26 Fla. L. Weekly Supp. 662a
Online Reference: FLWSUPP 2608CHAVInsurance — Personal injury protection — Insurance — Personal injury protection — Motion to strike or exclude unpled or waived issues is granted — Bar to injection of new claim or theory subsequent to a recent Florida Supreme court ruling that undermined the original claim or theory
MIAMI MEDICAL GROUP, INC. (a/a/o Lizbeth Chavez), Plaintiff, v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2013-2808-CC-05 (01). October 4, 2018. Christina M. DiRaimondo, Judge. Counsel: Johanna M. Menendez, Lopez & Best, Miami, for Plaintiff. Gladys Perez Villanueva and Raul L. Tano, Shutts & Bowen LLP, Miami, for Defendant.
ORDER GRANTING ALLSTATE’S MOTION FORPROTECTIVE ORDER AND MOTION TOEXCLUDE/STRIKE ISSUES WAIVED AND/ORNOT PLED BY THE PLAINTIFF IN ITS COMPLAINT
THIS CAUSE, having come before the Court on October 1, 2018 on Defendant’s Motion for Protective Order and Motion to Exclude/Strike Issues Waived and/or Not Pled by the Plaintiff, the Court having reviewed Defendant’s Motions, heard argument of counsel, and being otherwise fully advised on the premises, this Court makes the following findings of fact and conclusions of law:Material Facts
On March 20, 2013, the Plaintiff filed a two-count Complaint over PIP benefits payments in connection with an automobile accident. Count I of the Complaint, titled “Breach of Contract,” avers that the amount alleged to be due is $3,463.571 for services rendered by Plaintiff to claimant for dates of service January 18, 2012 through May 31, 2012. Count II, “Declaratory Action,” further asserts that “despite the enactment of a permissive fee schedule under Florida Statute 627.736(5)(a)2 at no time material hereto did Defendant’s insurance policy contain any language indicating the Defendant’s intent to limit reimbursement in accordance with that statute. . .”
On April 9, 2013, 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. Plaintiff responded by filing its “Reply/Avoidance to Answer and Affirmative Defenses” on April 24, 2013. In its Reply, Plaintiff asserted that Allstate breached the policy of insurance by not paying 80% of the billed amount. Plaintiff further asserted that “Defendant may not issue payment, as a matter of law, based on the permissive statutory fee schedule which utilizes 200% of Medicare Part B.”
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 go stale for over a year and nine months, triggering a Notice of Lack of Prosecution from the Court. It was not until July 11, 2018, over a year and a half after the Serridge decision and over five years since this lawsuit was filed, that Plaintiff for the first time articulated that it needed a deposition of Allstate’s corporate representative “to determine whether the deductible of $500.00 was applied before or after the medicare fee schedule.” Thereafter, the parties attended a hearing on the Court’s Notice of Lack of Prosecution, where the Court kept the case open and ordered the parties to coordinate the deposition, while also granting Allstate leave to file a Motion for Protective Order.
Allstate timely filed the instant motions — Allstate’s Motion to Exclude/Strike Issues Waived and/or Not Pled by the Plaintiff in its Complaint and Motion for Protective Order — on July 19, 2018 and July 27, 2018, respectively.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. 2d 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 Third District Court of Appeal has consistently held that parties are precluded from recovery on unpled claims tried without the consent of the parties. 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). 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 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). 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. For example, in Noble v. Martin Memorial Hospital Association, Inc., 710 So. 2d 567 (Fla. 4th DCA 1997) [23 Fla. L. Weekly D58a], after nearly five years of litigation defending against a claim for money damages, defendant hospital filed a motion for summary judgment based on a newly decided federal case which would entitle the hospital to immunity. Id. at 568. Shortly after defendant’s summary judgment motion was filed, the plaintiff filed a motion to amend its complaint to seek injunctive relief. Id. The trial court denied leave to amend and granted summary judgment to the defendant, and the Fourth District Court of Appeal affirmed. In affirming, the Fourth District reasoned that the “claim for monetary damages stood alone for over four years. This . . . is a case where [plaintiff] did not want injunctive relief until it appeared that his quest for monetary damages had come to an end.” Id. The Fourth District held that the trial court properly exercised its discretion to deny leave to amend where it was clear the plaintiff “only wanted injunctive relief if his request for monetary relief was to be denied.” Id. at 569.
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-dispositive in this matter. Accordingly,
IT IS HEREBY ORDERED AND ADJUDGED that
Defendant’s Motion for Protective Order is GRANTED. The deposition scheduled for November 1, 2018 is hereby canceled.
Defendant’s Motion to Strike/Exclude Issues Waived and/or not Pled by Plaintiff is GRANTED.
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1The amount sought in Plaintiff’s Complaint equates to the maximum PIP benefits of $10,000, minus payments made by Allstate. Specifically, Allstate previously paid $6,536.43. The maximum PIP benefits of $10,000 less the $6,536.43 (prior payment amount) equals $3,463.57.
