10 Fla. L. Weekly Supp. 554c
Insurance — Personal injury protection — Complaint — Defects — Action by insurer against MRI provider and its owner — There are no allegations of ultimate facts supporting legal conclusion that owner is alter ego of provider — Although complaint alleges that owner and provider did things to mislead insurer, a debtor, corporate veil is pierced where owner uses corporation to mislead creditors or creates general tort risk to public — Allegation that owner conspired with herself to mislead plaintiff insurer into believing that MRI provider rendered service is immaterial in that services billed for were actually performed under circumstances that were compensable to insurer’s insureds as indemnified persons, and mere fact that insureds permitted payment to provider rather than others involved in work establishes no material harm to insurer — Unjust enrichment — Insured has failed to allege circumstances establishing that it would be inequitable for defendants to retain benefits where there are no allegations that MRIs were overpriced, not medically necessary, not related, or not done, and insurer does not assert that insureds were not indemnified for MRIs, that insureds did not want payment made to defendants, or that insurer has obligation to any insured or third party for payment of same money paid to defendants — Declaratory relief — There is no bona fide, actual, present practical need for declaration where insurer knows allegations that defendants continue to engage in practices insurer deems unlawful are untrue or cannot make those allegations in good faith because owner testified in deposition that neither she nor MRI provider continue to present MRI claims to PIP insurers and have not done so in years — Fraud — Insurer has failed to establish key element that it has sustained damage — Case style — There are no allegations of ultimate fact supporting action “for the use and benefits of its insureds” — Further, because insurer seeks relief that could create unsatisfied obligation owed by insureds to MRI provider, insureds are indispensable parties
THE HARTFORD INSURANCE COMPANY OF THE MIDWEST, INC.; a foreign corporation, individually and for the use and benefit of its insureds, Plaintiff, vs. UNIVERSAL DIAGNOSTICS SERVICES, INC.; a Florida corporation, and TARA DUVAL individually, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 00-13562 (54). May 30, 2003. Zebedee Wright, Judge. Counsel: Beth A. Moriarty, Moriarty & Monroe, Winter Park. Charles J. Kane, Kane & Kane, Boca Raton.
[Prior order at 10 Fla. L. Weekly Supp. 129a.]Order Granting Motion to Dismiss First Amended Complaint
On April 23, 2003, the Court heard Tara Duval’s Motion to Dismiss the First Amended Complaint. Ms. Duval’s motion raises the same asserted defects as set forth in Universal Diagnostic Services, Inc. Motion to Dismiss First Amended Complaint. Accordingly, the Court will address both motions.
On December 18, 2002, the Court entered an order denying leave to amend without prejudice observing numerous deficiencies in pleading that are set forth on pages 3 and 4 of that order. The First Amended Complaint fails to address those deficiencies, the most notable being the absence of any showing that the Defendant has sustained damage.As to General Allegations — Alter Ego
At ¶7 of the First Amended Complaint the Plaintiff alleges that Duval is the sole owner and alter ego of Universal. While the allegation of “sole owner” is an ultimate fact that must be accepted as true for purposes of a motion to dismiss, “alter ego” is a legal conclusion that must be supported by allegation of ultimate facts. There are no allegations supporting the conclusion that Duval is the alter ego of Universal. While the First Amended Complaint alleges that Duval and Universal did things to mislead the Plaintiff, a debtor, the corporate veil is pierced where the owner uses the corporation as a means to mislead creditors or creates a general tort risk to the members of the public. McFadden Ford, Inc. v. Mancuso ex rel. Mancuso, 766 So.2d 241 (Fla. 4th DCA 2000). The allegations that Duval conspired with herself to mislead the Plaintiff into believing that Universal “rendered service” is immaterial in that the services billed for were actually done by someone under circumstances that are compensable to the Plaintiff’s insureds as indemnified persons. The mere fact that those insureds permitted payment to be made to Universal rather than others involved in the work establishes no material harm to the Plaintiff (i.e. wrongdoing that matters).As to Count I — Unjust Enrichment
A cause of action for unjust enrichment has 4 elements:
The elements of a cause of action for a quasi contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit conferred and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.
Magwood v. Tate, 835 So.2d 1241, 1243 (Fla. 4th DCA 2003)
The First Amended Complaint fails to allege any circumstances satisfying the fourth element rendering inequitable the continued retention of the benefit by the Defendant. There are no allegations that the subject MRIs were overpriced, were not medically necessary, not related or were not done. The Plaintiff does not assert that the insured was not indemnified for the procedures that were done, nor does the Plaintiff assert that the subject insured did not want payment to be made to the Defendant. Rather, the Plaintiff asserts with the benefit of hindsight that had the Defendant brought suit by assignment for its own account, the claim would justifiably not be paid to the Defendant, but rather there would be an extant obligation to someone else. There are no allegations of assignment in this case; hence the Plaintiff’s choice to follow its insured’s direction instead of paying the insured caused the Plaintiff no damage. There are no allegations by the Plaintiff of any obligation to any insured or any third party for payment of the same money. Rather, the Plaintiff seeks a windfall for the same benefits leaving its insureds without coverage. The facts as alleged appear essentially no different from those recited in the prior order of this court citing Barcus v. State Farm Mut. Auto. Ins. Co., 9 FLW [Fla. L. Weekly] Supp. 414a (Fla. Seminole Co. Ct. April 2, 2002) (appeal to 5th DCA rejected and appeal transferred to 18th Cir. Ct.) and U.S. v. Liss, 265 F.3d 1220 (C.A. Fla. 11th 2001).As to Count II — Declaratory Relief
During the argument on the motion, the Court was advised that the Plaintiff has already taken the deposition of Tara Duval and learned that neither she nor Universal Diagnostics Services, Inc. continue to present MRI claims to PIP insurers and have not done so for several years. The Plaintiff did not contest this representation before the Court as made by counsel for the Defendants. The lawsuit against Tara Duval was not filed until 2002, a time long after the alleged claim practice had ended. Neither does it appear that there is a genuine allegation of a continuing practice by Universal Diagnostics Services, Inc. as it relates to the Plaintiff. An action for declaratory relief requires an extensive showing as recently set forth in State v. Florida Consumer Action Network, 830 So.2d 148, 151(Fla. 1st DCA 2002):
Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest[s] are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. These elements are necessary in order to maintain the status of the proceeding as being judicial in nature and therefore within the constitutional powers of the courts. May v. Holley, 59 So.2d 636, 639 (Fla. 1952)(emphasis added). Accord Santa Rosa County v. Admin. Comm’n, Div. of Admin. Hrgs., 661 So.2d 1190, 1192-93 (Fla. 1995).
It appears that the Defendant’s allegations at ¶33 of the First Amended Complaint that Tara Duval and Universal Diagnostics, Inc. continue to engage in practices the Plaintiff deems unlawful are allegations the Plaintiff knows are untrue or cannot allege in good faith. The only circumstances the Plaintiff alleges are for claims submitted in 1998 and 1999. There are no bona fide allegations that these practices continue. Thus there is no “bona fide, actual, present practical need for the declaration”.As to Count III — Fraud
For purposes of a motion to dismiss, the allegations of this count must be taken as true. But it does not follow that the allegations are sufficient to establish the key element of damage. For the same reasons set forth above, the Plaintiff has alleged no ultimate facts showing the Plaintiff has sustained damage.
As to the Case Style — THE HARTFORD INSURANCE COMPANY OF THE MIDWEST, INC; a foreign corporation, individually and for the use and benefit of its insureds.
The Plaintiff has styled this action as for itself, individually, “and for the use and benefit of its insureds”. There are no allegations of ultimate fact supporting an action “for the use and benefit of its insureds.” Since the Plaintiff seeks relief that could create an unsatisfied obligation owed by its insured to Universal Diagnostics, Inc., it appears that if the Plaintiff truly seeks relief for the insureds, then they are indispensable parties as they may not want to be parties to further litigation. Cf. Allstate Insurance Company v. Kaklamanos, 2003 WL 1740882, 28 Fla. L. Weekly S287 (Fla. 2003) (holding indemnification in a PIP policy did not require an insured to wait until being sued by a provider before suing the PIP carrier for payment).
The motion to dismiss is granted as to all counts.
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