17 Fla. L. Weekly Supp. 1222a
Online Reference: FLWSUPP 1712DIREInsurance — Fraudulent claims — Civil theft — Violation of statute prohibiting filing of false or fraudulent insurance claims cannot form basis for civil theft claim — Florida Deceptive and Unfair Trade Practices Act — Insurer’s claim against medical provider for filing fraudulent claim is excluded from application of FDUTPA
DIRECT GENERAL INSURANCE COMPANY, Plaintiff, v. KEN CAZEAU, D.C. and GARY GREENWOOD, Defendants. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 08-048385. June 15, 2010. David Krathen, Judge. Counsel: Jose P. Font, Hollywood. Sandford Topkin, Deerfield Beach.
ORDER ON PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ANDDEFENDANTS’ CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before this Court on Direct General Insurance Company, Plaintiff’s Motion for Partial Summary Judgment and Defendants’ Ken Cazeau, D.C. and Gary Greenwood’s Cross-Motion for Partial Summary Judgment. Having heard argument of counsel, considered the motions, the applicable law and being otherwise fully advised in the premises, the Court finds that, as a matter of law, a violation of section 817.234, Florida Statutes, cannot form the basis for a claim under section 772.11, Florida Statutes. See Seabridge, Inc. v. Superior Kitchens, Inc., 672 So. 2d 848 (Fla. 4th DCA 1996). Accordingly, Defendants are entitled to partial summary judgment on any claim under Count I of Plaintiff’s complaint for civil theft as to a violation of section 817.234, Florida Statutes. As to the remaining allegations of Count I of Plaintiff’s complaint, Defendants’ motion is denied.
Also as a matter of law, Defendants are entitled to partial summary judgment on Count IV of Plaintiff’s complaint for “Deceptive and Unfair Trade Practices Claim Against Cazeau,” as such a claim is excluded as set forth under section 501.212(4)(a) and (d), Florida Statutes.
As to the remaining arguments made in the motion and cross-motion for partial summary judgment, on the face of the record there remain issues of material fact in dispute and summary judgment would be inappropriate at this time. Accordingly, it is
ORDERED AND ADJUDGED that Plaintiff’s Motion for Partial Summary Judgment is hereby DENIED; it is further ORDERED AND ADJUGED that Defendants’ Cross-Motion for Partial Summary Judgment is hereby GRANTED in part and DENIED in part, as follows: (1) as to Count IV of Plaintiff’s Complaint and as to Plaintiff’s claim that section 817.234, Florida Statutes, forms the bases for its claim under section 772.11, Florida Statutes, Defendant’s Cross-Motion for Partial Summary Judgment is hereby GRANTED; and, (2) as to the remaining allegations of Count I of Plaintiff’s complaint and the balance of arguments advanced by Defendants, the Defendants’ Cross-Motion for Partial Summary Judgment is hereby DENIED.
