24 Fla. L. Weekly Supp. 993b
Online Reference: FLWSUPP 2411JOHNInsurance — Personal injury protection — Provider’s motion to strike insurer’s affirmative defense that insurer was not placed on notice of covered loss in accordance with statute is denied — Defense presents a bona fide question of fact as to reasonableness of charge — Assertion that facts of case do not support affirmative defense is not appropriately considered when ruling on motion to strike
WILLMITCH CHIROPRACTIC, P.A., a/a/o Lindy Johnson, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 13-CC-034002 I. October 6, 2014. Joelle Ann Ober, Judge. Counsel: Xavier Jackman, Westchase Legal Group, Tampa, for Plaintiff. Roy A. Kielich, Oxendine and Oxendine, Tampa, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION TOSTRIKE DEFENDANT’S AFFIRMATIVE DEFENSES
THIS CAUSE having come to be heard on September 30, 2014 upon the Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses, and the Court having reviewed the file, having heard arguments from counsel for the Plaintiff, James R. Collins, Esq., counsel for the Defendant, Roy A. Kielich, Esq., and being otherwise fully advised in the premises, the Court finds as follows:Relevant Factual Background
The Plaintiff has filed this action for personal injury protection benefits arising out of a motor vehicle accident occurring on or about September 19, 2012. The Complaint was filed on December 20, 2013, and on January 14, 2014, the Defendant timely filed its Answer and Affirmative Defenses, in which the Defendant raised seven (7) affirmative defenses. On February 26, 2014, the Plaintiff filed the instant Motion to Strike Defendant’s Affirmative Defenses, alleging that each of the seven (7) affirmative defenses asserted by the Defendant were insufficient as a matter of as they “lack ultimate facts, misstate the applicable standard of law, and/or are improper pleadings.” Thereafter, on July 8, 2014, the Defendant voluntarily withdrew affirmative defenses one (1), two (2), four (4), five (5), six (6), and seven (7).Analysis
Because the Defendant has previously voluntarily withdrawn affirmative defenses one (1), two (2), four (4), five (5), six (6), and seven (7), the only affirmative defense remaining for this Court’s consideration as it pertains to the Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses is affirmative defense number three (3). The Defendant’s affirmative defense number three (3) reads as follows: “Plaintiff has failed to place Defendant on notice of a covered loss under Florida Statute §627.736(4)(b).” The Plaintiff, citing Wiggins v. Portmay Corp., 430 So. 2d 541 (Fla. 1st DCA 1983), argues that this affirmative defense is improper because it fails to raise some new matter which would defeat an otherwise apparently valid claim, but rather is simply a denial of the facts of the Plaintiff’s Complaint.
Specifically, the Plaintiff contends that because the Defendant denied paragraphs ten (10) and eleven (11) of the Plaintiff’s Complaint, which assert that the Plaintiff submitted medical bills for services which were reasonable, related, and medically necessary with regard to the motor vehicle accident, and the Defendant failed to make full payment of these bills, that the Defendant’s reassertion of this denial in the form of affirmative defense number three (3) is redundant and merely a restatement of the Defendant’s Answer.
The Defendant argues, and this Court agrees, that affirmative defense number three (3) does present a bona fide question of fact, making it improper to strike this defense via a Motion to Strike. See cf. James B. Dolan, M.D. a/a/o Lauren Daniels v. American Intl. Insurance Co., 10 Fla. L. Weekly Supp. 345a (Fla. 4th Cir. Ct., Duval Cty., March 6, 2003) (citing Pentecostal Holy Church, Inc. v. Fla. Conference of Pentecostal Holiness Church, Inc., 270 So. 2d 762 (Fla. 4th DCA 1972). Florida Statute § 627.736(4)(b)6. provides that an insurer may assert at any time that a claim is unrelated, not medically necessary, unreasonable, or that the amount of the charge was in excess of that permitted under, or in violation of subsection (5). (Emphasis added). Thus it is clear that by asserting that the Plaintiff failed to comply with Florida Statute § 627.736(4)(b), the Defendant is not merely restating its denial to paragraphs ten (10) and eleven (11) of the Plaintiff’s Complaint but is further alleging an affirmative defense regarding the reasonableness of the charges which, as the Defendant submits, is one of the central issue of this case. As such, a bona fide question of fact does exists as it pertains to the Defendant’s affirmative defense number three (3), and the Plaintiff’s motion to strike this affirmative defense is denied.
To the extent that the Plaintiff may be arguing that the facts of the case do not support the Defendant’s affirmative defense number three (3), such an issue is not appropriate to consider under a Motion to Strike. See Brown v. United Auto. Insurance Co., 11 Fla. L. Weekly Supp. 748c (Fla. 17th Cir. Ct., Broward Cty., June 1, 2004) (holding that a motion to strike defenses is limited to the four corners of the pleading(s)).
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses is hereby DENIED.
