13 Fla. L. Weekly Supp. 888a
Insurance — Personal injury protection — Indemnification — Motion to dismiss insurer’s action against medical provider as third party defendant under theory of common law indemnity is granted — Party seeking indemnification must be without fault, and its liability must be vicarious and solely for the wrong of another; indemnification can only come from party who was at fault; and Florida courts require special relationship between parties in order for common law indemnification to exist — Insurer has failed to demonstrate that provider’s charges were unlawful due to failure to appoint medical director where, although person appointed as director testified that he was unaware of appointment, insurer did not allege that director failed to perform statutory duties — Further, insurer failed to prove wrongdoing on part of provider where there was no allegation that services were not reasonable and necessary — Insurer could not satisfy requirement that its liability be vicarious and solely from wrong of another where insurer’s liability arose from insurance policy insurer sold to plaintiff/insured — Special relationship — Insurer cannot satisfy requirement of showing special relationship between parties based solely on submission of bills to insurer and receipt of payments pursuant to now-revoked assignment — Further, decision to dismiss satisfies legislative intent of clinic responsibilities statute where there is no evidence of injury to consumers or that provider was in violation of basic care standards or other applicable provisions of statute
BRENCE STEWARD, Plaintiff, vs. PROGRESSIVE AUTO PRO INSURANCE COMPANY, Defendant/Third-Party Plaintiff, vs. ALL FAMILY CLINICS OF DAYTONA BEACH, INC., d/b/a FLORIDA MEDICAL ASSOCIATES, Third-Party Defendant. County Court, 7th Judicial Circuit, in and for Volusia County. Case No. 2005-12729-CODL, Division 71. June 14, 2006. Shirley A. Green, Judge. Counsel: Thomas Caldwell, for Plaintiff. William K. Pratt, II, for Defendant/Third-Party Plaintiff. Kimberly P. Simones, for Third-Party Defendant.
ORDER GRANTING ALL FAMILY’S MOTION TO DISMISS WITH PREJUDICE
THIS CAUSE came before the Court for consideration on the Third Party Defendant’s Motion to Dismiss with Prejudice. Third Party Plaintiff, Progressive Insurance (hereinafter referred to asProgressive), contends that they are entitled to maintain an action against Third Party Defendant, All Family Clinics of Daytona Beach (hereinafter referred to as All Family), under the theory of common law indemnity. All Family contends that Progressive does not meet the necessary criteria to sustain an action for common law indemnity. This court agrees with All Family and dismisses Progressive’s action with prejudice.
FACTS AND CONCLUSIONS OF LAW
For a party to prevail on a claim of common law indemnity, the party must satisfy a two-prong test. First, the party seeking indemnification must be without fault, and its liability must be vicarious and solely for the wrong of another. See, K-Mart Corp. v. Chairs, Inc., 506 So.2d 7, 9-10 (Fla. 5th DCA 1987). Second, indemnification can only come from a party who was at fault. See, Federal Ins. Co. v. Western Waterproofing Co., 500 So. 2d 162, 165 (Fla. 1st DCA 1986).
Additionally, Florida courts have required a special relationship between the parties in order for common law indemnification to exist. See Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490, 493 (Fla. 1979).
Progressive contends that they met the first prong of the test because All Family’s charges are unlawful, pursuant to Fla. Stat. 627.732, because it fails to comply with the administrative provisions of Fla. Stat. 400.9935(c) — Clinic Responsibilities. That subsection requires each clinic to appoint a medical or clinic director and said director shall perform certain statutory duties. Progressive argues that All Family has designated Dr. Frank Alvarez and, that in a deposition, Dr. Alvarez testified that he did not know that he was the medical director. However, there are no allegations that Dr. Alvarez was not performing the statutory duties as defined by and required by the statute.
Further, the Defendant/Third Party Plaintiff has not provided any evidence to show that Dr. Alvarez has not operated as a medical or clinic director. The name “Medical or Clinic Director” is not what is important in the legislative scheme. All Family is entitled to assign whatever label it desires to Dr. Alvarez as long as Dr. Alvarez performs services that comply with the statutory definition for Medical or Clinic Director, pursuant to Fla. Stat. 400.9935. There is no evidence in the record to show that All Family has not complied with the requirements of Fla. Stat. 400.9935. To the contrary, All Family has filed voluminous documents from the State of Florida, Department of Health Division of Medical Quality Assurance and other agencies that prove that they are in compliance. Without evidence of noncompliance, there can be no determination that the charges are unlawful.
Next, the court considers whether there is wrong doing with reference to the medical services performed. However, there is no allegation or evidence that the services were not reasonable and necessary.
Finally, Progressive could never meet the first prong, because their liability is not based on the wrong of All Family but is instead based on a policy of insurance that they sold to Plaintiff and became liable thereby. Progressive’s liability is determined by the terms of said policy.
As to the second prong of the test, there is no special relationship between the parties. No special relationship is created between All Family and Progressive simply because All Family submitted bills to Progressive. Neither isa special relationship created because Progressive might have made payment to All Family due to an assignment of benefits. Especially, when the assignment has been revoked. The submission and payment of reasonable and necessary medical services does not open a health care provider to litigation.
Finally, whatever decision the court makes should be designed to enforce the legislative intent of the Statute. Fla. Stat. §400.990, provides that the legislative intent is to regulate health care clinics for the purpose of strengthening rules to prevent significant cost and harm to consumers. A further purpose was to provide for the licensure, establishment, and enforcement of basic standards for health care clinics and to provide administrative oversight by the Agency for Health Care Administration (hereinafter referred to as the Agency).
There is no evidence that the consumer was injured in any way or that the medical care provided by All Family was not reasonable, necessary or related to the injury sustained by the insured. Neither is there any proof that All Family is in violation of the licensure, basic health care standards or any other provision that is applicable to them.
In the instant case, the legislative intent is satisfied. Progressive has failed to meet the test for common law indemnity. Therefore it is
ORDERED AND ADJUDGED that:
1. This case is dismissed with prejudice.
2. The court reserves jurisdiction to determine the entitlement and amount of attorney fees. [See 15 Fla. L. Weekly Supp. 85b.]
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