Refines and clarifies pleading of affirmative defenses

 

DEPARTMENT OF MANAGEMENT SERVICES

Division of Administrative Hearings

RULE NO.:RULE TITLE:

60Q-6.113Pretrial Procedure

PURPOSE AND EFFECT: Refines and clarifies pleading of affirmative defenses

SUMMARY: Broadens scope to include affirmative defense or avoidance, including some specified in statute. Provides that objections for lack of specificity are expressed by motion and how amendment may cure.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION:

The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein:

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 440.45(1)(a), (4) FS.

LAW IMPLEMENTED: 440.192, 440.45(1)(a), (4) FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAR.

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: David Langham

[e-mail], [phone].

 

THE FULL TEXT OF THE PROPOSED RULE IS:

60Q-6.113 PRETRIAL PROCEDURE Pretrial Procedure.

(1) A judge, on the judge’s own initiative or on the motion of any party, may conduct status conferences or pre-hearing conferences.

(2) The parties or, if represented, their attorneys of record shall confer and complete a written pretrial stipulation. The claimant or claimant’s counsel shall forward the pretrial stipulation to the employer/carrier or their counsel, if represented, no later than 14 calendar days prior to the pretrial hearing. The employer/carrier or their counsel shall complete their portion and return the pretrial stipulation to the claimant or claimant’s counsel, if represented, no later than seven calendar days prior to the pretrial hearing. The judge may excuse any party who has complied with filing their completed and signed portion of the pretrial stipulation from live or telephonic attendance at the pretrial hearing. The judge may cancel the pretrial hearing if the stipulation is timely filed. In pretrial stipulations and at any pretrial hearing, the parties shall:

(a) State the claims, defenses, and the date of filing of each petition for benefits to be adjudicated at the final hearing. Any claims that are ripe, due, and owing, and all available defenses not raised in the pretrial stipulation are waived unless thereafter amended by the judge for good cause shown. Any amendment, supplement, or other filing shall only be accepted if it clarifies the claims and/or defenses pled. Absent an agreement of the parties, in no event shall an amendment or supplement be used to raise a new claim or defense that could or should have been raised when the initial pretrial stipulation was filed, unless permitted by the judge for good cause shown. The failure to diligently seek and obtain discovery, standing alone, does not constitute good cause for failure to timely raise a claim or defense;

(b) State each party’s position regarding the date of accident, jurisdiction over the subject matter and over the parties, the injuries alleged; venue, and timely notice of the pretrial hearing and of the final hearing;

(c) Stipulate to such facts and the admissibility of documentary evidence as will avoid unnecessary proof;

(d) Identify all exhibits, including impeachment and rebuttal exhibits;

(e) Identify the names, addresses, and telephone numbers of all witnesses, including impeachment and rebuttal witnesses, and state whether the witnesses will testify in person, by telephone, or by deposition;

(f) Exchange all available written reports of experts to be offered at trial;

(g) Consider and determine such other matters as may aid in the disposition of the case; and

(h) Any affirmative defense or avoidance, including any defense raised pursuant to sSections 440.09(4)(a) and 440.105, F.S., and any affirmative defense, must be raised with specificity, detailing the conduct giving rise to the defense or avoidance., with leave to amend within 10 days. Objections based upon lack of specificity shall be raised in a separate motion to strike the affirmative defense or avoidance filed within 14 days of the filing of the completed pretrial, or within 14 days of the filing of any amendment to the pretrial stating a new affirmative defense or avoidance. If a motion to strike an affirmative defense or avoidance for lack of specificity is granted, the party asserting the affirmative defense or avoidance may amend the pretrial within 10 days after the order granting the motion to strike.

(3) If for any reason the written pretrial stipulation is not completed by all parties or their counsel, if represented, as provided in subsection 60Q-6.113(2), F.A.C., each party shall file and serve separate proposed typewritten pretrial statements no later than two business days prior to the pretrial hearing.

(4) Unless good cause is shown, a party’s failure to cooperate in the preparation and filing of their portion of the joint pretrial stipulation shall result in the imposition of appropriate sanctions, including but not limited to the striking of claims and/or defenses.

(5) Where mediation has been waived by the Deputy Chief Judge, the parties shall file a pretrial stipulation that conforms to the requirements of subsection (2). of this rule no later than 30 days following the waiver order.

(6) Witness lists, exhibit lists, supplements, and amendments served, and exhibits exchanged less than 30 days before the final hearing must be approved by the judge or stipulated to by the parties. Any amendments and supplements to the pretrial stipulation must relate to claims and defenses pled in the initial pretrial stipulation. In no event shall an amendment or supplement be used to raise a new claim or defense that could or should have been raised when the initial pretrial stipulation was filed, unless permitted by the judge upon motion for good cause shown. The failure to diligently seek and obtain discovery, standing alone, does not constitute good cause for failure to timely raise a claim or defense.

(7) The judge shall record the pretrial hearing by stenographic or electronic means at the request of any party.

(8) No discovery shall be permitted within 10 calendar days of the final hearing absent prior approval by the judge for good cause shown or by agreement of the parties.

Rulemaking Authority 440.45(1)(a), (4) FS. Law Implemented 440.25(2)-(4), 440.29(2), 440.33(1), 440.45(1)(a), (4) FS. History–New 2-23-03, Amended 11-1-06, 10-31-10, 10-31-12, 11-10-14. [Date].

 

NAME OF PERSON ORIGINATING PROPOSED RULE: David Langham, [e-mail], [phone].

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Peter Antonacci

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: November 01, 2021

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: 10/14/2021