13 Fla. L. Weekly Supp. 373a
Insurance — Personal injury protection — Counterclaims — Statutory cause of action for violating PIP statute — Dismissal — Motion to dismiss is granted as to count of insurer’s counterclaim asserting statutory cause of action for violation of section 627.736, alleging that medical provider violated statute by submitting bills that were not medically necessary and not coded in accordance with CPT guidelines, and bills for services not lawfully rendered due to provider’s failure to be licensed in massage therapy — PIP statute and massage therapy licensing statute do not purport to establish civil liability but merely make provisions to secure the safety and welfare of public
SUNCOAST SPINAL MEDICAL & REHAB CENTERS, INC. (as assignee of ANGEL MORALES), Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 13th Judicial Circuit in and for Hillsborough County, Civil Division. Case No. 04-4204-SC, Division H. October 26, 2005. Michelle Sisco, Judge. Counsel: Timothy A. Patrick, Tampa, for Plaintiff. Randall Wainoris, Tampa, for Defendant.
ORDER ON PLAINTIFF/COUNTER DEFENDANT’S MOTION TO DISMISS FOR FAILURE TO STATE A CAUSE OF ACTION
THIS CAUSE came before this Court on September 30, 2005 for hearing and the Court having reviewed the Court file; received evidence; heard argument; and being otherwise advised in the premises, the Court finds asfollows:
On July 18, 2005, the Honorable Daniel Gallagher gave leave to the Defendant/Counterplaintiff to file a Counterclaim alleging Count I — Breach of Contract; Count II — Fraud; Count III — Negligent Misrepresentation; and Count IV — Unjust Enrichment. On August 8, 2005, the Defendant/Counterplaintiff filed its [Third] Amended Affirmative Defenses and Counterclaim now alleging Count I — a statutory cause of action pursuant to Fla. Stat. §627.736; Count II — Fraud; Count III — Negligent Misrepresentation; and Count IV — Unjust Enrichment. On September 9, 2005, the Defendant/Counterplaintiff then filed Leave to Amend the Pleadings to Assert a Counterclaim as to Unlawful Massage Therapy — i.e. a [Fourth] Amended Affirmative Defenses and Counterclaim. This Court denied the Motion to Dismiss as to Count II — Fraud; Count III — Negligent Misrepresentation and Count IV — Unjust Enrichment, and took the issue under advisement as to the statutory cause of action in Count I.
“Whether a violation of a statute can serve as the basis for a private cause of action is a question of legislative intent. Courts must determine legislative intent from the plain meaning of the statute.” Aramark Uniform and Career Apparel, Inc. v. Easton, 894 So.2d 20, 23 (Fla. 2004) (citations omitted). A statute, however, “. . . that does not purport to establish civil liability but merely makes provision to secure the safety or welfare of the public as an entity, will not be construed as establishing civil liability.” Murthy v. N. Sinha Corp., 644 So.2d 983, 986 (Fla. 1994).
The Defendant/Counterplaintiff alleges generally in Count I that the Plaintiff/Counterdefendant violated Fla. Stat. §627.736 by submitting bills that were not medically necessary and not coded in accordance with CPT guidelines. The Defendant/Counterplaintiff also alleges in the factual recitation of the Counterclaim that the Plaintiff/Counterdefendant submitted bills that were not “lawfully rendered” due to Plaintiff/Counterdefendant’s failure to be licensed in massage therapy pursuant to Fla. Stat. §480.043(1).
The only precedent submitted by the Defendant/Counterplaintiff in support of its statutory cause of action is an Order entered by the Honorable Rex Barbas granting summary judgment for the Plaintiff in the case of State Farm Automobile Ins. Co. v. Advanced Orthopedic Rehabilitation Center, Inc., Case No. 03-6855 (13th Judicial Circuit, April 12, 2005) [12 Fla. L. Weekly Supp. 652a]. A review of the Complaint in that case reflects that while the plaintiff pled in its factual basis that the bills submitted by the defendant were unlawfully submitted due to the defendant’s failure to be licensed as required by Fla. Stat. §456.0375(2)(a), the plaintiff did not specifically allege a statutory cause of action. Instead, Count I was a general allegation that the Plaintiff was owed damages; Count II alleged conversion and Count III alleged negligent misrepresentation. Furthermore, counsel for the defendant withdrew from the case prior to the hearing on plaintiff’s summary judgment motion, and the record does not reflect that anything was even filed in opposition to plaintiff’s summary judgment motion. This Court, therefore, does not find that the issue of a viable statutory cause of action pursuant to Fla. Stat. §627.736 was ever raised by the defendant and/or decided on the merits by Judge Barbas.
A review of the legislative purpose of Florida’s Motor Vehicle No-Fault Law at Fla. Stat. §627.731 “. . . is to provide for medical, surgical, funeral, and disability insurance benefits without regard to fault, and to require motor vehicle insurance securing such benefits, for motor vehicles required to be registered in this state and, with respect to motor vehicle accidents, a limitation on the right to claim damages for pain, suffering, mental anguish, and inconvenience.” The Court does not find anywhere in this legislative purpose a private cause of action for insurance companies to sue medical providers. Similarly, the legislative purpose for massage practice is found at Fla. Stat. §480.032 and states as follows:
The Legislature recognizes that the practice of massage is potentially dangerous to the public in that massage therapists must have a knowledge of anatomy and physiology and an understanding of the relationship between the structure and the function of the tissues being treated and the total function of the body. Massage is therapeutic, and regulations are necessary to protect the public from unqualified practitioners. It is therefore deemed necessary in the interest of public health, safety, and welfare to regulate the practice of massage in this state; however, restrictions shall be imposed to the extent necessary to protect the public from significant and discernible danger to health and yet not in such a manner which will unreasonably affect the competitive market. Further, consumer protection for both health and economic matters shall be afforded the public through legal remedies provided for in this act.
Chapter 480 does establish administrative and criminal penalties for the practice of massage without a license, but does not explicitly create civil liability. Furthermore, the language of the legislative purpose of chapter 480 indicates that it was created to secure the safety and welfare of the public by regulating the practice of massage and, therefore, cannot be construed as creating civil liability.
IT IS ORDERED AND ADJUDGED that the Plaintiff/Counterdefendant’s Motion to Dismiss is GRANTED in part as to Count I — statutory cause of action; and is DENIED as to Count II — fraud; Count III — Negligent Misrepresentation and Count IV — Unjust Enrichment. In addition, the Defendant/Counterplaintiff’s Motion for Leave to Amend the Pleadings to Assert a Counterclaim as to Unlawful Massage Therapy is DENIED. The Defendant/Counterplaintff shall have twenty (20) days from the date of this Order to file its [Fourth] Amended Counterclaim.
