PROGRESSIVE SELECT INSURANCE COMPANY v. THE IMAGING CENTER OF WEST PALM BEACH, LLC a/a/o ERICA PRETE

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

PROGRESSIVE SELECT INSURANCE COMPANY,
Appellant,

v.

THE IMAGING CENTER OF WEST PALM BEACH, LLC
a/a/o ERICA PRETE,
Appellee.

No. 4D21-3074

[March 8, 2023]

Appeal from the County Court for the Seventeenth Judicial Circuit,
Broward County; John Hurley, Judge; L.T. Case No. CONO19-12472.

Michael C. Clarke, Jennifer L. Emerson, and Joye B. Walford of Kubicki
Draper, P.A., Tampa, for appellant.

Douglas H. Stein of Douglas H. Stein, P.A., Coral Gables, for appellee.

DAMOORGIAN, J.

Progressive Select Insurance Company (“Progressive”) appeals the final
judgment awarding The Imaging Center of West Palm Beach, LLC a/a/o
Erica Prete (“Provider”) unpaid PIP benefits. Progressive argues the county
court erred by: (1) denying Progressive’s motion to amend its answer and
affirmative defenses; and (2) failing to enforce Progressive’s confession of
judgment as to unpaid postage. We affirm on the second issue without
further comment. For the reasons discussed below, we reverse and
remand on the first issue.

In October 2019, Provider sued Progressive for unpaid “No-Fault
benefits and/or medical payments benefits.” The complaint alleged all
conditions precedent to filing suit had been performed, including the filing
of a pre-suit demand letter. Progressive answered the complaint and
generally denied the material allegations. Progressive also raised several
affirmative defenses, including that it paid all benefits reasonably due
under the policy and the Florida Motor Vehicle No-Fault Law.
 In March 2020, Provider moved for summary judgment on the basis
that Progressive “underpaid by $1.00” the amounts due “for penalty,
postage, and interest.” Provider also represented in the motion that it was
“not contesting payment at fee schedule at this time.” Shortly after
Provider moved for summary judgment, Progressive filed a confession of
judgment in the amount of $0.84, which represented “the difference
between the postage paid and owed to [Provider’s] counsel for the pre-suit
demand letter it mailed to [Progressive] prior to the initiation of litigation
in this matter.” That same day, Provider filed a motion for attorney’s fees
and costs pursuant to the confession of judgment.

In June 2021, Provider filed a second motion for summary judgment.
Unlike the first motion which was limited to the issue of unpaid postage,
the second motion now argued Progressive failed to provide the correct
reimbursement for two CPT codes under the non-facility limiting charge.
Provider’s argument was based on the Third District’s holding in Priority
Medical Centers, LLC v. Allstate Insurance Co., 319 So. 3d 724 (Fla. 3d DCA
2021), which issued two months prior.

Two weeks later, Progressive moved to amend its answer and
affirmative defenses to add two new affirmative defenses: (1) failure to
serve a valid pre-suit demand letter; and (2) exhaustion of benefits.
Progressive argued the amendment was necessary because Provider
“completely changed its theory as to why Defendant underpaid the charges
allegedly at issue, and Defendant must now assert alternative affirmative
defense(s).” Provider filed an objection to Progressive’s motion to amend
on the basis of prejudice. Notably, at the time Progressive filed its motion
to amend, no hearing had been set on Provider’s second motion for
summary judgment.

Approximately one month after Progressive filed its motion to amend,
Provider filed a notice of hearing on its second motion for summary
judgment and objection to the motion to amend. The matter ultimately
proceeded to a hearing two months later. At the conclusion of the hearing,
the county court denied Progressive’s motion to amend as untimely, citing
the holding in Bronstein v. Allstate Insurance Co., 315 So. 3d 44 (Fla. 4th
DCA 2021). The county court did not use the word “prejudice” in
announcing its ruling or otherwise articulate how the proposed
amendment would prejudice Provider.

Following the ruling on the motion to amend, the parties stipulated to
the amount due under the limiting charge calculation to reach finality in
the case. The county court thereafter granted Provider’s second motion
for summary judgment and entered final judgment awarding Provider

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medical benefits in the amount of $164.00, plus $11.10 in interest. The
final judgment also found Provider was entitled to attorney’s fees and costs
under section 627.428, Florida Statutes. This appeal follows.

Florida Rule of Civil Procedure 1.190(a) provides in relevant part that
leave to amend pleadings “shall be given freely when justice so requires.”
Thus, “[t]he Florida Rules of Civil Procedure encourage a policy of liberality
in allowing litigants to amend their pleadings, especially prior to trial; this
policy exists so that cases will be tried on their merits.” Morgan v. Bank
of N.Y. Mellon, 200 So. 3d 792, 795 (Fla. 1st DCA 2016); see also Marquesa
at Pembroke Pines Condo. Ass’n v. Powell, 183 So. 3d 1278, 1279 (Fla. 4th
DCA 2016) (reiterating that absent exceptional circumstances, requests
for leave to amend under rule 1.190(a) should be granted). “Broad
discretion is given to the trial court to grant or deny a motion to amend;
as such, there is no bright-line rule as to when a motion to amend is
‘untimely.’” Morgan, 200 So. 3d at 795. “Refusal to allow an amendment
is an abuse of the trial court’s discretion ‘unless it clearly appears that
allowing the amendment would prejudice the opposing party, the privilege
to amend has been abused, or amendment would be futile.’” Vaughn v.
Boerckel, 20 So. 3d 443, 445 (Fla. 4th DCA 2009) (quoting Dieudonne v.
Publix Super Mkts., Inc., 994 So. 2d 505, 507 (Fla. 3d DCA 2008)).

As neither party disputes that Progressive has not abused the privilege
to amend or that the amendment would be futile, the question in this case
is whether Progressive’s proposed amendment would prejudice Provider.

“Whether granting [a] proposed amendment would prejudice the
opposing party is analyzed primarily in the context of the opposing party’s
ability to prepare for the new allegations or defenses prior to trial.”
Morgan, 200 So. 3d at 795. Thus, “rule 1.190’s liberal amendment policy
diminishes as a case progresses to trial.” Id. If, however, leave to amend
is sought at or before a hearing on a motion for summary judgment,
appellate courts have routinely rejected a finding of prejudice. See Reyes
v. BAC Home Loans Servicing L.P., 226 So. 3d 354, 356–58 (Fla. 2d DCA
2017) (no prejudice where motion to amend affirmative defenses was filed
two weeks before the summary judgment hearing); RV–7 Prop., Inc. v.
Stefani De La O, Inc., 187 So. 3d 915, 916–17 (Fla. 3d DCA 2016) (no
prejudice where motion to amend answer and affirmative was filed two
days before the summary judgment hearing); Laurencio v. Deutsche Bank
Nat’l Tr. Co., 65 So. 3d 1190, 1192–93 (Fla. 2d DCA 2011) (no prejudice
where leave to amend affirmative defenses was sought two days before the
summary judgment hearing); Crown v. Chase Home Fin., 41 So. 3d 978,
979–80 (Fla. 5th DCA 2010) (no prejudice where leave to amend was
sought after the filing of the motion for summary judgment and asserted

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defenses not addressed in the motion for summary judgment); Leavitt v.
Garson, 528 So. 2d 108, 111 (Fla. 4th DCA 1988) (no prejudice where
motion to amend affirmative defenses was filed before the summary
judgment hearing and before the case was set for trial).

Here, the county court seemingly denied Progressive’s motion to amend
solely on the basis that the motion was untimely in light of the length of
time that the action had been pending, and without weighing the
amendment in terms of prejudice to Provider’s ability to prepare for the
new defenses. This was error, especially considering Progressive’s motion
was filed before a hearing was even set on Provider’s second motion for
summary judgment and before the case was set for trial. See Reyes, 226
So. 3d at 356 (“[T]he bare timing of a motion to amend and whether
counsel’s failure to seek amendment sooner constituted ‘neglect,’
excusable or otherwise, are, at most, ancillary to the primary
considerations of prejudice to the opposing party . . . .”); Laurencio, 65 So.
3d at 1193 (“Courts should be especially liberal when leave to amend ‘is
sought at or before a hearing on a motion for summary judgment.’”
(citation omitted)); Newman v. State Farm Mut. Auto. Ins. Co., 858 So. 2d
1205, 1206 (Fla. 4th DCA 2003) (“Although the policy in Florida to liberally
allow amendments where justice requires diminishes as the case
progresses to trial, in exercising its discretion to allow the amendment, the
trial court should still weigh the amendment in terms of the prejudice to
the opposing party in the preparation for trial.” (internal citation omitted)).
Moreover, the case on which the county court relied in denying the motion
is distinguishable because the motion to amend in that case was filed
“after the case was set for trial” and “the case was only eight days from
calendar call.” Bronstein, 315 So. 3d at 45. To further compound the
error, the county court seemingly gave no consideration to the fact that it
was Provider’s change in position which prompted the need for the
amendment.

Lack of prejudice findings aside, Provider could not be prejudiced by
the amendment because it was aware of the amendment three months
prior to the summary judgment hearing and had ample time to prepare for
the proposed defenses. See Cobbum v. Citimortgage, Inc., 158 So. 3d 755,
757–58 (Fla. 2d DCA 2015) (no prejudice where request to amend
affirmative defenses was made during the summary judgment hearing
because plaintiff was aware defendants “challenged the summary
judgment on the basis of failure to comply with the thirty-day notice for at
least three months prior to the summary judgment hearing”). Moreover,
as to the proposed defense that Provider failed to send a valid pre-suit
demand letter, there could be no prejudice because Provider alleged in the
complaint that all conditions precedent to filing suit had been performed,

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an allegation which it was required to prove. See Morgan, 200 So. 3d at
795 (no prejudice where motion to amend sought to add defense that the
bank failed to comply with notice requirements because, “[i]n its
complaint, the Bank alleged that all conditions precedent to filing suit had
been performed or had occurred, and courts have held that ‘requiring a
plaintiff to prove its allegations is not prejudice to the plaintiff; it merely
offers due process to the defendants’” (citation omitted)); see also S. Fla.
Pain & Rehab. of W. Dade v. Infinity Auto. Ins. Co., 318 So. 3d 6, 9 (Fla. 4th
DCA 2021) (the requirement that an insured or its assignee send a pre-
suit demand letter is a condition precedent to filing a PIP action).

Accordingly, we vacate the final judgment and remand with
instructions that Progressive be permitted to file an amended answer and
affirmative defenses. See Morgan, 200 So. 3d at 797.

Affirmed in part, reversed in part, and remanded.

GERBER and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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