26 Fla. L. Weekly Supp. 854a
Online Reference: FLWSUPP 2610RUPIInsurance — Personal injury protection — Motion for leave to amend complaint, filed after Florida Supreme court decision undermined plaintiff’s position on the only issue framed for disposition, is denied
SOUTH BROWARD HOSPITAL DISTRICT, a/a/o Koyikara Rupin, Plaintiff(s) / Petitioner(s) v. ALLSTATE INSURANCE COMPANY, Defendant(s) / Respondent(s). County Court, 17th Judicial Circuit in and for Broward County. Case No. COCE16006301. Division 50. December 19, 2018. Mardi Levey Cohen, Judge. Counsel: Russel Lazega, Florida Advocates, Dania Beach, for Plaintiff. Raul L. Tano, Shutts & Bowen LLP, Miami, for Defendant.
ORDER DENYING PLAINTIFF’S MOTIONFOR LEAVE TO AMEND
This matter came before the Court upon Plaintiff’s Motion for Leave to Amend Complaint. The Court, having considered the court record, applicable law, and argument of the parties on December 6, 2018, and being otherwise advised in the premises, finds as follows:Material Facts
On March 23, 2016, the Plaintiff filed a Complaint for PIP benefits payments in connection with an automobile accident. The Complaint contained a single count for breach of contract that asserted that Defendant failed to issue payment of all sums due to Plaintiff. The amount alleged to be owed in the Complaint is the exact amount that would be owed if the policy were not permitted to elect payment based upon the fee schedule limitations and if there were no policy deductible.1
On June 2, 2016, Allstate answered the Complaint by asserting 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.
On June 6, 2016, the Plaintiff filed its Motion to Stay Case Pending Appeal. In that motion, Plaintiff stipulated that the case should be stayed because the Supreme Court had recently taken up an appeal pertaining to Allstate’s fee schedule election policy language. In its motion, Plaintiff asserted: “As the pending issue in the highest court is essentially the same disputable issue as this matter, Plaintiff is seeking to have this case stayed pending the outcome of the Supreme Court as it would affect litigation in this matter.” The parties, in reliance upon an agreement to stay the case, did not file record activity thereafter for nearly a year.
On January 26, 2017, in Allstate Insurance Company v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] (“Serridge”), 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. Thereafter, Plaintiff served discovery and sought leave to amend its Complaint to include a claim for misapplication of the deductible.Legal Standard for Motion for Leave to Amend Pleadings
Amendments are not allowable if they would change the issue, or introduce new issues, or materially vary the grounds of relief. Warfield v. Drawdy, 41 So. 2d 877 (Fla. 1949). 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). Further, while as a general proposition leave to amend is freely granted, that general proposition diminishes as trial approaches and does not apply at all where prejudice would result. The trial court is “vested with the discretion to deny such motions where appropriate.” Noble v. Martin Mem. Hosp. Ass’n, Inc., 710 So. 2d 567, 568 (Fla. 4th DCA 1997) [23 Fla. L. Weekly D58a]. There comes a point in litigation where each party is entitled to some finality. A party should not be permitted to amend its pleadings for the sole purpose of defeating a motion for summary judgment. See Id., Inman v. Club on Sailboat Key, Inc., 342 So. 2d 1069 (Fla. 3d DCA 1977), Boyd v. International Fidelity Ins. Co., 412 So. 2d 944 (Fla. 3d DCA 1977). Moreover, an amendment should be denied when the amendment is inconsistent with the allegations of the original Complaint. See U.S. v. State, 179 So. 2d 890, 894 (Fla. 3d DCA 1965), Bailey v. State Farm Mut. Auto. Ins. Co., 789 So. 2d 1181, 1183 (Fla 4th DCA 2001) [26 Fla. L. Weekly D1739b].Conclusions of Law
The only issue framed for disposition by the pleadings was whether Allstate’s policy provided sufficient notice of its election of the statutory fee schedules. It was not until after the Florida Supreme Court found in favor of Allstate on this issue in Serridge, supra, that Plaintiff contended there were was an issue with the application of the deductible. The Court finds that Plaintiff was on notice of how the deductible was applied before the suit was filed and could have alleged these facts in its original Complaint. The Court finds that allowing the Plaintiff to amend its Complaint after Defendant prevailed at the Supreme Court on the only issue framed for disposition would unfairly prejudice the Defendant. The Court also finds that with the current amendment, Plaintiff seeks to reverse course that, while the Defendant may limit reimbursement to the fee schedules, it did not properly apply the deductible. Plaintiff now seeks for the Court to allow it to take a position which is wholly inconsistent with the position it took in its original Complaint, in contravention to Florida law. See U.S. v. State, 179 So. 2d at 894 (“We have discovered no case which authorizes such an amendment inconsistent with the allegations of the original [Complaint].” Furthermore, Plaintiff is estopped from receding from the representations made in its Motion to Stay, and thus is precluded from raising or asserting any other issue. See Bailey v. State Farm, 789 So. 2d at 1183 (“estoppel precludes a person from maintaining a position inconsistent with another position which is sought to be maintained at the same time or which was maintained at a previous time”).
For the foregoing reasons, it is hereby,
ORDERED AND ADJUDGED that Plaintiff’s Motion for Leave to Amend its Complaint is DENIED.
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1The amount sought in Plaintiff’s Complaint equates to the difference between 80% of Plaintiff’s billed amount and the amount already paid by Allstate (80% of the fee schedule amounts).
