24 Fla. L. Weekly Supp. 15a
Online Reference: FLWSUPP 2401EICHInsurance — Personal injury protection — Affirmative defenses — Amendment — In absence of transcript of hearing on insurer’s first request to amend affirmative defenses or written order denying request, record is insufficient to establish abuse of discretion by trial court — No abuse of discretion in denying renewed request to amend where request was made near entry of final judgment
SOUTHERN-OWNERS INSURANCE COMPANY, Defendant/Appellant, vs. ACCIDENT AND INJURY CLINIC, INC., A/A/O CAROL EICHLER, Plaintiff/Appellee. Circuit Court, 7th Judicial Circuit (Appellate) in and for Volusia County. Case No. 2015-10007 APCC. L.T. Case No. 2013-30498 COCI. February 9, 2016. Appeal from the County Court Volusia County, Christopher Kelly and Angela A. Dempsey, County Judges. Counsel: Hans Kennon, Morgan & Morgan, P.A., Orlando, for Appellee. Michael Manning, McFarlane & Dolan, Coral Springs, for Appellant.
OPINION OF THE COURT
Appellant, Southern-Owners Insurance Company, appeals the county court Orders that denied the Appellant’s Motion for Leave to Amend its Answer and Affirmative Defenses (originally denied by Judge Kelly on December 16, 2014, with no written order; later denied after Appellant filed a Motion for Reconsideration in the county court’s Order on Defendant’s Motion for Leave to Amend its Answer and Affirmative Defenses, Doc. #149), the county court Order granting Appellee’s Motion for Summary Judgment (Doc. #135), and the Final Order/Judgment (Doc. #150). We affirm.PROCEDURAL HISTORY
Appellee/Plaintiff filed its initial Complaint on or about February 6, 2013 (Doc. #2), against Southern Owners Insurance Company for their failure to pay PIP benefits on behalf of the Insured, after she sustained personal injuries as a result of a motor vehicle accident. The Insured received chiropractic care from the Accident & Injury Clinic, Inc. Appellant/Defendant filed an Answer on or about March 14, 2013 (Doc. #12), asserting three affirmative defenses: (1) payments are not overdue because at all material times, the Defendant had reasonable proof to establish that it is not responsible for the disputed amounts and/or that the Plaintiff did not provide reasonable proof of the fact of a covered loss with respect to such alleged unpaid claim at the time the suit was filed; (2) the Insured reasonably failed to cooperate with the Defendant’s right to investigate pursuant to §627.736 and terms and conditions of the subject policy of insurance. As a result of the Insured’s unreasonableness and failure to cooperate, the Defendant was prejudiced in its investigation of the claim; and, (3) the Plaintiff did not have standing to maintain this cause of action because there is no valid assignment of benefits.
Though depositions were previously set and cancelled, the depositions of the Insured and one of the doctors providing treatment were not taken until June of 2014. As a result of those depositions, the Appellant/Defendant learned that some of the record keeping by the medical provider was inaccurate. Appellant/Defendant filed a Motion for Summary Judgment (Doc. #57) on July 18, 2014, asserting that the bills were not certified, as required by F.S. §627.736(5)(d). Appellant/Defendant further relies upon Florida Administrative Code Rule 64B2-17.0065, stating the chiropractor has not maintained the minimal standards for the records, and therefore these services alleged by the Appellee/Plaintiff are not compensable. Appellant/Defendant also alleges that this failure to maintain the records by the chiropractor’s office violate F.S. §460.413, which regulates the profession and defines what constitutes grounds for discipline.
Appellee/Plaintiff also filed a Motion for Summary Judgment (Doc. #66) on August 27, 2014, requesting summary judgment as to Appellant/Defendant’s Affirmative Defense #2, that the Insured allegedly failed to cooperate with the investigation. This motion was based upon the testimony of the insurance company’s investigator that the Insured did not “substantially” prejudice the investigation, as required by law as a defense. That Motion was heard on October 8, 2014, and the Court granted the Appellee/Plaintiff’s Motion for Summary Judgment on Affirmative Defense #2 (see Doc. #102).
The Court also heard arguments on the Appellant/Defendant’s Motion for Summary Judgment on October 8, 2014. During the hearing, the Appellee/Plaintiff argued that the issue was not properly plead as an Affirmative Defense, and therefore could not be argued for summary judgment. The Court, at that point, allowed argument on the issue, so as to allow a full hearing on all of the issues raised in the Motion, citing that a liberal interpretation of Plaintiff’s First Affirmative Defense could allow for the argument. However, in the Court’s Order (Doc. #101), the Court found that the issue was “not sufficiently set forth as an affirmative defense.” That Order was filed on November 13, 2014. On the same day, Appellant/Defendant filed a Motion for Leave to Amend Its Affirmative Defenses (Doc. #100). That hearing was held on December 16, 2014, wherein the Court denied the Motion for Leave to Amend. No written Order was ever filed on the ruling denying leave to amend, and no transcript was filed. According to the Hearing Sheet from that day (Doc. #133), counsel for the Appellee/Plaintiff was to prepare the Order, but it was never done, nor was the oversight raised by the Appellant/Defendant. Subsequent to the denial, on January 13, 2015, the Appellant/Defendant filed a Motion for Reconsideration on the Court’s December 16, 2014 non-final Order denying their request to amend (Doc. #136).
Meanwhile, also on December 16, 2014, the Court heard the Appellee/Plaintiff’s second Motion for Summary Judgment (Doc. #117), which alleged that the Appellant/Defendant’s only expert witness testified that the treatment of the Insured as to certain dates were lawful, reasonable in type and scope, reasonable in price, medically necessary, and rendered and related to the motor vehicle accident claimed. The Court granted that summary judgment in favor of the Appellee/Plaintiff as to those dates, in an Order signed by Judge Kelly on December 24, 2014 (Doc. #135). Then, on January 14, 2015, Appellee/Defendant withdrew any remaining claims without prejudice by filing a Notice of Withdrawing Claims (Doc. #138), leaving no further claims at issue in the case.
Appellee/Plaintiff’s Motion for Entry of Final Judgment (Doc. #137) was noticed for Hearing on February 11, 2015. Also noticed for hearing on February 11, 2015, were Appellant/Defendant’s Motion in Opposition to Plaintiff’s Notice of Withdrawing Claims and Motion for Entry of Final Judgment (Doc. #139), and Appellant/Defendant’s Motion for Reconsideration of the Court’s December 16, 2014 Non-Final Order Denying Defendant’s Motion for Leave to Amend it Answer and Affirmative Defenses (Doc. #136).
On February 11, 2015, the Court denied the Appellant/Plaintiff’s renewed request to amend affirmative defenses, citing Levine v. United Companies Life Insurance Company, 659 So.2d 265 (Fla. 1995) [20 Fla. L. Weekly S444c] (Doc. #152). The Court further granted Appellee/Plaintiff’s Motion for Entry of Final Judgment, and entered the Judgment in favor of the Appellant/Plaintiff. Appellant/Defendant timely filed its Notice of Appeal.LEGAL ANALYSIS
Appellant argues that the trial court abused its discretion by refusing to allow Appellant to amend its affirmative defenses, and therefore the Final Judgment should not have been granted, given the strength of the proposed amendments to the affirmative defenses. Appellant argues that courts should liberally grant leave to amend pleadings, citing Torrey v. Leesburg Regional Med. Ctr., 769 So.2d 1040 (Fla. 2000) [25 Fla. L. Weekly S911a]. Appellant further argues that there is no finding of fact by the lower court that allowing the amendment would prejudice the Appellee, nor any finding that Appellant abused the privilege to amend, nor that the amendment sought would be futile. Appellee argues that standard of review should be fundamental error, based upon the absence of any transcripts of trial hearings, citing Engesser v. Engesser, 42 So.3d 249 (Fla. 5th DCA 2010) [35 Fla. L. Weekly D1528a]. The record contains no transcript of the relevant hearings, nor is there even a written order from the trial court’s order in court on December 16, 2014, denying the Appellant’s first request to amend its affirmative defenses.
Even applying the lesser standard, abuse of discretion, this Court would have to find that the “judicial action [was] arbitrary, fanciful or unreasonable. . .where no reasonable man would take to view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” Canakaris v. Canakaris, 382 So.2d 1197 (1980), citing Delno v. Market Street Railway Company, 124 F. 2d 965, 967 (9th Circuit 1942). Given the lack of transcript or written order from the December 16, 2014 ruling, this Court would have to find there would be no reasonable position that Appellant either abused the privilege to amend, that the amendment would prejudice the Appellee, or that the amendment sought would be futile. Given the age of the case, the close proximity to trial, and the trial court’s factual findings in the Order on Plaintiff’s Motion for Summary Judgment (Doc. #135) (which could indicate that the lower court thought the amendment was futile), this Court cannot say there would not be reasonable grounds to deny the amendment. There is simply not enough of a record to further examine the lower court’s reasoning in the December 16, 2014 hearing, and therefore the Appellant fails to meet the burden of providing a sufficient record.
In regard to the Appellant’s second request for leave to make the same amendment, the Order does specifically cite Levine v. United Companies Life Insurance Company, 659 So.2d 265 (Fla. 1995) [20 Fla. L. Weekly S444c], ruling that a court did not abuse its discretion by denying a motion for leave to amend two weeks before trial (similar to this case), because the liberality typically associated with the amendments to pleadings diminishes as the case progresses. Again, even under the lower standard of abuse of discretion, this Court cannot find that ruling so unreasonable as to warrant abuse of discretion, given the timing of the motion and the case cited.
Accordingly, the lower court’s rulings denying Appellant’s requests to amend its affirmative defenses, and the Final Judgment are AFFIRMED. (FOXMAN and HOOD, JJ.)
