14 Fla. L. Weekly Supp. 100c
Insurance — Personal injury protection — Discovery — Depositions — Sanctions — Insurer’s motion for sanctions against medical provider that objected to request to depose provider’s owner is denied where insurer did not provide reasonable explanation for failing either to set deposition or file motion to compel for twelve months after provider’s objection, and provider agreed to provide owner for deposition at reasonable time before hearing and did so — Coverage — Affirmative defenses — Amendment — Denial — Motion to amend answer to assert fourteen additional affirmative defenses is denied where insurer filed motion one year after suit was filed, insurer failed to offer any explanation for delay, insurer knew or should have known of defenses at time original answer was filed or shortly thereafter, and new defenses would prejudice medical provider and inject new issues into case which were not raised in pleadings or discovery and which are calculated to cause further delay and defeat provider’s motion for summary judgment with paper issues — Conclusory defenses are insufficient as matter of law
HEALTHY LIFE MEDICAL CENTER, INC., as assignee of Enrique Escalante, Plaintiff, vs. MERCURY INSURANCE COMPANY OF FLORIDA, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 05-014731 COCE 50. October 18, 2006. Peter B. Skolnik, Judge. Counsel: Cris Evan Boyar, for Plaintiff. Robert Peterson, for Defendant.
ORDER DENYING DEFENDANT’S MOTION TO AMEND AND MOTION TO COMPEL DEPOSITION
THIS CAUSE having come to be heard on the Defendant’s Motion to Amend Affirmative Defenses and Motion to Compel the deposition of Boris Zigmond and the Court having heard argument of counsel and being otherwise advised in the Premises, it is hereupon ORDERED AND ADJUDGED as follows:
BACKGROUND
This County Court case for PIP benefits was filed by the Plaintiff more than one year ago on 9/23/05. On 10/31/05, approximately one month later, the Defendant filed an Answer which asserted four (4) affirmative defenses. The Defendant did not file a motion for extension of time to file the original answer and affirmative defenses. The parties conducted reasonable paper discovery. On 5/9/06 and on 7/26/06 the treating chiropractor for the Plaintiff, Dr. Jeff Burge was deposed by the Defendant. On 5/9/06 the plaintiff’s billing person was deposed. On 7/26/06 the Plaintiff deposed the Defendant’s adjuster. On 7/28/06, after the completion of the pending depositions, the Plaintiff noticed the case ready for trial. On 7/31/06, the Plaintiff served a Motion for Summary Judgment. On August 16, 2006 the Plaintiff noticed for hearing the Plaintiff’s Motion for Summary Judgment which is scheduled to take place on October 18, 2006. The Court ordered the parties to mandatory mediation on 8/3/06 to take place on 8/30/06. The Court expected the parties to mediate in good faith as required by the rules. The Defendant filed a Motion to Continue the mediation which was granted by this Court on 8/25/06. On 9/8/06, the Defendant filed a Motion to Amend the Affirmative Defenses to allege 14 new affirmative defenses. On October 12, 2006, this Court set this matter for trial.
The parties then mediated the case on 9/26/06 which would be one year after suit was filed. The Defendant did not file a second motion to continue the mediation so it can be assumed the parties mediated in good faith as is required. On 9/8/06, the Defendant for the first time, filed a motion to depose Boris Zigmond who is the owner of the Plaintiff’s facility. Based on the record evidence provided by the Defendant the original request for this deposition was made by the Defendant on December 6, 2005. On December 12, 2005, the Plaintiff objected to the deposition of Boris Zigmond in writing. The Defendant waited eleven months until 9/8/06 to file a motion to compel the deposition of Boris Zigmond.
CONCLUSIONS OF LAW
As to the Defendant’s Motion to Compel the deposition of Boris Zigmond, it is hereby denied as moot as Boris Zigmond was deposed on October 12, 2006. The Court finds the Defendant did not provide a reasonable explanation for not either setting the deposition of Boris Zigmond or filing a Motion to Compel at an earlier time and the Plaintiff agreed to produce Boris Zigmond for deposition at a reasonable time prior to the hearing. As a result, the Court denies the Defendant’s Motion for Sanctions.
As to Defendant’s Motion to Amend the Answer and Affirmative defenses to include 14 new affirmative defenses, the Defendant’s Motion, after careful consideration of the facts and circumstances in this case, is respectfully denied. The Court finds the Defendant’s Motion was untimely; was made to thwart the Plaintiff’s Motion for Summary Judgment; would prejudice the Plaintiff; and would be unfair surprise to the Plaintiff. Accordingly, this Court after reviewing all of the evidence and hearing the argument of counsel must exercise its unique discretion as the trial Court to deny this motion.
The Defendant’s Motion to Amend the Affirmative Defenses filed with the Court failed to provide the Court with a single fact to justify the amendment. Further, neither in the motion nor at the time of the hearing did the Defendant provide the Court with any record evidence to justify the untimely amendment even though numerous depositions have been taken. The Defendant failed to provide the Court with any evidence as to when the Defendant learned of the facts which would support an amendment. The Defendant failed to provide the Court with any argument or facts to support an allegation. The evidence supporting the Defendant’s proposed amendments was not available at the time the original answer was filed or at any time before confronted with the Plaintiff’s Motion for Summary Judgment.
The Defendant’s motion included only standard law on the liberality of amendments which this Court is well aware and understands. This Court comprehends the public policy that amendments to affirmative defenses should only be denied in limited circumstances. In this case denial is justified based on the specific facts and circumstances of this case. This Court is also equally aware of the public policy that allows litigants finality and that the purpose of the no fault scheme (PIP insurance) is to provide swift and virtually automatic payment so that the injured may get on with his life without undue financial interruption. Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla. 2000); Nichols v. State Farm, 851 So.2d 742 (Fla. 5th DCA 2003); United v. Stat Technologies, 787 So.2d 920 (Fla. 3d DCA 2001), Government Employees v. Gonzolez, 512 So.2d 269 (Fla. 3d DCA 1987). This is also a strong public policy that this Court must consider in ruling on a Motion to Amend affirmative defenses filed more than one year after suit is filed especially where there is nothing in the record demonstrating that the 14 new affirmative defenses now sought to be interposed to defeat the Summary Judgment were not available to the Defendant at the time of its initial answer or at any time before the Plaintiff moved for Summary Judgment.
At the hearing on Defendant’s Motion, the Defendant failed to articulate a reasonable basis for seeking the amendments one year after suit was filed and the Defendant did not provide the Court with any record evidence to justify the untimely amendments, and further failed to articulate any explanation for the failure to raise the new defenses at an earlier time.
The Defendant did state at the hearing it was a “tactical decision” of the Defendant to wait to file the Motion to Amend. All tactical decisions come with a risk. The Defendant’s tactical decision to wait until approximately 10 months after the original answer was filed, 12 months after suit was filed, after the Plaintiff move for Summary Judgment was filed, after all but one deposition was completed and after mediation was ordered for a second time, and for not seeking to continue the mediation which took place prior to the hearing was intentional and strategic.
The Court finds the Defendant knew or should have known about the new potential defenses at the time of the filing of the original answer or shortly thereafter. The Defendant’s adjuster, Arthur Mertz-Hill was deposed on 7/26/06 and there is no record evidence he raised these new defenses which would put the Plaintiff on notice of these defenses. Accordingly, these new defenses would be an unfair surprise to the Plaintiff one week before the scheduled Summary Judgment hearing.
The Court further finds the Defendant’s new affirmative defenses would prejudice the Plaintiff and clearly inject new issues in the case that were not raised in the pleadings, discovery or the depositions, and are calculated to cause further delay in the disposition of this action and to defeat Plaintiff’s motion for Summary Judgment with paper issues. If the Defendant’s Motion was granted the Plaintiff will have to conduct additional discovery since these are new issues such as depositions of third parties, re-depose witnesses that were previously deposed, and move for Summary Judgment on the new defense causing unnecessary delay and expenses. The Plaintiff has already incurred the expenses of preparing for and attending three depositions, preparing for and attending mediation which must have been completed in good faith, and the preparation of a Motion for Summary Judgment which was scheduled to take place only one week after the hearing on Defendant’s Motion. If the amendment was allowed it would unreasonably thwart the Plaintiff’s motion for Summary Judgment which is prejudicial.
Further, the Court finds the new affirmative defenses, as pled as a whole, are insufficient as a matter of law as they are conclusory in their content and lack in any real allegations of ultimate facts demonstrating a good defense to the complaint for PIP benefits. It is axiomatic that certainty is required when pleading defenses and pleading conclusions of law unsupported by allegations of ultimate facts is legally insufficient. Bliss v. Carmona, 418 So.2d 1017, 1019 (Fla. 3d DCA 1982). The Defendant’s failure to file valid affirmative defenses would require the Defendant to plead with greater specificity causing additional delay in a case that has been pending for more than one year.
With regard to the specific affirmative defenses, the first, second, third, and eleventh defenses are not affirmative defenses as a matter of law. The Defendant failed to allege any ultimate facts to support the allegations contained in the fourth, fifth, sixth, and seventh affirmative defenses. The eighth, ninth, tenth, twelfth, and thirteenth affirmative defenses could have and should have been pled in the first answer as these defenses were known or should have been known to the Defendant at the time the original answer was filed. Finally, the fourteenth affirmative defense is not valid as the Defendant is asking for a setoff for any amounts paid when there is no record evidence of any payments.
In Title & Trust Co. v. Parker, 468 So. 2d 520 (Fla. 1st DCA 1985) the Court noted “while it is generally true that amendments are viewed favorably . . . amendments are not allowed where they would “change the issue, introduce new issues, or materially vary the grounds of relief. In the pending case, the Defendant’s new affirmative defenses of brokering, fee splitting, unlawful rendering of services and the other defenses would inject new issues into the case prejudicing the Plaintiff.
In Allett v. Hill, 422 So. 2d 1047 (Fla. 4th DCA 1982) the court stated that “although Fla. R. Civ. P. 1.190, and the cases interpreting and construing it, dictate a liberality on part of the trial judge in granting motions to amend, this “liberality” . . . diminishes as the case progresses to trial.” Id. at 1049.
In Brown v. Montgomery Ward & Co., 252 So. 2d 817 (Fla. 1st DCA 1971), the Court held that “a Florida court may, in its discretion, deny any party the right to amend his pleadings if the proposed amendments will change or introduce new issues . . . or where the filing of such pleadings will delay the suit by necessarily requiring a continuance under circumstances which would be unduly prejudicial to the opposing party.” The Court also held that although amendments should generally be permitted, “there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached.” Id. at 819.
In Alvarez v. DeAguirre, 395 So. 2d 213 (Fla. 3rd DCA 1981) the Court reiterates that even though the policy in Florida is to “liberally allow amendments to pleadings where justice so requires, a trial judge in the exercise of sound discretion may deny amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished . . . [and that] there is an equally compelling obligation . . . to see to it that the end of all litigation be finally reached.” Id. at 216.
In considering prejudice, the court must consider the timeliness of the motion. A motion to amend . . . must be made promptly. Griffin v. Societe Anonyme la Floridienne J. Buttgenbach & Co., 53 Fla. 801 (1907). In this case, the Court finds the Defendant’s Motion was not promptly.
In New River Yachting Center, Inc. v. Bacchiocchi, 407 So. 2d 607, 609 (Fla. 4th DCA 1981) held that a seven-month delay in filing a motion to amend warranted the denial of the motion.
In Avis Rent A Car Systems, Inc., 11 Fla. L. Weekly Supp. 257 (Broward Cty. Ct. 2004), the court held that an eight-month delay warranted denial.
The Court in Griffin v. Societe Anonyme la Floridienne J. Buttgenbach & Co., 53 Fla. 801 stressed the fact that “applications to amend should be made promptly after the necessity for the amendment has been discovered.” Id. at 830. In this case, the Defendant knew or should have known about these defenses at or near the time of the original answer.
The present case is similar to Ferrea v. Moroso Performance Products, 553 So.2d 336 (Fla. 4th DCA 1989). In Ferrea, the Court concluded that “the record supports the trial court’s finding that Moroso’s amendment would concern matters that were known to it for a long, long time and that the Plaintiff would be prejudiced since they had not been able to conduct any discovery or prepare a defense to Moroso’s assertions.” Id.
The Defendant has abused the amendment privilege by waiting to seek leave to Amend its Affirmative Defenses until discovery has been completed, and for waiting approximately one year from the time the suit was filed and only after confronted by Plaintiff’s motion for Summary Judgment. Accordingly, it is hereby ORDERED AND ADJUDGED that the Defendant’s Motion to Amend Answer and Affirmative defenses is Denied.