23 Fla. L. Weekly Supp. 581a
Online Reference: FLWSUPP 2306RAHNInsurance — Personal injury protection — Complaint — Amendment — Medical provider is not required to send second demand letter in order to amend complaint to add three additional weeks of service that were not identified in original demand letter but were listed in patient history attached to that letter — Motion to amend is granted
OCCUPATIONAL AND REHABILITATION CENTER, P.A., as assignee of ELAINE RAHN, Plaintiff, v. OWNERS INSURANCE COMPANY, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2014-SC-004996, Division CC-M. October 23, 2015. Mose L. Floyd, Judge. Counsel: D. Scott Craig and Ellis Peetluk, Law Office of D. Scott Craig, LLC, Jacksonville, for Plaintiff. Brenda Jean, Smith, Rolfes & Skavdahl Company, LPA, for Defendant.
ORDER ON PLAINTIFF’S MOTIONTO AMEND COMPLAINT
THIS MATTER, having come before this Court at the October 8, 2015 hearing on Plaintiff’s Motion to Amend Complaint and this Court having heard arguments from both parties and being otherwise fully advised of the premises herein, it is Ordered and Adjudged as follows:
1. On or about August 14, 2013, Elaine Rahn sustained personal injuries related to the operation, maintenance or use of a motor vehicle in Duval County, Florida that was insured by Defendant.
2. On or about February 20, 2014, Plaintiff filed a demand letter and served same on the Defendant for dates of service from August 27, 2013 through December 26, 2013. Attached to the demand letter were statements of Patients History of Service, which indicated service dates from August 27, 2013 through January 21, 2014.
3. On November 25, 2014, this Court entered an Agreed Order granting Plaintiff leave to amend its Complaint to change the Defendant’s name from “Auto-Owners Insurance Company” to “Owners Insurance Company.”
4. On or about December 29, 2014, the Plaintiff filed an Amended Complaint to name Owners Insurance Company as the proper party defendant.
5. On or about March 30, 2015, Plaintiff filed a motion to further amend its Complaint to include billing for additional treatment dates, from January 2, 2014 through January 21, 2014. This additional treatment period is alleged to be a continuation of the treatment performed by the Plaintiff on Elaine Rahn for injuries related to the incident giving rise to this claim.
6. Defendant objected to Plaintiff’s Motion to Amend the Complaint for a second time, and argued that the Plaintiff must first submit a demand letter as required by Florida Statue 627.736(10) because the additional dates were not included in Plaintiff’s February 20, 2014 demand letter. Defendant further argues that Florida Statue 627.736(10) must be strictly construed which would require that a demand letter be filed as a condition precedent to amend the Complaint to include the additional dates of service.
7. Defendant claims that if this Court grants the Plaintiff’s Motion to Amend the Complaint that it will be prejudiced by the mere fact that the additional dates were not included in the Plaintiff’s demand letter.
8. Florida Rules of Civil Procedure 1.190 titled “Amended and Supplemental Pleadings” requires that when a party files a motion to amend a pleading, leave of court shall be given freely when justice so requires.
9. This Court finds that any prejudice that might be suffered by the Defendant is outweighed by the interests of justice that would be served by this Court allowing the Plaintiff to amend the Complaint to add less than three weeks of additional service dates. This is especially true in light of the fact that the additional service dates in question were included in the Patient History that was attached to the original demand letter.
10. This Court further finds that the Amended Complaint would not be futile because the matter before this Court involves an existing action based upon a complaint that was filed after the condition precedent of service of the demand letter was satisfied. This Court’s reading of Florida Statute 627.736(10) in conjunction with Florida Rules of Civil Procedure 1.190 does not require that an additional demand letter be filed as a condition precedent to amend an existing complaint to cover additional dates of service provided by the Plaintiff for continued treatment to the same patient. Based upon the facts in this case, this Court finds that it is unnecessary to send a second demand letter to simply amend the amount of damages sought by increasing the period of service from the three months of service identified in the existing demand letter to add three additional weeks which were identified in the attachment to the same demand letter.
11. This Court further finds that a second amendment to the Complaint is not abusive of the privilege to amend.
12. The Plaintiff shall have (20) days from the date of this Order to file its Second Amended Complaint. The Defendant shall answer the Plaintiff’s Second Amended Complaint within (30) days of its filing.
WHEREFORE, for reasons as stated herein, it is hereby
ORDERED AND ADJUDGED
The Defendant’s Second Motion to Amend the Complaint is hereby granted
