26 Fla. L. Weekly Supp. 133c
Online Reference: FLWSUPP 2602MORRInsurance — Affirmative defenses — Amendment — Motion to amend answer and affirmative defenses to include statute of limitations defense is granted where amendment is potentially dispositive of entire case, provider would not be unfairly surprised or prejudiced by amendment to raise defense it was aware of when it filed complaint, and insurer’s loss of ability to pursue claim is not due to bad faith conduct on part of insurer
DADE INJURY REHABILITATION INC. a/a/o Anthony Morris, Plaintiff, v. REPWEST INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 16-012260 SP 23 (05). February 1, 2018. Renatha S. Francis, Judge. Counsel: Todd A. Landau, Hallendale Beach, Plaintiff. Michael A. Adams, Orlando, Defendant.
ORDER
THIS CAUSE came before the Court on January 23, 2018, on Defendant’s Motion to Amend its Answer and Affirmative Defenses. Having heard counsels’ arguments and being otherwise fully advised in the premises, this Court finds as follows:
I. BACKGROUND
Almost six years after a September 27, 2010 accident involving Repwest Insurance Company (“Defendant)’s insured, Dade Injury Rehabilitation Inc. (“Plaintiff”) — as assignee — filed suit alleging Defendant failed to pay Plaintiff’s covered losses. Defendant denied any bills were due and owed.
On November 23, 2016, Defendant timely filed its Answer and Affirmative Defenses, raising multiple defenses. One affirmative defense, however, wasn’t raised: statute of limitations — potentially dispositive of the case. After the case was transferred to new counsel in June 2017, Defendant moved to amend its Answer and Affirmative Defenses to include the previously un-raised statute of limitations defense. As could be expected, Plaintiff objected, specifically on the bases that allowing such amendment was prejudicial to Plaintiff, and that Defendant waived the defense by failing to previously raise it after being aware of it as a viable defense.
The parties argued their respective positions at the hearing on the Defendant’s motion, and submitted the case for the Court’s consideration.
II. ANALYSIS
The issues in this case are whether permitting the requested relief would prejudice Plaintiff, and whether Defendant indeed waived the right to raise the defense by failing to allege it earlier. The Court answers both questions negatively.WAIVER
Turning first to the claim that Defendant waived the statute of limitations defense. It is axiomatic that “[l]eave of court [to amend pleadings] shall be given freely when justice so requires.” Fla. R. Civ. P. 1.190(a). And a trial court’s decision to permit or deny amendments to the pleadings will not be disturbed absent an abuse of discretion. See Azemco (N. Am.), Inc. v. Brown, 553 So.2d 1245, 1245-46 (Fla. 3d DCA 1989).
In this case, no depositions have been conducted, written discovery is ongoing, no motions for summary judgment have been filed, and neither party has noticed the case for trial. Under these circumstances, it is hard to imagine exactly how Plaintiff would be prejudiced by the amendment. Sure, the amendment is potentially dispositive of the entire case if true. But that fact alone is not a basis to deny the motion.
In fact, the caselaw permitting the parties to amend to include affirmative defenses — despite the potential dispositiveness of the amendment — are legion: See, e.g., Carib Ocean Shipping, Inc. v. Armas, 854 So. 2d 234, 236 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D2055a] (motion for leave to serve amended answer to counterclaim to add statute of limitations defense properly granted where issue tried; decision on merits preferred); Wayne Creasy Agency, Inc. v. Maillard, 604 So.2d 1235, 1236 (Fla. 3d DCA 1992) (reversing trial court’s denial of leave to amend to include the affirmative defense of laches); Azemco, 553 So. 2d at 1246 (concluding that the trial court abused its discretion in refusing to grant the motion to amend to include the defense of Statute of Frauds).
Based on the foregoing, this Court concludes that the statute of limitations defense was not waived.UNFAIR SURPRISE OR PREJUDICE
Next, the Court must consider whether the Plaintiff will be subject to unfair surprise of prejudice by the amendment.
In this regard, the Court finds Azemco instructive. There, the defendant raised the statute of frauds defense seven weeks prior to the trial court’s hearing argument on Azemco’s motion to amend its affirmative defenses by serving Brown with a motion for summary judgment based on its claim that the contract action was barred by the statute of frauds. Id. at 1246. The court held that this move put Brown on actual notice of the claim. Id. Thus, Brown could not have been surprised or prejudiced by Azemco’s later motion to include this claim as an affirmative defense. Id. As such, the court found the trial judge abused his discretion in refusing to grant the motion to amend to include the Statute of Frauds defense and the matter was reverses and remanded. Id.
Here, like there, Plaintiff could neither be unfairly surprised nor prejudiced since it was aware at the time the complaint was filed in this case that the suit was barred by the statute of limitations.
Specifically, Defendant served Plaintiff with a “safe harbor” letter (pursuant to section 57.105(4), Florida Statutes) on August 15, 2017 advising Plaintiff that Defendant would seek sanctions if Plaintiff did not dismiss the case prior to the expiration of twenty-one days. The basis for the “safe-harbor” letter? Defendant’s stated intent to rely on the statute of limitations defense.
And “the fact that the proposed amendment raises an issue that, on the merits, may constitute a complete defendant to Plaintiff’s cause of action, ‘is not the type of prejudice that is considered by the court in making its determination in this matter.’ ” Caribe Ocean Shipping, Inc. v. Armas, 854 So. 2d 234, 236 n.2 (Fla. 3d DCA 2003) [28 Fla. L. Weekly D2055a] (citations omitted).
Finally, this Court finds that Defendant has not acted in bad faith that directly resulted in Plaintiff being barred from initiating a claim.
Where a litigant knew or should have known of a valid coverage defense, even if only based upon ‘information and belief,’ but failed to assert that defense, and the litigant’s failure to assert the defense directly results in the injured-plaintiff then being barred from initiating a claim against another insurance provider, the prejudice to the injured-plaintiff outweighs what may have otherwise been deemed an abuse of discretion.
United Automobile Insurance Company vs. August Chiropractic Inc., a/a/o Ismith Jacques, 19 Fla. L. Weekly Supp. 613a (11th Jud. Cir. (Appellate) 2012) (citations omitted).
Plaintiff was at the very least on notice (and thus, should have known) that its suit against Defendant was filed past the statute of limitations. Although it was roughly eight months between the filing of Defendant’s initial Answer and contacting Plaintiff regarding Defendant’s Motion to Amend, none of Defendant’s actions caused Plaintiff’s inability to pursue a future claim; Plaintiff lost that ability before it even filed this lawsuit. As such, Plaintiff cannot allege prejudice as it relates to Defendant’s conduct, or lack thereof, as it pertains to the raising a defense of Statute of limitations.
Defendant’s Motion to Amend Answer and Affirmative Defenses is hereby GRANTED.
