26 Fla. L. Weekly Supp. 144a
Online Reference: FLWSUPP 2602MHERInsurance — Personal injury protection — Allowing plaintiff to amend complaint to raise new and different theories of recovery and to completely abandon fee schedule issues over four and a half years into litigation would unfairly prejudice defendant, who was defending case on fee schedule issue alone — Motion to amend denied
CEGA STRESS & ESTHETIC CENTER as assignee of Miralys Hernandez, Plaintiff, v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COWE13007615 (83). January 9, 2018. Ellen Feld, Judge. Counsel: Emilio R. Stillo, Pliego, Stillo & Richardson, P.A., Davie, for Plaintiff. Raul L. Tano, Shutts & Bowen LLP, Miami, for Defendant.
ORDER DENYING PLAINTIFF’S MOTIONTO AMEND COMPLAINT THROUGHINTERLINEATION AND STRIKE PARAGRAPH 5 OFPLAINTIFF’S COMPLAINT, OR ALTERNATIVELY,PLAINTIFF’S MOTION TO AMEND COMPLAINT
This matter came before the Court upon the Plaintiff’s Motion to Amend Complaint through Interlineation and Strike Paragraph 5 of Plaintiff’s Complaint, or Alternatively, Plaintiff’s Motion to Amend Complaint (“Motion to Amend”). Having heard argument of counsel, and being otherwise fully advised in the premises, this Court makes the following findings of fact and conclusions of law.Material Facts
On July 24, 2013, the Plaintiff filed a single-count Complaint over medical payments in connection with an automobile accident. The Complaint specifically alleges that “the issue presented is a question of law and is controlled by Kingsway Amigo Insurance Company v. Ocean Health, Inc. a/a/o Belizaire Gomez, 63 So.3d 63 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1062a].”
In its Complaint, Plaintiff took the position that Allstate could not “elect to use the Medicare Part B fee schedules set forth in section 627.736(5)(a)(2) when the subject PIP policy specifies that the PIP insurer will pay 80% of medically necessary expenses.” (“the Fee Schedule issue.” See Compl. ¶ 5. On January 26, 2017, the Florida Supreme Court, in Allstate Insurance Company v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a], resolved the Fee Schedule issue in Allstate’s favor.
On October 18, 2017, over four years after the lawsuit was filed, Plaintiff filed its Motion to Amend. The proposed Amended Complaint removed the language wherein Plaintiff had indicated that the sole issue was the Fee Schedule issue and instead attempted to inject two new and entirely different allegations: that Allstate had allegedly misapplied the deductible and that Allstate did not “make proper calculation” for certain CPT codes.1Legal Standard for Motion for Leave to Amend Pleadings
Leave to amend may be denied “if allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.” State Farm Fire & Cas. Co. v. Fleet Fin. Corp., 724 So. 2d 1218, 1219 (Fla. 5th DCA 1998) [24 Fla. L. Weekly D56b] [State Farm Fire & Cas. Co. v. Fleet] (citations omitted). Further, while as a general proposition leave to amend is freely granted, that general proposition diminishes as trial approaches and does not apply at all where prejudice would result. The trial court is “vested with the discretion to deny such motions where appropriate.” Noble v. Martin Mem. Hosp. Ass’n, Inc., 710 So. 2d 567, 568 (Fla. 4th DCA 1997) [23 Fla. L. Weekly D58a].
It is well established Florida law that there comes a point in litigation where each party is entitled to some finality, and the rule of liberality gradually diminishes as the case progresses to trial. Levine v. United Cos. Life Ins. Co., 659 So. 2d 265, 266-67 (Fla. 1995) [20 Fla. L. Weekly S444c]; Alvarez v. DeAuguirre, 395 So. 2d 213, 216 (Fla. 3d DCA 1981) (stating that “a trial judge may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished”); Versen v. Versen, 347 So. 2d 1047, 1050 (Fla. 3d DCA 1977) (“this rule of liberality does not authorize a party to state a new and different cause of action under the guise of an amendment, or if it will change the issue, introduce new issues, or materially vary the grounds of relief. . .”); Ruden v. Medalie, 294 So. 2d 403, 406 (Fla. 3d DCA 1974) (emphasis added) (“a trial judge in the exercise of sound discretion may deny an amendment where the same materially varies from the relief initially sought, or where a case has progressed to a point that the liberality ordinarily to be indulged has diminished”); Noble, 710 So. 2d at 568 (same).
Under Rule 1.190, the test of prejudice to the nonmoving party is the primary consideration in determining whether a motion to amend should be granted or denied. Lasar Mfg. Co., Inc. v. Bachanov, 436 So. 2d 236, 238 (Fla. 3d DCA 1983) (emphasis added). Florida law is clear that leave to amend is properly denied when there is a sufficient showing of prejudice to the opposing party in preparing for the “new issue.” See Designers Title Int’l Corp. v. Capitol C. Corp., 499 So. 2d 4, 5 (Fla. 3d DCA 1986) (trial court committed reversible error when it allowed plaintiff to amend its pleading at the end of trial to plead a new cause of action, “a material change which under the facts of this case greatly prejudiced the defendants”).Conclusions of Law
This Court finds that allowing the Plaintiff to Amend its Complaint to raise new and different theories of recovery over four and a half years into litigation would unfairly prejudice the Defendant. The Defendant was defending this case for over four years on the fee schedule issue alone. The Amended Complaint completely abandons the fee schedule issue leading the Court to conclude the only reason the Plaintiff is seeking to amend its Complaint is because of the Allstate decision. The Court finds that the prejudice to Defendant in having to litigate an entirely new issue that Plaintiff had every right to address in its original complaint, four and a half years later and only after the Supreme Court ruled against Plaintiff on the sole dispositive issue originally pled by Plaintiff is sufficient to deny Plaintiff’s Motion to Amend.2 Accordingly,
IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff’s Motion to Amend is DENIED.
__________________
1At the hearing, Plaintiff’s counsel clarified that the new allegation in the proposed Amended Complaint was that Defendant improperly calculated the fee schedule reimbursement for certain CPT codes.
2It should be noted that hours after the hearing the Court had a conference call advising both sides of its decision to deny the Plaintiff’s motion whereupon defense counsel submitted a proposed order. Shortly after receiving said order and knowing the Court’s ruling, the Plaintiff filed a voluntary dismissal.
