Opinion
CASE NO. 20-60757-CIV-DIMITROULEAS
2021-03-16
FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D., INC., et al., Plaintiffs, v. UNITED HEALTHCARE OF FLORIDA, INC., et al., Defendants.
Alan David Lash, Justin C. Fineberg, Michael Lee Ehren, Nicholas Andrew Ortiz, Lash & Goldberg LLP, Miami, FL, Jonathan Eric Siegelaub, Lash, Goldberg LLP, Fort Lauderdale, FL, for Plaintiffs. Irene Bassel Frick, Akerman Senterfitt, Tampa, FL, Amanda L. Genovese, Pro Hac Vice, O'Melveny & Myers LLP, New York, NY, K. Lee Blalack, II, Pro Hac Vice, Kevin D. Feder, Pro Hac Vice, O'Melveny & Myers, LLP, Washington, DC, Natasha S. Fedder, Pro Hac Vice, O'Melveny & Myers LLP, Los Angeles, CA, Gera R. Peoples, Akerman LLP, Miami, FL, for Defendants United Healtchare of Florida, Inc., UnitedHealthcare Insurance Co. Gera R. Peoples, Akerman LLP, Miami, FL, for Defendant UMR, Inc. Bret Michael Feldman, Phelps Dunbar LLP, Tampa, FL, Craig L. Caesar, Pro Hac Vice, Phelps Dunbar LLP, New Orleans, LA, Errol J. King, Jr., Pro Hac Vice, Katherine C. Mannino, Pro Hac Vice, Phelps Dunbar LLP, Baton Rouge, LA, for Defendant Multiplan, Inc.
Alan David Lash, Justin C. Fineberg, Michael Lee Ehren, Nicholas Andrew Ortiz, Lash & Goldberg LLP, Miami, FL, Jonathan Eric Siegelaub, Lash, Goldberg LLP, Fort Lauderdale, FL, for Plaintiffs.
Irene Bassel Frick, Akerman Senterfitt, Tampa, FL, Amanda L. Genovese, Pro Hac Vice, O'Melveny & Myers LLP, New York, NY, K. Lee Blalack, II, Pro Hac Vice, Kevin D. Feder, Pro Hac Vice, O'Melveny & Myers, LLP, Washington, DC, Natasha S. Fedder, Pro Hac Vice, O'Melveny & Myers LLP, Los Angeles, CA, Gera R. Peoples, Akerman LLP, Miami, FL, for Defendants United Healtchare of Florida, Inc., UnitedHealthcare Insurance Co.
Gera R. Peoples, Akerman LLP, Miami, FL, for Defendant UMR, Inc.
Bret Michael Feldman, Phelps Dunbar LLP, Tampa, FL, Craig L. Caesar, Pro Hac Vice, Phelps Dunbar LLP, New Orleans, LA, Errol J. King, Jr., Pro Hac Vice, Katherine C. Mannino, Pro Hac Vice, Phelps Dunbar LLP, Baton Rouge, LA, for Defendant Multiplan, Inc.
OMNIBUS ORDER ON MOTIONS TO DISMISS
WILLIAM P. DIMITROULEAS, United States District Judge
THIS CAUSE is before the Court upon Defendant Multiplan, Inc.’s Motion to Dismiss Plaintiff's Amended Complaint [DE 38] (the "Multiplan Motion") and United Defendants’ Motion to Dismiss Plaintiff's Amended Complaint [DE 39] (the "United Defendants Motion"). The Court has considered the Multiplan Motion and the United Defendants Motion, Plaintiff's Omnibus Memorandum of Law in Opposition [DE 48], Defendants’ Replies thereto [DE 52, 53], and the Notices of Supplemental Authority [DE 57, 60, 66] and the Responses thereto [DE 58, 63, 67]. The Court is otherwise fully advised in the premises.
I. BACKGROUND
On June 9, 2020, Plaintiffs Florida Emergency Physicians Kang & Associates, M.D., Inc., InPhynet Contracting Services, LLC, InPhynet South Broward, LLC, Paragon Contracting Services, LLC, Paragon Emergency Services, LLC, Southwest Florida Emergency Management, LLC, and Emergency Services of Zephyrhills, P.A. (collectively "Plaintiffs") filed an Amended Complaint against Defendants United Healthcare of Florida, Inc. ("United HMO"); UnitedHealthcare Insurance Co.("United PPO"); UMR, Inc. ("UMR"); (collectively "United") and MultiPlan, Inc.("MultiPlan") (collectively, "Defendants") bringing series of claims arising out of an allegedly fraudulent scheme to deprive Plaintiffs of full payment for emergency care Plaintiff rendered to patients in Florida insured by United or an employer-funded health plan for which United serves as a third-party administrator ("United Members"). Amended Complaint [DE 27] (hereinafter "AC").
Plaintiffs are out-of-network providers who, without any written contract with United that established rates of reimbursement, rendered emergency medical services to United Members. AC ¶¶ 1, 2. According to Plaintiffs’, United was obligated under Florida Statutes § 641.513(5) and § 627.64194 to reimburse Plaintiffs for the emergency services they provided at their billed rates or the usual and customary rate for Plaintiffs’ services but has failed to do so. AC ¶¶ 2, 3. Rather, Plaintiffs allege that United and Multiplan conspired to manipulate and depress the usual or customary reimbursement rate at which United reimbursed Plaintiffs. AC ¶¶ 3.
In their complaint, Plaintiffs lay out a scheme whereby United and MultiPlan would conspire to "cloak" inadequate reimbursement rates as objective and reasonable estimations of usual and customary reimbursement rates. AC ¶ 4. MultiPlan supplies United with usual and customary reimbursement rates through MultiPlan's Data iSight service. AC ¶ 4. United then relies on these calculations, which it represents as objective and fact-based, to determine the rate at which to reimburse Plaintiffs. AC ¶ 4. According to Plaintiff, however, United directs MultiPlan to "suggest" the rates provided by the Data iSight service. AC ¶ 4. Plaintiff characterizes MultiPlan as a "willing conduit through which United endeavors to lauder its deficient reimbursements." AC ¶ 3. The Defendants conceal their scheme, according to Plaintiff, through false statements on MultiPlan's website, Data iSight's website and United's and Data iSight's communications with providers including the Plaintiff physicians. AC ¶ 99.
These false statements include claims that Data iSight will provide transparency to providers allowing them to understand how the rates are calculated. AC ¶¶ 101, 102. Plaintiffs Amended Complaint sets forth allegations describing some Plaintiff physicians’ struggle to understand the basis for the rates they are being paid, including reimbursements for claims at rates that have drastically decreased over the past eight (8) months. AC ¶ 105. The Explanation of Benefit forms provided to non-participating providers for claims processed by Data iSight directed providers to call a toll-free number with any questions about the claim. AC ¶ 107. After repeated contact with Data iSight about two claims which Plaintiff physicians and their affiliates thought were underpaid, Plaintiffs’ affiliates did not receive an explanation of the payment amounts but did receive an increased reimbursement rate. AC ¶¶ 108-120.
Plaintiff also claims the Defendants fraudulently claim on Data iSight's website that the service sets reimbursement rates in a "defensible, market tested" way. AC ¶ 124. Plaintiff alleges that the following false statements have been made by Defendants:
• Data iSight's website states that its reimbursement rates are "calculated using paid claims data from millions of claims .... The Data iSight reimbursement calculation is based upon standard relative value units where applicable for each CPT/HCPCS code, multiplied by a conversion factor." AC ¶ 128.
• MultiPlan describes Data iSight's process as using "cost-and reimbursement-based methodologies" and asserts that it has been "[v]alidated by statisticians as effective and fair." AC ¶ 129.
• United states in the EOBs provided for claims processed with Data iSight "[United]uses a service called Data iSight to review select out-of-network claims and recommend a reduced payment amount for out-of-network covered services...." AC ¶ 126.
• United's EOBs contain a note stating: "Calculated using Data iSight, which utilizes cost data if available (facilities) or paid data (professionals)." AC ¶ 125.
Plaintiffs allege that these statements are meant to convey a false sense that Data iSight's suggested reimbursement rates are fair and based on objective data. AC ¶¶ 127, 130. Rather, Plaintiffs allege, MultiPlan has been directed to determine certain rates using the Data iSight tool and is financially incentivizes to generate rates that are as low as possible. AC ¶¶ 131, 132.
Plaintiffs also allege that Data iSight and MultiPlan have made false statements contending that Data iSight's suggested rates are adjusted based on a provider's geographic location. AC ¶¶ 140–143. Data iSight, according to Plaintiffs, claim that "[a]ll reimbursements are adjusted based on your geographic location and the prevailing labor costs for your area," and MultiPlan has stated that "[c]laims are first edited, and then priced using widely-recognized, AMA created Relative Value Units (RVU), to take the value and work effort into account [and] CMS Geographic Practice Cost Index, to adjust for regional differences ... [then] Data iSight multiplies the geographically-adjusted RVU for each procedure by a median based conversion factor to determine the reimbursement amount." AC ¶¶ 141, 142. Contrary to Data iSight and MultiPlan's claims, Plaintiffs allege that claims from providers affiliated with Plaintiffs in different geographic locations demonstrate that such geographic adjustments are not made to Data iSight's proposed rates. AC ¶¶ 143–152.
Defendants coordinated and carried out these false statements via wire communications. AC ¶ 155. Multiplan used interstate wires to post on its websites and Data iSight's website to convey the false claims outlined in Plaintiff's Complaint. AC ¶ 156. Data iSight communicated to affiliates of the Plaintiff physicians that it could not provide a basis for the rates it suggested, contrary to its prior statements about transparency. AC ¶ 157. Further, according to Plaintiff's allegations, since October 2019, Defendants furthered their fraudulent scheme by communicating payments amounts and making payments to physicians via the United States Postal Service and interstate wires. AC ¶ 160.
Based on these allegations Plaintiffs bring the following claims: Count I, Violation of RICO, 18 U.S.C. § 1962(c), against all Defendants; Count II, Violation of RICO conspiracy, 18 U.S.C. § 1962(d), against all Defendants; Count III, Violation of FDUPTA against MultiPlan; Count IV, Violation of Florida Statute § 641.513 against United HMO; Count V, Violation of Florida Statute § 627.64194 against United PPO; Count VI, Breach of Implied-in-Fact Contract against United; Count VII, Quantum Meruit against United; Count VIII, Unjust Enrichment against United; and Count IX, Declaratory Judgement against United. AC ¶¶ 169–255. Plaintiffs seek treble damages from United's underpayments, an order from the Court declaring the rate at which Florida law requires United to pay the Plaintiff physicians for their services, and a mandatory injunction compelling United to pay such rates in the future. AC ¶ 8.
II. LEGAL STANDARDS
Under Rule 12(b)(6), a motion to dismiss should be granted if the plaintiff is unable to articulate "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). When determining whether a claim has facial plausibility, "a court must view a complaint in the light most favorable to the plaintiff and accept all of the plaintiff's well-pleaded facts as true." Am. United Life Ins. Co. v. Martinez , 480 F.3d 1043, 1066 (11th Cir. 2007).
However, the court need not take allegations as true if they are merely "threadbare recitals of a cause of action's elements, supported by mere conclusory statements." Iqbal , 129 S. Ct. at 1949. "Mere labels and conclusions or a formulaic recitation of the elements of a cause of action will not do, and a plaintiff cannot rely on naked assertions devoid of further factual enhancement." Franklin v. Curry , 738 F.3d 1246, 1251 (11th Cir. 2013). "[I]f allegations are indeed more conclusory than factual, then the court does not have to assume their truth." Chaparro v. Carnival Corp. , 693 F.3d 1333, 1337 (11th Cir. 2012).
Rule 9(b) of the Federal Rules of Civil Procedure provides that "in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake." Fed. R. Civ. P. 9(b). " Rule 9(b) is satisfied if the complaint sets forth (1) precisely what statements were made in what documents or oral representations or what omissions were made, and (2) the time and place of each such statement and the person responsible for making (or, in the case of omissions, not making) same, and (3) the content of such statements and the manner in which they misled the plaintiff, and (4) what the defendants obtained as a consequence of the fraud." Ziemba v. Cascade Int'l, Inc. , 256 F.3d 1194, 1202 (11th Cir. 2001) (internal quotations omitted).
III. DISCUSSION
The United Defendants and Defendant MultiPlan have filed Motions to Dismiss seeking to dismiss the Plaintiffs’ claims against the respective Defendants in Plaintiffs’ Amended Complaint with prejudice. Because the parties make similar arguments in favor of dismissal with regard to the claims brought against all Defendants the Court will address the Motions to Dismiss simultaneously.
A. Assertion of a Large Number of Benefit Claims Without Claim-Specific Information
United argues that Plaintiffs’ Amended Complaint fails to meet the pleading requirements set forth in Rule 8(a) and 10(b) of the Federal Rules of Civil Procedure by contesting an unspecified number of benefit claims without providing any claim identifying information. This lack of claim identifying information will prevent Defendants from being able to plead the specific defenses they expect to raise, argue the United Defendants. If the Court does not dismiss Plaintiffs’ Amended Complaint for this reason, United argues the Court should require the Plaintiffs’ to plead a more definite statement. In response, Plaintiffs argue that they do not need to provide such claim specific information and that this information will be provided and established during the course of discovery. Plaintiffs argue that their claims are independent of any particular claim for benefits under a health plan.
The Court agrees with Plaintiffs that such a thorough accounting of the claims for benefits which relate to Plaintiffs’ claims in the Amended Complaint are not necessary to satisfy the pleading standard of Rule 8 nor to state a plausible claim for relief in the present case. Unlike in the cases relied on by United, Plaintiffs claims as stated in the Amended Complaint do not appear to turn on the specific terms of any plan or policy. For instance, in Columna, Inc. v. UnitedHealthcare Insurance Company , this Court found that a plaintiff making claims for benefits under ERISA, among other claims, needed to at minimum identify the plan or policy under which the defendant failed to make payment on a benefit claim. See Columna, Inc. v. UnitedHealthcare Insurance Company, No. 18-81737, 2019 WL 2076796 at *2 (S.D. Fla. April 29, 2019). In the present case there is no dispute that the claims for benefits were covered by the relevant health plan. Further, Plaintiffs do not rely on specific plan terms or language in stating their claims. Here, the Court can draw a reasonable inference that United is liable for the wrongdoing alleged by Plaintiffs without Plaintiffs pointing to specific plan terms or providing specific claim identifying information for all of the claims for benefits which underlie the allegations in Plaintiffs’ Amended Complaint.
B. Reverse Preemption of Federal RICO Claims
United argues that Plaintiff's federal RICO claims are reverse preempted under the McCarran-Ferguson Act, which is intended to prevent federal laws from inadvertently interfering with a state's insurance regulation scheme. Plaintiff responds that RICO does not invalidate, impair, or supersede any Florida insurance law or regulation and as such Plaintiffs’ RICO claims are not barred by the McCarran-Ferguson Act.
The McCarran-Ferguson Act works as a form of reverse preemption, providing that no federal law shall "invalidate, impair, or supersede" any state law intended to regulate the insurance industry unless the federal law specifically relates to the business of insurance. See 15 U.S.C. § 1012(b) ; Humana Inc. v. Forsyth , 525 U.S. 299, 307, 119 S.Ct. 710, 142 L.Ed.2d 753 (1999). The Supreme Court has provided relatively straightforward definitions of the terms "supersede" and "invalidate" as they are used with regard to the McCarran-Ferguson Act in Humana Inc. v. Forsyth . See 525 U.S. at 307-08, 119 S.Ct. 710. Invalidate means "to render ineffective, generally without providing a replacement rule or law." See id. Supersede means "to displace (and thus render ineffective) while providing a substitute rule." See id. This Court finds that, as the Supreme Court found the application of RICO with regard to Nevada law in Forsyth , the application of the RICO statute to Plaintiffs’ claims in the present case would not supersede or invalidate Florida law regulating the business of insurance.
"The definition of ‘impair’ and its proper application in this context are a bit more elusive." Kondell v. Blue Cross & Blue Shield of Fla., Inc., 187 F. Supp. 3d 1348, 1358 (S.D. Fla. 2016). The Supreme Court provided in Forsyth that the McCarren-Ferguson Act does not apply "when federal law does not directly conflict with state regulation, and when application of the federal law would not frustrate any declared state policy or interfere with a State's administrative regime." Forsyth, 525 U.S. at 310, 119 S.Ct. 710. Accordingly, to determine whether a federal law would impair a state's insurance law in a given case, a court must determine whether the application of the federal law would "frustrate any declared state policy or interfere with a State's administrative regime." Kondell , 187 F. Supp. 3d at 1358. Courts have identified a number of factors that might weigh in on this analysis; however, no one factor has proved reliably productive. Rather, in determining whether a state's insurance law would be impaired by the application of a federal statute, courts engage in a "fact-intensive" analysis that looks at the precise federal claims a plaintiff asserts. See id. (citing Negrete v. Allianz Life Ins. Co. of N. Am. , 927 F.Supp.2d 870, 878 (C.D. Cal. 2013)) (quoting Saunders v. Farmers Ins. Exch. , 537 F.3d 961, 967 (8th Cir. 2008) ). In order to be barred under the McCarran-Ferguson Act, "[t]he approach of the federal statute must tread upon a declared policy goal of the state scheme." Dehoyos v. Allstate Corp. , 345 F.3d 290, 299 (5th Cir. 2003). In articulating the standard in Forsyth , the Supreme Court rejected a presumption against the application of federal law. Id. at 294.
This Court has previously addressed whether the application of RICO to a plaintiffs’ claims relating to the business of insurance would impair Florida insurance law. In Weinstein v. Zurich Kemper Life , the Court analyzed whether the application of RICO to claims based on "the collection of premiums for insurance not provided" would frustrate a clear policy of Florida insurance law. See No. 01-6140-CIV, 2002 WL 32828648, at *3 (S.D. Fla. Mar. 15, 2002). Such a practice was a violation of Florida Statute § 626.9541(1)(o), for which a private right of action is provided by Florida Statute § 624.155(1)(a)(1). The Court determined, however, that two procedural barriers to lawsuits brought under § 624.155 for violations of § 626.9541(1)(o) demonstrated a clear conflict with the application of RICO to the claims brought in Weinstein. The first limitation was a sixty-day notice requirement prior to bringing a lawsuit, during which time insurance companies could correct the violation. Id. The second significant conflict the Court found between Florida insurance law and the application of RICO to the claims in Weinstein was that the claims in Weinstein were class claims where § 624.155(5) (now § 624.155(5) ) does not authorize class actions suits. Id. The Court finds that the present claims are distinguishable from the claims brought in Weinstein. Unlike in Weinstein , the present claims do not fall under one of the enumerated provisions for which Florida Statute § 624.155 articulates a cause of action, and therefore, would not necessarily be subject to the notice provision that statute or the bar on class action suits. In addition, the claims in the present case are not brought on behalf of a class. As such, the application of RICO to the claims in the present case would not frustrate the policy of limitations on certain claims enumerated in Florida Statute § 624.155(1)(a)(1). Cf Montoya v. PNC Bank, N.A. , 94 F. Supp. 3d 1293, 1316 (S.D. Fla. 2015) (finding that "a RICO claim—even with its treble damages provision—challenging conduct the Florida Legislature has prohibited will not frustrate Florida's interest in regulating that conduct, but will, in fact, further that interest" and dismissing arguments that RICO's lack of a pre-suit notice provision or class action prohibition would frustrate any declared policy of the state).
As noted above, the behavior covered by Plaintiffs’ claims does not violate one of the provisions of Florida's insurance laws for which Florida Statute § 624.155(1)(a)(1) provides a private right action. Courts have split over whether a lack of a private right of action for certain violations of Florida insurance law is dispositive as to whether the McCarran-Ferguson Act bars the application of RICO to a claim based on the violative behavior. See, e.g. Kondell v. Blue Cross & Blue Shield of Fla., Inc. , 187 F. Supp. 3d 1348, 1360 (S.D. Fla. 2016) (describing the disagreement between district courts and determining that the absence of a private right of action was not alone dispositive). This division mirrors a similar split within Circuits throughout the United States. Negrete v. Allianz Life Ins. Co. of N. Am. , 927 F. Supp. 2d 870, 877 (C.D. Cal. 2013) (discussing a Circuit split between the Third, Fourth, and Tenth Circuits, which have found that the absence of a private right of action under state law is not dispositive to the reverse-preemption analysis under the McCarren-Ferguson Act, and Circuits such as the Eighth which have found the lack of a private right of action dispositive).
This Court finds that a lack of a private action in Florida's insurance law is not dispositive as to the reverse-preemptive effect of the McCarren-Ferguson Act on Plaintiff's RICO claims. First, as many Courts have noted "the absence of a private right of action is but one factor in the Humana ‘impairment’ analysis." Negrete v. Allianz Life Ins. Co. of N. Am. , 927 F. Supp. 2d 870, 880 (C.D. Cal. 2013). See also Kondell v. Blue Cross & Blue Shield of Fla., Inc. , 187 F. Supp. 3d 1348, 1359 (S.D. Fla. 2016) (discussing three factors considered by the Supreme Court in Forsyth ). In addition, the Florida insurance law, like the Nevada law at issue in Forsyth , is not "hermetically sealed" as it explicitly does not preclude the pursuit of civil remedies available under other statutory or decisional state law. Kondell v. Blue Cross & Blue Shield of Fla., Inc., 187 F. Supp. 3d 1348, 1361 (S.D. Fla. 2016) (citing Forsyth , 525 U.S. at 312, 119 S.Ct. 710 ; Fla. Stat. §§ 624.155(8), 626.9631 ).
Finally, the Court notes that Florida law does provide for a claim similar to a RICO claim to be brought under state law under the Florida Civil Remedies for Criminal Practices Act, which is patterned on the federal RICO statute. See Jackson v. BellSouth Telecommunications , 372 F.3d 1250, 1263–64 (11th Cir. 2004). The Florida Civil Remedies for Criminal Practices Act provides for treble damages, see Fla. Stat. Ann. § 772.104, and as § 624.155(8), makes clear that the civil remedy provided under Florida's insurance code does not preempt other state law remedies. Accordingly, the Court finds that Defendants have failed to demonstrate any clear policy that would be frustrated by application of RICO's treble damages provision to the present claims.
Accordingly, the Court finds that Plaintiff's RICO claims as they are presently pled are not reverse-preempted under the McCarran-Ferguson Act.
C. Plaintiff RICO and RICO Conspiracy Claims
The federal Racketeer Influenced and Corrupt Organizations Act ("RICO") provides that it shall be "unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt." 18 U.S.C. § 1962(c). The elements of a § 1962(c) violation are: (1) the defendant's participation in the conduct (2) of an enterprise (3) through a pattern of racketeering activity. See Cardenas v. Toyota , 418 F. Supp. 3d 1090, 1098, 1102 (S.D. Fla. 2019). A civil plaintiff must further proximate cause such that the injury complained of was incurred "by reason of" the RICO violation. In re: Takata Airbag Prods. Liab. Litig. , No. 14-24009-CV, 2015 WL 9987659, at *2 (S.D. Fla. Dec. 2, 2015). RICO is a statute originally designed to combat the mafia, and it cannot be invoked every time a group of persons causes an injury. Cisneros v. Petland, 972 F. 3d 1204, 1208 (11th Cir. 2020).
Defendants contend that the Amended Complaint fails to allege multiple elements of a RICO or RICO Conspiracy Claim. First, Defendants contend that Plaintiffs fail to allege facts demonstrating that the alleged predicate acts proximately caused any injury to Plaintiffs. Defendants state that Plaintiffs lack standing as there is insufficient evidence that the RICO predicate acts proximately caused them damages, as they are otherwise legally obligated to render emergency room services, regardless of any misrepresentations about how rates were calculated. Second, Defendants contend that the predicate acts complaint of are not alleged with the particularity required by Rule 9(b) and that the Amended Complaint fails to properly alleges that any misrepresentations were calculated to deceive. Defendants also contend that the Amended Complaint fails to sufficiently set forth the existence of a pattern of racketeering activity. Third, Defendants contend Plaintiffs fail to allege facts which meet the components of a common purpose and participation in the enterprise's affairs. Defendants argue that the allegations only describe a commercial relationship and not a common and continuing purpose; they contend there is an obvious and alternative explanation for the alleged activity.
Here, the Court finds that Plaintiffs have met the Rule 9(b) standard in pleading the predicate acts of fraud upon which Plaintiffs base their RICO claims. Rule 9(b) ’s requirements may be relaxed for allegations of prolonged, multi-act schemes. Burgess v. Religious Technology Center, Inc., 600 Fed Appx 657, 662 (11th Cir. 2015). "The relaxed standard permits a plaintiff to plead the overall nature of the fraud and then to allege with particularity one or more illustrative instances of the fraud. Even under the relaxed requirement, however, a plaintiff is still required to allege at least some particular examples of fraudulent conduct to lay a foundation for the rest of the allegations of fraud." Id. at 663 (citing U.S. ex rel. Clausen v. Lab. Corp. of Am., Inc. , 290 F.3d 1301, 1314 n. 25 (11th Cir. 2002)) (internal citations omitted). Plaintiffs describe an overall scheme of fraud where Defendants allegedly obscure the true nature of their rate setting system through instances of mail and wire fraud. AC ¶¶ 4, 155. Then Plaintiffs detail a number of instances of what they describe as fraudulent statements posted on Defendant Multiplan and Data iSight's websites and in the EOBs issued by United Defendants. AC ¶¶ 108-120, 128, 129, 140–143.
As to Plaintiffs’ efforts to properly plead proximate cause, the Court finds that Plaintiffs’ present allegations fail to set out allegations which permit the Court to draw a reasonable inference that Defendants actions proximately caused the harm alleged. Plaintiffs argue that Defendants fraudulent actions proximately caused them to be injured by causing them to acquiesce to reimbursement rates that do not meet the requirements under Florida law. First, the Court notes that because of the way Plaintiffs’ characterize the harm they experienced and Defendants role in causing that harm, the arguments that Plaintiffs were obligated to provide emergency services independent of the reimbursement rate, is not independently sufficient to undermine Plaintiffs’ complaint. However, as presently pled, the Amended Complaint does not permit the Court to reasonably infer that Defendants actions proximately caused the acquiescence and subsequent lowered rates. In pleading a RICO claim, the Eleventh Circuit has held that a party can proceed with a RICO claim without pleading first-party reliance; however, the Eleventh Circuit has not gone so far as to say that a plaintiff could "prevail without showing that someone had relied on the fraud" alleged as a predicate act. See Ray v. Spirit Airlines, Inc. , 836 F.3d 1340, 1350 (11th Cir. 2016). "Without reliance on the fraud by someone ... the plaintiffs would not be able to show that they were injured by reason of the alleged racketeering activity. And a showing of direct injury is required to sustain a RICO claim." Id. Plaintiffs attempt to rely on Bridge v. Phoenix Bond & Indem. Co. , 553 U.S. 639, 661, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008) for the proposition that reliance is not a necessary element of a RICO claim nor a prerequisite for causation. In Bridge v. Phoenix Bond & Indemnity, Co. , however, the United States Supreme Court only held that first-party reliance was not a requirement to prevail on a RICO claim. See Bridge , 553 U.S. at 658, 128 S.Ct. 2131 (stating that "of course, none of this is to say that a RICO plaintiff who alleges injury "by reason of" a pattern of mail fraud can prevail without showing that someone relied on the defendant's misrepresentations."). In their present Amended Complaint, rather than describing reliance on Defendants allegedly fraudulent representations, let alone acquiescence, Plaintiffs detail physicians and their affiliates attempts to challenge the rates provided by Defendants. See, e.g. AC ¶¶ 108-120. While Plaintiffs may have sustained an injury-in-fact when Defendants reimbursed them at rates below rates required by Florida law, Plaintiffs have failed to allege facts that demonstrate such an injury was plausibly incurred as a direct result of Defendants alleged fraudulent misrepresentations.
As to Plaintiffs’ RICO conspiracy claim, Defendants argue that the allegations are merely formulaic recitations of the elements of a claim and as Plaintiffs’ RICO conspiracy claim fails to allege any allegations beyond Plaintiffs’ RICO claim, falls for the same reasons Plaintiffs’ RICO conspiracy claim fails.
"The essence of a RICO conspiracy claim is that each defendant has agreed to participate in the conduct of an enterprise's illegal activities." Cardenas v. Toyota Motor Corp. , 418 F. Supp. 3d at 1102 (quoting Solomon v. Blue Cross & Blue Shield Ass'n , 574 F. Supp. 2d 1288, 1291 (S.D. Fla. 2008) ). "To support a claim for a federal or state RICO conspiracy, a plaintiff must allege an illegal agreement to violate a substantive provision of the RICO statute." See Rogers v. Nacchio , 241 F. App'x 602, 609 (11th Cir. 2007) (internal quotations omitted). This agreement can be either to the overall objective of the conspiracy or to two predicate acts. Am. Dental Ass'n v. Cigna Corp. , 605 F.3d 1283, 1293 (11th Cir. 2010). Conspiracy claims under § 1962(d) need only satisfy Rule 8 pleading requirements. Cardenas , 418 F. Supp. 3d at 1102.
However, as discussed above, Plaintiffs have failed to sufficiently plead a RICO claim. As Plaintiffs’ conspiracy count does not add any meaningful allegations, their RICO conspiracy claim necessarily fails. Jackson v. BellSouth Telecommunications , 372 F.3d 1250, 1269 (11th Cir. 2004) (characterizing such a conspiracy claim as "simply conclude[ing] that the defendants "conspired and confederated" to commit conduct which in itself does not constitute a RICO violation"); Am. Dental Ass'n v. Cigna Corp. , 605 F.3d 1283, 1296 n. 6 (11th Cir. 2010) ; Viridis Corp. v. TCA Glob. Credit Master Fund, LP , 155 F. Supp. 3d 1344, 1365 (S.D. Fla. 2015).
Accordingly, both of Plaintiffs’ claims for a RICO violation and RICO conspiracy are due to be dismissed. As the Court will permit Plaintiffs to file an additional amended pleading, the Court encourages Plaintiffs to consider Defendants additional arguments in favor of dismissal but does not decide whether Plaintiffs present allegations meet the other requirements of pleading civil RICO claims.
D. ERISA Preemption
Defendant Multiplan argues that Plaintiffs’ claims are conflict preempted by ERISA § 514. The United Defendants argue that Plaintiffs’ state law claims are both conflict and completely preempted by ERISA § 502. The United Defendants state that complete preemption here is secondary because complete preemption under ERISA is jurisdictional and Plaintiffs did not contest this Court's jurisdiction following the United Defendant's removal of this action.
1. Conflict Preemption
Section 514(a) of ERISA outlines the conflict, or defensively, preemptive effect of ERISA. See 29 U.S.C. § 1144(a). Under this provision ERISA preempts "any and all state laws insofar as they may now or hereafter relate to any employee benefit plan." Id. "A law ‘relates to’ an employee benefit plan .... if it has a connection with or reference to such a plan." Ingersoll-Rand Co. v. McClendon , 498 U.S. 133, 139, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990) ( Shaw v. Delta Air Lines, Inc. , 463 U.S. 85, 97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983) ). The Supreme Court has established two categories of state laws which are preempted by ERISA. See Gobeille v. Liberty Mut. Ins. Co. , 577 U.S. 312, 136 S. Ct. 936, 943, 194 L.Ed.2d 20 (2016). The first are state laws which "act[ ] immediately and exclusively upon ERISA plans ... or where the existence of ERISA plans is essential to the law's operation." These state laws are considered to have a "reference to" ERISA plans which results in preemption. Id. In addition, ERISA preempts state laws that have an impermissible "connection with" ERISA plan, which are laws that "govern[ ] ... a central matter of plan administration" or "interfere[ ] with nationally uniform plan administration." Id. (quoting Egelhoff v. Egelhoff, 532 U.S. 141, 148, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) ).
The United Defendants argue that state statutes under which Plaintiffs bring their state law claims clearly "relate to" the ERISA benefit plans because they "undermine the nationally uniform administration of employee benefit plans by dictating a method for calculating benefits." [DE 39] at 16. In addition, Defendants claim that any payment due to Plaintiffs arises out of a contract for coverage, and thus Plaintiffs’ claims under Florida law "relate to" the benefit plans. The United Defendants contend that Plaintiffs common law claims are due to be dismissed for the same reasons.
Multiplan argues that Plaintiff's allegations demonstrate that the Court will need to interpret the terms of the relevant health plans in adjudicating Plaintiffs’ FDUPTA claim. Multiplan contends that courts have consistently found that claims similar to Plaintiffs’ have been found to be preempted by ERISA.
Plaintiffs make essentially two arguments in response. The first is that the relevant state laws and Plaintiffs’ state law claims are more akin to rate regulations which have been found to not be preempted by ERISA. The second argument Plaintiff makes is that as third-party health care providers, Plaintiffs are not "principal ERISA entities" and, therefore, their claims only tenuously affect ERISA plans.
The Court agrees with Plaintiffs that the state laws under which Plaintiffs bring their claims and Plaintiffs’ common law claims do not "relate to" ERISA benefit plans such that ERISA preempts Plaintiffs’ claims. First, the Court notes that none of state laws under which Plaintiffs bring their claims directly refer to ERISA plans nor do they differentiate between ERISA and non-ERISA plans. California Div. of Lab. Standards Enf't v. Dillingham Const., N.A., Inc. , 519 U.S. 316, 325, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997) (declining to find a reference to ERISA plans where the regulated programs could be but "need not necessarily be" ERISA plans); Rutledge v. Pharm. Care Mgmt. Ass'n , ––– U.S. ––––, 141 S. Ct. 474, 481, 208 L.Ed.2d 327 (2020) (finding that a state law did not "refer to" ERISA when it affected ERISA plans "only insofar as [pharmacy benefit managers] may pass along higher pharmacy rates to plans with which they contract"). The Florida Deceptive and Unfair Trade Practices Act, Florida Statute § 641.513 and § 627.64194, as well as the common law causes of action under which Plaintiffs bring their state law claims all have force and operate independently of the existence of any ERISA plans. Accordingly, Plaintiffs’ state law claims do not "relate to" ERISA by referencing the statute or ERISA plans in any way.
Second, Plaintiffs’ claims do not have an impermissible "connection with" ERISA. In order to determine whether a state law has an impermissible "connection with" an ERISA plan courts consider the objectives of ERISA and the intent Congress had in drafting ERISA's preemption provisions. See Rutledge v. Pharm. Care Mgmt. Ass'n , ––– U.S. ––––, 141 S. Ct. 474, 480, 208 L.Ed.2d 327 (2020) (stating that in order "[t]o determine whether a state law has an impermissible connection with an ERISA plan, this Court considers ERISA's objectives as a guide to the scope of the state law that Congress understood would survive." (internal quotations omitted)). The goal of ERISA was "to make the benefits promised by an employer more secure by mandating certain oversight systems and other standard procedures." Gobeille v. Liberty Mut. Ins. Co. , 577 U.S. 312, 136 S. Ct. 936, 943, 194 L.Ed.2d 20 (2016). "ERISA is therefore primarily concerned with pre-empting laws that require providers to structure benefit plans in particular ways, such as by requiring payment of specific benefits or by binding plan administrators to specific rules for determining beneficiary status. A state law may also be subject to pre-emption if acute, albeit indirect, economic effects of the state law force an ERISA plan to adopt a certain scheme of substantive coverage." Rutledge v. Pharm. Care Mgmt. Ass'n , ––– U.S. ––––, 141 S. Ct. 474, 480, 208 L.Ed.2d 327 (2020) (internal citations and quotations omitted).
However, "not every state law that affects an ERISA plan or causes some disuniformity in plan administration has an impermissible connection with an ERISA plan," especially if the law only affects costs. Id. In New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995), the Supreme Court held that a New York law that imposed a 13% surcharge on hospital billing rates for patients who were not insured by Blue Cross/Blue Shield did not have an impermissible connection with ERISA such an "indirect economic influence" did not "bind plan administrators to any particular choice." Id. at 659, 115 S.Ct. 1671. The Supreme Court recently reaffirmed its decision in Travelers , in Rutledge v. Pharmaceutical Care Management. Association , stating that "ERISA does not pre-empt state rate regulations that merely increase costs or alter incentives for ERISA plans without forcing plans to adopt any particular scheme of substantive coverage." Rutledge , 141 S. Ct. at 480. In Rutledge , the Supreme Court found that an Arkansas state law that "requires [pharmacy benefit managers] to reimburse pharmacies for prescription drugs at a rate equal to or higher than the pharmacy's acquisition cost" did not have an impermissible connection with ERISA. Rutledge v. Pharm. Care Mgmt. Ass'n , ––– U.S. ––––, 141 S. Ct. 474, 481, 208 L.Ed.2d 327 (2020). The state law in Rutledge merely regulated reimbursement rates and the mandate that pharmacy benefit managers reimburse pharmacies at certain rates "does not require plans to provide any particular benefit to any particular beneficiary in any particular way." Id. at 482. "It simply establishes a floor for the cost of the benefits that plans choose to provide." Id. Here, the state laws and state claims at issue fundamentally regard the rate at which third-party providers are reimbursed and the way that reimbursement rate is calculated.
Defendants argue that if Plaintiffs prevail the ERISA plans "would be required to pay plan benefit claims at increased rates for all claims arising in Florida, disrupting nationally uniform plan administration." [DE 53] at 9. However, the Supreme Court has stated that law which increase the costs plans incur in one state versus another does not necessarily have an impermissible connection with an ERISA plan. Rutledge , 141 S.Ct. at 481. "[C]ost uniformity was almost certainly not an object of pre-emption." Id. (quoting Travelers , 514 U.S. at 662, 115 S.Ct. 1671 ). Accordingly, the Court finds that Plaintiffs’ state law claims do not have an impermissible connection with ERISA.
Plaintiffs’ state law claims are not brought under state laws or common law provisions which refer to or have an impermissible connection with ERISA or ERISA plans, Plaintiffs’ state law claims are not preempted by ERISA's conflict, or defensive, preemption provision.
2. Complete Preemption
Complete preemption is narrower than conflict, or defensive, preemption under ERISA. Cotton v. Massachusetts Mut. Life Ins. Co. , 402 F.3d 1267, 1281 (11th Cir. 2005). Typically, "[i]f it appears that a claim is not even defensively preempted, then it will not be completely preempted either." Id.
Complete preemption is based on ERISA's civil enforcement provision, § 502(a), which sets forth "a comprehensive civil enforcement scheme that represents a careful balancing of the need for prompt and fair claims settlement procedures against the public interest in encouraging the formation of employee benefit plans." Aetna Health Inc. v. Davila , 542 U.S. 200, 208–09, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (citing Pilot Life Ins. Co. v. Dedeaux , 481 U.S. 41, 54, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) ). The Eleventh Circuit has stated that the test for complete ERISA preemption, under the Supreme Court's precedent in Aetna Health Inc. v. Davila , is: (1) whether the plaintiff could have brought its claim under § 502(a); and (2) whether no other legal duty supports the plaintiff's claim. See Connecticut State Dental Ass'n v. Anthem Health Plans, Inc., 591 F.3d 1337, 1344 (11th Cir. 2009) (citing Davila , 542 U.S. at 210, 124 S.Ct. 2488 ). Both prongs of the Davila test must be met for ERISA to completely preempt state law claims. Id. The first part of the Davila test "is satisfied if two requirements are met: (1) the plaintiff's claim must fall within the scope of ERISA; and (2) the plaintiff must have standing to sue under ERISA." Connecticut State Dental, 591 F.3d at 1349. As to whether a claim falls within the scope of ERISA , the Eleventh Circuit in Connecticut State Dental Association v. Anthem Health Plans, Inc. , adopted a "rate of payment" versus "right of payment" framework, under which claims based underpayment are not preempted, while claims based on a denial of coverage are preempted. Id. at 1350 (citing Lone Star OB/GYN Assocs. v. Aetna Health Inc. , 579 F.3d 525, 533 (5th Cir. 2009)); see also Borrero v. United Healthcare of N.Y. , Inc., 610 F.3d 1296, 1302 (11th Cir. 2010). As this Court has noted before, "[c]ourts in the Southern District of Florida have found that the reasoning in Connecticut State Dental extends beyond express contracts and could encompass a basis in statute or implied-in-law or implied-in-fact contract." Kaplan v. United HealthCare Servs. , No. 19-81185-CIV, 2019 U.S. Dist. LEXIS 223255, at *7-8 (S.D. Fla. Dec. 31, 2019) (citing Hialeah Anesthesia Specialists, LLC v. Coventry Health Care of Fla., Inc. , 258 F. Supp. 3d 1323, 1328-29 (S.D. Fla. 2017) ; Emergency Servs. of Zephyrhills , 281 F. Supp. 3d at 1346 ; Orthopedic Care Specialists, P.L. v. Blue Cross & Blue Shield of Fla., Inc. , No. 12-81148-CIV, 2013 WL 12095594, at *2, 2013 U.S. Dist. LEXIS 192515 (S.D. Fla. Mar. 5, 2013) )
In determining the proper rate of payment in the present case the court will likely be called to interpret and apply Florida Statute § 641.513 or § 627.64194 not the terms of any ERISA plan. Accordingly, the Court finds that Plaintiffs could not have brought their state law claims under § 502 of ERISA.
Furthermore, the second prong of the Davila test is not met because an independent legal duty exists. The Florida statutes at issue in this case "confer a private right of action exclusively on out-of-network emergency medical providers" that is not tied in any way to a patient's healthcare benefits under an ERISA plan. See Kaplan v. United HealthCare Servs. , No. 19-81185-CIV, 2019 U.S. Dist. LEXIS 223255, at *10 (S.D. Fla. Dec. 31, 2019) ( Emergency Servs. of Zephyrhills, P.A. v. Coventry Health Care of Fla., Inc. , 281 F. Supp. 3d 1339, 1348 (S.D. Fla. 2017) ).
Accordingly, the Court finds that Plaintiffs state law claims are neither conflict preempted nor completely preempted by ERISA.
E. Plaintiffs’ FDUPTA Claim Against MultiPlan
Defendant MultiPlan argues Plaintiffs fail to state a claim under FDUPTA for multiple reasons. First, MultiPlan alleges Plaintiffs’ FDUPTA count fails to satisfy Rule (9)(b). In addition, MultiPlan contends that Plaintiffs do not qualify as a consumer of MultiPlan's repricing services, that there are insufficient allegations of immoral, unethical, oppressive, unscrupulous, or substantially injurious conduct to customers, and that there is an insufficient allegation of causation.
"A consumer claim under FDUTPA must have three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages." Lombardo v. Johnson & Johnson Consumer Companies, Inc. , 124 F. Supp. 3d 1283, 1290 (S.D. Fla. 2015). "A deceptive act or practice is one that is likely to mislead consumers and an unfair practice is one that offends established public policy and one that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers." State Farm Mut. Auto. Ins. Co. v. Med. Serv. Ctr. of Fla., Inc. , 103 F. Supp. 3d 1343, 1354 (S.D. Fla. 2015). To state a claim under FDUPTA based on a deceptive practice, a plaintiff need not allege actual deception; Florida courts apply an objective test in analyzing FDUPTA claims and ask "whether the alleged practice was likely to deceive a consumer acting reasonably in the same circumstances, rather than actual reliance on the representation or omission at issue." State Farm Mut. Auto. Ins. Co. v. Health & Wellness Servs., Inc. , 446 F. Supp. 3d 1032, 1053 (S.D. Fla. 2020), reconsideration denied, No. 18-23125-CIV, 2020 WL 4586399 (S.D. Fla. Aug. 10, 2020) (quoting Vazquez v. Gen. Motors, LLC , 17-22209-CIV, 2018 WL 447644, at *6 (S.D. Fla. Jan. 16, 2018) ).
As discussed above, the Court finds that Plaintiffs have met the heightened pleading standard of Rule 9(b) by pleading specific instances of allegedly fraudulent or misleading statements by Defendant MultiPlan. Accordingly, the Court need not, and does not, decide the applicability of Rule 9(b) ’s heightened pleading standard to Plaintiffs’ FDUPTA claim.
Furthermore, Plaintiffs’ position as an entity other than a direct customer of MultiPlan's services is not alone a bar to Plaintiffs’ claims. Caribbean Cruise Line, Inc. v. Better Bus. Bureau of Palm Beach Cty., Inc. , 169 So. 3d 164, 169 (Fla. 4th DCA 2015) (finding that a 2001 amendment to FDUPTA which changed the claimant able to recover under FDUPTA from a "consumer" to a "person" "indicate[d] that the legislature no longer intended FDUTPA to apply to only consumers, but to other entities able to prove the remaining elements of the claim as well.").
Plaintiffs FDUPTA claim fails for similar reasons as its RICO claims fail. Based on Plaintiffs’ present allegations the Court cannot reasonably infer that Defendant MultiPlan's allegedly deceptive and unfair practices caused actual losses to Plaintiffs. According to Plaintiffs allegations, the United Defendants and not MultiPlan ultimately decided on the reimbursement rates to be paid to Plaintiffs; therefore, based on Plaintiffs allegations, Plaintiffs actual damages were not caused directly by Defendant MultiPlan's conduct. See Lombardo v. Johnson & Johnson Consumer Companies, Inc., 124 F. Supp. 3d 1283, 1290 (S.D. Fla. 2015). Further, the allegations in the complaint that Plaintiffs attempted on multiple occasions to challenge MultiPlan's suggested rates, do not support a reasonable inference that a reasonable person in Plaintiffs’ position would have relied on MultiPlan's allegedly deceptive statements to their detriment.
Accordingly, Plaintiffs’ FDUPTA claim against MultiPlan is due to be dismissed. As the Court will permit Plaintiffs to file an additional amended pleading, the Court encourages Plaintiffs to consider Defendant MultiPlan's additional arguments in favor of dismissal and does not decide whether Plaintiffs present allegations meet the other requirements of pleading a FDUPTA claim.
F. Plaintiff's State Law Claims Against United
Against the United Defendants, Plaintiffs bring the following claims: Count IV, Violation of Florida Statute § 641.513 against United HMO; Count V, Violation of Florida Statute § 627.64194 against United PPO; Count VI, Breach of Implied-in-Fact Contract against United; Count VII, Quantum Meruit against United; Count VIII, Unjust Enrichment against United; and Count IX, Declaratory Judgement against United. AC ¶¶ 169–255. The United Defendants argue that Plaintiffs have failed to state a claim under any of these counts. 1. Violations of Florida Statute § 641.513 and § 627.64194
As to Count IV, violation of Florida Statute § 641.513, the United Defendants contend that the complaint fails to allege an insurance policy being delivered or issued in Florida, as required by § 627.641194(1)(c). The United Defendants conclusory argument that the requirement of § 627.641194(1)(c) should be used to dismiss Plaintiffs’ claim under § 641.513 is insufficient to persuade the Court that Plaintiffs’ claims under § 641.513 are due to be dismissed at this stage in the litigation.
As to Counts IV and V, violations of Florida Statute § 641.513 and § 627.64194, the United Defendants complain about the conclusory nature of the allegations. Defendants primary complaints are that the Plaintiffs do not provide details for the thousands of claims at issue, for which Plaintiffs allege they were underpaid, and that Plaintiffs do not specify a "usual and customary" rate for each of the service enumerated. The Court finds that the factual allegations provided in the amended complaint are sufficient to put the United Defendants on notice of the claims against them and to permit the Court to draw a plausible inference that the United Defendants are liable for the harm alleged.
2. Breach of Implied-in-Fact Contract
As to Count VI, breach of contract implied-in-fact, the United Defendants complain that there is a failure to allege facts which would support an inference that there was an agreement between Plaintiffs and the United Defendants. In response, Plaintiff argue that an implied in fact contract arose based on the "reciprocal legal obligations" that the Parties have, Plaintiffs obligation under federal and state law to provide emergency care to United's members and United Defendants obligation under state law to reimburse Plaintiffs at a usual and customary rate.
"A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words." Com. P'ship 8098 Ltd. P'ship v. Equity Contracting Co. , 695 So. 2d 383, 385 (Fla. Dist. Ct. App. 1997), as modified on clarification (June 4, 1997). In evaluating a claim based on an implied in fact contract "a fact finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement." Id. The Court finds that disagreements as to whether the Parties’ conduct gives rise to an implied in fact contract would best be evaluated on a more complete record at a later stage in the litigation. At present, Plaintiffs’ have alleged sufficient facts to survive the United Defendants Motion to Dismiss.
3. Quantum Meruit and Unjust Enrichment
As to Counts VII, quantum meruit, and VIII, unjust enrichment, United Defendants point out there is no allegation that they received a direct benefit. In addition, the United Defendants argue that Plaintiffs have not sufficiently alleged that there was an agreement between Plaintiffs and United Defendants in order to proceed on their quantum meruit claim. Under Florida law the elements of a quantum meruit claim similar to those under a claim for unjust enrichment. To state a claim for quantum meruit or unjust enrichment a plaintiff must allege 1) the plaintiff has conferred a benefit on the defendant, who 2) had knowledge of the benefit and 3) accepted or retained the benefit, and 4) it would be unjust or inequitable for the defendant to retain the benefit without paying fair value for it. Merle Wood & Assocs., Inc. v. Trinity Yachts, LLC , 714 F.3d 1234, 1237 (11th Cir. 2013) ; Merkle v. Health Options, Inc. , 940 So. 2d 1190, 1199 (Fla. Dist. Ct. App. 2006) (quoting Hillman Construction Corp. v. Wainer, 636 So.2d 576 (Fla. 4th DCA 1994).
The Court notes that one distinction between a claim for unjust enrichment and a claim for quantum meruit is that a claim for quantum meruit can be based on a contract implied in law or in fact, where a claim for unjust enrichment is based on a contract implied in law. Donner v. Fla. Bracing Ctr., Inc. , No. 13-60848, 2013 WL 3189077, at *3-4 (S.D. Fla. June 20, 2013). In their response to the Motions to Dismiss, Plaintiffs treated their quantum meruit claim as one based on a contract implied in law; accordingly, the Court will do the same here.
There is a clear split of authority within district Courts in the Southern and Middle Districts of Florida as to whether the provision of medical treatment to an insured confers a direct benefit upon an insurer. See Surgery Ctr. of Viera, LLC v. Meritain Health, Inc. , No. 619CV1694ORL40LRH, 2020 WL 7389987, at *12 (M.D. Fla. June 1, 2020), report and recommendation adopted , No. 619CV1694ORL40LRH, 2020 WL 7389447 (M.D. Fla. June 16, 2020) (listing cases). In analyzing claims by healthcare providers against insurers, the District Court of Appeals for the Fourth District of Florida made clear that it is sufficient for a plaintiff to allege facts to support an argument that the providers’ treatment of the insureds conferred a benefit on the insurer. See Merkle v. Health Options, Inc. , 940 So. 2d 1190, 1199 (Fla. DCA 4th 2006) (reversing a trial court's dismissal of an unjust enrichment/quantum meruit claim on the basis that any benefit of the provision of emergency room services flowed to the patient not the insurer or HMO); Baptist Hosp. of Miami, Inc. v. Medica Healthcare Plans, Inc. , 385 F. Supp. 3d 1289, 1293 (S.D. Fla. 2019). The Court will follow recent decisions in both the Southern District of Florida, Id. , and the Middle District of Florida, see Surgery Ctr. of Viera , 2020 WL 7389987, at *12, report and recommendation adopted , 2020 WL 7389447, which have found that a plaintiff's claims for unjust enrichment or quantum meruit can survive a motion to dismiss even though they are based on a benefit allegedly provided to an insurer through a healthcare providers provision of services to an insured. At this stage in the litigation, Plaintiffs have pled sufficient factual allegations to proceed on their unjust enrichment and quantum meruit claims. Whether Plaintiffs will be able to prevail as a matter of law or show facts which ultimately support their theory of a benefit conferred upon United Defendants, is best addressed at a later stage in the litigation.
The Court finds that Plaintiffs have alleged sufficient facts to proceed on their quantum meruit and unjust enrichment claims at this stage in the litigation.
4. Declaratory Judgment
Finally, the United Defendants claim Count IX for declaratory relief should be dismissed as duplicative because it is based on issues which are already before the Court. Plaintiff argues that it's the Amended Complaint seeks both prospective and retrospective declaratory judgment relief confirm the scope of United's future and past payment obligations. At this stage, the Court agrees with Plaintiffs that their declaratory judgement claim may proceed as is seeks a form of relief which Plaintiffs would be unlikely to obtain through the remainder of their claims. Plain Bay Sales, LLC v. Gallaher , No. 18-80581-CIV, 2019 WL 3426250, at *5 (S.D. Fla. Jan. 9, 2019) (stating that "while declaratory judgment claims may properly coexist with breach of contract claims when they provide the plaintiff a form of relief unavailable under the breach of contract claim. Such claims for declaratory judgment must be forward-looking, rather than retrospective, as any retrospective declaration would be equally solved by resolution of the breach of contract claim.") (internal quotations and alterations omitted).
IV. CONCLUSION
Based on the foregoing, it is ORDERED AND ADJUDGED as follows:
1. The Multiplan Motion [DE 38] is GRANTED;
2. The United Defendants Motion [DE 39] is GRANTED in part and DENIED in part.
3. Counts I, II, III of Plaintiffs’ Amended Complaint are DISMISSED with leave to amend,
4. Plaintiffs may file a second amended complaint on or before March 30, 2021 or a notice stating that they intend to proceed on the remaining counts in their Amended Complaint.
5. Defendants shall file their response to the Amended Complaint or a second amended complaint on or before April 14, 2021 .
6. Defendants Motion for Leave of Court to Submit Response to Plaintiff's Notice of Supplemental Authority [DE 67] is GRANTED . The Court notes that in adjudicating the Motions to Dismiss the Court considered the response and analysis Defendants filed as part of this Motion for Leave of Court to Submit Response to Plaintiff's Notice of Supplemental Authority.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 16th day of March, 2021.