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Florida Fourth DCA affirms county court’s summary judgment for the defendant insurer in PIP case, finding that plaintiff waited too long to amend complaint

On March 31, 2021, in Bronstein v. Allstate Insurance Company, No. 4D21-4, the Florida Fourth DCA affirmed a summary judgment in favor of the defendant PIP insurer. The sole issue initially raised in the case was whether Allstate had properly elected the payment limitations of section 627.736(5)(a)(2)(f), Fla. Stat. (2011), in its PIP policy. That issue was conclusively determined in favor of Allstate on January 26, 2017, when the Florida Supreme Court issued its decision in Allstate Insurance Co. v. Orthopedic Specialists, 212 So. 3d 973 (Fla. 2017), holding that “Allstate’s PIP policy provides legally sufficient notice of Allstate’s election to use the permissive Medicare fee schedules identified in section 627.736(5)(a)2. to limit reimbursements.” 212 So. 3d at 974. Over two years later and only eight days from calendar call, the plaintiff moved to amend his complaint to add an alternative theory of recovery. Under these circumstances, the Fourth DCA concluded that the county court did not abuse its discretion to deny the “belated” ore tenus motion to amend the complaint, citing, inter alia, Vella v. Salaues, 290 So. 3d 946, 949 (Fla. 3d DCA 2019) (affirming denial of motion for leave to amend complaint where “following two years of contentious litigation, on the proverbial ‘eve’ of the summary judgment hearing, immediately preceding the scheduled trial date, [plaintiff] sought to inject an entirely novel theory of prosecution into his lawsuit).