28 Fla. L. Weekly Supp. 336a

Online Reference: FLWSUPP 2804LEON

Insurance — Personal injury protection — Answer — Amendment — Insurer’s motion to file amended answer to allege fraud defense is denied where motion is based on surveillance report that insurer obtained seven years ago, prior to filing of suit — Denial of motion to amend answer is warranted where insurer has abused privilege to amend by seeking amendment extremely late in proceedings without justification, and medical provider will be severely prejudiced by proposed amendment

C & D MEDICAL CENTER, a/a/o Lazaro Rodriguez Leon, Plaintiff, v. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 11th Judicial Circuit in and for Miami-Dade County. Case No. 2013-010037-CC-25, Section CG01. June 3, 2020. Linda Diaz, Judge. Counsel: Majid Vossoughi, Majid Vossoughi, P.A., Miami, for Plaintiff. Ari Neimand, House Counsel for United Auto. Ins. Co., Miami Gardens, for Defendant.

ORDER DENYING DEFENDANT’S MOTION TO FILE AMENDED ANSWER

THIS CAUSE came before the Court on May 14, 2020 on Defendant’s Motion to File Amended Answer.

The parties were represented by counsel at the hearing who presented arguments to this Court. Ari Neimand, Esq. appeared on behalf of the Defendant, and Majid Vossoughi, Esq. appeared on behalf of the Plaintiff.

The Court having reviewed Defendant’s motion, the entire Court file, the relevant legal authorities, and having heard argument from counsel and being otherwise fully advised in the premises, hereby enters this Order DENYING Defendant’s Motion to File Amended Answer and makes the following factual findings and conclusions of law.

Plaintiff rendered treatment to the claimant from December 10, 2012 through January 28, 2013 in relation to an automobile accident and submitted a claim for payment of Personal Injury Protection (“PIP”) benefits to Defendant.

On June 3, 2013, Plaintiff filed the instant lawsuit alleging breach of contract and seeking payment of unpaid PIP benefits. The recommended resolution standard for this action is eighteen (18) months. Fla. R. Jud. Adm. 2.250(a)(1)(B).

On June 21, 2013 Defendant served its Answer in this matter and did not plead any affirmative defenses to Plaintiff’s claim for PIP benefits.

Accordingly, since the inception of this case, the only issues framed by the pleadings have been the reasonableness, relatedness, and medical necessity of treatment rendered by the Plaintiff.

On October 3, 2016 Plaintiff filed a summary judgment motion as to the relatedness and medical necessity of its treatment.

On February 15, 2017 Defendant filed the instant Motion to File Amended Answer seeking to raise, for the first time, a fraud defense related to date of service January 24, 2013.

On March 19, 2020, three (3) years after filing its Motion to File Amended Answer, Defendant noticed a hearing on its motion to occur on May 14, 2020.

At the hearing defense counsel advised the Court that the fraud defense that the Defendant now seeks to raise is in fact premised upon a purported surveillance report procured by the Defendant prior to the filing of this action; that is, no less than seven (7) years ago.¹

In sum, the record before this Court reflects that Defendant, despite its purported evidence obtained no less than seven (7) years ago, litigated this matter without ever attempting to raise any fraud defenses to Plaintiff’s Complaint. Defendant did not provide this Court with any explanation or justification for its belated attempt to amend.

Fla. R. Civ. Pro. 1.110(d) provides in pertinent part:

RULE 1.110. GENERAL RULES OF PLEADING

(d) Affirmative Defenses. In pleading to a preceding pleading a party shall set forth affirmatively . . . fraud . . . and any other matter constituting an avoidance or affirmative defense.

Fla. R. Civ. Pro. 1.140(h)(1) provides:

RULE 1.140. DEFENSES

(h) Waiver of Defenses.

(1) A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).

“Affirmative defenses required to be defensively pleaded under Rule 1.110(d) are waived if not timely raised by motion to dismiss or responsive pleading.” See Florida Civil Procedure, 2006 Edition, Bruce J. Berman, 140.11[1][d]; Fla. R. Civ. Pro. 1.140(h)(1) (“A party waives all defenses . . . that the party does not present either by motion . . . or, if the party has made no motion, in a responsive pleading . . .”) (emphasis added); See Mangum v. Susser, 764 So.2d 653, 654-55 (Fla. 1st DCA 2000) [25 Fla. L. Weekly D1216a]; see also Wolowitz v. Thoroughbred Motors, Inc., 765 So.2d 920, 923 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D2033a] (defense of accord and satisfaction waived pursuant to R. 1.140(h) since not pled as a defense as otherwise required under R. 1.110(d)); Fisher v. Fisher, 613 So.2d 1370 (Fla. 2d DCA 1993) (defense of laches waived pursuant to R. 1.140(h) since not pled as a defense as otherwise required under R. 1.110(d)); Miami Elec. Ctr., Inc. v. Saporta, 597 So.2d 903 (Fla. 3d DCA 1992) (defense of illegality waived pursuant to R. 1.140(h) since not pled as a defense as otherwise required under R. 1.110(d)); Kersey v. City of Rivera Beach, 337 So.2d 995 (Fla. 4th DCA 1976) (defense of estoppel waived pursuant to R. 1.140(h) since not pled as a defense as otherwise required under R. 1.110(d)); St. Paul Fire & Marine Ins. Co. v. Walsh, 501 So.2d 54 (Fla. 4th DCA 1987) (holding that settlement is an affirmative defense that ought to be pled or waived pursuant to R. 1.140(h)).

In addition to the foregoing, binding decisional precedent holds that waiver is “the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right”. Raymond James Financial Services v. Steven W. Saldukas, 896 So. 2d 707 (Fla. 2005) [30 Fla. L. Weekly S115a].

The record before this Court reflects that Defendant’s knowledge and purported evidence pertaining to an alleged fraud pre-dates the filing of the instant lawsuit. Nevertheless, Defendant failed to raise a fraud defense at inception of this case as is otherwise required by the applicable rules of procedure noted above. Likewise, Defendant failed to timely seek an amendment to its pleading at any point over the past seven (7) years of litigation opting to travel under the issues of reasonableness, relatedness, and medical necessity of Plaintiff’s treatment as framed by the pleadings.

Based on the foregoing, this Court finds that Defendant, by its own conduct, has waived its right to raise a fraud defense in this case.

Further, despite Florida’s liberal policy allowing amendments under Florida Rule of Civil Procedure 1.190 (a)², Florida precedent provides that a denial of a motion is warranted where (1) the amendment would be futile, (2) the privilege to amend the pleading has been abused, or (3) the amendment would prejudice the opposing party. Yun Enterprises, LTD. v. Graziani, 840 So. 2d 420 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D781a].

The Court finds that the Defendant has abused the privilege to amend since “the amendment [was] sought extremely late in the proceedings, without justification for the delay, [and] the facts were long known” to the Defendant. See Florida Civil Procedure, 2006 Edition, Bruce J. Berman, 190.3[3][b] (noting that there appears to be two kinds of circumstances that fall under the “abuse of privilege to amend” category: “one, where a party has already been given numerous, and arguably sufficient, opportunities to amend; and another, where the amendment is sought extremely late in the proceeding, without justification for the delay, as where the facts were long known to the party belatedly seeking leave”); see also Wooten v. Wooten, 213 So.2d 292 (Fla. 3d DCA 1968) (denied proposed amendment to complaint seeking to add cause of action at late stage of proceedings where plaintiff knew of underlying facts before the complaint was even filed); Horacio O. Ferrea N. Am. Div., Inc. v. Moroso Performance Prod., Inc., 553 So.2d 336 (Fla. 4th DCA 1989) (denied leave to add setoff defense three days before trial where previously known to defendant and prejudicial to plaintiff); United States v. State, 179 So.2d 890 (Fla. 3d DCA 1965) (denied impleader amendment where the movant knew for more than two years that the party sought to be impleaded had an interest); Aydelott v. Greenheart (Demerara) Inc., 162 So.2d 286 (Fla. 2d DCA 1964) (proposed counterclaim “was not seasonably filed” since “the matters attempted to be raised by the tardy counterclaim were essentially within the knowledge of the defendant at the time he filed his answer”); Mrmich v. Switzer, 553 So.2d 1308, 1309 (Fla. 3d DCA 1989) (affirming denial of amendment and finding no abuse of discretion where “the action had been pending nearly five years” and that “no valid excuse was offered below for waiting this long period”).

Finally, this Court finds that Plaintiff will be severely prejudiced by Defendant’s belated proposed amendment given the facts of this case. “Under Rule 1.190, a test of prejudice to the [party opposing an amendment] is the primary consideration in determining whether a motion for leave to amend should be granted or denied”. Lasar Mfg. Co. v. Bachanov, 436 So.2d 236, 237-38 (Fla. 3d DCA 1983); Leavitt v. Garson, 528 So.2d 108, 110 (Fla. 4th DCA 1988); Newman v. State Farm Mut. Auto. Ins. Co., 858 So.2d 1205, 1206 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2590a]. In considering prejudice, the untimeliness of Defendant’s motion is paramount since a motion to amend must be promptly made. Griffin v. Societe Anonyme, 53 Fla. 801, 830, 44 So. 342, 351 (1907).

Defendant obtained its alleged evidence in support of its purported defense no less than seven (7) years ago.

Nevertheless, Defendant did not timely raise any defenses and, accordingly, Plaintiff prosecuted this case with the sole issues being reasonableness, relatedness, and medical necessity of its treatment. As such, this Court finds that Plaintiff’s ability to conduct any meaningful discovery to oppose the alleged defense has been significantly hampered as a result of the Defendant’s conduct and severe delay in seeking leave to amend. This is so since the issues raised in Defendant’s proposed defense are factual in nature. Due to the substantial passage of time, crucial witnesses may now be unavailable and their memories of events from some seven (7) years ago long faded and unreliable, not to mention that potential documentary evidence refuting the Defendant’s allegations likely no longer exists. This extended lapse of time and delay caused by Defendant simply cannot be cured. Accordingly, the Court finds that to allow Defendant’s proposed amendment at this late stage of the proceedings would irremediably prejudice the Plaintiff in its ability to conduct discovery and this prejudice outweighs any liberality interests in permitting an amendment. See e.g., Horacio O. Ferrea N. Am. Div., Inc. v. Moroso Performance Prods. Inc., 553 So.2d 336, 337 (Fla. 4th DCA 1989); Saunders v. Goulard, 569 So.2d 1305, 1306-07 (Fla. 5th DCA 1990). The Court also finds that Plaintiff will be prejudiced by Defendant’s belated amendment as it has now expended substantial time and resources prosecuting this matter and rejected prior offers of judgment served by the Defendant premised on the issues as framed by the pleadings. See e.g. Saunders v. Goulard, 569 So.2d 1305, 1306-07 (Fla. 5th DCA 1990).

For the foregoing reasons, Defendant’s unjustified delay in raising its purported defense clearly prejudices the Plaintiff and, accordingly, the proposed amendment must be denied.

Accordingly, based on this Court’s analysis set forth above, it is

ORDERED AND ADJUDGED that Defendant’s Motion to File Amended Answer is DENIED.

__________________

¹At the hearing counsel for Plaintiff noted that this surveillance report is yet to be produced by the Defendant. A review of the court’s docket also confirms that Defendant has neither served a response to Plaintiff Request for Production nor filed a privilege log disclosing the existence of this report.

²The rule provides that “[l]eave of court shall be given freely when justice so requires.”