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RossAbramowitzInsurance ­­ Personal injury protection ­­ Affirmative defenses ­­ Motion to amend affirmative defenses by asserting new defense 19 months after initiation of PIP suit is denied where proposed amendment is untimely, pre­trial order has issued and mediation and arbitration have been completed

HALLANDALE BEACH ORTHOPEDICS, INC. A/A/O DAVID BENDAHAN, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 09 006259 COCE 53. March 7, 2011. Honorable Robert Lee, Judge. Counsel: Ross Abramowitz, Fort Lauderdale, for Plaintiff. Michael A. Rosenberg, Deerfield Beach, for Defendant.



 THIS MATTER having come before the Court for hearing on February 18, 2011, on Defendant's Motion to Amend Amended Answer and Affirmative Defenses, and the Court having reviewed the Court file, including all record evidence presented, the parties' motions and supporting documents, and the Court having heard argument of counsel and being otherwise fully advised in the premises, It is hereby ORDERED and ADJUDGED as follows:

1. This is a County Court case that was filed on May 19, 2009. On July 20, 2009, Defendant filed their Answer and Affirmative Defenses. Approximately three and a half months later, on October 5th, 2009, Defendant filed an Amended Answer and Affirmative Defenses. At no time did the Defendant raise the Affirmative Defense of improper pre­suit demand letter.

2. On December 14, 2010, nineteen (19) months after litigation commenced, the Defendant sought leave of the Court to Amend their Amended Answer and Affirmative Defenses. It was at this point in litigation that the Defendant raised the Defense of improper pre­suit Demand Letter.

3. At this point in the litigation the Court had already issued its pre­trial order and mediation and arbitration had already been completed.

4. In considering prejudice to the plaintiff, the Court must consider the timeliness of the motion. A motion to amend a complaint must be made promptly. Grif in v. Societe Anonyme, 53 Fla. 801, 830, 44 So. 342, 351 (1907).

5. In one case, a seven month delay in filing a motion to amend warranted the denial of the motion. New River Yachting, 407 So. 2d at 608­09. In another, an eight month delay warranted denial. Avis Rent A Car Systems, Inc. v. Hubbell, 11 Fla. L. Weekly Supp. 257a (Broward Cty. Ct. 2004).

6. The Court takes into account that as a County Court case, this case involved a relatively small amount in dispute. Additionally the court keeps in mind that this is a civil case, with a recommended resolution standard of eighteen (18) months. Florida Rule of Judicial Administration 2.085 (e)(1)(B).

7. In the instant case, the matter had been pending for nineteen (19) months when the Defendant served its motion to amend its amended answer. The Court hereby finds that the Plaintiff would suffersubstantial prejudice in allowing the Defendant to amend their amended answer and affirmative defenses. Therefore, the Defendant's motion for leave to file a second amended answer and affirmative defenses is hereby denied.

18 Fla. L. Weekly Supp. 559a
Online Reference: FLWSUPP 1806BEND

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