26 Fla. L. Weekly Supp. 145b
Online Reference: FLWSUPP 2602JOSEInsurance — Personal injury protection — Motion to exclude/strike issues waived and/or not pled by plaintiff granted
MARSHALL BRONSTEIN, D.C., (a/a/o Jeanne Joseph), Plaintiff, v. ALLSTATE INDEMNITY COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE-15-024639 (54). February 15, 2018. Florence Taylor Barner, Judge. Counsel: Kenneth J. Dorchak, Buchalter, Hoffman & Dorchak, Miami, for Plaintiff. Raul L. Tano, Shutts & Bowen LLP, Miami, for Defendant.
ORDER GRANTING ALLSTATE’S MOTION TOEXCLUDE/STRIKE ISSUESWAIVED AND/OR NOT PLED BY THE PLAINTIFF
This matter came before the Court upon the Defendant’s Motion to Exclude/Strike Issues Waived and/or Not Pled by the Plaintiff. Having 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 November 9, 2015, the Plaintiff filed a single-count Complaint over medical payments in connection with an automobile accident. The Complaint specifically alleged that the “Plaintiff provided medically necessary services to the insured in the amount of $8,515.00, of which the Defendant is responsible for 80%.” Allstate answered the Complaint by asserting only one affirmative 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, 2016, Plaintiff filed a Reply to Defendant’s Affirmative Defenses wherein Plaintiff took the position that the language in Allstate’s policy language was “inconsistent and in conflict with other provisions in the policy which provides provide that the Defendant will pay 80% of reasonable medical expenses which are related to a covered automobile accident.” The Plaintiff presented no additional issues or theories of recovery in its Reply or during the ensuing litigation.
On January 26, 2017, in Allstate Insurance Company v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] (the “Serridge decision”), 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. During the pendency of the Serridge appeal and following the Serridge decision, the Plaintiff allowed this case to sit without litigating it for an extended period of time, triggering a Notice of Lack of Prosecution on February 27, 2017. It was only after the case was put up for dismissal based on lack of prosecution that the Plaintiff filed supplemental discovery and alluded to a different theory of recovery.1Legal 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). In Du Pont, the Fourth District Court of Appeal rejected a plaintiff’s attempt to inject at trial, over objection, an unpled failure to warn theory of liability into a negligence action. Reversing the trial court, the Fourth District noted that the allegations in Plaintiff’s complaint did not suggest that failure to warn was the basis for Plaintiff’s action, and accordingly, allowing recovery to be had on that claim was reversible error. 857 So. 2d at 930. 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).
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, quashing the ruling from the Fourth District Court of Appeal in Orthopedic Specialists, on January 26, 2017, and subsequently denied rehearing finalizing its ruling in favor of Allstate 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 were Unpled Issues presented in this lawsuit not controlled by Orthopedic Specialists. As such, it is clear that up until the finalization of the Florida Supreme Court’s ruling in Orthopedic Specialists in favor of Allstate on the issue of policy language as to application of fee schedule, Plaintiff’s position was that the Serridge Issue was the sole issue presented by this litigation and as such, that this case should be controlled by Orthopedic Specialists. 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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1On January 31, 2018, the Plaintiff filed a Motion for Summary Judgment as to “whether or not the Defendant breached the contract by reducing the Plaintiff’s reasonable charges prior to applying the $1,000.00 deductible and by failing to pay for CPT Code E0943.”
