26 Fla. L. Weekly Supp. 771c
Online Reference: FLWSUPP 2609BRANInsurance — Personal injury protection — Motion to strike or exclude unpled or waived issues is granted — Bar to injection of new claim or theory subsequent to a recent Florida Supreme court ruling that undermined the original claim or theory
ADVANCED CHIROPRACTIC AND REHABILITATION, INC. (Patient: Aldwin Brana), Plaintiff, v. ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502011SC020462XXXXSB. November, 6, 2018. Reginald Corlew, Judge. Counsel: Chad Christensen, Ged Lawyers, LLP, Boca Raton, for Plaintiff. Gladys Perez Villanueva and Raul L. Tano, Shutts & Bowen LLP, Miami, for Defendant.
ORDER GRANTING ALLSTATE’S MOTIONTO EXCLUDE/STRIKE ISSUES WAIVED AND/ORNOT PLED BY THE PLAINTIFF IN ITS COMPLAINT
THIS CAUSE, having come before the Court on October 25, 2018 on Defendant’s Motion to Exclude/Strike Issues Waived and/or Not Pled by the Plaintiff, the Court having reviewed Defendant’s Motion, heard argument of counsel, and being otherwise fully advised in the premises, this Court makes the following findings of fact and conclusions of law:Material Facts
On December 27, 2011, the Plaintiff filed a Complaint for PIP benefits payments in connection with an automobile accident. The Complaint specifically alleges that the Plaintiff’s charges for the subject medical bills were reasonable, that the Defendant did not make payment for the Plaintiff’s charges for treatment pursuant to the insurance policy, and that Defendant breached the insurance policy by “failing to reimburse the Plaintiff a reasonable amount for benefits,” and “by making payments at a reduced amount without deeming the amounts to be unreasonable.”
On March 13, 2014, Allstate answered the Complaint by asserting only one defense, wherein Allstate quoted the language in its policy and asserted that Allstate’s policy expressly elected reimbursement based on the fee schedule limitations authorized by the Florida PIP statute.
On January 26, 2017, in Allstate Insurance Company v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017) [42 Fla. L. Weekly S38a] (the “Serridge decision”), the Florida Supreme Court held that the policy language provides “legally sufficient notice” of Allstate’s election to reimburse based on the fee schedule limitations. During the pendency of the litigation and following the Serridge decision, the Plaintiff allowed this case to go stale multiple times for extended periods, triggering a Notice of Lack of Prosecution from the Court on May 25, 2017. In response to the Notice of Lack of Prosecution, the Plaintiff filed a Notice of Good Cause wherein Plaintiff represented that Plaintiff would file a motion for summary judgment as to an unidentified “legal issue.”
On August 3, 2017, Allstate served interrogatories on the Plaintiff. The interrogatories sought for Plaintiff to “describe in detail and give the date of each and every act or omission of Allstate that You claim is a breach of contract in this Action.”
To date, Plaintiff has not served Answers to those interrogatories. Plaintiff has not filed any motion for summary judgment, despite the representation in its Notice of Good Cause.
Allstate timely filed the instant motion — Allstate’s Motion to Exclude/Strike Issues Waived and/or Not Pled by the Plaintiff in its Complaint — on September 18, 2018.Legal Standard and Conclusions of Law
Florida law is well established that a party is bound by the issues as framed by its own 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). Inherent in that statement is the notion that a party should not suffer the unfair surprise and prejudice of legal claims and theories not encompassed by the pleadings. See, e.g., Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988) (if 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); Bank of Am. v. Asbury, 165 So. 3d 808, 809 (Fla. 3d DCA 2015) [40 Fla. L. Weekly D1230a (“Litigants in civil controversies must state their legal positions within a particular document, a pleading, so that the parties and the court are absolutely clear what the issues to be adjudicated are”). Furthermore, the law is clear that a judgment must be based on a claim or defense that was either properly pled or tried by consent of the parties. See Goldschmidt v. Holman, 571 So. 2d 422, 423 (Fla. 1990). This principle is so grounded 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. See Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A., 537 So. 2d at 563.
The Florida Supreme Court case of Arky, Freed is the seminal case holding that unpled claims and issues may not be tried. Relying on Arky, Freed, the Fourth District Court of Appeal has consistently held that parties are precluded from recovery on unpled claims tried without the consent of the parties. See E.I. Du Pont De Nemours & Co. v. Desarrollo Indus. Bioacuatico S.A., 857 So. 2d 925, 930 (Fla. 4th DCA 2003) [28 Fla. L. Weekly D2171a]; see also Straub v. Muir-Villas Homeowners Ass’n, Inc., 128 So. 3d 885, 890 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D2655a] (relying on Arky, Freed and Du Pont to find error in trial court’s consideration of an unpled defense). Many other Florida courts have held that it is error for a trial court to allow a plaintiff to argue an unpled theory or cause of action at trial. See Sunbeam Television Corp. v. Mitzel, 83 So. 3d 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 plaintiffs to argue the unpled issue at trial”); Bloom v. Dorta-Duque, 743 So. 2d 1202, 1203 (Fla. 3d DCA 1999) [24 Fla. L. Weekly D2532a] (“[i]t is well settled that a defendant cannot be found liable under a theory that was not specifically pled”); Robbins v. Newhall, 692 So. 2d 947, 949 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D945b] (reversing final judgment where plaintiff had alleged three specific acts of negligence, but tried the case on a fourth alleged act that was never pled). See also Cioffe v. Morris, 676 F.2d 539, 543 n. 8 (11th Cir. 1982) (confirming that unpled issues tried without consent deny due process).
Numerous cases have followed Arky Freed to bar the injection of new claims or theories into an action, including in cases where the new claim or theory was devised to evade a recent ruling that undermined the original claim or theory. The Fourth District Court of Appeals, in Noble v. Martin Memorial Hospital Association, Inc., 710 So. 2d 567 (Fla. 4th DCA 1997) [23 Fla. L. Weekly D58a], affirmed the trial court’s rejection of Plaintiff’s attempt to inject a new theory following an adverse ruling on the only pled theory, a nearly identical scenario to the one before this Court. In affirming, the Fourth District reasoned that “there comes a point in litigation where each party is entitled to some finality.” Similarly to Noble, this is a case where Plaintiff did not attempt to litigate any other issues until “Plaintiff’s quest for monetary damages had come to an end.” Id.
The pleadings and the record before this Court all make clear that this case involves solely the Serridge Issue. Plaintiff’s Complaint challenges Allstate’s assessment of the reasonableness of reimbursements. Said issue was decided in favor of Allstate by the Florida Supreme Court in Orthopedic Specialists. It was not until after the Florida Supreme Court found in favor of Allstate and subsequently denied rehearing, finalizing its ruling on the sole legal issue presented by the Plaintiff in this case, that the Plaintiff contended for the first time in this case that there was an Unpled Issue presented in this lawsuit not controlled by Orthopedic Specialists. Orthopedic Specialists is case-dispositive in this matter. Accordingly,
IT IS HEREBY ORDERED AND ADJUDGED that
Defendant’s Motion to Strike/Exclude Issues Waived and/or not Pled by Plaintiff is GRANTED.