25 Fla. L. Weekly Supp. 229c
Online Reference: FLWSUPP 2503BRADInsurance — Personal injury protection — Trial court erred in denying insurer’s timely-filed motion to amend affirmative defenses to add plaintiff’s lack of standing to sue on bills incurred by another entity where there was no showing that plaintiff would be prejudiced, that insurer abused privilege to amend, or that amendments would be futile
GARRISON PROPERTY & CASUALTY INSURANCE COMPANY, Appellant, v. GOLDCOAST PHYSICIANS CENTRAL, INC., a/a/o Charles Bradford, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE14001887 (AP). L.T. Case No. COCE11009595 (61). March 31, 2017.
[Lower court judgment published at 21 Fla. L. Weekly Supp. 441b.]
OPINION
Having carefully considered the briefs, the Record, and the applicable law, this Court dispenses with oral argument and the final judgment in favor of the Plaintiff is hereby REVERSED AND REMANDED as set forth below.
This is a PIP case where Charles Bradford (“Insured”), subsequent to a motor vehicle accident, received medical services from South Florida Spine & Joint Centers (“Clinic”) (a registered fictitious name for two medical providers: Goldcoast Physicians Central, Inc. (“Goldcoast”) and Polo Medical Center (“Polo”)). The Insured assigned his available medical benefits through Garrison Property and Casualty Insurance Company (“Garrison”) to the Clinic. The Clinic submitted the bills to Garrison for payment. Garrison paid the bills but it downcoded Dr. Dieuvil’s initial medical evaluation from a 99204 to a 99203 and applied the PIP deductible. Goldcoast submitted a demand letter to Garrison which included an itemized statement for all dates of service. The list showed the total amount billed by the Clinic for services rendered by Dr. Barry Raxenberg, for Goldcoast, and Dr. Joseph Dieuvil, for Polo. Garrison did not comply with Goldcoast’s requested demand and on October 7, 2011, Goldcoast filed suit against Garrison.
Goldcoast filed a Notice of Partial Withdrawal withdrawing all claims except for the downcoding or improper application of the PIP deductible as it pertains to the Insured’s visit with Dr. Dieuvil on October 21, 2010.
On March 1, 2013 Garrison moved for leave to amend its affirmative defenses contending that Goldcoast lacked standing because it was Polo and not Goldcoast that provided the services performed by Dr. Dieuvil on October 21, 2010. On March 11, 2013, after a hearing, the trial court denied Garrison’s motion for leave to amend its affirmative defenses.
Goldcoast moved for summary judgment on Garrison’s affirmative defense that the demand letter was not in compliance with the statute. Garrison’s cross motion for summary judgment claimed that Goldcoast lacked standing. On November 4, 2013, a hearing was held on the motions and the trial court granted summary judgment in favor of Goldcoast and denied summary judgment for Garrison. A motion for rehearing was granted on November 20, 2013 and the trial court requested a memorandum of law from both parties.
The trial court did not change its ruling on the summary judgment motions and entered its Final Judgment on December 27, 2013 [21 Fla. L. Weekly Supp. 441b] finding in favor of Goldcoast. Garrison timely appealed the judgment claiming, inter alia, that the trial court incorrectly denied its motion to amend its affirmative defenses to add Goldcoast’s lack of standing to sue on the bills incurred by Polo.
“The public policy of Florida favors liberality in permitting amendments to pleadings so that the resolution of disputes will be on their merits.” Dimick v. Ray, 774 So. 2d 830, 833 (Fla. 4th DCA 2000) [26 Fla. L. Weekly D93a]; Fla. R. Civ. P. 1.190(a). “[R]efusal 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, 1045 (Fla. 4th DCA 2010) [36 Fla. L. Weekly D1682a], Here, the trial court made no finding, nor was there a showing that, by allowing Garrison to amend its affirmative defenses, Goldcoast would be prejudiced or that Garrison abused the privilege to amend or that amendment would be futile. Further, Garrison filed its motion for leave to amend two days after Dr. Dieuvil’s deposition on February 2, 2013, where it was discovered or confirmed that the services at issue in this case had not been provided by Goldcoast, but Polo.
Accordingly, the trial court’s denial of Garrison’s motion to amend its affirmative defenses to add the issue of standing is REVERSED and this cause is REMANDED for further proceedings consistent herewith.
Pursuant to Fla. R. App. P. 9.400(a) and Florida Statutes § 768.79, Garrison’s motion for attorney’s fees is hereby conditionally GRANTED and REMANDED to the trial court for consideration and assessment upon a final judgment in its favor. Goldcoast’s motion for attorney’s fees is hereby DENIED. (BOWMAN and POWELL, JJ., concur. HAURY, J. dissents.)
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(HAURY, J.) I respectfully dissent. I would affirm the trial court’s denial of Garrison’s motion to amend its affirmative defenses. Also, it appears that the affidavit of Dr. Raxenberg, relied on by Goldcoast in support of its summary judgment argument, is sufficient to support its standing.
