26 Fla. L. Weekly Supp. 858a
Online Reference: FLWSUPP 2610POLAInsurance — Personal injury protection — Insurer’s motion to amend its answer to raise new defense of defective demand letter, a condition precedent to suit, is denied — Amendment would materially change and introduce new issues into case that involved relatively small amount of money and that had been pending for 17 months at the time motion to amend was served — Late amendment would prejudice plaintiff given parties’ stipulation that the only legal issue was whether insurer properly reimbursed plaintiff for services rendered to insured
KAM HABIBI DC PA, a/a/o Emely Polanco, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE 17007236. Division 54. November 29, 2018. Florence Barner, Judge. Counsel: Michelle A. Thomann, Law Offices of Johnson | Dalal, Plantation, for Plaintiff. Jacob Berger, Law Office of George L. Cimballa, III, Plantation, for Defendant.
ORDER DENYING DEFENDANT’S MOTIONTO AMEND ANSWER AND AFFIRMATIVE DEFENSES
THIS CAUSE came before the Court for hearing on October 22, 2018, on Defendant’s Motion for Leave to Amend Answer and Affirmative Defenses, and the Court having heard argument of the respective parties, having reviewed the Motion and the case file, and having been sufficiently advised in the premises, makes the following findings:
BACKGROUND
1. This is an action to recover underpaid personal injury protection benefits under the Florida No Fault Statute. This action was originally filed under the Small Claims Rules of Procedure on May 9, 2017. Thereafter, upon the Joint Stipulation of the Parties, the Florida Rules of Civil Procedure were invoked providing the Defendant with twenty days to file a responsive pleading.
2. On July 11, 2017, Defendant filed its Answer and Affirmative Defenses. In its Answer, Defendant raised two (2) defenses: First, that the subject bills were paid pursuant to Fla. Stat. § 627.736(5)(a)(2); and second that Defendant fully complied with its contractual obligations pursuant to its policy of insurance, Section II, Part 1. . .
3. Thereafter, the Plaintiff attempted to engage in pretrial discovery.
4. On August 3, 2017, Plaintiff filed and served its initial discovery including its Request for Admissions, Request to Produce, and Interrogatories. Defendant did not respond, notwithstanding this Court’s Order compelling Defendant’s response to same.
5. On April 18, 2018, Plaintiff filed and served its Expert Interrogatories. Defendant did not respond notwithstanding this Court’s Order compelling Defendant’s response to same.
6. On July 3, 2018, Plaintiff filed and served its Supplemental Request to Produce. Said discovery was directly related to Defendant’s Affirmative Defenses. Defendant did not respond notwithstanding this Court’s Order compelling Defendant’s response to same.
7. On March 5, 2018, Plaintiff filed and served its Notice of Intent to Rely Upon Defendant’s Imputed Response to Plaintiff’s Request for Admissions. Pursuant to said admissions, all issues related to Plaintiff’s case in chief were resolved leaving Defendant’s affirmative defenses, whether Defendant properly reimbursed the Plaintiff for the services rendered to its insured, the only remaining issue for this Court to decide.
8. Defendant did not respond to Plaintiff’s Notice of Intent to Rely Upon Defendant’s Imputed Admissions and on April 11, 2018, Plaintiff filed and served its Notice for Trial.
9. On April 13, 2018, this Court entered its Order Setting Pretrial Deadlines and Related Requirements (“PRETRIAL ORDER”). Pursuant to said Order, the parties were to, among other things, complete all discovery and file a Joint Pretrial Stipulation. According to the Joint Stipulation filed by the parties, the only disputed issue was whether the Defendant properly reimbursed the Plaintiff for the treatment and services it provided to Emely Polanco.
10. On August 27, 2018, this Court entered an Order Setting Jury Trial.
11. On October 18, 2018, one day prior to the Court’s mandatory Pretrial Conference, the Defendant filed and served its Motion For Leave to Amend Answer and Affirmative Defenses in an attempt to add a new defense, defective demand, alleging Plaintiff failed to comply with a condition precedent.
12. Plaintiff objected to Defendant’s untimely motion arguing Defendant waived its defense regarding the alleged defective demand since it was known to the Defendant at the time Defendant filed its Answer and Affirmative Defenses and to allow the Defendant to amend its pleadings at this juncture would cause undue prejudice the Plaintiff.
LEGAL ANALYSIS
“While the policy in Florida is to liberally allow amendments to pleadings where justice so requires, a trial judge in the exercise of sound discretion may deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished.” Hickman v. Barclay’s Int’l Realty, Inc., 5 So. 3d 804, 807 (Fla. 4th DCA 2009) [34 Fla. L. Weekly D680a]. The decision to permit or disallow an amendment to a pleading should not be disturbed on appeal in absence of abuse of discretion. Hutson v. Plantation Open MRI, LLC, 66 So. 3d 1042 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1682a]. Refusal to allow an amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, privilege to amend has been abused, or amendment would be futile. Hutson, 66 So. 3d at 1044.
The primary consideration in determining whether a motion for leave to amend a pleading should be granted is a test of prejudice. Id., at 1045. The test of prejudice is the primary, but not the only consideration. Physician’s First Choice Interpretation, Inc. (a/a/o Evangelista Gilmaldo) v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp 506a (Fla. Broward County, Cnty. Ct. 2006) (Lee, J.) citing New River Yachting Center, Inc. v. Bacchiochi, 407 So.2d 607, 609 (Fla. 4th DCA 1981). In considering prejudice, the Court must consider the timeliness of the motion. Affiliated Healthcare Centers, Inc. (a/a/o Joseph Mora) v. United Auto. Ins. Co., 19 Fla. L. Weekly Supp. 143a (Broward County, Cnty. Ct. 2011). A motion to amend must be made promptly. Id. In one case, a seven-month delay in filing a motion to amend warranted the denial of the motion. New River Yachting, 407 So.2d at 608, 609. See also Hallandale Beach Orthopedics, Inc. (a/a/o David Bendahan) v. State Farm Mutual Auto. Ins. Co., 18 Fla. L. Weekly Supp. 559a (Broward County, Cnty. Ct. 2011) (Lee, J.).
Florida courts have continuously considered the amount of time and litigation that has occurred in analyzing prejudice as it relates to this issue. See Quantum Imaging Holdings LLC (a/a/o Kent Moses) v. State Farm Mutual Auto. Ins. Co., 20 Fla. L. Weekly Supp. 936b (Fla. Broward County, Cnty. Ct. 2012 (Lee, J.)). In addition to the allure of permitting amendments so that cases may be concluded on their merits, there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached. See Noble v. Martin Mem’l Hosp. Ass’n, 710 So.2d 567 (Fla. 4th DCA 1997) [23 Fla. L. Weekly D58a]. Rule 1.140(h)(1) of the Fla. R. Civ. P. states in pertinent part: “A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e) or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).” See Wellness Chiropractic Care Center, Inc. (a/a/o Robinson Saint Flina) v. First Acceptance Ins. Co., Inc., 20 Fla. L. Weekly Supp. 678a (Fla. Orange County, Cnty. Ct. 2013) (Allen, J.) (Court denied Defendant’s motion to amend affirmative defenses where insurer was aware of defense two years before filing original answer and medical provider would he prejudiced by allowing amendment); See also Roach Family Chiropractic LLC (a/a/o Matthew Walker) v. Direct General Ins. Co., 21 Fla. L. Weekly Supp. 373a (Fla. Seminole County, Cnty. Ct. 2013) (Cedeberg, J.) (motion to amend affirmative defenses denied where motion is untimely as to defenses which were known to insurer six months prior to filing answer). See Physician’s First Choice Interpretation, Inc. (a/a/o Evangelista Gilmado) v. United Auto. Ins. Co., 13 Fla. L. Weekly Supp. 506a (Fla. Broward County, Cnty. Ct. 2006) (Lee, J.) (Motion to amend denied where the information presented at hearing made it known that Defendant had been aware of the substance of the proffered affirmative defenses for quite some time, but had been unreasonably dilatory in seeking to amend its answer). See also Healthy Life Medical Center, Inc. (a/a/o Enrique Escalante) v. Mercury Ins. Co., 14 Fla. L. Weekly Supp. 100c (Fla. Broward County, Cnty. Ct. 2006) (Skolnik. J).
The instant case involves a relatively small amount of money. The Defendant has had ample opportunity to defend this action and its decision to stand on the sidelines was at its own peril. Here, discovery has been closed; the parties have agreed and stipulated the only legal issue is whether Defendant properly reimbursed the Plaintiff for the services rendered to its insured. The case has been properly placed on the Court’s trial docket; and the Plaintiff filed its Motion for Final Summary Disposition with respect to the only remaining issue which is now pending before the Court. The Plaintiff has fully complied with this Court’s Order. Defendant has failed to comply with four (4) of this Court’s Orders and now, at this late stage, wants this Court to enter an Order granting it leave to raise a defense, which it knew or should have known since the onset of this action.
In Escalante, the Court held that Defendant’s untimely motion to amend filed just before a hearing on Plaintiff’s Motion for Summary Judgment, was field to thwart the Plaintiff’s motion, would prejudice the Plaintiff, and constituted unfair surprise.
The instant case is similar to Escalante in that nothing in the record would demonstrate that the new proposed affirmative defense was not available to the Defendant at the time of its initial answer or at any time prior to the parties’ mediation. Allowing the Defendant to amend its Answer and Affirmative defenses at this juncture would “inject new issues in the case that were not raised in the pleadings, discovery or the depositions” and that were “calculated to cause further delay in the disposition” of the action. Larry Fishman, J.M.T., P.A. (a/a/o Laura Houston) v. State Farm Mutual Auto. Ins. Co., Case No.: 11-20298 COCE 50 (Fla. Broward County, Cnty. Ct. 2015) (Skolnik, J.) [23 Fla. L. Weekly Supp. 779a]; Health Diagnostic of Orlando, LLC d/b/a Stand Up MRI of Orlando a/a/o Paula Constantini v. State Farm Mut. Auto. Ins. Co., Case No.: CONO 12-10970 73 (Fla. Brow. County, Cnty. Ct. 2015) [23 Fla. L. Weekly Supp. 644a] (DeLuca, J.) (“Motion to amend affirmative defenses to plead either exhaustion of PIP benefits or exhaustion of Med pay benefits is denied where PIP benefits and Med pay benefits were exhausted 1,245 days and 62 days, respectively, before filing of motion to amend, and no credible explanation was given for delay”).
I. Defendant’s Motion for Leave to Amend is Untimely
In considering prejudice, the Court must consider the timeliness of the motion. A motion to amend must be made promptly. Quantum Imaging Holdings, LLC (a/a/o Kent Moses) v. State Farm Mutual Auto. Ins. Co., 20 Fla. L. Weekly Supp. 936b (Fla. Broward Cty. Ct. 2012) citing Alvarez v. De Aguirre, 395 So. 2d 213, 216 (Fla. 3d DCA 1981).
This Court adopts the well-reasoned decision in Stand-Up MRI of Fort Lauderdale, P.A., (a/a/o Jo Lynn Whitmer) v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 583a (Fla. Broward Cty. Ct. 2005) where the Honorable Robert. W. Lee denied Defendant’s motion for leave to amend in a case that had been pending for 18 months when Defendant served its motion, the amount in dispute was relatively small, the Plaintiff had already had to come to court several times, and the Defendant was unable to explain the reasons for the significant delay.
As in Stand-Up MRI of Fort Lauderdale, this case involves a relatively small amount of money, the case had been pending for seventeen (17) months when Defendant served its motion, and Defendant was unable to provide any justification or its significant delay.
Moreover, Plaintiff completed its investigation relying on the issues as stated in the parties’ Joint Pretrial Stipulation. In Palm Beach Polo Holdings, Inc. v. Broward Marine, Inc., 174 So.3d 1037, the Fourth District reiterated the efficacy of the Joint Pretrial Stipulation citing Broche wherein it stated “[a] stipulation that limits the issues to be tried amounts to a binding waiver and elimination of all issues not included.” Broche v. Cohn, 987 So.2d 124, 127 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1741a] (quoting Esch v. Forster, 168 So. 229, 231 (Fla.1936)).
II. The Late Amendment will Prejudice the Plaintiff
Whether granting the proposed amendment would prejudice the opposing party is analyzed primarily in the context of the opposing party’s ability to prepare for the new allegations or defenses prior to trial. Accordingly, Fla. R. Civ. P. 1.190’s liberal amendment policy diminishes as a case progresses to trial. Morgan v. Bank of N.Y. Mellon, 200 So. 3d 792, 794 (Fla. 1st DCA 2016) [41 Fla. L. Weekly D2157a].
While Courts liberally favor amendments, that liberality diminishes as the case progresses. Brown v. Montgomery Ward & Co., 252 So. 2d 817, 819 (Fla. 1st DCA 1971) (“Under the circumstances of this case we cannot say that the trial court abused its discretion in denying appellant the right to file an amended complaint. . . after several years of pendency in the court”); see also Levine v. United Co. Life Ins. Co., 659 So. 2d 265, 266-67 (Fla. 1995) [20 Fla. L. Weekly S444c] (affirming denial of motion to amend answer holding that trial court “had not abused its discretion because the liberality typically associated with amendments to pleadings diminishes as the case progresses”).
In cases like the instant case, Florida Courts have been reluctant to allow parties to amend their pleadings when the amendment would materially change and introduce new issues, especially when the case has progressed towards trial. For example, in Brown v. Montgomery Ward & Company, the plaintiff sought to amend his complaint two weeks before trial to raise different issues of liability as grounds for relief. 252 So. 2d 817 (Fla. 1st DCA 1971). The First District held that it was not an abuse of discretion to deny plaintiff’s motion to amend because it clearly appeared that the amended pleading “would materially change and introduce into the case new issues.” Id. at 819.
The Fourth District held correspondingly in Allen v. Hill. In that case, the Fourth District Court denied the request to amend last in the proceedings because the amendment interposed new issues and grounds for relief that would require additional discovery and possibly additional witnesses. 422 So.2d 1047 (Fla. 4th DCA 1982) (“Amendment to introduce a new and different cause of action for breach of contract would have prejudiced the sellers, as the new issues and grounds of relief would have required additional discovery and possibly additional witnesses.”)
In this case, Defendant is seeking to amend its Answer to raise a new defense, defective demand, a condition precedent to the filing an action to recover benefits under Florida No Fault statute. This Court finds that such amendment would materially change and introduce new issues into this case. To allow the Defendant to change its theory this late in the litigation will result in substantial prejudice to the Plaintiff.
It is therefore, ORDERED AND ADJUDGED that Defendant’s Motion For Leave to Amend Answer and Affirmative Defenses be and the same is hereby DENIED.
