24 Fla. L. Weekly Supp. 743a
Online Reference: FLWSUPP 2409KUNKInsurance — Personal injury protection — Answer and affirmative defenses — Amendment — Motion to amend answer and affirmative defenses to assert defense of payment or accord and satisfaction based on agreement between medical provider and claimant for provider to accept certain amount as full and final settlement of claimant’s responsibility on account is denied — Amendment would be futile since there is no indication that provider intended to accept claimant’s payment as full and final settlement of insurer’s responsibility on account through settlement to which insurer was not party
RONALD J. TRAPANA, M.D., P.A., a Florida Corporation (a/a/o Kunkel, Leon), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-12939 COCE 52. October 21, 2016. Giuseppina Miranda, Judge. Counsel: Robert B. Goldman, Florida Advocates, Dania Beach, for Plaintiff. Jacqueline Zewski, Vernis & Bowling of Broward, P.A., for Defendant.
ORDER DENYING DEFENDANT’S MOTION FORLEAVE TO AMEND ANSWER ANDAFFIRMATIVE DEFENSES
THIS CAUSE having come before the Court on October 20, 2016 upon the motion of the Defendant, State Farm Mutual Automobile Insurance Company (“State Farm”), for leave to amend answer and affirmative defenses, and the Court having considered the motion and the proposed additional affirmative defense, having heard argument of counsel and being otherwise fully advised, it is hereupon
ORDERED that Plaintiff’s motion is DENIED, for the reasons set forth below:
1. This is a PIP case in which the Plaintiff, Ronald J. Trapana, M.D., P.A. (“Dr. Trapana”) alleges entitlement to benefits under an automobile insurance policy issued by State Farm.
2. State Farm’s motion seeks to amend to assert the defense of payment and/or accord and satisfaction based upon an October 2, 2008 letter agreement between Dr. Trapana and the claimant/patient’s attorney, in which the attorney requested that Dr. Trapana “reduce your balance and accept $2,3376.31 as full and final settlement of the patient’s responsibility on this account.” State Farm argues that as a result of the letter agreement between Dr. Trapana and the claimant/patient’s attorney, that the outstanding balance on the account has been settled and that Dr. Trapana is not entitled to any additional sums from State Farm.
3. Florida Rule of Civil Procedure 1.190(a) provides that leave to amend shall be given freely when justice so requires. However, leave to amend need not be given when the amendment would be futile. Turgman v. Boca Woods Country Club Ass’n., 41 Fla. L. Weekly D1980a, f.n. 1 (Fla. 4th DCA Aug. 24, 2016), citing Hutson v. Plantation Open MRI, LLC, 66 So.3d 1042, 1044-45 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1682a].
4. In this case, the Court finds that the proposed amendment would indeed be futile. State Farm was not a party to the agreement between Dr. Trapana and the claimant/patient’s attorney. The proposed amendment clearly shows that the claimant/patient’s attorney requested that Dr. Trapana reduce his balance and accept an amount as full and final settlement of the patient’s responsibility on this account. The proposed amendment does not indicate that Dr. Trapana intended to accept that amount as full and final settlement of the PIP insurer State Farm’s responsibility on the account.
5. State Farm sought to make a similar argument in Plantation Open MRI, a/a/o James Dor v. State Farm Mut. Auto. Ins. Co., 24 Fla. L. Weekly Supp. 177a (Broward County, Judge Stephen J. Zaccor, August 28, 2015). In that case, State Farm had asserted the affirmative defenses of waiver and accord and satisfaction where the medical provider had entered into an agreement with the claimant/patient’s attorney, agreeing to waive the claimant/patient’s balance.
6. In rejecting State Farm’s argument that the medical provider had waived its right to collect any sums due and owing from State Farm because it had waived the claimant/patient’s balance and due to an accord and satisfaction, Judge Zaccor observed, “as [State Farm] was not a party to the agreement, the Plaintiff did not have the intent to relinquish the right to be paid directly by, or sue, [State Farm].” Therefore, the Court denied State Farm’s motion for summary judgment and granted the medical provider’s cross-motion for summary judgment as to the affirmative defenses of waiver and accord and satisfaction, as State Farm could not establish the elements of those defenses.
7. Similarly, in this case, as State Farm was not a party to the agreement between Dr. Trapana and the claimant/patient’s attorney, State Farm would be unable to establish the elements necessary to prevail on the proposed affirmative defense of payment and/or accord and satisfaction, rendering the amendment futile.
