47 Fla. L. Weekly D1252a

ARNOLD J. HARRISON, individually and on behalf of R.H. and all those similarly situated, Appellant, v. DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF STATE GROUP INSURANCE and BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC., a Florida not for profit corporation, Appellees. 1st District. Case No. 1D20-101. June 8, 2022. On appeal from the Circuit Court for Leon County. Charles W. Dodson, Judge. Counsel: Michael Fox Orr, Kevin B. Cook, and Kathleen H. Crowley of Orr Cook, Jacksonville, for Appellant. Jason Gonzalez and Amber Stoner Nunnally of Shutts & Bowen, LLP, Tallahassee, for Appellee Department of Management Services, Division of State Group Insurance; Timothy J. Conner, Jennifer A. Mansfield, and Laura B. Renstrom of Holland & Knight, LLP, Jacksonville, for Appellee Blue Cross and Blue Shield of Florida, Inc.OPINION ON MOTIONS FOR CLARIFICATION[Original Opinion at 47 Fla. L. Weekly D298b]

(PER CURIAM.) We grant Appellant’s and the Department of Management Services’ (the Department) motions for clarification, withdraw our previously-issued opinion and substitute the following revised opinion.

Arnold Harrison (Appellant) appeals the dismissal with prejudice of his First Amended Complaint (FAC). The FAC brought claims for statutory¹ bad faith and declaratory and injunctive relief against both Appellees, breach of contract against Appellee the Department, and violation of the Florida Deceptive and Unfair Trade Practices Act and breach of fiduciary duty against Appellee Blue Cross and Blue Shield (BCBS). He further challenges the trial court’s stay of discovery during the pendency of the motions to dismiss and the denial of his request for leave to amend the FAC prior to its dismissal. We affirm, without further comment, the trial court’s order with one exception. Regarding the trial court’s implicit denial of Appellant’s motion for leave to amend, we reverse and remand for further proceedings consistent with this opinion.

“Florida courts applying rule 1.190(e) long ago established that the public policy of our state favors the liberal amendment of pleadings and that ‘courts should resolve all doubts in favor of allowing the amendment of pleadings to allow cases to be decided on their merit.’ ” Thompson v. DeSantis, No. SC20-985, 2020 WL 5362111, at *1 (Fla. Sept. 8, 2020) (quoting Newberry Square Fla. Laundromat, LLC v. Jim’s Coin Laundry & Dry Cleaners, Inc., 296 So. 3d 584, 588 (Fla. 1st DCA 2020)). “Another guiding principle is that ‘[t]he primary consideration in determining whether a motion for leave to amend should be granted is whether the opposing party would be prejudiced by the amendment.’ ” Id. (quoting Philip J. Padovano, Florida Civil Practice § 7:10 n.16 (2020 ed.)). As such “a trial court should grant leave to amend, rather than dismiss a complaint with prejudice, unless a party has abused the privilege to amend, an amendment would prejudice the opposing party, or the complaint is clearly not amendable.” Newberry, 296 So. 3d at 589 (quoting Fla. Nat’l Org. for Women, Inc. v. State, 832 So. 2d 911, 915 (Fla. 1st DCA 2002)).

Appellant has not abused the privilege to amend. Therefore, the remaining question is whether Appellant’s proposed second amended complaint would prejudice Appellees or would be futile. See Morgan v. Bank of N.Y. Mellon, 200 So. 3d 792, 795 (Fla. 1st DCA 2016).

The orders granting the motions to dismiss were silent with respect to Appellant’s motion for leave to amend the FAC, and the FAC was dismissed “with prejudice.” The trial court then summarily denied Appellant’s motion for rehearing and for clarification as to the trial court’s lack of a ruling on his request for leave to amend the FAC. Accordingly, the orders from the trial court implicitly denied Appellant’s request for leave to amend and provided no comment or reasoning regarding prejudice or futility. Regarding prejudice, the record supports that allowing an amendment to the FAC would not diminish Appellee’s ability to prepare for new allegations or defenses prior to trial as the case is in the early stages of litigation. Id. We further find that Appellant’s proposed amendments are not futile.² Thus, the trial court abused its discretion in denying Appellant’s request for leave to amend the FAC.

Accordingly, we AFFIRM in part and REVERSE in part the orders of dismissal, and REMAND the case with instructions that Appellant be permitted to file a second amended complaint. (WINOKUR, JAY, and M.K. THOMAS, JJ., concur.)

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¹See § 624.155, Fla. Stat. (2018) (creating civil cause of action for bad faith against insurers).

²We note that with regard to Appellant’s bad faith claim, Appellant conceded the claim was premature, but asked the trial court to stay the claim, rather than dismiss it. See Gulfstream Prop. & Cas. Ins. Co. v. Coley, 225 So. 3d 906, 908 (Fla. 3d DCA 2017) (noting insureds often bring claims for bad faith at the same time they bring claims for breach of contract, courts usually stay the bad faith claim pending the determination of the breach of contact claim); Safeco Ins. Co. of Ill. v. Rader, 132 So. 3d 941, 947-48 (Fla. 1st DCA 2014). Furthermore, BCBS was not a party to the administrative action below of which the trial court took judicial notice. BCBS argued that it is not an insurer but a third-party administrator. Appellant alleged in the FAC that BCBS has an obligation to pay for all claims under the plan which exceed 105% of the year’s previous claim payout — thus, the obligation to pay these claims rendered BCBS an insurer or a re-insurer under the plan. As such, a factual dispute existed which was not appropriately raised or resolved on a motion to dismiss. See e.g., Kohl v. Blue Cross & Blue Shield of Fla., 988 So. 2d 654, 659 (Fla. 4th DCA 2008) (reversing court order which dismissed complaint on grounds that BCBS, as a third-party administrator, had no duty to insured, because it was in pleading stages of litigation and not enough discovery had been conducted into the nature of BCBS’s relationship). To this end, Appellant should have the opportunity to attempt to amend the complaint as to all claims and against all defendants. However, while any amended complaint must adhere to this Court’s opinion, we do not conclude that Appellant can state any particular cause of action.* * *