28 Fla. L. Weekly Supp. 84a
Online Reference: FLWSUPP 2801AXEInsurance — Personal injury protection — Affirmative defenses — Amendment — Motion to amend affirmative defenses to assert defense regarding invalidity of demand letter is granted — Argument that insurer waived demand letter defense by failing to raise issue before suit was filed is not ripe for consideration and is not supported by any record evidence
CAROL AXE, an insured individual by and through his/her assignee, FRED L. LESLIE, D.O., P.L., Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, a foreign corporation, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Small Claims Division. Case No. 17-CC-028032, Division M. March 27, 2020. Miriam Valkenburg, Judge. Counsel: James R. Collins, FL Legal Group, Tampa, for Plaintiff. J. Chris Abercrombie, The Law Offices of David S. Dougherty, Tampa, for Defendant.
ORDER ON DEFENDANT’S MOTION FOR LEAVETO FILE AMENDED ANSWER, AFFIRMATIVE DEFENSESAND DEMAND FOR JURY TRIAL
THIS CAUSE having come before the Court on Defendant’s Motion for Leave to File Amended Answer, Affirmative Defenses and Demand for Jury Trial, filed and served June 14, 2019 (“Motion for Leave”), and the Court, having heard the arguments of the respective parties, having reviewed the authorities presented, and being otherwise fully advised in the premises, finds as follows:
Pursuant to Fla. R. Civ. Pro. 1.190(a) and “absent exceptional circumstances, requests for leave to amend pleadings should be granted.” Thompson v. Jared Kane Co., 872 So. 2d 356, 360 (Fla. 2d DCA 2004) [29 Fla. L. Weekly D1020b]. “Public policy favors the liberal amendment of pleadings, and courts should resolve all doubts in favor of allowing the amendment of pleadings to allow cases to be decided on their merits.” Laurencio v. Deutsche Bank National Trust Company, 65 So. 3d 1190, 1193 (Fla. 2d DCA 2011) [36 Fla. L. Weekly D1600b]; Sorenson v. Bank of N.Y., 261 So. 3d 660, 663 (Fla. 2d DCA 2018) [43 Fla. L. Weekly D2559a]; Reyes v. BAC Home Loans Servicing, LP, 226 So. 3d 354, 356 (Fla. 2d DCA 2017) [42 Fla. L. Weekly D1962a]; Thompson, 872 So. 2d 360.
“A trial court’s refusal to permit an amendment of a pleading is an abuse of discretion unless it is clear that: (1) the amendment would prejudice the opposing party, (2) the privilege to amend has been abused, or (3) the amendment would be futile. . . . Courts should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment.” Laurencio, 65 So. 3d at 1193 (citations omitted) (internal quotations omitted).
Plaintiff argues that the Defendant waived its defense regarding the invalidity of the presuit demand letter by its failure to raise that issue presuit. However, this argument is not ripe for consideration before this Court. “As a matter of law, waiver . . . [is an] affirmative defense[ ] that must be pleaded.” Derouin v. Universal American Mortgage Company, Ltd., 254 So. 3d 595, 600-01 (Fla. 2d DCA 2018) [43 Fla. L. Weekly D1939a] (citation omitted) (alterations and emphasis in original). “If an answer . . . contains an affirmative defense and the opposing party seeks to avoid it, the opposing party must file a reply containing the avoidance.” Fla. R. Civ. P. 1.100(a); see, e.g., Reno v. Adventist Health System/Sun-Belt, Inc., 516 So. 2d 63, 64-65 (Fla. 2d DCA 1987); Kitchen v. Kitchen, 404 So. 2d 203, 205 (Fla. 2d DCA 1981); Lazar v. Allen, 347 So. 2d 457, 458 (Fla. 2d DCA 1977). Furthermore, even if this Court was to find that this argument could be properly considered at this procedural posture, Plaintiff failed to provide any record evidence to support the argument that the Defendant waived this defense by virtue of its presuit actions. Instead, Plaintiff argues that the failure of Defendant to warn Plaintiff, at the pre-suit stage, of Defendant’s intention to challenge the sufficiency of the Plaintiff’s pre-suit demand letter constitutes a waiver of the right to raise the same challenge post-suit.
Defendant’s proposed amended Affirmative Defense #2 is not futile when taken as true. However, this Court declines to consider at this stage whether Defendant will ultimately be able to prove this defense. Reyes, 226 So. 3d at 357 (“ ‘Any doubt with respect to futility should be resolved in favor of allowing the amendment. . .’ ”) (citation omitted). Furthermore, Plaintiff would not be prejudiced by allowing Defendant to raise its conditions precedent related defense, as § 627.736(10) Fla. Stat. requires strict compliance. See Chambers v. Medical Group, Inc. v. Progressive Express Ins. Co., 14 Fla. L. Weekly Supp. 207a (Fla. 13th Cir. Ct. (App.) Dec. 1, 2006).
At this stage in the proceeding, the Court notes that Defendant has filed the only motion for summary judgment pending in this case, that there is no final hearing set at this time, and that no discovery deadline is imminent.
Accordingly, this Court hereby ORDERS AND ADJUDGES, as follows:
1. That Defendant’s Motion for Leave is GRANTED in PART, and DENIED in PART. Defendant’s Motion for Leave is GRANTED as to Amended Affirmative Defense #2 only and is DENIED as to Amended Affirmative Defenses #1, #3, and #4, as moot, in that they were withdrawn by Defendant’s Counsel at the hearing on the Motion for Leave;
2. That Defendant’s Amended Answer, Affirmative Defenses and Demand for Jury Trial (C.o.S. 6/14/2019) is hereby deemed filed, except as stated above;
3. That Plaintiff’s Motion to Strike (C.o.S. 1/25/2018) is denied as moot; and
4. That Plaintiff shall have twenty (20) days to file a response to the Amended Answer, Affirmative Defenses and Demand for Jury Trial, if any.
5. This Court reserves jurisdiction to enter an order that includes reasonably appropriate measures to ensure that Plaintiff is not prejudiced by the delay associated with the Defendant’s delay in seeking to amend its defenses.
