27 Fla. L. Weekly Supp. 79a
Online Reference: FLWSUPP 2701LOPEInsurance — Personal injury protection — Where sole issue raised by medical provider in PIP case was whether insurer had sufficiently elected use of statutory fee schedules for reimbursement of PIP benefits, and only after Florida Supreme Court decision in Orthopedic Specialists regarding sufficiency of insurer’s policy language to elect use of statutory fee schedules was decided adversely to provider’s position did provider raise unpled issue of misapplication of deductible, motion to strike or exclude unpled issues is granted
FLORIDA WELLNESS & REHABILITATION CENTER, INC. (Patient: Juan A. Lopez), Plaintiff, v. ALLSTATE PROPERTY & CASUALTY INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2012-21284-CC-05 (06). February 13, 2019. Gina Beovides, Judge. Counsel: Paul K. Schrier, Paul K. Schrier, P.A., Miami, for Plaintiff. Matthew Hier and Raul L. Tano, Shutts & Bowen LLP, Miami, for Defendant.
ORDER GRANTING ALLSTATE’S MOTION TOEXCLUDE/STRIKE ISSUES NOT PLED BYTHE PLAINTIFF IN ITS COMPLAINT
THIS CAUSE came before the Court on Allstate’s Motion to Exclude/Strike Issues not Pled by the Plaintiff in its Complaint, and after hearing argument of counsel by both parties, reviewing the pleadings filed with the Court, and reviewing all applicable case law, it is
ORDERED AND ADJUDGED: Defendant’s Motion to Strike/Exclude Strike Issues not Pled by the Plaintiff in its Complaint is GRANTED for the reasons stated below:
On or about October 2012, Plaintiff filed a single count complaint against Defendant seeking payment for PIP benefits for treatment rendered to Defendant’s insured as a result of an automobile accident. The single-count Complaint alleged a general violation of Florida Statute §627.736, and sought damages in the amount of “eighty percent of the medical bills alleged in paragraph 15 ($15,000.00), less any payments made.” In its Answer, Defendant asserted only one defense — claiming that Allstate’s policy expressly elected reimbursement based on the fee schedule limitations authorized by the PIP statute. Thereafter, Plaintiff sparsely prosecuted its case, generating three Notices of Lack of Prosecution in 2014, 2015, and 2017.
On January 26, 2017, the Florida Supreme Court in Allstate Insurance Company v. Orthopedic Specialists, ruled in favor of Defendant’s policy as to its ability to make fee schedule election. See Allstate Insurance Company a/a/o Serridge v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] (the “Serridge decision”). Following the Serridge decision, Plaintiff again let the case lie fallow for another extended period, triggering a fourth Notice of Lack of Prosecution. At the August 9, 2018 hearing on the Court’s fourth Notice of Lack of Prosecution, counsel for Plaintiff argued for the first time that misapplication of the deductible was an issue in the case.
Florida law is clear that a party is bound by the issues as framed in the 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). This principle is so ground 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. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A., 537 So. 2d 561 (Fla. 1988).
The pleadings and the record before this Court make clear that this case involves solely the issue decided by the Florida Supreme Court in Serridge. Other than the allegation that Defendant failed to pay 80% of Plaintiff’s billed amount, no other specific allegations are contained in Plaintiff’s Complaint to place Defendant on notice of any other theory as to how Defendant allegedly breached the contract. As such, this Court grants Defendant’s Motion to Exclude/Strike Issues not Pled and/or Improperly Pled,. See Sunbeam Television Corp. v. Mitzel, 83 So. 2d 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 plaintiff to argue the unpled issue at trial).
