26 Fla. L. Weekly Supp. 231a
Online Reference: FLWSUPP 2603DELCInsurance — Personal injury protection — Complaint — Amendment — Medical provider’s motion to amend complaint to add count for declaratory judgment on issue of alleged misapplication of deductible is denied where primary issue framed for disposition by pleadings during almost five years of litigation was whether PIP policy provided sufficient notice of election of statutory fee schedules, provider did not move to amend complaint until after Florida Supreme Court decided election issue in favor of insurer in another case, and allowing amendment would unfairly prejudice insurer that has forfeited numerous defenses on assumption that election issue was primary issue in case
GOLDEN MEDICAL CENTER, INC. a/a/o BERTA DEL CAMPO and ADVANCED MEDICAL CONSULTANTS GROUP, INC., real party in interest, Plaintiff, v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2013-6380-SP-05 (08). April 16, 2018. Maria D. Ortiz, Judge. Counsel: Maylin Castaneda, Law Office of Kenneth B. Schurr, P.A., Coral Gables, for Plaintiff. Manuel Negrón, Shutts & Bowen LLP, Miami, for Defendant.
ORDER DENYING PLAINTIFF’SSECOND MOTION TO AMEND COMPLAINT
This matter came before the Court on the Plaintiff’s Motion to File Amended Complaint filed December 1, 2017. Having heard argument of counsel on March 7, 2018, and being otherwise fully advised in the premises, the Court finds as follows:Material Facts
On April 4, 2013, Golden Medical Center filed a single-count Complaint regarding payment for medical services following an automobile accident. Before suit was filed, the Defendant issued Explanations of Benefits setting forth payment determinations for the services rendered to the patient by Golden Medical Center, including that services were paid in accordance with the reimbursement limitations under Section 627.736(5)(a)(2)f., Florida Statutes (the “Fee Schedules”). The initial Complaint generally alleges Defendant breached the Complaint, without specifying which reasons for denials or alleged underpayments constituted a breach of the contract. The First Amended Complaint, filed January 21, 2014, also had a general breach of contract count and added a declaratory judgment count, alleging Allstate’s policy failed to provide notice of its election to utilize the Fee Schedules. On January 26, 2017, in Allstate Insurance Company v. Orthopedic Specialists (Kelli Serridge), 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] (“Serridge”), the Florida Supreme Court held Allstate’s policy provided sufficient notice of its election to utilize the reimbursement limitations contained in the Florida Motor Vehicle No Fault Law, the Fee Schedules.
On December 1, 2017, Plaintiff moved for leave to file a Second Amended Complaint, at issue herein, adding another count for Declaratory Judgment specifically alleging for the first time a misapplication of the deductible.1 Both the First and Second Amended Complaints included the declaratory judgment count regarding election of the Fee Schedules. During this litigation, Defendant conceded numerous defenses, including relation, necessity, deficient demand and coverage. For the reasons set forth herein, the Court denies the Plaintiff leave to amend its Complaint.Legal 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] (citations omitted); Noble v. Martin Mem. Hosp. Ass’n, Inc., 710 So. 2d 567, 568 (Fla. 4th DCA 1997) [23 Fla. L. Weekly D58a] (trial court is “vested with the discretion to deny such motions where appropriate”). There comes a point in litigation where each party is entitled to some finality, and the rule of liberality gradually diminishes. Levine v. United Cos. Life Ins. Co., 659 So. 2d 265, 266-67 (Fla. 1995) [20 Fla. L. Weekly S444c] (“Levine”); Alvarez v. DeAguirre, 395 So. 2d 213, 216 (Fla. 3d DCA 1981); Versen v. Versen, 347 So. 2d 1047, 1050 (Fla. 3d DCA 1977); Ruden v. Medalie, 294 So. 2d 403, 406 (Fla. 3d DCA 1974); Noble, 710 So. 2d at 568. 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); Designers Title Int’l Corp. v. Capitol C. Corp., 499 So. 2d 4, 5 (Fla. 3d DCA 1986).
In Noble, 710 So.2d at 569, after four years litigating claims for monetary relief, Plaintiff sought leave to add a count for injunctive relief when “it appeared that his quest for monetary damages had come to an end.” The Fourth District Court of Appeals affirmed the trial court’s denial of leave to amend, reasoning as follows:
There comes a point in litigation where each party is entitled to some finality. The rule of liberality “gradually diminishes as the case progresses to trial.” Versen, 347 So.2d at 1050. A party should not be permitted to amend its pleadings for the sole purpose of defeating a motion for summary judgment. See Inman v. Club on Sailboat Key, Inc., 342 So.2d 1069 (Fla. 3rd DCA 1977)
Conclusions of Law
The primary issue specifically framed for disposition by the pleadings and litigated by the parties for four-and-half-years was whether Allstate’s policy provided sufficient notice of its election of the Fee Schedules.2 It was not until after the Florida Supreme Court found in favor of Allstate on this issue in Serridge, supra, that Plaintiff specifically contended there were other issues in this lawsuit other than election of the Fee Schedules. Plaintiff now seeks to add a count for Declaratory Judgment based on alleged misapplication of the deductible. Plaintiff was on notice of how the deductible was applied before suit was filed and could have alleged these facts in its original Complaint or the First Amended Complaint — both filed before the Supreme Court decided the primary issue litigated in this case.
While this Court finds the amendment sought by the Plaintiff would not be futile, allowing the Plaintiff to amend its Complaint to raise a different theory of recovery almost five years into litigation, and after Defendant prevailed at the Florida Supreme Court on the primary issue framed for disposition and litigated in this case, would unfairly prejudice the Defendant. Defendant will also be prejudiced because Defendant forfeited numerous defenses, consistent with the fact that the primary issue the parties litigated in this case was whether Allstate’s policy provided sufficient notice of its election of the Fee Schedules.
Accordingly, IT IS HEREBY ORDERED AND ADJUDGED that Plaintiff’s December 1, 2017 Motion for Leave to File Amended Complaint is DENIED.
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1At the time Plaintiff sought leave to file the Second Amended Complaint, the only pending summary judgment motions pertained to whether Allstate’s policy provided sufficient notice of its election of the Fee Schedules. In support of same, Plaintiff filed a Notice of Supplemental Authority with the Fourth District Court of Appeal’s opinion reversed by the Florida Supreme Court in Serridge, supra.
2A 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. Assad v. Mendell, 550 So. 2d 52, 53 (Fla. 3d DCA 1989); Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988); Bank of Am. v. Asbury, 165 So. 3d 808, 809 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D1230a].
