have continuously considered the amount of time and litigation that has occurred in analyzing prejudice as it relates to this issue. See Quantum Imaging Holdings LLC (a/a/o Kent Moses) v. State Farm Mutual Auto. Ins. Co., 20 FIa. L. Weekly Supp. 936b (Fla. Broward County, Cnty. Ct. 2012 (Lee, J.)). In addition to the allure of permitting amendments so that cases may be concluded on their merits, there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached. See Noble v. Martin Mem’l Hosp Ass’n, 710 So.2d 567 (Fla. 4th DCA 1997) [23 Fla. L. Weekly D58a]. Rule 1.140(h)(1) of the Fla. R. Civ. P. states in pertinent part: “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).” See Wellness Chiropractic Care Center, Inc. (a/a/o Robinson Saint Flina) v. First Acceptance Ins. Co. Inc., 20 Fla. L. Weekly Supp. 678a (Fla. Orange County, Cnty. Ct. 2013) (Allen, J.) (Court denied Defendant’s motion to amend affirmative defenses where insurer was aware of defense two years before filing original answer and medical provider would be prejudiced by allowing amendment); See also Roach Family Chiropractic LLC (a/a/o Matthew Walker) v. Direct General Ins. Co., 21 Fla. L. Weekly Supp. 373a (Fla. Seminole County, Cnty. Ct. 2013) (Cedeberg, J.) (motion to amend affirmative defenses denied where motion is untimely as to defenses which were known to insurer six months prior to filing answer). See Physician’s First Choice Interpretation, Inc. (a/a/o Evangelista Gilmado) v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 506a (Fla. Broward County, Cnty. Ct. 2006) (Lee, J.) (Motion to amend denied where the information presented at hearing made it known that Defendant had been aware of the substance of the proffered affirmative defenses for quite some time, but had been unreasonably dilatory in seeking to amend its answer). See also Healthy Life Medical Center, Inc. (a/a/o Enrique Escalante) v. Mercury Ins. Co., 14 Fla. L. Weekly Supp. 100c (Fla. Broward County, Cnty. Ct. 2006) (Skolnik, J)
In the instant case, the Plaintiff strongly objects to the amendment on grounds that same is untimely and prejudicial and that the Defendant has abused its privilege to amend. The parties have been litigating the instant case for over four (4) years, and Defendant has already sought to amend its affirmative defenses once, having filed its first Motion for Leave to Amend Answer and Affirmative Defenses nearly three (3) years after Plaintiff filed its Complaint and initiated the instant lawsuit. Plaintiff has highlighted the fact that not only did Defendant wait until almost three (3) years after Plaintiff filed the instant lawsuit to file its first Motion for Leave to Amend, but that it also waited approximately one (1) year to set same for hearing. Additionally, this is a civil case, with a recommended resolution standard of eighteen months. Fla. Jud. R. Admin. 2.250(a)(1)(b). In the instant case, the matter has been pending for far more than the eighteen-month period. Moreover, as a county court case originally filed under the small claims rules, this case involves a relatively small amount in dispute. The Court adopts its reasoning in Escalante, and holds that Defendant’s second Motion to Amend Answer and Affirmative Defenses was untimely, was made to thwart the Plaintiff’s Amended Motion for Summary Judgment, would prejudice the Plaintiff, and would constitute unfair surprise to the Plaintiff. Similar to facts involved in Escalante, nothing in the record has demonstrated that the new proposed affirmative defense was not available to the Defendant at the time of its initial answer or at any time before Plaintiff filed its Amended Motion for Final Summary Judgment. Allowing the Defendant to amend its Answer and Affirmative defenses would “inject new issues in the case that were not raised in the pleadings, discovery or the depositions” and that were “calculated to cause further delay in the disposition” of the action. The Court is also mindful of the case cited by Plaintiff’s counsel, Larry Fishman, L.M.T., P.A.(a/a/o Ann Marie Robinson) v. State Farm Mutual Auto. Ins. Co., Case No.: 12-003571 COCE 56 (unpublished decision) (Fla. Broward County, Cnty. Ct. 2015) (Pratt, J.). In that case, on June 30, 2015 Judge Pratt denied Defendant’s Motion for Leave to Amend its Affirmative Defenses, when Defendant untimely sought leave of court to add an Affirmative Defense similar to the Proposed Affirmative Defense at issue in this case, regarding the lawfulness of Plaintiff billing CPT Code 99201.
Further, even if the amendment were not untimely and prejudicial, the amendment violates the stipulation made between the parties at the pretrial conference for which consideration was given by the Plaintiff to the Defendant. It is well settled after its entry, the pretrial order controls the subsequent course of action. Hallandale Open MRI LLC (a/a/o Marsha Gumbs) v. United Automobile Insurance Company, 19 Fla. L. Weekly Supp. 582a (Broward County Court, 2012, Judge Skolnik) citing Bobby Cooke v. Insurance Company of North America, 652 So.2d 1154 (Fla.2nd DCA 1995) [20 Fla. L. Weekly D387a]. The Court in Bobby Cooke held that “Even if the conditions precedent had been raised in INA’s answer, these issues were abandoned in the pretrial order”. One of the primary purposes of a pretrial conference is to simplify the issues for trial. Fla.R.Civ.p. 1.200(b)(1). The Defendant at the pretrial conference made their stipulation as to the issues for trial. The issue of unlawful billing of CPT Code 99201 for which the Defendant now seeks amendment was clearly known to the Defendant at the time it made its stipulation on August 11, 2015 as Judge Pratt denied the Defendant’s motion to amend to add this same Affirmative Defense in June of 2015 in another case between the same parties.
For the foregoing reasons, the Court finds that the Defendant’s second Motion to Amend Answer and Affirmative Defenses is untimely, and is substantially prejudicial to the Plaintiff. Further, the proposed amendment violates the August 11, 2015 stipulation of the parties and the Court finds the Defendant has waived the right to inject new defenses into the case.
ORDERED AND ADJUDGED that said Motion is hereby DENIED.
