26 Fla. L. Weekly Supp. 855a
Online Reference: FLWSUPP 2610CLARInsurance — Personal injury protection — Provider’s motion for leave to file amended reply which would interject new and inconsistent theory of recovery over five years into litigation, sought by provider after defendant had prevailed before the Florida Supreme Court on the sole issue pled and litigated in the case, is denied — Motion to strike or exclude unpled issues is granted
FLORIDA INJURY LONGWOOD, LLC a/a/o Sharon Clarke, Plaintiff, v. ALLSTATE FIRE & CASUALTY INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COWE-16-002729 (81). November 15, 2018. Jane Fishman, Judge. Counsel: Christina Kalin and Precious Lawrence, Landau & Associates, P.A., Hallandale Beach, for Plaintiff. Manuel Negron and Raul L. Tano, Shutts & Bowen LLP, Miami, for Defendant.
ORDER GRANTING ALLSTATE’S MOTION IN LIMINETO EXCLUDE/STRIKE ISSUES WAIVED AND/ORNOT PLED BY THE PLAINTIFF IN ITS COMPLAINT
THIS CAUSE, having come before the Court on October 22, 2018 on Defendant’s Motion In Limine to Exclude/Strike Issues Waived and/or Not Pled by the Plaintiff, the Court having reviewed Defendant’s Motion, 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 February 22, 2016, the Plaintiff filed a Complaint for PIP benefits payments in connection with an automobile accident. The Complaint contains a single count that vaguely alleges that Allstate breached the insurance policy by reimbursing Plaintiff an amount less than payable under the Policy, that Allstate “misapplied the application of the deductible,” and specifically alleged that Allstate owes $1,213.40, or 80% of the billed amount minus payments allegedly made by Allstate.1
On June 20, 2016, Allstate answered the Complaint by asserting only one defense, wherein Allstate quoted the language in its policy and asserted that Allstate’s policy expressly elected reimbursement based on the fee schedule limitations authorized by the Florida PIP statute.
On January 26, 2017, in Allstate Insurance Company v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] (“Serridge”) the Florida Supreme Court held that the policy language provides “legally sufficient notice” of Allstate’s election to reimburse based on the fee schedule limitations.
On June 6, 2017, Allstate served interrogatories on the Plaintiff. The interrogatories sought for Plaintiff to “describe in detail and give the date of each and every act or omission of Allstate that You claim is a breach of contract in this Action.” To date, Plaintiff has not served Answers to those interrogatories.
Allstate timely filed the instant motion — Allstate’s Motion In Limine to Exclude/Strike Issues Waived and/or Not Pled by the Plaintiff in its Complaint — on August 15, 2018. It was not until July 20, 2018, in the Joint Pre-trial Stipulation, that Plaintiff first alluded to issues not controlled by Serridge.Legal Standard and Conclusions of Law
Florida law is well established that a party is bound by the issues as framed by its own pleadings, and the Complaint must be pled with sufficient particularity to permit the Defendant to prepare its defense. See Assad v. Mendell, 550 So. 2d 52, 53 (Fla. 3d DCA 1989). Inherent in that statement is the notion that a party should not suffer the unfair surprise and prejudice of legal claims and theories not encompassed by the pleadings. See, e.g., Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988) (if a claim is not pled with sufficient particularity for the opposing party to prepare a defense, the plaintiff is precluded from recovery on the unpled claim); Bank of Am. v. Asbury, 165 So. 3d 808, 809 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D1230a] (“Litigants in civil controversies must state their legal positions within a particular document, a pleading, so that the parties and the court are absolutely clear what the issues to be adjudicated are”). Furthermore, the law is clear that a judgment must be based on a claim or defense that was either properly pled or tried by consent of the parties. See Goldschmidt v. Holman, 571 So. 2d 422, 423 (Fla. 1990). This principle is so grounded in the law that the Florida Supreme Court has held that where a claim is not pled with sufficient particularity for the opposing party to prepare a defense, the plaintiff is precluded from recovery on the unpled claim. See Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A., 537 So. 2d at 563.
The Florida Supreme Court case of Arky, Freed is the seminal case holding that unpled claims and issues may not be tried. Relying on Arky, Freed, the Fourth District Court of Appeal has consistently held that parties are precluded from recovery on unpled claims tried without the consent of the parties. See E.I. Du Pont De Nemours & Co. v. Desarrollo Indus. Bioacuatico S.A., 857 So. 2d 925, 930 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2171a]; see also Straub v. Muir-Villas Homeowners Ass’n, Inc., 128 So. 3d 885, 890 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D2655a] (relying on Arky, Freed and Du Pont to find error in trial court’s consideration of an unpled defense). Many other Florida courts have held that it is error for a trial court to allow a plaintiff to argue an unpled theory or cause of action at trial. See Sunbeam Television Corp. v. Mitzel, 83 So. 3d 865, 875 (Fla. 3d DCA 2012) [37 Fla. L. Weekly D183a] (“when a plaintiff pleads one claim but tries to prove another, it is error for a trial court to allow the plaintiffs to argue the unpled issue at trial”); Bloom v. Dorta-Duque, 743 So. 2d 1202, 1203 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D2532a] (“[i]t is well settled that a defendant cannot be found liable under a theory that was not specifically pled”); Robbins v. Newhall, 692 So. 2d 947, 949 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D945b] (reversing final judgment where plaintiff had alleged three specific acts of negligence, but tried the case on a fourth alleged act that was never pled). See also Cioffe v. Morris, 676 F.2d 539, 543 n. 8 (11th Cir. 1982) (confirming that unpled issues tried without consent deny due process).
Numerous cases have followed Arky Freed to bar the injection of new claims or theories into an action, including in cases where the new claim or theory was devised to evade a recent ruling that undermined the original claim or theory. The Fourth District Court of Appeals, in Noble v. Martin Memorial Hospital Association, Inc., 710 So. 2d 567 (Fla. 4th DCA 1997) [23 Fla. L. Weekly D58a], affirmed the trial court’s rejection of Plaintiff’s attempt to inject a new theory following an adverse ruling on the only pled theory, a nearly identical scenario to the one before this Court. In affirming, the Fourth District reasoned that “there comes a point in litigation where each party is entitled to some finality.” Similarly to Noble, this is a case where Plaintiff did not attempt to litigate any other issues until “Plaintiffs quest for monetary damages had come to an end.” Id.
The pleadings and the record before this Court all make clear that this case involves solely the Serridge Issue. Said issue was decided in favor of Allstate by the Florida Supreme Court in Orthopedic Specialists. It was not until after the Florida Supreme Court found in favor of Allstate and subsequently denied rehearing, finalizing its ruling on the sole legal issue presented by the Plaintiff in this case, that the Plaintiff contended for the first time in this case that there was an Unpled Issue presented in this lawsuit not controlled by Orthopedic Specialists. Orthopedic Specialists is case-diapositive in this matter. Accordingly,
IT IS HEREBY ORDERED AND ADJUDGED that
Defendant’s Motion to Strike/Exclude Issues Waived and/or not Pled by Plaintiff is GRANTED.
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1The policy at issue in this case carries no deductible and thus no deductible was applied to any of Plaintiff’s bills. The amount sought in Plaintiffs Complaint was identical to that which was sought in their pre-suit demand letter.
