23 Fla. L. Weekly Supp. 910a
Online Reference: FLWSUPP 2309TOWLInsurance — Personal injury protection — Answer — Amendment — Abuse of discretion to deny insurer leave to amend answer and affirmative defenses where allowing amendment would not prejudice medical provider since no trial date had been set, insurer had only been afforded opportunity to amend once, and amendments were not futile — Jurisdiction — County court did not err in denying motion to dismiss for lack of subject matter jurisdiction where amount in controversy in PIP case is less than $900 — Summary judgment — Opposing affidavit — Error to strike opposing affidavit of insurer’s witness due to delay in disclosure of expert — Supreme court precedent governing striking of witnesses testifying at trial not basis for striking affidavit in opposition to summary judgment — Insurer that complied with requirements of rule 1.510 in serving opposing affidavit on provider should have been allowed to present affidavit, and summary judgment should not have been entered
PEAK PROP. & CAS. INS. CO., Appellant, v. SPORTS IMAGING CTRS., LLC, d/b/a WINDSOR IMAGING a/a/o HERBERT TOWLER, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE-13-020198 (AP). L.T. Case No. COCE-10-018401 (55). February 15, 2016. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, Sharon Zeller, Judge. Counsel: Douglas H. Stein, Seipp, Flick, & Hosley, LLP, Miami, for Appellant. Christian Carrazana, Christian Carrazana, P.A., Miami, for Appellee.
OPINION
(PER CURIAM.) This case arises out of an assignment of benefits for the treatment of injuries resulting from a motor vehicle accident. Assignee, Sports Imaging Centers, LLC (“Appellee”), filed a singe-count complaint against insurer, Peak Property and Casualty Insurance, Co. (“Appellant”), alleging that Appellant breached its contract by refusing to fully pay for the insured’s, Herbert Towler (“Insured”), reasonable, necessary, and related medical treatment. On August 2, 2013, the trial court granted final judgment in favor of Appellee. Appellant now argues that the trial court erred in denying it leave to amend its answer and affirmative defenses, denying a motion to dismiss based on lack of subject matter jurisdiction, striking its expert witness affidavit, and granting partial summary judgment in favor of Appellee.Motion for Leave to Amend
On February 20, 2012, the parties entered an agreed order granting Appellant twenty (20) days to file amended affirmative defenses. Appellant waited until July 17, 2012 to file its amended answer and affirmative defenses. On July 25, 2012, Appellant moved the trial court to deem its amended answer and affirmative defenses proper or, in the alternative, leave to file an amended answer and affirmative defenses. The court denied Appellant’s motion, citing Appellee’s strong objections to the proposed amendments, Appellant’s inability to reasonably explain the lengthy delay in seeking to assert the defenses, noncompliance with the prior order, and prejudice to Appellee.Motion to Dismiss
On March 15, 2013, Appellant filed “Defendant’s Motion for Final Summary Judgment on Grounds of Prior Final Judgment,” which the parties agreed to treat as a motion to dismiss, alleging that the trial court lacked subject matter jurisdiction to hear the action because Appellee was a party to a class action suit heard before the thirteenth circuit. On August 2, 2013, the trial court entered an order denying Appellant’s motion, explaining that subject matter jurisdiction is conferred by Article V, Section 5(b) of the Florida Constitution and §35.01(1)(c), Fla. Stat.Expert Witness Affidavit
On October 19, 2012, Appellant served the affidavit of Dr. Marvin Merrit, D.C. to controvert Appellee’s motion for partial summary judgment as to the reasonable, related, and necessary requirement of Insured’s medical treatment, four days before the summary judgment hearing. At a rehearing held on March 14, 2013, the trial court struck the affidavit, finding Appellant’s delay in disclosing its expert witness prejudicial under Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981).1Summary Judgment
On June 28, 2012, Appellee filed “Plaintiff’s Motion for Partial Summary Judgment as to Reasonable, Related, and Necessary,” alleging that it had established that Insured’s treatment was reasonable, related, and necessary by the uncontroverted sworn affidavit of Dr. Scott Katzman, M.D. The motion was initially denied on January 31, 2013. The court reheard the issue at a hearing on March 14, 2013 and entered an order granting Appellee’s motion.Analysis
I. Leave to Amend
Leave to amend “shall be given freely when justice so requires.” Fla. R. Civ. P. 1.190(a). “Courts should be especially liberal when leave to amend is sought at or before the hearing on a motion for summary judgment.” Thompson v. Bank of New York, 862 So. 2d 768, 770 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2536d]. “Refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.” Hutson v. Plantation Open MRI, LLC, 66 So. 3d 1042, 1044-45 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1682a]. Prejudice is the primary consideration in determining whether leave to amend should be granted. Id. at 1045.
First, Appellee was not prejudiced because no trial date had been set. The opposing party is not prejudiced where the moving party requests leave to amend prior to the eve of trial. See Hutson, 66 So. 3d at 1042 (holding that the trial court abused its discretion in denying defendant’s motion to amend answers served four days prior to Plaintiff’s summary judgment hearing) ; but cf. Horacio O. Ferrea N. Am. Div., Inc. v. Moroso Performance Products, Inc., 553 So. 2d 336 (Fla. 4th DCA 1989) (holding that the trial court properly denied a motion for leave to amend answer raised three days prior to trial). While Appellant’s motion for leave would have delayed the completion of discovery and, therefore, inconvenienced Appellee, it would not have prejudiced Appellee. Second, Appellant did not abuse the privilege to amend because Appellant had only been afforded the opportunity to amend once. See Karn v. Coldwell Banker Residential Real Estate, Inc., 705 So. 2d 680 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D339a].
Third, Appellant’s res judicata amendments are not futile. “A proposed amendment is futile if it is insufficiently pled or is insufficient as a matter of law.” Quality Roof Servs., Inc. v. Intervest Nat’l Bank, 21 So. 3d 883, 885 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D2205d]. Appellant’s proposed amended affirmative defenses alleged, in sum, that the trial court lacked subject matter jurisdiction and that the action was barred under the theory of res judicata. Appellant’s affirmative defense that the court lacked subject matter jurisdiction is insufficient as a matter of law.2 However, the res judicata defenses are neither insufficiently pled nor insufficient as a matter of law. In fact, a review of the record reveals that the trial court was concerned about the validity of these defenses. These defenses are cognizable under Fla. R. Civ. P. 1.110(d) and would entitle Appellant to relief should they be proven.
II. Subject Matter Jurisdiction
The question of whether a court has subject matter jurisdiction is reviewed de novo. Sanchez v. Fernandez, 915 So. 2d 192 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1806b]. “A motion to dismiss based on lack of subject matter jurisdiction may properly go beyond the four corners of the complaint when it raises solely a question of law.” Mancher v. Seminole Tribe of Fla., Inc., 708 So. 2d 327, 328 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D857b]. “Subject matter jurisdiction means ‘the power of the court to adjudicate the class of cases to which a particular case belongs.’ ” VL Orlando Bldg. Corp. v. AGD Hospitality Design & Purchasing, Inc., 762 So. 2d 956, 957 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1252a].
County courts have original jurisdiction of “all actions in which the matter in controversy does not exceed the sum of $15,000, exclusive of interests, costs, and attorney’s fees, except those within the exclusive jurisdiction of circuit courts.” §34.01(1)(c), Fla. Stat. In the instant case, the amount in controversy is less than $900.00 and falls squarely within the class of cases that can be heard before the county court. The trial court did not err in denying Appellant’s motion to dismiss.
III. Summary Judgment Proceedings
“It is axiomatic that in a summary judgment proceeding the movant must conclusively show the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.” Segal v. Rhumbline Intern., Inc., 688 So. 2d 397, 398 (Fla. 4th DCA 1997) [21 Fla. L. Weekly D1982a]. “Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). The applicable review for granting a summary judgment is de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126 (Fla. 2000) [25 Fla. L. Weekly S390a].
Appellee argues that the trial court erred in striking the its expert witness affidavit because (1) Fla. R. Civ. P. 1.510(c), which governs summary judgment proceedings, only mandates that opposing counsel deliver affidavits no later than 5:00 pm, 2 business days before the hearing; and (2) no prejudice exists where Appellant complied with applicable rules governing summary judgment proceedings.
Under Rule 1.510(e), “[a]ffidavits must profess personal knowledge, set forth facts which would be admissible into evidence, and show that the affiant is competent to testify to the material.” Marrero v. Corcino, 813 So. 2d 1049, 1050 (Fla. 4th DCA 2002) [27 Fla. L. Weekly D880a]. “The court may strike the insufficient portions of the affidavit and consider the valid portions.” Id. Rule 1.510(c) requires that the adverse party deliver its summary judgment evidence by 5:00 pm, 2 business days prior to the hearing.
The court’s reliance on the guidelines set forth in Binger is misplaced. While Binger is the seminal case governing the striking of witnesses testifying at trial, the issue in the instant case concerns striking a witness affidavit brought in opposition to a summary judgment proceeding. The law is clear that “[g]reat caution should be exercised in any summary judgment proceeding not to deny a litigant ample opportunity to demonstrate that he is entitled to the benefit of a trial.” Stephens v. Dichtenmueller, 216 So 2d 448, 450 (Fla. 1968).
Here, the trial court’s reasons for striking the Appellant’s affidavit constitute a misapplication of the law. Moreover, Appellant hand delivered its affidavit to Appellee four days before the summary judgment hearing. There is no evidence that Appellant failed to comply with service requirements of Rule 1.510. Summary judgment should not have been granted in this case because Appellant should have been allowed to present its affidavit controverting the reasonable, related, and necessary requirement of Insured’s medical treatment.
Accordingly, the county court’s order granting final judgment is hereby REVERSED and REMANDED for proceedings consistent with this Opinion. Further, Appellee’s motion for appellate attorney fees is DENIED.
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1Appellant had been ordered to disclose its expert by May 28, 2012, and the discovery deadline was June 15, 2012.
2See discussion infra Part II.
