
    Sandi M. NEWMAN, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 4D01-4378.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.
    Orrin R. Beilly of The Law Offices of Orrin R. Beilly, P.A., West Palm Beach, for appellant.
    No appearance for appellee.
   WARNER, J.

Newman appeals a final judgment in favor of Shirley Adkinson and State Farm. The sole issue is whether the trial court abused its discretion by denying Newman’s motion for leave to file a second amended complaint. We reverse.

In 1994, Newman was injured in a multi-vehicle collision involving Adkinson. She filed suit against Adkinson in January 1998. In January 1999, Newman amended her complaint to add a count against State Farm, her uninsured/underinsured motorist insurance carrier, for damages Newman sustained in excess of Adkinson’s policy limits.

In May of 1999, the trial court set the case for trial for the calendar starting on January 3, 2000. On September 29, 1999, State Farm took the deposition of Mr. Chaviat Mata, who was also involved in the multi-vehicle collision. He stated that while driving on 1-95, he observed a mattress fall off a pick-up truck some distance ahead of him. The cars in front of Mr. Mata slowed down. When Mr. Mata slowed his speed, Newman’s Jeep hit his car from behind. The truck that had carried the mattress did not stop.

On November 4, 1999, Newman sought leave to file a second amended complaint. The motion was set on a November 18 motion calendar. At the hearing, counsel for, State Farm asserted that there was insufficient time to argue the law as to whether the new claim was barred by the statute of limitations and whether the new claim against the new phantom defendant related back to the original complaint against Adkinson. Newman’s attorney acknowledged that the police report placed them on notice of the mattress, but argued that they did not know until the deposition that there was a witness who claims that he saw it fall immediately before the accident.

The trial court denied the motion as untimely because the trial had already been set for January and the information making up the new claim against State Farm was known to Newman since 1994. The case proceeded to trial where the jury found that Adkinson was not negligent.

Florida Rule of Civil Procedure 1.190(a) provides that leave to amend pleadings “shall be given freely when justice so requires.” Although the policy in Florida to liberally allow amendments where justice requires diminishes as the case progresses to trial, see Allett v. Hill, 422 So.2d 1047, 1049 (Fla. 4th DCA 1982), 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. See Dimick v. Ray, 774 So.2d 830, 833 (Fla. 4th DCA 2000). If the amendment simply restates an issue already present in the case of which the opposing party is aware and needs no extensive preparation for trial, then there may be no prejudice to the opposing party and great prejudice to the moving party to deny the amendment.

In this case, the amendment would merely add the existence of a phantom vehicle to the claim against State Farm for uninsured motorist coverage, coverage that Newman bought and paid for. It did not state a new cause of action but introduced an alternative theory of causation based upon Mata’s deposition. State Farm knew about this possible additional theory at least from the time of the deposition and did not suggest that the amendment would entail additional discovery or the continuation of the scheduled trial. Its sole contention was that it relied on further claims being barred by the statute of limitations, a claim we find lacking any merit as it arose out of the same incident as the initial complaint. Indeed, State Farm relied upon this alternative theory at trial to avoid liability when it argued that Adkinson should not be liable because the accident was caused by the negligence of the phantom pick-up truck which dropped the mattress on the highway. Thus, State Farm used the negligence of the phantom vehicle to defeat Newman’s claim, even though it should have been liable under its uninsured motorist coverage if either Ad-kinson or the phantom vehicle were hable for the accident.

While the trial court’s discretion in denying leave to amend complaints is broad, it is not unlimited. Under the circumstances of this case, we conclude that the court abused its discretion in denying the motion to amend the complaint. We reverse and remand for the trial court to grant the amendment of the complaint and further proceedings thereon.

STEVENSON, J., concurs.

STONE, J., dissents with opinion.

STONE, J.,

dissenting.

I cannot conclude that the trial court’s decision constitutes an abuse of discretion.

While courts must liberally allow amendments to pleadings where justice so requires, this “liberality” gradually diminishes as the case progresses to trial. Allett v. Hill, 422 So.2d 1047, 1049 (Fla. 4th DCA 1982). A trial court has the discretion to deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished. Price v. Morgan, 436 So.2d 1116, 1122 (Fla. 5th DCA 1983). What interval is sufficient or insufficient, it seems to me, will vary from case to case.

This case is not one that is only in the pleading stages, as in Video Independent Medical Examination Inc. v. City of Weston, 792 So.2d 680, 681 (Fla. 4th DCA 2001), leaving the defendant with ample time to answer and prepare a defense. Similarly, I note that in Dimick v. Ray, 774 So.2d 830 (Fla. 4th DCA 2000), relied on by Appellant, leave to amend was requested at the summary judgment stage. In upholding leave to amend in Dimick, this court distinguished the Dimick facts from circumstances in which a trial is imminent. 774 So.2d at 835.

In my judgment, this case falls into a gray area in which a trial judge should have discretion to determine whether to permit a late amendment. Here, not only was it six weeks to trial, the trial court recognized that, although Newman claimed she had only recently discovered the information, she could have discovered the information much earlier. This also was not a case in which the defendant’s own conduct interfered with the plaintiffs efforts to discover information. See Life Gen. Sec. Ins. Co. v. Horal, 667 So.2d 967, 969 (Fla. 4th DCA 1996). There is no explanation why Mr. Mata’s deposition was not taken until three months before trial. See San Martin v. Dadeland Dodge, Inc., 508 So.2d 497 (Fla. 3d DCA 1987)(denying motion to amend made on the eve of trial where plaintiff, in the exercise of due diligence, should have been aware of alleged basis for proposed fraud count long before he sought to amend his complaint).

Clearly, amendments to pleadings must be liberally allowed so that cases may be resolved on their merits. However, there are also compelling case management responsibilities on the court. Brown v. Montgomery Ward & Co., 252 So.2d 817, 819 (Fla. 1st DCA 1971)(concluding that the trial court did not abuse its discretion in denying appellant the right to file amended complaint two weeks before scheduled trial and after several years of pendency in court).

I would, therefore, affirm. 
      
      . Adkinson has been voluntarily dismissed as a party to this appeal.
     