Third District Court of Appeal

State of Florida 

Opinion filed April 12, 2023.

Not final until disposition of timely filed motion for rehearing.

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No. 3D22-1218

Lower Tribunal No. 18-15071 SP

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GEICO Indemnity Company,

Appellant,

vs.

Simply Health Care, Inc., a/a/o

Yurisleydi Azqueriz-Estrada,

Appellee.

An Appeal from the County Court for Miami-Dade County, Michael G. 

Barket, Judge.

Smith, Gambrell & Russell, LLP, and Kristen L. Wenger and John P. 

Marino and Drew Krieger (Jacksonville), for appellant.

No appearance, for appellee.

Before HENDON, MILLER and BOKOR, JJ. 

BOKOR, J.
2

GEICO appeals a final judgment awarding personal injury protection 

benefits to Simply Health Care after entry of summary judgment in Simply 

Health Care’s favor.

1 The issue comes down to whether the trial court 

abused its discretion in denying GEICO’s motion to amend its pleadings prior 

to the summary judgment hearing. GEICO sought to add an affirmative 

defense of res judicata or collateral estoppel based on a federal court 

judgment in its favor and against Simply Health Care that determined that 

Simply Health Care had “no right to receive payments for any pending bills 

submitted to GEICO.” Because the trial court abused its discretion in 

denying GEICO leave to amend, we reverse.2

The underlying facts of this case bear a striking similarity to those in 

GEICO General Insurance Company v. A & C Medical Center, Inc., 48 Fla. 

L. Weekly D337 (Fla. 3d DCA Feb. 15, 2023), in which this court reversed 

summary judgment and concluded the trial court abused its discretion in 

1 Simply Health Care failed to file an answer brief within the time provided by 

rule. More than a month after the deadline, this court alerted Simply Health

Care to such failure and provided ten additional days to file. Upon Simply 

Health Care’s failure to file anything in response to the ten-day order, this 

court barred Simply Health Care from filing an answer brief but allowed the 

filing of a three-page memorandum of points and authorities. See Fla. R. 

App. P. 9.410. Simply Health Care filed nothing. 

2 “A trial court decision whether to allow an amendment of a pleading is 

evaluated for abuse of discretion. We review a trial court’s summary 

judgment order de novo.” RV-7 Prop., Inc. v. Stefani De La O, Inc., 187 So. 

3d 915, 916 (Fla. 3d DCA 2016) (internal citations omitted). 
3

denying leave to amend. The “refusal to allow amendment of a pleading 

constitutes an abuse of discretion unless allowing the amendment ‘would 

prejudice the opposing party, the privilege to amend has been abused, or 

amendment would be futile.’” Pangea Produce Distribs., Inc. v. Franco’s 

Produce, Inc., 275 So. 3d 240, 242 (Fla. 3d DCA 2019) (quoting JVN 

Holdings, Inc. v. Am. Constr. & Repairs, LLC, 185 So. 3d 599, 601 (Fla. 3d 

DCA 2016)).

As here, in A & C, “[w]hile the summary judgment motion was pending, 

GEICO sought to amend its answer to add res judicata and collateral 

estoppel as affirmative defenses. The trial court convened a hearing on the 

summary judgment motion, at the conclusion of which it denied leave to 

amend and granted summary judgment” against GEICO. 48 Fla. L. Weekly 

D337 at *1. In A & C, GEICO waited 14 months after obtaining the favorable 

federal default judgment before seeking leave to amend. See id. at *2.

3 

Here, GEICO waited about a year. In both cases, “GEICO moved to amend 

the answer for the first time before the summary judgment hearing. The 

defenses, as penned, were facially viable[, and [t]here] was no showing the 

parties engaged in protracted discovery.” Id. Accordingly, the record shows 

3 “Absent bad faith or dilatory tactics, this court and others have declined to 

impute prejudice on a time delay alone.” Id. (citations omitted).
4

neither bad faith or dilatory tactics on the part of GEICO nor “danger of 

prejudice, abuse, or futility” by granting the amendment.4 RV-7 Prop., 187 

So. 3d at 917. We therefore reverse and vacate the final judgment, as well 

as the order granting summary judgment and denying leave to amend, and 

remand with instructions to allow the proposed amendment. 

Reversed and remanded with instructions. 

4 Indeed, Simply Health Care would be hard pressed to present a colorable 

argument of prejudice, abuse, or futility. Because the amendment sought to 

add a defense based on an adverse federal default judgment against Simply 

Health Care, which judgment Simply Health Care doubtlessly had in its 

possession, the real question is why Simply Health Care did not dismiss its 

lawsuit, or, at the very least, confess error on appeal.