25 Fla. L. Weekly Supp. 308a
Online Reference: FLWSUPP 2504NELSInsurance — Personal injury protection — Affirmative defenses — Amendment — Abuse of discretion to deny insurer’s motion to amend affirmative defenses to allege defense of fraud where discovery revealed that medical provider had submitted claims for services that were not performed — Amendment one week before hearing would not have prejudiced provider, insurer had not previously sought leave to amend, and amendment would not be futile since fraud would invalidate provider’s claim
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. DR. JOHN CALVANESE, D.C., a/a/o Gertrude Nelson, Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE16-008454 (AP). L.T. Case No. CONO14-005412. June 7, 2017. Appeal from the County Court for the Seventeenth Judicial Circuit, Broward County, John D. Fry, Judge. Counsel: Daniel M. Schwarz, Cole Scott & Kissane, P.A., Plantation, for Appellant. Virginia M. Best, Lopez & Best, Law Center, Miami, for Appellee.
OPINION
(PER CURIAM.) State Farm Mutual Automobile Insurance Company (“State Farm”) appeals a final judgment in favor of Dr. John Calvanese, D.C. (“Appellee”). Specifically, the denial of its motion for leave to amend its affirmative defenses. Having carefully considered the briefs, the record, and the applicable law, this Court dispenses with oral argument and the final judgment is hereby REVERSED as set forth below:
In the proceedings below, Appellee filed suit to recover personal injury protection benefits from State Farm for breach of contract pursuant to an assignment from Gertrude Nelson (the “Insured”). During discovery, Appellee’s deposition testimony revealed Appellee had submitted claims for services that had not been performed. Appellant moved to amend its affirmative defenses and assert the defense of fraud under section 627.736(5)(b)1.c., Florida Statutes. The trial court determined the amendment would be futile and denied State Farm’s motions. This Court reviews that decision under the abuse of discretion standard. Hickman v. Barclay’s Int’l Realty, Inc., 5 So. 3d 804, 807 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D1301a].
This Court finds that denying State Farm’s motion for leave to amend was an abuse of discretion. Florida Rule of Civil Procedure 1.190(a) provides that leave to amend shall be given freely when justice so requires. The refusal to deny the amendment of a pleading constitutes an abuse of discretion unless allowing it would prejudice the opposing party, the privilege has been abused, or the amendment would be futile. Hutson v. Plantation Open MRI, LLC, 66 So. 3d 1042, 1044 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1682a]. Here, State Farm’s motion for leave was made a week before the rescheduled hearing, as such, the Appellee would not have been prejudiced by the amendment. Hutson, 66 So. 3d at 1045 (holding that the trial court abused its discretion in denying the defendant’s motion to amend answers served four days prior to plaintiff’s summary judgment hearing). Additionally, State Farm did not abuse its privilege to amend because it had not sought leave to amend at any time prior to filing the motion at issue. Karn v. Coldwell Banker Residential Real Estate, Inc., 705 So. 2d 680, 681 (Fla. 4th DCA 1998) [23 Fla. L. Weekly D339a] (holding that the trial court abused its discretion in failing to grant leave to amend where the plaintiff had only moved to amend once before). Finally, the record does not support the trial court’s determination that the amendment would be futile because a violation of section 627.736(5)(b)1.c., Florida Statues, would invalidate Appellee’s claim. § 627.736(5)(b)1 .c., Fla. Stat. (2012) (“An insurer or insured is not required to pay a claim or charges: [t]o any person who knowingly submits a false or misleading statement relating to the claim or charges . . . .”)(emphasis added).
Accordingly, the final judgment in favor of Appellee is hereby REVERSED, and this case is REMANDED to the trial court for further proceedings consistent with this Opinion. Appellee’s Motion for Appellate Attorney’s Fees is hereby DENIED. State Farm’s Motion for Appellate Attorney’s Fees is hereby GRANTED, conditioned on State Farm prevailing in the trial court and the trial court’s determination that State Farm’s proposal for settlement complies with the requirements of the law. (LEVENSON, MURPHY. and PERLMAN. JJ., concur.)
