12 Fla. L. Weekly Supp. 656a
Insurance — Personal injury protection — Fraud — Motion to dismiss counterclaims and strike affirmative defenses in fraud action by PIP insurers against medical providers — Affirmative defenses — Where providers improperly re-pled in form of affirmative defenses same issues raised and denied in motion to dismiss, affirmative defenses are stricken — Counterclaims — Breach of contract — Where insurers seek return of payments made under PIP coverage, it is permissible for providers to file counterclaim alleging insurers breached insurance contracts — Where it appears that providers were assigned rights to receive insureds’ PIP benefits, providers have standing to maintain breach of contract counterclaim — Defamation — Counterclaim for defamation is dismissed and related claim for punitive damages is stricken where statements published in newspaper from press release issued by insurers pertaining to filing of action are pure opinion as well as fair reporting of official judicial proceeding and, as such, are not defamatory — Tortious interference with business relationships — Tortious interference counterclaim is dismissed where providers failed to plead identifiable person with whom they had relationships that were interfered with and only stated in general that certain attorneys would not work with them after insurers’ public remarks — Bad faith — Counterclaim for bad faith is dismissed as premature where providers fail to allege that they have obtained an excess judgment or assignment from insured who has obtained excess judgment — Unjust enrichment — Counterclaim for unjust enrichment is dismissed where providers fail to identify benefit allegedly conferred on insurers — Counterclaims for quantum meruit and promissory estoppel are dismissed where providers allege existence of valid written contract of insurance
PROGRESSIVE EXPRESS INSURANCE COMPANY, PROGRESSIVE SOUTHEASTERN INSURANCE COMPANY, PROGRESSIVE CONSUMERS INSURANCE COMPANY, PROGRESSIVE AMERICAN INSURANCE COMPANY, and PROGRESSIVE NORTHERN INSURANCE COMPANY, Plaintiffs, vs. TOTAL REHABILITATION AND MEDICAL CENTER, INC., d/b/a “THE ACCIDENT CLINIC,” AMERICAN DIAGNOSTICS, INC., PROSPER DIAGNOSTIC CENTERS, INC., WINSTON HERNANDEZ, SANDRA HERNANDEZ, HUMBERTO BOGANI, MARCELO GIL, M.D., EDGARDO BLANDON, M.D., JOSE MARQUEZ, M.D., ABEL TAVAREZ, AND RODOLFO PATAKY, Defendants/Counterclaimants. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 03-012199 CACE 09. April 4, 2005. Robert Lance Andrews, Judge.
ORDER
THIS CAUSE having come before the Court upon the Plaintiffs, Progressive Express Insurance Company, Progressive Southeastern Insurance Company, Progressive Auto Pro Insurance Company, Progressive Consumers Insurance Company, Progressive American Insurance Company and Progressive Northern Insurance Company, Motion to Dismiss Defendants’ Counterclaim and to Strike Affirmative Defenses, pursuant to Florida Rule of Civil Procedure 1.140 and Court having considered same, finds and decides as follows:
Facts and Arguments
Plaintiffs filed this multi-count action against the Defendants/Counterclaimants (hereinafter “Defendants”) in July of 2003. Plaintiffs allege that Defendants were participants in fraudulent actions intended to defraud the Plaintiffs, Insurers, through the filing of fraudulent bills to be paid under the Florida No-fault system. Plaintiffs seek treble damages under the Civil Theft Recovery Act, Fla. Stat § 777.21. Plaintiffs’ seek a declaration from the Court that the Plaintiffs are not obligated to pay any of the Defendants for any No-Fault claim arising from any examination, diagnostic testing, and treatment performed on covered persons; Plaintiffs are not obligated to pay any of the Defendants due to their illegal corporate structure; the assignment of benefits received by the Defendants are void as a matter of law; and the Defendants never had and do not have, standing to prosecute any claim for first-party benefits as an assignee in any lawsuit commenced in State Court. The Plaintiffs’ complaint claims criminal misconduct on the part of the Defendants for which the Plaintiffs seek relief in the form of this civil remedy.
In response to the suit Defendants’ filed multiple counterclaims and affirmative defenses. The Defendants’ Counterclaims are for Breach of Contract; Bad Faith; Defamation; Tortious Interference with a Business Relationship; Promissory Estoppel; and Unjust Enrichment/quantum Meruit. The Plaintiffs’ allege that the Defendants’ counterclaims bear no relation to the cause of actions alleged, are inflammatory, and therefore, must be stricken pursuant to Florida Rule of Civil Procedure 1.140(f). Plaintiffs’ request this Court to rule that the Defendants’ counterclaims fail to state a cause of action and therefore, should be dismissed them.
Plaintiffs’ allege that Defendants have improperly re-pled, in the form of affirmative defenses, many of the same issues raised in the Defendants’ prior Motion to Dismiss, which the Court previously denied. The Plaintiffs request the following Affirmative Defenses be stricken; the First Affirmative Defense (collateral estoppel); Second Affirmative Defense (res judicata); Eleventh Affirmative Defense (lack of standing under Fla. Stat. § 456.0375); Fourteenth Affirmative Defense (unjust enrichment); Sixteenth Affirmative Defense (lack of standing under Fla Stat. § 621.01); Seventeenth Affirmative Defense (lack of standing under Fla Stat. § 456.0375); and Eighteenth Affirmative Defense (lack of standing to seek declaratory relief).
Findings-Affirmative Defenses
The Court finds that the Defendants improperly re-pled, in the form of affirmative defenses, the very same issues raised and denied in the Defendants’ prior Motion to Dismiss before this Court. The Court having already dealt with this very same issue will not further discuss these same issues and thereby, grants the Plaintiff’s request to strike Defendants’ Affirmative Defenses. Fla. R. Civ. P. 1.140(b). As requested this Court strikes the following affirmative defenses; First Affirmative Defense (collateral estoppel); Second Affirmative Defense (res judicata); Eleventh Affirmative Defense (lack of standing under Fla. Stat. § 456.0375); Fourteenth Affirmative Defense (unjust enrichment); Sixteenth Affirmative Defense (lack of standing under Fla Stat. § 621.01); Seventeenth Affirmative Defense (lack of standing under Fla Stat. § 456.0375). Since these issues were dealt with in the Defendants’ Motion to Dismiss they require no further comment and are struck.
Findings-Counterclaims
As to the Defendants’ Counterclaim for Breach of Contract this Court finds that the claim passes the standards of a motion to dismiss. Holding the Defendants’ counterclaim as true, the Court finds that the Defendants are permitted to file a counterclaim alleging the Plaintiffs breached contracts of insurance, for insureds who sought treatment from the Defendants, through assignment of PIP coverage. If the Plaintiffs in their Amended Complaint seek the return of payments made under PIP coverage, for insureds who received treatment from the Defendants clinic, then it is permissible for the Defendants to counter such a claim alleging a breach of those very same contracts. Furthermore, such a counterclaim may fall under the Compulsory Counterclaim Rule, Florida Rule of Civil Procedure 1.170(a).
Plaintiffs’ further allege that the Defendants lack standing to maintain a claim for breach of contract. The Court denies this request to dismiss. At this time, viewing the facts before this Court, it appears that the Defendants were assigned the rights to receive certain insureds PIP benefits and therefore have proper standing for this claim and passes test for a motion to dismiss. It is the Plaintiffs who ask this Court to declare that the Defendants do not have rights under these assignments of PIP benefits and therefore at this time, taking the Defendants counterclaim as true, standing exists.
The Plaintiffs’ request that this Court dismiss the Defendants’ Counterclaim for Defamation. Plaintiffs state that a counterclaim for Defamation is not actionable because the alleged defamatory statements are not capable of a defamatory meaning, are privileged or reflect an expression of pure opinion. The alleged defamatory statement was printed in a local newspaper from a press release issued by the Plaintiffs’ pertaining to the filing of this action. As cited by the Plaintiffs’ in this motion before the Court, the Defendants’ counterclaim does not state to whom these defamatory statements were published. Jackson v. North Broward County Hospital Dist., 766 So.2d 256 (Fla. 4th DCA 2000).
The distinction between fact and non-actionable opinion is a question of law to be determined by the court and not an issue for the jury. Zambrano v. Devanesan, 484 So.2d 603 (Fla. 4th DCA 1986). Plaintiffs’ correctly state that since the Defendants are corporations, in order to state a proper cause of action for defamation it must be plead that the Plaintiffs’ published a false publication that prejudiced the Defendants trade or business or deterred third persons from having business dealings with them. St. Paul Fire & Marine Ins. Co. v. Naples Community Hospital, 585 So.2d 374 (Fla. 2nd DCA 1991).
The Plaintiffs state the four reasons why the Defendants’ claim for defamation must fail; the claimed defamatory statements were not susceptible of a defamatory meaning; the statements were qualifiedly privileged as fair reports of official proceedings; the statements were nothing more than protected expressions of pure opinion; and the claim for defamation fails to allege that the complained of statements were even false.
The Court dismisses the Defendants Counterclaim for Defamation. The Court finds that the Defendants’ did not meet the necessary criteria for an action of defamation, the statements are pure opinion as well as a fair reporting of an official judicial proceeding and as such are not defamatory. White v. Fletcher, 90 So. 2d 129 (Fla. 1956). The Court finds that the only part of the press release which would could be actionable (statement about insurance costs and fraud by Karen Pelot, Progressive’s special investigation units manager for Florida) were pure opinion statements that a lay person would understand to be discussing insurance fraud in general, not in particular the Defendants. Morse v. Ripken, 707 So.2d 921 (Fla. 4th DCA 1998). Such opinions are constitutionally protected. The Court also strikes the Defendants’ claim for punitive damages under Fla. Stat. § 768.72, since this Court has now dismissed the very claim which the Defendants’ are seeking punitive damages for as well as the fact that such a claim is premature at this time.
Plaintiffs request that this Court dismiss the Defendants’ Counterclaim for Tortious Interference with Business Relationships. ‘The elements of tortious interference with a business relationship are “(1) the existence of a business relationship . . . (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with the relationship by the defendant; and (4) damage to the plaintiff as a result of the breach of the relationship.’ ” Gosssard v. Adia Services, Inc., 723 So.2d 182 (Fla. 1998), citing; Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla. 1985).
The Court finds that the Defendants fail to state a claim for Tortious Interference with Business Relationships, as established by Tamiami Trail Tours, and thereby the Defendants’ Counterclaim for Tortious Interference with Business Relationships is dismissed. The Defendants fail to plead to whom they had such business relationships that were interfered with, they only state in general that certain attorney’s would not work with them after the Plaintiffs’ made their public remarks. Interference with a business relationship must be with an identifiable person, not the public at large. North American Van Lines, Inc., 639 So.2d 32 (Fla. 4th DCA 1994), Citing: Southern Alliance Corp. v. Winter Haven, 505 So. 2d 489 (Fla. 2nd DCA 1987). The factual basis for this Counterclaim is the same as for the prior Counterclaim of Defamation. As such this Court demises the Defendants’ Counterclaim for Tortious Interference with Business for failure to state a cause of action.
Plaintiffs request that the Court dismiss the Defendants’ Counterclaim for Bad Faith. Defendants’ allege that the Plaintiffs engaged in bad faith conduct/unfair settlement practices by failing to timely pay claims as required by Fla. Stat. § 627.736 and systematically down coding bills, Fla. Stat. § 627.736(5)(g). Plaintiffs’ allege that this counterclaim has no legal basis and is merely a “retaliatory slap suit.” “In the absence of an excess judgment, a third-party plaintiff cannot demonstrate that the insurer breached a duty toward its insured. State Farm v. Zebrowski, 706 So.2d 275 (Fla. 1997), Citing: Dunn v. National Sec. Fire & Cas. Co., 631 So. 2d 1103 (Fla. 5th DCA 1993) (only damages caused to the insured are recoverable under section 624.155(1)(b)(1)). Fla. Stat. § 624.155(1)(b)(1), “Authorizes a third party to file a bad-faith claim directly against the liability insurer without an assignment by the insured upon obtaining a judgment in excess of the policy limits.” Zybrowski, at 277. The Court grants the Plaintiffs’ request to dismiss the Defendants’ Bad Faith Counterclaim for being premature since they fail to allege that they have obtained an excess judgment or an assignment from an insured. (Defendants state that they have assignment of PIP benefits, however such is limited to the recovery of those benefits).
Plaintiffs request that this Court dismiss the Defendants’ Counterclaim for Unjust Enrichment or in the Alternative Quantum Meruit. This Court grants the Plaintiffs request and dismisses the Defendants’ Counterclaims for Unjust Enrichment and Quantum Meruit. This Court agrees with the Plaintiffs’ argument that any claim for unjust enrichment must fail because the Defendants fail to identify the benefit it allegedly conferred as well as directly conferred on the Plaintiffs. Nursing Care Services, Inc. v. Dobos, 380 So. 2d 516 (Fla. 4th DCA 1980).
The Counterclaim of Quantum Meruit fails as well because the Defendants allege that a written policy of insurance existed between the Plaintiffs and claimants, which by assignment the Defendants received, and therefore since breach of contract and quantum meruit are mutually exclusive remedies the counterclaim must be dismissed. The Defendants cannot allege a contract existed and then claim quantum meruit. Quantum meruit relief is founded upon an implied contract. This counterclaim cannot be maintained when the Defendants’ allege that the rights of the parties are described in a written contract. Hoon v. Pate Constr. Co., 607 So. 2d 423, 427 (Fla. 4th DCA 1992), review denied, 618 So. 2d 210 (Fla. 1993).
Finally, the Plaintiffs request that this Court dismiss the Defendants’ Counterclaim for Promissory Estoppel. For the same reasons set forth above, a claim for promissory estoppel is not valid since the Defendants allege the existence of valid contracts. The elements for a claim of promissory estoppel are, “A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” W.R. Grace and Co. v. Geodata Services, Inc., 547 So.2d 919 (Fla. 1989). Missing from the Defendants pleadings are when, where and through whom the Plaintiffs promised to pay all charges. On its face this claim is insufficient and therefore must be dismissed.
Lastly, the Defendants improperly cite the case of Professional Consulting Services Inc. v. Hartford Life and Accident Ins. Co., 849 So.2d 446 (Fla. 2d DCA 2003) for the proposition that they are entitled to collect on PIP payments. Professional Consulting deals with a billing service for a Chiropractor and D.O. who were assigned a PIP payment by these medical professionals for the purposes of recovering payments. Such is not the case for the Defendants’ who are not a billing service as was the Plaintiff in Professional Consulting. The Plaintiff in the action before this Court alleges that the Defendant is not a valid medical practitioner under the PIP rules. This case does not involve a situation where the Defendant assigned his payment rights to an outside billing service and therefore Professional Consulting is not applicable to this claim.
ORDERED AND ADJUDGED that the Plaintiffs Motion to Strike Defendant’s First, Second, Eleventh, Fourteenth, Sixteenth, Seventeenth, and Eighteenth Affirmative Defenses is GRANTED.
ORDERED AND ADJUDGED that the Plaintiffs Motion to Dismiss Defendants’ Counterclaim for Breach of Contract is DENIED.
ORDERED AND ADJUDGED that the Plaintiffs Motion to Dismiss Defendants’ Counterclaim for Defamation and Strike Claim for Punitive Damages is GRANTED.
ORDERED AND ADJUDGED that the Plaintiffs Motion to Dismiss Defendants’ Counterclaim for Tortious Interference with Business Relationships is GRANTED.
ORDERED AND ADJUDGED that the Plaintiffs Motion to Dismiss Defendants’ Counterclaim for Bad Faith is GRANTED.
ORDERED AND ADJUDGED that the Plaintiffs Motion to Dismiss Defendants’ Counterclaim for Unjust Enrichment is GRANTED.
ORDERED AND ADJUDGED that the Plaintiffs Motion to Dismiss Defendants’ Counterclaim for Quantum Meruit is GRANTED.
ORDERED AND ADJUDGED that the Plaintiffs Motion to Dismiss Defendants’ Counterclaim for Promissory Estoppel is GRANTED.
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