16 Fla. L. Weekly Supp. 246a
Online Reference: FLWSUPP 163DIREC
Torts — Civil theft — Fraudulent insurance claims — Patient brokering — Kickbacks — Deceptive and unfair trade practices — Insurer’s action against medical provider, alleging provider committed civil theft and violated various state statutes by billing for medical services that were rendered by a health care provider to whom defendant referred his patients for range of motion and muscle testing — Motion to dismiss civil theft count based on statute providing that civil theft statute does not impose civil liability regarding provision of health care at licensed facility or care provided by appropriately licensed personnel in any setting in which such personnel are authorized to practice is denied, as statute does not apply to civil theft claim based on defendant’s billing practices — Fraud count was plead with sufficient specificity to withstand motion to dismiss — Motion to dismiss count for unjust enrichment denied, as deficiencies raised by defendant can be resolved through discovery — Deceptive and unfair trade practices — Motion to dismiss claim brought pursuant to Florida Deceptive and Unfair Trade Practices Act on ground that FDUTPA expressly does not apply to any person or activity regulated by the Florida Department of Insurance is denied — Department of Insurance has no direct authority to regulate provider’s alleged deceptive treatment or billing practices that gave rise to instant litigation — Count alleging negligent billing practices is dismissed, without prejudice, and plaintiff provided leave to amend — Count against codefendant alleging fraud was plead with requisite particularity and specificity — Motion to dismiss this count is denied
DIRECT GENERAL INSURANCE COMPANY, Plaintiff, vs. KEN CAZEAU, D.C., and GARY GREENWOOD, Defendants. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 08-048385 CACE (09). February 5, 2009. David Krathen, Judge. Counsel: Jose P. Font, Vernis & Bowling, Hollywood. Sandford Topkin.
ORDER ON DEFENDANTS’ MOTION TO DISMISS
THIS CAUSE having come before the Court on Defendants, Dr. Ken Cazeau’s and Gary Greenwood’s Motion to Dismiss, and the Court having heard the argument of the parties, considered the record and being otherwise duly advised in the premises, it is:
CONSIDERED AND ADJUDGED:
1. In Count I of the Complaint the Plaintiff asserts that the Defendant, Ken Cazeau D.C. (“Dr. Cazeau”), committed civil theft by billing for medical services that were rendered by a health care provider that he referred his patients to for range of motion testing and muscle testing. Inter alia, this billing practice is alleged to be in direct violation of Fla. Stat. §§ 817.234, 817.505 and 456.054.
2. In his motion to Dismiss Count I of the Complaint, Dr. Cazeau contends that he is immune to an action for civil theft pursuant to subsection 3 of the civil theft statute which reads as follows:
(3) This section does not impose civil liability regarding the provision of health care, residential care, long-term care, or custodial care at a licensed facility or care provided by appropriately licensed personnel in any setting in which such personnel are authorized to practice. Fla. Stat. § 772.11(3)
3. Based on the plain reading of the statutory exclusion it is evident that the purported conduct of Dr. Cazeau does not fall within its purview. The conduct from which the action for civil theft arises relates to the billing practices of Dr. Cazeau rather than the “provision of health care.” In fact, based on the allegations of the Complaint, Dr. Cazeau did not provide any component of the health care services that are at issue. As such, Cazeau’s motion to dismiss Count I of the Complaint is denied.
4. Count II of the Complaint against Dr. Cazeau is an action for fraud. In his motion to dismiss Dr. Cazeau contends that the action fails because it does not possess the requisite particularity and specificity. Furthermore, it is argued that the allegations are nothing more than legal conclusions. The Court finds Dr. Cazeau’s arguments unavailing and therefore denies Cazeau’s Motion to Dismiss Count II of the Complaint.
5. Count III is an action for unjust enrichment filed against Dr. Cazeau. The Court finds that the putative deficiencies (relating to specificity and ambiguity) raised by Dr. Cazeau can be resolved through discovery and therefore the Motion to Dismiss this Count is denied.
6. Count IV is an action against Dr. Cazeau pursuant to Florida’s Deceptive and Unfair Trade Practices Act (“FDUTPA”), Chapter 501, Florida Statutes. Dr. Cazeau argues that FDUTPA expressly does not apply to any person or activity regulated by the Florida Department of Insurance, Chapter 624, Florida Statutes, and because this case involves insurance claims under Florida’s Motor Vehicle No-Fault law, FDUTPA cannot apply because such activities are regulated by the Department of Insurance. The Court agrees with the Plaintiff that although insurance is regulated by the Department of Insurance, the Department of Insurance has no direct authority to regulate Cazeau’s allegedly deceptive treatment or billing practices that give rise to this action. Accordingly, this Court finds that the statutory exclusion does not apply and therefore the motion to dismiss Count IV is denied.
7. Count V of the Plaintiff’s Complaint is an action for negligent billing practices against Cazeau. Without prejudice, the Court grants Cazeau’s motion to dismiss this count. The Plaintiff is hereby provided leave to amend Count V.
8. Count VI of the Plaintiff’s Complaint is an action for fraud against Gary Greenwood. Like Dr. Cazeau, in his motion to dismiss Greenwood contends that the action fails because it does not possess the requisite particularity and specificity. Furthermore, he argues that the allegations are nothing more than legal conclusions. A review of the allegations contained in Count VI rebut such an argument and therefore the motion to dismiss Count VI is denied.
