9 Fla. L. Weekly Supp. 774a
Insurance — Insured’s action against insurer after insurer disputed claim for stolen vehicle — Plaintiff’s motion to vacate order granting defendant leave to amend its answer to include a compulsory counterclaim is denied — Counterclaim was based upon same factual allegations used by insurer to deny claim from its inception, namely that insurer believed its insured has misrepresented the facts of the claim — Counterclaim merely allows insurer to recover money which it has already paid to insured’s lien holder for the loss at issue in the event a jury determines that insurer’s claim is not factual — Denial of opportunity to file compulsory may result in miscarriage of justice — Plaintiff is not procedurally prejudiced
ROLANDO GIRON, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court in and for Miami-Dade County, Civil Division. Case No. 00-8717 CC-25(1). October 11, 2002. Wendell M. Graham, Judge. Counsel: Tony S. Sirven, Sirven & Adams, P.A., Hialeah. Rima C. Bardawil, Law Offices of Rima C. Bardawil, P.A., Miami. James E. Zloch, Wicker, Smith, et al., Ft. Lauderdale.
ORDER DENYING PLAINTIFF’S MOTION TO VACATE ORDERGRANTING DEFENDANT’S LEAVE TO AMEND ANSWER ANDADD COUNTERCLAIM AND/OR MOTION FORREHEARING/RECONSIDERATION OF SAME
THIS CAUSE came on to be heard October 3, 2002, upon the Plaintiff’s Motion to Vacate Order Granting Defendant’s Leave to Amend Answer and Add Counterclaim and/or Motion for Rehearing/Reconsideration Of Same, dated July 15, 2002. After having heard argument of counsel, and being otherwise fully advised in the premises, the court makes the following findings of fact and conclusions of law.
The Defendant reported his car stolen in June of 2000. From the beginning, the insurer disputed the claim and sought to investigate the claim, particularly because the Defendant had made and been paid for the same car being stolen on a prior claim with this insurer. In September of 2000, while the insurer was investigating the claim, plaintiff filed the instant breach of contract action seeking benefits for his allegedly stolen vehicle. The Defendant answered and filed affirmative defenses, essentially arguing that Plaintiff had failed to cooperate during the investigation and had given false information about the claim.
By order dated April 16, 2002, this matter was set for jury trial to commence June 17, 2002. Calendar call was scheduled for June 11, 2002. On May 2, 2002, the Defendant filed a motion to amend its answer to include a compulsory counterclaim. The proposed counterclaim was filed simultaneously with the motion. For reasons not attributable to the Defendant or Plaintiff, the motion was not heard prior to the calendar call. At the calendar call, the Defendant raised the matter, and over the Plaintiff’s objection, the compulsory counterclaim was permitted to be filed.
The compulsory counterclaim is based upon the same factual allegations the Defendant has used to deny this insurance claim from its inception, namely that the Defendant believes its insured has misrepresented the facts of this claim. The Defendant has actually paid its insured’s lien holder for this second, instant loss. The Defendant has previously paid the Defendant for a prior theft of the same vehicle. The counterclaim merely allows the Defendant to recover its money in the event a jury determines that Plaintiff’s instant claim in not factual. To deny the Defendant the opportunity to file such a compulsory counterclaim may result in a miscarriage of justice. If the Defendant prevails on its affirmative defenses, because it is a compulsory counterclaim, he would not be permitted to bring a subsequent action for the same relief. Additionally, the Plaintiff is not procedurally prejudiced because this matter has been continued and will not be set before February of 2003. Given the identity of issues in the affirmative defenses and the counterclaim, there is no reason why the Plaintiff cannot be prepared to meet these allegations which have, ab initio, been at the core of the conflict between these parties. Accordingly, the court finds pursuant to Fla. R. Civ. P. 1.170(f), justice requires that the Defendant be permitted to file this compulsory counterclaim. See, Advanced Energy Concepts et al. v. Waugh, 510 So.2d 1081 (1st DCA 1987). Cf., Aydelott v. Greenheart, 162 So.2d 286 (2nd DCA 1964) and Kellog v. Fowler White, 807 So. 2d 669 (4th DCA 2002). Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Motion to Vacate Order Granting Defendant’s Leave to Amend Answer and Add Counterclaim and/or Motion for Rehearing/Reconsideration Of Same, be and the same is hereby DENIED. It is further
ORDERED that Plaintiff has 20 days from the date of this order to answer the counterclaim.
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