24 Fla. L. Weekly Supp. 724b
Online Reference: FLWSUPP 2409ESPIInsurance — Personal injury protection — Complaint — Amendment — Where mid-suit demand letter requesting reimbursement for additional dates of service not covered in original complaint was procedurally invalid for having been sent to insurer that was represented by counsel without service or notice to counsel, and medical provider’s subsequent motion for leave to amend complaint was filed shortly before hearing on insurer’s motion for summary judgment on original complaint, court abates action for 30 days to allow insurer and its counsel to confer on response to new demand letter — Any additional payment on claim made by insurer within 30-day period will not constitute confession of judgment or otherwise create right to attorney’s fees — Provider has leave to file amended complaint after 30-day period
CENTRAL PALM BEACH PHYSICIANS & URGENT CARE, INC. D/B/A TOTAL MD a/a/o Christian R. Espinoza, Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County, Civil Division. Case No. 502015SC001536XXXXSB (RD). November 4, 2016. Reginald Corlew, Judge. Counsel: Desmon L. Andrade. Ellis, Ged & Bodden, P.A., Boca Raton, for Plaintiff. Max M. Nelson, Progressive PIP House Counsel, Fort Lauderdale, for Defendant.
ORDER GRANTING IN PART, ANDDENYING IN PART, PLAINTIFF’S MOTIONFOR LEAVE TO AMEND COMPLAINT
THIS CAUSE came before the Court on July 19, 2016 for hearing on Plaintiff’s Motion for Leave to Amend Complaint and Defendant’s Response and Objection thereto, and the Court having reviewed the file, pleadings, relevant legal authorities, considered the arguments of counsel and being otherwise sufficiently advised in the premises, the Court finds as follows:
On March 13, 2015, Plaintiff served a one-count PIP Breach of Contract Complaint on Defendant, Progressive, alleging underpayment as to dates of service May 30, 2013 through December 6, 2013. During the roughly sixteen months that this case was pending, the parties engaged in discovery, Defendant gave Plaintiff the opportunity to depose its litigation adjuster with knowledge of this claim, and on June 22, 2015, Defendant filed a Motion for Summary Judgment arguing that the above dates of service were paid in full, which is set for hearing on August 23, 2016.
Contemporaneous with Defendant’s attempts to set its Motion for Summary Judgment for hearing, and unbeknownst to Defendant’s counsel of record, Plaintiff sent an additional Pre-Suit Demand Letter to Defendant dated March 7, 2016, requesting reimbursement for dates of service June 6, 2014 through August 8, 2014. These additional dates of service arose out of the same claim (patient, provider and date of loss) at issue in this litigation. Despite the fact that Plaintiff’s counsel was well aware the Defendant was represented by counsel on this claim, Plaintiff neglected to serve this Demand Letter on defense counsel, or notify defense counsel that this mid-suit demand was being sent.
On June 3, 2016, Plaintiff filed a Motion for Leave to Amend Complaint to add these 2014 dates of service to its Complaint. On June 13, 2016, Defendant filed its Response and Objection to Plaintiff’s Motion for Leave to Amend Complaint. A hearing was held on this issue on July 19, 2016.
“Leave of court shall be given freely when justice so requires.” Fla. R. Civ. P. 1.190. Plaintiff’s mid-suit demand letter concerning the same exact claim that was in litigation constituted a communication from Plaintiff’s counsel to Defendant. Rule 4-4.2 of the Florida Rules of Professional Conduct require that “a lawyer must not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer. . .a lawyer may, without such prior consent, communicate with another’s client to meet the requirements of any court rule, statute or contract requiring notice or service of process directly on a person, in which event the communication is strictly restricted to that required by the court rule, statute or contract, and a copy must be provided to the person’s lawyer.” When providing notice pursuant to statute (Fla. Stat. § 627.736(10), the demand letter requirement), Plaintiff’s counsel must provide defense counsel a copy of the communication. The comments to this Rule state that it is intended to protect against “overreaching” and “interference” by the communicating party in such a way that may adversely affect the receiving party’s interests in the ongoing litigation. While Plaintiff’s failure to notify defense counsel of this mid-suit demand letter concerning additional dates of service not presently in suit was likely a mere oversight and Defendant is not alleging that it was intentional or somehow unprofessional, the mid-suit communication did elicit a response made by Defendant without knowledge of its counsel, rendering this mid-suit demand letter dated March 7, 2016 procedurally invalid.
It is well established that prejudice to the non-moving party may be analyzed when considering a motion for leave to amend. E.g., Life General Security Ins. Co. v. Horal, 667 So. 2d 967 (Fla. 4th DCA 1996) [21 Fla. L. Weekly D434a]. The Rules, including Fla. R. Civ. P. 1.190, “shall be construed to secure the just, speedy, and inexpensive determination of every action.” Defendant is prejudiced by amendment because this case was served back in March 2015 and there is no reason why Plaintiff did not satisfy conditions precedent and sue for these additional dates of service (June 6, 2014 through August 8, 2014) within the initial pleading. Litigating this case in two different segments would cause waste, particularly in light of the fact the Defendant’s Motion for Summary Judgment relating to the 2013 dates of service already in suit was filed well over a year ago on June 22, 2015, and is set for hearing on August 23, 2016, just a month after the time that Plaintiff brought its Motion for Leave to Amend for hearing before the Court.
Plaintiff’s counsel’s failure to serve Defendant’s counsel with its mid-suit demand letter which concerned a claim that was already in litigation, coupled with the timing of Plaintiff’s Motion for Leave to Amend, are analogous to the “gotcha” tactics that appellate courts have cautioned against. See Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337 (Fla. 3d DCA 1979) (“[T]he courts will not allow the . . . ‘gotcha!’ school of litigation to succeed.”); Precision Diagnostic of Lake Worth, LLC (a/a/o Timoleon, Violette) v. State Farm Mut. Auto. Ins. Co., 21 Fla. L. Weekly Supp. 357a (Fla. 15th Jud. Cir. Cty. Ct. 2014) (Corlew, J.) (granting insurer’s summary judgment on demand letter requirements and noting that “ ‘gotcha’ litigation maneuvers will not be condoned”).
As proposed by Defendant, there is a way that this Court can resolve this issue while striking a balance between Plaintiff’s interest of amending to add additional dates, Defendant’s interest of fairness and concerns over prejudice, and all parties’ interests in moving this case forward and towards a conclusion. “[W]hen a lawsuit is prematurely filed, the proper remedy at the trial level is an abatement or stay of the action.” Progressive v. Menendez, 979 So. 2d 324 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D811a] (citing Bierman v. Miller, 639 So. 2d 627, 628 (Fla. 3d DCA 1994)). Given that Plaintiff’s mid-suit demand letter covering the 2014 dates of service was procedurally invalid, it is ORDERED AND ADJUDGED this Court hereby ABATES this action for thirty days from the date of this Order so that Defendant and its counsel may confer and discuss its response to Plaintiff’s March 7, 2016 demand letter, and whether additional payment is due. During this period, any additional payment to Plaintiff relating to this claim (provider, patient and date of loss) does not constitute a confession of judgment or otherwise create a right for attorneys’ fees pursuant to Fla. Stat. § 627.428. After the thirty day period, based on and taking into account Defendant’s response, Plaintiff has leave to file an Amended Complaint, so long as this Amended Complaint specifies precisely which CPT Codes on which dates of service are still at issue, and the precise amount of benefits still due and owing.1 Thus, Plaintiff’s Motion for Leave to Amend is hereby GRANTED IN PART, AND DENIED IN PART, consistent with the terms stated in this paragraph.
__________________
1This tracks the language of this Court’s June 6, 2016 Order Granting Defendant’s Motion to Compel, which Plaintiff has not yet complied with.
