Absolute Right to Amend Complaint Until an Answer Is Filed – Williams v. Gaffin Industrial Services

In this wrongful death case, the trial court dismissed the complaint with prejudice on the basis that the plaintiff had previously elected the State’s worker’s compensation remedy, and that this election barred the current claim.  At the hearing on the motion to dismiss, the trial court did not permit the plaintiff to amend the complaint.  On appeal, the defendant contended that the plaintiff lost the absolute right to amend because a motion to dismiss had been filed.  The appellate court reversed, holding: “Contrary to Gaffin’s contention, it had not filed a responsive pleading; it had filed a motion to dismiss. . . . Therefore, rule 1.190(a) expressly gave [plaintiff] the absolute right to amend the complaint. . . . [A] trial court does not have discretion to deny leave to amend on the basis that the complaint is not amendable until (1) the defendant has filed an answer or (2) the plaintiff has already exercised the right to amend once.”

Williams v. Gaffin Industrial Services, 37 Fla. L. Weekly D1261a (Fla. 2d DCA May 25, 2012)