26 Fla. L. Weekly Supp. 257b

Online Reference: FLWSUPP 2604ALVAInsurance — Personal injury protection — Trial court abused its discretion in denying insurer’s motion for leave to amend its answer to plead exhaustion of benefits as an affirmative defense where there was no indication in the record that amendment was subject to any of the exceptions for liberal pleading requirements — Although motion for leave to amend was filed the day before hearing on plaintiff’s motion for summary judgment, the case had not yet been set for trial when the motion for summary judgment was filed and, consequently, there is no prejudice

UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. CENTRAL MAGNETIC IMAGING OPEN MRI OF PLANTATION, LTD., a/a/o ANA ALVARADO, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 2014-451-AP. L.T. Case No. 09-038093 SP 23. May 24, 2018. On appeal from the County Court for Miami-Dade County. Caryn C. Schwartz, Judge. Counsel: Michael J. Neimand, General Counsel for United Automobile Insurance Company, for Appellant. Marlene S. Reiss, Law Offices of Marlene S. Reiss, Esq., P.A., for Appellee.

(Before ECHARTE, MILLER, and RUIZ, JJ.)

(RUIZ, J.) Appellant, United Automobile Insurance Company (“United Auto”), appeals the trial court’s Order Granting Plaintiff [‘s] Motion for Summary Judgment and Final Judgment. United Auto argues that the trial court erred when it denied its motion for leave to file an amended answer and granted Central Magnetic Imaging Open MRI of Plantation, Ltd.’s (“Central Magnetic”) motion for summary judgment.¹ Because the trial court abused its discretion in denying United Auto leave to amend its answer, we reverse.

On November 20, 2009, Central Magnetic filed a complaint against United Auto. On February 22, 2010, United Auto filed its answer and affirmative defenses wherein it did not allege any affirmative defenses. On the same date, Central Magnetic also filed a motion for a court default which was granted on March 5, 2010. An agreed order vacating the default judgment against United Auto was thereafter entered on May 28, 2010.

On June 21, 2012, a notice of dismissal for failure to prosecute was issued. The case was subsequently dismissed for lack of prosecution on July 24, 2012. Central Magnetic later filed a motion for relief from involuntary dismissal and a motion to reinstate the action. The dismissal was subsequently vacated and the action reinstated on September 24, 2012.

On November 8, 2013, Central Magnetic filed a motion for summary judgment, which was scheduled to be heard on October 23, 2014. The day before the hearing on the motion for summary judgment, October 22, 2014, United Auto moved for leave to file an amended answer, and also sought an emergency continuance of the hearing on the motion for summary judgment. United Auto sought to amend its answer to plead exhaustion of benefits as an affirmative defense. In support of its request, United Auto argued that Central Magnetic would not be prejudiced by the amendment since the case was not set for trial. Ultimately, the trial court denied United Auto’s motion for leave to file an amended answer, proceeded with the hearing on the motion for summary judgment, and entered an order granting summary judgment and final judgment.

We review the trial court’s decision for abuse of discretion. See RV-7 Prop., Inc. v. Stefani De La O, 187 So. 3d 915, 917 (Fla. 3d DCA 2016) [41 Fla. L. Weekly D688a].

After the pleadings have closed, Florida Rule of Civil Procedure 1.190(a) provides that “a party may amend a pleading only by leave of court or by written consent of the adverse party.” Fla. R. Civ. P. 1.190(a). However, “Florida allows liberal pleading amendments unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or the amendment would be futile.” ABC Liquors Inc. v. Centimark Corp., 967 So. 2d 1053 (Fla. 5th DCA 2007) [32 Fla. L. Weekly D2598d]. Courts “should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment.” Hutson v. Plantation Open MRI, LLC, 66 So. 3d 1042, 1044 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1682a]. If the danger of prejudice, abuse, or futility cannot be clearly established, the trial court abuses its discretion by denying the party’s motion for leave to amend the pleading. RV-7 Prop., Inc., 187 So. 3d at 917.

The Second District Court of Appeal previously addressed the timing of filing of a motion for leave to amend a pleading in relation to the hearing on a motion for summary judgment. See Reyes vs. BAC Home Loan Servicing, L.P., 226 So. 3d 354 (2017) [42 Fla. L. Weekly D1962a] (explaining “the bare timing of a motion to amend and whether counsel’s failure to seek amendment sooner constituted ‘neglect,’ excusable or otherwise, are, at most, ancillary to the primary considerations of prejudice to the opposing party, abuse of the privilege, and futility of the proposed amended pleading.”).

Here, there is no indication in the record that United Auto’s amendment was subject to any of the exceptions for liberal pleading amendments. First, this was Auto’s only request to amend its answer. The record does not establish that United Auto’s request otherwise amounted to abuse of the privilege to amend. Additionally, the proposed amendment to plead exhaustion of benefits was not futile because there is no indication that the proposed affirmative defense is not a viable affirmative defense. Finally, United Auto moved to amend its answer on October 22, 2014, on the day before the hearing on the motion for summary judgment. The timing of the filing of the motion for summary judgment in this case is pertinent in comparison to whether the case was set for trial. This case, however, had not been set for trial when the motion for summary judgment was filed. Consequently, there is no prejudice. See id at 357. Finally, it bears noting that the case was dismissed for lack of prosecution and the trial court allowed Plaintiff relief.

Because the trial court abused its discretion by denying United Auto leave to amend, it likewise erred in granting the motion for summary judgment. Therefore, the Final Judgment is REVERSED and the case is REMANDED for further proceedings consistent with this opinion.

United Auto’s motion for attorney’s fees is granted, conditioned upon United Auto prevailing in the underlying proceeding. Central Magnetic’s motion for attorney’s fees is hereby denied. (ECHARTE and MILLER, JJ., concur.)

__________________

¹The record does not contain an order denying the motion for leave to file amended answer. An order to supplement the record was entered on March 8, 2018. Appellant filed a response to the Court’s order to supplement the record indicating that no written order was entered. Nevertheless, an appellate court may review the lower court’s decision when the error is apparent on the face of the record. See Reyes v. B.A.C. Home Loans Servicing, L.P., 226 So. 3d 354, 356 (Fla. 2d DCA 2017) [42 Fla. L. Weekly D1962a].