26 Fla. L. Weekly Supp. 411a
Online Reference: FLWSUPP 2605PRESInsurance — Personal injury protection — Unpled issues — Insurer’s motion to strike issue not pled by medical provider is granted where sole issue raised by pleadings in PIP action was sufficiency of policy’s notice of election of statutory fee schedules, and provider only raised issue regarding deductible after Florida Supreme Court ruled in favor of insurer on notice issue in another case
STEVEN BERMAN, D.C., P.A. d/b/a WEST DIXIE CHIROPRACTIC CENTER a/a/o Monette Presendieu, Plaintiff, v. ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2014-1992-SP-05 (06). July 26, 2018. Gina Beovides, Judge. Counsel: Stefan Garcia, Cameron Law Group, P.A., Tamarac, for Plaintiff. Steven Berman, D.C., P.A. Raul L. Tano, Shutts & Bowen, for Defendant.
ORDER GRANTING ALLSTATE’S MOTION TOEXCLUDE/STRIKE ISSUES WAIVED AND/OR NOTPLED BY THE PLAINTIFF IN ITS COMPLAINT
THIS CAUSE, having come before the Court on July 24, 2018 on Defendant’s Motion to Exclude/Strike Issues Waived and/or Not Pled by the Plaintiff, the Court having reviewed Defendant’s Motion, 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 January 24, 2013, the Plaintiff filed a single-count Complaint over PIP benefits payments in connection with an automobile accident. The Complaint specifically alleged that the “Defendant did not pay all of Plaintiff’s bills after receiving Plaintiff’s Notice of Intent to Initiate Litigation.” The Complaint goes further and states that “Defendant has refused and continues to refuse to issue payment of all sums due to Plaintiff, in violation of Section 627.736, Florida Statutes.” The Complaint further avers “Defendant owes Plaintiff approximately $7,356.13,1 for services rendered by Plaintiff to claimant for dates of service 06/26/2013 to 09/23/2013.”
On April 10, 2014, 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 June 20, 2016, Plaintiff filed its Motion to Continue Defendant’s Motion for Summary Judgment and for Motion to Stay Pending Completion of Discovery and the Fourth DCA’s Ruling in Orthopedic Specialists v. Allstate Insurance Company (the “Motion to Stay”). In its Motion, Plaintiff sought a stay of the case pending appeal of Allstate Ins. Co. v. Orthopedic Specialists before the Florida Supreme Court on the issue of whether Allstate wrongfully limited its reimbursements under Medicare fee schedules.2
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.
Well after the Florida Supreme Court’s ruling in Serridge and after the court sent notice to the Plaintiff that the matter had remained inactive for a period of ten months, did the Plaintiff file its “First Request to Produce Re: Deductible,” in which Plaintiff attempted to raise for the first time its new deductible claim (hereinafter “Unpled Issue”). It was not until after the Florida Supreme Court issues its ruling in Serridge that Plaintiff first alluded to a different theory of recovery.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. 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. Further, the Court notes that during almost four years of litigation, no discovery was propounded by the Plaintiff to the Defendant as to the deductible issue. 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, Orthopedic Specialists is case-dispositive in this matter. 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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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 $2,643.87. The maximum PIP benefits of $10,000 less the $2,643.87 (prior payment amount) equals $7,356.13.
2 Plaintiff’s Motion to Stay states: “[t]he subject language in this policy is virtually identical to the language in an Allstate policy being addressed by the Fourth District Court of Appeals in Orthopedic Specialists v. Allstate Insurance Company.” Plaintiff’s Motion to Stay goes on to state: “[t]he ruling of the Fourth will be dispositive on this issue and so Plaintiff takes the position that a ruling of Defendant’s Motion for Summary Judgment should be stayed pending a decision by the Fourth in the short term” (emphasis added).
