26 Fla. L. Weekly Supp. 847a
Online Reference: FLWSUPP 2610LEONInsurance — 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
LEONARD LINARDOS D.C., P.A, a/a/o Kelly Garnet, Plaintiff, v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Small Claims Division. Case No. 2015-015226-SP-05. Section CC 06. December 7, 2018. Gina Beovides, Judge. Counsel: Kevin Whitehead, Kevin W. Whitehead, P.A., Miami, for Plaintiff. Manuel Negron and Raul L. Tano, Shutts & Bowen LLP, Miami, for Defendant.
ORDER GRANTING ALLSTATE’S MOTION IN LIMINETO EXCLUDE/STRIKE ISSUES NOT PLED BYTHE PLAINTIFF IN ITS COMPLAINT
THIS CAUSE came before the Court on Defendant’s Motion in Limine to Exclude/Strike Iusses Not Plead by the Plaintiff in its Complaint, and after hearing argument of counsel by both parties, reviewing the pleadings filed with the court, and reviewing all applicable case law, it is
ORDERED and ADJUDGED: Defendant’s Motion in Limine to Exclude/Strike Issues Not Pled by the Plaintiff in its Complaint is GRANTED for the reasons stated below.
On or about September 10, 2015, Plaintiff filed a three count complaint against Defendant seeking payment from PIP benefits for treatment rendered to Defendant’s insured as a result of an automobile accident. The three-count complaint alleged a general violation of Florida Statute §627.736, a breach of contract count for failing to pay reasonable, necessary, and related medical expenses, and declaratory action as to whether Defendant properly elected the fee schedule payment methodology in its policy. In its Answer, Defendant asserted only one affirmative defense — claiming that Allstate’s policy expressly elected reimbursement based on the fee schedule limitations authorized by the PIP statute.
On January 26, 2017, the Florida Supreme Court in Allstate Insurance Company v. Orthopedic Specialists, ruled in favor of Defendant’s policy as to its ability to make a fee schedule election. See Allstate Insurance Company a/a/o Serridge v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a].
An administrative review of the docket in this matter showed that this matter had remained inactive for well over a year and a FWOP notice was subsequently generated. In response to the notice of inactivity, Plaintiff filed a Notice of Jury trial. Other than a vague allegation that Defendant has failed or refused to pay benefits due, no other specific allegations are contained in Plaintiff’s Complaint to place the Defendant on notice on any other theory as to how Defendant allegedly breached the contract.
Florida law is clear that a party is bound by the issues as framed in the 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). This principle is so ground in the law that the Florida Supreme Court has held that where a claims is not pled with sufficient particularity for the opposing party to prepare a defense, the plaintiff is precluded from recovery on the unpled claim. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A., 537 So. 2d 561 (Fla. 1988).
The pleadings and the record before this Court make clear this case involves solely the issues decided by the Florida Supreme Court in Serridge, and as such grants Defendant’s motion to strike issues not pled in Plaintiff’s Complaint. 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 plaintiff to argue the unpled issue at trial).
