23 Fla. L. Weekly Supp. 929a
Online Reference: FLWSUPP 2309ARDUInsurance — Health — Insurer did not violate section 627.6487, which prohibits health insurer from declining coverage or imposing pre-existing conditions exclusion on eligible individuals desiring to enroll in individual health insurance coverage, where none of plaintiffs qualified as “eligible individual” within meaning of statute because at time they applied for individual coverage they were either still eligible for coverage under group health plan in which they were enrolled or were still eligible for and had not exhausted COBRA coverage — Exclusionary rider excluding coverage for plaintiff’s colon is enforceable — Although statute limits general pre-existing condition provisions to certain time period, it does not restrict use of permanent exclusionary riders for specific conditions or body parts — Breach of contract counts fail where two plaintiffs were never issued policies, and third plaintiff’s policy was not breached by insurer during few hours between issuance of policy and revocation by plaintiff — Declaratory relief relating to provisions of statute is inappropriate where plaintiffs are not eligible individuals under statute
DONNA ARDUINI, DEBORAH SHOOTER, and KIM WALLANT, on behalf of themselves and all others similarly situated, Plaintiffs, v. BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC., a Florida corporation, Defendant. Circuit Court, 15th Judicial Circuit in and for Palm Beach County, Circuit Civil Division. Case No. 50-2011-CA-000364XXXXMB, Division “AD”. February 25, 2016. Gregory M. Keyser, Judge. Counsel: Jeff Liggio and Michael R. Santana, Liggio Benrubi, P.A., West Palm Beach; Louis Silber, Silber, Valente & Davis, West Palm Beach; and Steven Earle, Earle & Smith, Orlando, for Plaintiffs. Timothy J. Conner, Jennifer A. Mansfield, Raymond F. Treadwell, Holland & Knight LLP, Jacksonville, for Defendant.
[Editor’s Note: Order Denying Class Certification published at 23 Fla. L. Weekly Supp. 934a.]
FINAL SUMMARY JUDGMENT
THIS CAUSE came for hearing before the Court on the Motion for Summary Judgment (hereinafter at times referred to as “Motion”) filed by Defendant, Blue Cross and Blue Shield of Florida, Inc. (hereinafter at times referred to as “BCBSF”) (D.E. #81). The Court has reviewed and considered the Motion, Plaintiffs’ Response to Defendant’s Motion for Summary Judgment and Incorporated Memorandum of Law (D.E. #87), the summary judgment record evidence including all pleadings, answers to interrogatories, depositions, and affidavits, the court file, all written memoranda and all statutes and case law citations of authority submitted by Counsel for the parties, citations of supplemental authority submitted by the Plaintiffs following the hearing on this Motion, and argument of counsel for the parties. Based upon all of the above, the Court makes findings of fact and conclusions of law as follows:
INTRODUCTION
1. Defendant’s, BCBSF, Motion for Summary Judgment comes to the Court directed to the Plaintiffs’ operative Amended Class Action Complaint (D.E. #12). Plaintiffs’ claims in Count I — Breach of Contract as to Those Class Members Who Were Issued BCBSF Health Insurance Policies relies upon allegations that the strict requirements of Florida Statute §627.6487 are incorporated into the BCBSF policies as a matter of law, that BCBSF violated the strict requirements of Florida Statute §627.6487 and, therefore, breached their contracts with the Plaintiffs. Additionally, the Plaintiffs’ Count II — Declaratory Judgment for declaratory judgment also relies on the Plaintiffs’ contention that BCBSF has been ignoring and refusing to comply with the mandatory requirements of Florida Statute §627.6487, in refusing to offer coverage and/or issuing coverage only with exclusions or riders that deny coverage for pre-existing conditions for “eligible individuals” who had “creditable coverage”, including the Class representatives. See Amended Class Action Complaint (hereinafter at times referred to as “Amended Complaint”) and Florida Statute §627.6487.
2. As a threshold matter, Plaintiffs, Donna Arduini (“Arduini”), Deborah Shooter (“Shooter”), and Kim Wallant (“Wallant”), allege that each of them was an “eligible individual” as defined by Florida Statute §627.6487, and that BCBSF violated Florida Statute §627.6487 by declining to offer them “guaranteed issue” health insurance coverage. Donna Arduini additionally alleges that BCBSF also violated Florida Statute §627.6487 by excluding coverage for a specific body part through the use of an exclusionary rider.
3. BCBSF moves for summary judgment herein on the grounds that: (1) none of the Plaintiffs qualified as “eligible individuals” under Florida Statute §627.6487 and, therefore, BCBSF did not and could not violate Section 627.6487 with respect to the individual Plaintiffs; (2) that Plaintiffs’ claims must fail because there is no private right of action for individuals like the Plaintiffs to enforce the provisions of Section 627.6487; and (3) that Plaintiffs have failed to establish the elements necessary to support their causes of action for breach of contract and declaratory judgment.
SUMMARY JUDGMENT STANDARD
4. Florida Rule of Civil Procedure 1.510(c) provides that summary judgment is appropriate where “the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Once the movant tenders competent evidence to support its motion, the opposing party must come forward with counter-evidence sufficient to reveal a genuine issue of material fact. Landers v. Milton, 370 So. 2d 368, 370 (Fla. 1979); See also Carbonell v. Bellsouth Telecommunications, Inc., 675 So. 2d 705, 706 (Fla. 3d DCA 1996) [21 Fla. L. Weekly D1476a] (finding that a party is entitled to summary judgment when it meets burden of showing absence of material disputed issues and opposing party fails to refute or challenge moving party’s evidence and establish triable issue of fact).
5. The parties disagree on the application of Section 627.6487 to the undisputed facts related to the three named Plaintiffs, but the material facts on which BCBSF relies in its Motion for Summary Judgment are not disputed.FINDINGS OF FACT
Donna Arduini
6. At the time Plaintiff, Donna Arduini, applied for individual insurance coverage from BCBSF she was eligible for and covered under a group health insurance plan through her husband’s company in Pennsylvania. See Donna Arduini Deposition pages 11, 16, 37, 40-41, 57-58, February 26, 2013.
7. Donna Arduini’s husband purchased group coverage through the Pennsylvania Builders Association Benefits Trust (the “Pennsylvania Builders Trust”), of which he was a member. See Lawrence Arduini Deposition pages 10-11, February 26, 2013. He added Ms. Arduini to his company’s group policy around 1981. Id. at pages 11-12.
8. In 1990, Ms. Arduini began living six months each year in Florida and six months in Pennsylvania. See Donna Arduini Deposition at pages 7-8, 22. Then, when she and her husband sold their farm in Pennsylvania, Ms. Arduini moved to Florida permanently. Id. at pages 10, 13. She has not resided in Pennsylvania since the beginning of 1998. Id. at pages 9, 22.
9. Mr. Arduini then went to the offices of Abacoa Insurance Agency in early December 2006, and requested an appointment with an agent in order to apply for individual health insurance for Ms. Arduini, and a Medicare Supplement policy for himself. See Lawrence Arduini Deposition pages 30-31.
10. An agent came to the Arduinis’ home on December 5, 2006, met with them for “a little better than an hour,” assisted them with completing an application for individual health insurance for Ms. Arduini, and explained the entire process to them, including that underwriting would be required and that certain conditions of Ms. Arduini might be excluded from coverage by a permanent rider to the policy. See Lawrence Arduini Deposition 34-39, 45-46, Exhibit 2; Donna Arduini Deposition pages 21-38.
11. At the time of applying for individual coverage, both of the Arduinis were aware that an individual policy might not cover certain medical conditions. See Lawrence Arduini Deposition page 38; Donna Arduini Deposition pages 19-20, 24.
12. One of the questions on the policy application for individual insurance asked Donna Arduini, “Will this policy replace any other hospital or medical insurance or HMO coverage, including group coverage, currently in force? (If “Yes”, please complete and submit a Replacement of Insurance notice, form #8422, along with all applicable Certificate of Creditable Coverage.)” See Donna Arduini Deposition page 23, Exhibit 2 at 1; Lawrence Arduini Deposition pages 35-36. Donna Arduini answered “Yes” to this question regarding current coverage and attached a Replacement of Insurance notice to her policy application. See Donna Arduini Deposition pages 23, 29-30, Exhibit 2 at 1, 7. The Replacement of Insurance notice listed her Pennsylvania group policy as the one being replaced and stated that the reason she was applying for the BCBSF individual policy was that it “will cost less” than her group policy. See Lawrence Arduini Deposition pages 43-45; Donna Arduini Deposition pages 30-31, Exhibit 2 at 7. Ms. Arduini represented that premiums for her group policy would be paid “until [a] new policy is issued.” See Donna Arduini Deposition page 32, Exhibit 2 at 7.
13. Donna Arduini testified that she and her husband could have continued with their group policy instead of switching to an individual policy in Florida. See Donna Arduini Deposition pages 33, 35.
14. BCBSF offered Donna Arduini an individual policy with two exclusionary riders disclaiming coverage for services related to “the colon” and to any “cyst, tumor, or new growth of the ileum or colon.” See Donna Arduini Deposition pages 47-52, and Exhibits 5-6 (riders excluding coverage). Through the following language, BCBSF explained Ms. Arduini’s BCBSF policy to her related to the nature of the exclusionary riders:
This Contract excludes coverage for expenses for Health Care Services related to any Condition excluded from coverage by a Rider that is part of this Contract.
Riders issued with a Contract are permanent. . . .
See Section 3-5 Conditions Excluded by Rider in the BCBSF policy of insurance for Donna Arduini attached as Exhibit D to the Plaintiffs’ Amended Complaint . Mr. Arduini, who had a general power of attorney for Ms. Arduini, signed these exclusionary riders on behalf of Ms. Arduini, acknowledging that Ms. Arduini understood and agreed that her insurance contract did not cover, and did not provide benefits for, any medical services as stated in the riders. See Lawrence Arduini Deposition pages 13-14, 20-21, 54-55, Exhibits 5-6. Ms. Arduini recalled being advised that there was a rider on her individual policy with respect to the colon. See Donna Arduini Deposition Deposition pages 48-50.
Deborah Shooter
15. Plaintiff, Deborah Shooter, had group health insurance coverage through her husband’s employer when he worked as the Project Safety Manager on the construction of the Amway Center in Orlando, Florida. See Deborah Shooter Deposition pages 27, 33-34, July 25, 2012; William Shooter Deposition pages 6-7, 10-11, July 25, 2012. Her husband’s job ended on or about October 31, 2010, when the Amway Center was completed. See Deborah Shooter Deposition pages 27-28, 34; William Shooter Deposition pages 11-13. As a result, their coverage under his employer’s group health plan was set to end on November 1, 2010. See Deborah Shooter Deposition pages 36-38, Exhibit 1; William Shooter Deposition pages 13-14, Exhibit 1.
16. In the weeks leading up to November 1, 2010, Deborah Shooter and her husband shopped for individual policies with several insurance companies, but they felt the premiums were too high. See Deborah Shooter Deposition pages 43-49. They were also concerned because they had already satisfied a $5,000.00 deductible for the calendar year and wanted credit for that. See Deborah Shooter Deposition pages 48, 51. The insurance companies they shopped indicated they would need to go through medical underwriting in order to apply for individual coverage. See Deborah Shooter Deposition page 48.
17. On their last day of group coverage, November 1, 2010, the Shooters visited a BCBSF retail store in Winter Park, Florida, and filled out an application for a 30-day temporary policy of individual insurance which did not require her to give a medical history or go through any medical underwriting prior to issuance. See Deborah Shooter Deposition pages 41-43, 65-67, Exhibit 2. When they got home that day, however, Deborah Shooter decided she did not like the 30-day temporary policy because it did not meet their needs, other than that it was “inexpensive.” See Deborah Shooter Deposition page 77. Ms. Shooter determined instead to purchase the COBRA continuation of coverage they had previously been offered as a result of their expiring group coverage. See Deborah Shooter Deposition pages 49, 52, 69.
18. Deborah Shooter called BCBSF to cancel the temporary policy and seek a refund of the initial premium which had been charged to her Visa card. See Deborah Shooter Deposition pages 52, 77-79. She also wrote a letter to BCBSF, dated November 3, 2010, formally expressing her desire to cancel her individual policy and requesting a refund of her premium. See Deborah Shooter Deposition pages 84-86, Exhibit 4. In accordance with her request, BCBSF retroactively cancelled the temporary policy and issued Deborah Shooter a full refund. See Deborah Shooter Deposition pages 78, 87; William Shooter Deposition page 26.
19. Deborah Shooter and her husband purchased the COBRA continuation coverage offered through Mr. Shooter’s former employer and maintained it throughout her husband’s unemployment, which lasted approximately 7 months. See Deborah Shooter Deposition pages 51-52, 54-55; William Shooter Deposition pages 18, 28. The Shooter’s COBRA coverage was effective from November 1, 2010, until June 1, 2011. See Deborah Shooter Deposition pages 27-28, Exhibit 3. The Shooters terminated their COBRA coverage when Mr. Shooter found a job in Maryland working as a consultant for a company doing safety work for the District of Columbia Water and Sewer Authority, at which time they purchased coverage through his new employment. See Deborah Shooter Deposition pages 27-28, 31, 81-82, Exhibit 3; William Shooter Deposition pages 5, 18-19.
20. The Shooters never had any gap in coverage, and never had any health insurance claim denied for lack of coverage. See Deborah Shooter Deposition pages 96-98.
Kim Wallant
21. At the time Plaintiff, Kim Wallant applied for an individual policy with BCBSF in March 2010, she was covered under a group policy through her husband’s employer. See Kim Wallant Deposition pages 13, 30, February 27, 2013. On February 8, 2010, her husband’s employer notified him that it would no longer pay the premiums for dependent coverage under its group plan, effective March 1, 2010; it would only continue paying his premiums. See Kim Wallant Deposition pages 20-24, Exhibit 2. The new premium to continue insuring Kim Wallant and her daughter under the group plan would be $987.34 per month. See Kim Wallant Deposition 21, Exhibit 2. Beginning March 1, 2010, Kim Wallant paid the new premium to continue the group coverage for herself and her daughter. See Kim Wallant Deposition page 24.
22. On March 12, 2010, Kim Wallant applied for an individual health insurance policy from BCBSF to cover herself and her daughter, and to replace their coverage under the group plan. See Kim Wallant Deposition pages 19-20, 29, Exhibit 1. She stated on her application that the reason for wanting to replace her current group coverage was the “cost of coverage.” See Kim Wallant Deposition pages 31-32, Exhibit 1 at 4. She also indicated that her current group coverage was still active and paid through March 31, 2010, listing both the Group Number and Policy ID Number on the application. See Kim Wallant Deposition pages 30-31, Exhibit 1 at 4.
23. Following the medical underwriting stage, BCBSF rejected Kim Wallant’s application for an individual policy due to her pre-existing conditions. See Kim Wallant Deposition pages 39-40, Exhibit 3. In an effort to have BCBSF reconsider its decision, Kim Wallant provided additional medical records to BCBSF. See Kim Wallant Deposition pages 44-45, Exhibit 4. BCBSF responded in a letter dated May 25, 2010, upholding its decision to decline coverage based on her pre-existing conditions. See Kim Wallant Deposition pages 45-46, Exhibit 5.
24. During the time that Ms. Wallant was applying for individual coverage from BCBSF, she maintained her coverage under the group policy through her husband’s employer. See Kim Wallant Deposition page 46.
25. Kim Wallant eventually purchased an individual policy from Aetna, effective August 1, 2010, that covered her, her husband, and her daughter. See Kim Wallant Deposition pages 17-18, 26-27, 46. The Wallant’s group coverage did not terminate until August 1, 2010, the same day her new Aetna policy went into effect. See Kim Wallant Deposition pages 47-48. She had no gap in coverage, and no health care claims were denied. See Kim Wallant Deposition pages 24, 48, 68.
CONCLUSIONS OF LAW
A) BCBSF did not violate Section 627.6487.
26. Section 627.6487, Florida Statutes, provides that a health insurer that offers individual health insurance in Florida may not, with respect to an “eligible individual” who desires to enroll in individual health insurance coverage, decline to offer coverage to, or deny enrollment of, such individual, and may not impose any preexisting condition exclusion with respect to such coverage. See Florida Statute § 627.6487(1).
27. Because the Court concludes based on the undisputed facts that none of the Plaintiffs qualified as “eligible individuals” under Section 627.6487, Florida Statutes, for reasons that will be explained in detail below, BCBSF did not violate that statute and is entitled to summary judgment in its favor.
28. Under Section 627.6487 each health insurer must make available to every “eligible individual” the two most popular policies offered by the insurer in Florida, and may not decline coverage or impose any preexisting condition exclusion upon such eligible individuals. See Florida Statute § 627.6487(1) & (4).
29. Plaintiffs allege that they each were an “eligible individual” within the meaning of Section 627.6487, and that BCBSF failed to comply with Section 627.6487 by declining coverage of Deborah Shooter and Kim Wallant, and by excluding coverage of specified body parts of Donna Arduini through exclusionary riders. Plaintiffs contend that BCBSF was required to make available to each of them a “guaranteed issue” contract of insurance, premised upon the Plaintiffs’ contention that they each fall within the definition of “eligible individual.”
30. Plaintiffs’ breach of contract claim in Count I of the Amended Complaint is based on the contention that Section 627.6487 is incorporated into the Plaintiffs’ individual insurance policies, and that BCBSF breached those policies by violating Section 627.6487.
31. Plaintiffs’ declaratory judgment claim in Count II of the Amended Complaint seeks an order establishing Plaintiffs’ alleged rights as an “eligible individual” to have been offered a guaranteed issue policy of health insurance under Section 627.6487.
32. BCBSF argues, among other things, as a basis for entry of Final Summary Judgment in their favor, that Donna Arduini, Deborah Shooter, and Kim Wallant do not come within the definition of “eligible individual” under Section 627.6487
i) The evidence shows that none of the Plaintiffs qualified as an “eligible individual” under Section 627.6487(3).
33. An “eligible individual” is specifically defined in Section 627.6487(3) as follows:
(3) For the purposes of this section, the term “eligible individual” means an individual:
(a) 1. For whom, as of the date on which the individual seeks coverage under this section, the aggregate of the periods of creditable coverage, as defined in s. 627.6561 (5) and (6), is 18 or more months; and
2. a. Whose most recent prior creditable coverage was under a group health plan, governmental plan, or church plan, or health insurance coverage offered in connection with any such plan; or
b. Whose most recent prior creditable coverage was under an individual plan issued in this state by a health insurer or health maintenance organization, which coverage is terminated due to the insurer or health maintenance organization becoming insolvent or discontinuing the offering of all individual coverage in the State of Florida, or due to the insured no longer living in the service area in the State of Florida of the insurer or health maintenance organization that provides coverage through a network plan in the State of Florida;
(b) Who is not eligible for coverage under:
1. A group health plan, as defined in s. 2791 of the Public Health Service Act;
2. A conversion policy or contract issued by an authorized insurer or health maintenance organization under s. 627.6675 or s. 641.3921, respectively, offered to an individual who is no longer eligible for coverage under either an insured or self-insured employer plan;
3. Part A or part B of Title XVIII of the Social Security Act; or
4. A state plan under Title XIX of such act, or any successor program, and does not have other health insurance coverage;
(c) With respect to whom the most recent coverage within the coverage period described in paragraph (a) was not terminated based on a factor described in s. 627.6571 (2)(a) or (b), relating to nonpayment of premiums or fraud, unless such nonpayment of premiums or fraud was due to acts of an employer or person other than the individual;
(d) Who, having been offered the option of continuation coverage under a COBRA continuation provision or under s. 627.6692, elected such coverage; and
(e) Who, if the individual elected such continuation provision, has exhausted such continuation coverage under such provision or program.
Florida Statute § 627.6487(3) (emphasis supplied).
a) Plaintiffs Donna Arduini and Kim Wallant
34. The summary judgment evidence before the Court establishes that Plaintiffs, Donna Arduini and Kim Wallant, were each enrolled in their respective group health plans at the time they applied for an individual policy from BCBSF. They were each, therefore, eligible for coverage under a group health plan. Since Section 627.6487(3)(b)1 specifically provides that in order to be an “eligible individual” a person has to be ineligible for group coverage, then neither Donna Arduini nor Kim Wallant meet the definition of “eligible individual” for purposes of Florida Statute § 627.6487. Therefore, Florida Statute § 627.6487 is not applicable to Donna Arduini or Kim Wallant and imposed no duty on BCBSF to have offered them a guaranteed issue policy as alleged by the Plaintiffs.
b) Plaintiff Deborah Shooter
35. The summary judgment evidence before the Court establishes that at the time Deborah Shooter applied for an individual policy, she had not yet elected and exhausted her COBRA continuation coverage, and, therefore, Deborah Shooter could not be an “eligible individual” under Section 627.6487(3)(d) and (e). At the time Deborah Shooter applied for an individual policy from BCBSF, she had been offered the option of continuation coverage under a COBRA continuation provision. In fact, within a day of applying for and purchasing a 30-day temporary policy issued by BCBSF, Deborah Shooter cancelled that BCBSF policy, received a refund of the initial premium which had been paid, and she elected that continuation coverage under COBRA.
36. BCBSF argues that, because Deborah Shooter had been offered the option of continuation coverage under COBRA, she could not qualify under § 627.6487(3)(d) and (e) as an “eligible individual” until she first elected and exhausted her COBRA continuation coverage, which she did not do.
In response, Plaintiffs argue that Section 627.6487 does not require a person to elect and exhaust COBRA continuation coverage in order to become an “eligible individual.” Plaintiffs argue in part that because Section 627.6487(3)(d) and (e) uses the word “elected”, a person may elect to not purchase continuation coverage and thereby immediately qualify as an “eligible individual” under the statute.
37. Although each party asserts that the plain language of Section 627.6487(3)(d) and (e) supports its interpretation of this portion of the statute, the Court does not consider the statute to be ambiguous. The plain language of the statute, properly read and interpreted, establishes that a person who has been offered the option of continuation coverage under COBRA must elect continuation coverage under COBRA, and then exhaust that continuation coverage, before being considered an “eligible individual” under the statute.
38. Florida Statute § 627.6487(3)(d) and (e) provides that for the purposes of this section, the term “eligible individual” means an individual: “(d) [w]ho, having been offered the option of continuation coverage under a COBRA continuation provision or under Section 627.6692, elected such coverage; and (e) [w]ho, if the individual elected such continuation provision, has exhausted such continuation coverage under such provision or program.” (emphasis added). The Court finds that (3)(d) and (e) are joined by the word “and”, and must be read in conjunction to affect the plain meaning of this portion of the statute. The Court finds that the plain meaning of this portion of the statute is that if a person is offered continuation coverage under COBRA (or Florida’s mini-COBRA, section 627.6692), then that person must elect that continuation coverage under COBRA and exhaust that coverage before coming within the definition of an “eligible individual” in Section 627.6487. A person can certainly decline the offer of such continuation coverage under COBRA. However, if that person does decline such coverage, then that person has not elected such coverage, and obviously cannot exhaust such coverage. The Court finds in that circumstance, when a person does not elect offered continuation coverage under COBRA or under section 627.6692, that person cannot be an “eligible individual” as defined by Section 627.6487.
39. Plaintiffs contend that the exhaustion requirement only applies if an individual elects continuation coverage prior to making an application for an individual policy. The Court does not agree with the Plaintiffs’ interpretation of Section 627.6487(3)(d) and (e) that an individual may choose not to elect COBRA, and still qualify as an “eligible individual”. The Court finds that (d) and (e) are joined by the conjunction “and”, which with a plain reading of that section requires the individual to elect such continuation coverage and exhaust that continuation coverage to qualify as an “eligible individual” entitled to come within the requirements of Florida Statute § 627.6487, which is at issue in this lawsuit. Section 627.6487(3) excludes from the definition of an “eligible individual” a person who does not elect COBRA continuation coverage, if available.
All individuals, like the Plaintiffs, have a choice in what insurance coverage they elect to purchase. All persons, including the Plaintiffs, are not necessarily eligible to purchase all insurance coverage offered. Individuals, including the Plaintiffs, are not required to purchase continuation coverage under COBRA. However, as with any insurance coverage, there may be various requirements to be met by individuals to qualify for that particular insurance coverage. The Court finds that for the Plaintiffs in this case to come within the requirements of Section 627.6487(3) to be eligible to purchase the BCBSF coverage at issue herein, one of the statutory requirements was for the Plaintiff to have elected an offered option of continuation coverage and to have exhausted that coverage. Otherwise, if an individual, including the Plaintiffs, is offered the option of continuation coverage and elects not to purchase that coverage or exhaust that coverage, then that individual is not eligible for the BCBSF statutory Coverage under Section 627.6487 at issue herein. Although the verb “elect” connotes a choice, the plain language of Section 627.6487(3)(d) unambiguously reserves the status of an “eligible individual” only to those who choose to elect their continuation coverage option.
40. The Plaintiffs suggest in their Response to the Defendant’s Motion for Summary Judgment that if the Legislature truly meant the Statute to require what the Defendants argue the Statute requires, then the Legislature could have more clearly stated so. While the Legislature could have used different language in passing Florida Statute Section 627.6487, the Court finds that the portions of the statute at issue and being discussed herein are clear and unambiguous as worded.
41. Plaintiffs’ argument that Deborah Shooter was “forced to elect COBRA” only after, and because, BCBSF allegedly did not offer her a guaranteed issue policy, is not relevant to whether Ms. Shooter meets the definition of “eligible individual” under Section 627.6487(3). The availability of COBRA continuation coverage to Ms. Shooter removes her from the scope of the statute at issue, and her alleged reasons for electing COBRA continuation coverage are immaterial to the statute requirements for determining who qualifies as an “eligible individual.”
42. Even though a court generally has no need to consider an examination of the legislative history of a statute when the plain language of that statute is clear, and the Court does not rely on the legislative history of Florida Statutes § 627.6487 in deciding the issues presented herein, a review of the legislative history of Florida Statute § 627.6487(3)(d) and (e) submitted to the Court supports the Court’s interpretation of the plain meaning of Section 627.6487(3)(d) and (e) as explained above.
43. The Court finds that Plaintiffs’ argument that the Court’s interpretation of the Section 627.6487(3)(d) and (e) is inconsistent with the Federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Pub. L. 104-191 (1996), is not persuasive. First, Plaintiffs’ two causes of action in this lawsuit are not based on HIPAA, these causes of action are based exclusively on Section 627.6487, Florida Statutes.
Second, Section 627.6487 was adopted by the Florida legislature in 1997 to conform state law to HIPAA, which included an alternative mechanism to HIPAA’s guaranteed availability provisions that was deemed to be acceptable by the Federal Health Care Finance Administration. To the extent HIPAA informs the meaning of Section 627.6487, it supports the conclusion that an “eligible individual” is someone who has elected and exhausted COBRA or similar continuation coverage. See HIPAA, Pub. L. 104-191, § 2741(b)(4)-(5), 110 Stat. 1936, 1979 (1996), codified at 42 U.S.C. §§ 300gg-41(b)(4)-(5) (“In this part, the term ‘eligible individual’ means an individual . . . (4) . . . who elected such [continuation] coverage; and (5) who . . . has exhausted such continuation coverage . . . .”).
ii) Plaintiffs have not presented sufficient evidence to create a disputed issue of material fact regarding whether they are “eligible individuals.”
44. The summary judgment evidence before the Court which demonstrates that the Plaintiffs do not meet the definition of eligible individual is not in dispute. There is insufficient summary judgment evidence to support the Plaintiffs’ assertions, nor have Plaintiffs specifically opposed facts relied upon by BCBSF, to create a genuine issue of disputed material fact that would prevent entry of Final Summary Judgment in favor of the Defendant, BCBSF.
The evidence Plaintiffs supplied on the issue of eligibility relates to their prior creditable coverage, and the Defendant does not dispute that each Plaintiff had prior creditable coverage sufficient to meet the requirements of Florida Statute § 627.6487(3)(a)1, 2, a and b. However, prior creditable coverage alone is not sufficient to qualify someone as an “eligible individual” under Section 627.6487. Prior creditable coverage alone is only one of several requirements that must be satisfied before someone meets the definition of an “eligible individual.” See Florida Statute § 627.6487(3). Moreover, BCBSF has not moved for summary judgment on the basis that the Plaintiffs lack sufficient prior creditable coverage. At the hearing, counsel for BCBSF stated that there is no dispute that each of the Plaintiffs had sufficient prior creditable coverage.
B) Issues related to a private right of action to enforce the provisions of Section 627.6487.
45. The Court has found herein that the Plaintiffs in this lawsuit do not have a private right of action to enforce the provisions of Section 627.6487, because the Plaintiffs do not qualify as “eligible individuals” under that Statute. Therefore, the Court does not address or decide in this Order the purely legal issue of whether an eligible individual would have a private cause of action to enforce the provisions of Section 627.6487.
C) BCBSF did not violate the law by denying or excluding coverage based on Plaintiffs’ pre-existing conditions.
46. Although the Court is granting summary judgment in favor of the Defendant, BCBSF, because the Court finds that the Plaintiffs are not “eligible individuals” as defined in Florida Statute § 627.6487 and explained in more detail above, the Court now briefly addresses the Plaintiffs’ position that BCBSF violated the law by denying or excluding coverage to Donna Arduini for Ms. Arduinis’ pre-existing medical conditions. Plaintiffs allege that the permanent exclusionary riders to Donna Arduini’s policy were “illegally imposed.” Specifically, Plaintiffs contend that the exclusionary riders to Donna Arduini’s policy violate Section 627.6045, Florida Statutes, which limits the period of time in which a pre-existing condition provision may exclude coverage for pre-existing conditions, up to a maximum of 24 months. See Florida Statute § 627.6045(1).
BCBSF argues that pre-existing condition provisions are clauses in insurance policies that temporarily exclude coverage of all pre-existing conditions in general, without specifying which conditions are excluded from coverage, and by their terms they expire after a specified length of time. BCBSF argues on the other hand, exclusionary riders delineate specific conditions or parts of the body which are not covered under the policy. The exclusionary riders to Donna Arduini’s policy are specific to her “colon” and to any “cyst, tumor, or new growth of the ileum or colon.” Whereas Section 627.6045, Florida Statutes, limits a general pre-existing condition provision to a certain time period, Plaintiffs have not identified any applicable restriction under Florida law on the use of permanent exclusionary riders. The only restriction cited by Plaintiffs derives from Section 627.6487 which, as discussed above, is not applicable to Donna Arduini here.
47. The Court finds that the exclusionary riders to Donna Arduini’s policy were enforceable provisions of her health insurance policy under Florida law at all times relevant to this action.
D) Plaintiffs have not provided evidence to support the elements of a breach of contract.
48. “An adequately pled breach of contract action requires three elements: (1) a valid contract; (2) a material breach; and (3) damages.” Friedman v. New York Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1615a].
i) Requirement of a valid contract
49. Based on the summary judgment evidence, only one Plaintiff, Donna Arduini, actually had an individual contract with BCBSF. Kim Wallant was never issued a policy from BCBSF, so there was never a valid contract between Ms. Wallant and BCBSF. Deborah Shooter revoked her BCBSF individual policy within hours of applying for it, at which time Ms. Shooter received a full refund of her initial premium.
50. Accordingly, Kim Wallant and Deborah Shooter fail to demonstrate the first element of their Count I Breach of Contract claim — a valid contract with BCBSF. Plaintiffs’ contention that BCBSF should have entered into new or different contracts with Kim Wallant and Deborah Shooter — contracts that would not take into consideration their preexisting conditions — is not sufficient to establish a valid contract, and not sufficient to support a breach of contract claim.
ii) Requirement of a material breach
51. To the extent Deborah Shooter’s breach of contract claim is based on her temporary 30-day policy which was in existence for a few hours, Ms. Shooter has not presented any evidence to demonstrate that BCBSF violated the terms of that individual policy during its term. Furthermore, Deborah Shooter testified that all of her medical claims have been covered under her COBRA plan. At no time did BCBSF deny any of Ms. Shooter’s medical claims due to her pre-existing conditions, as alleged.
52. Kim Wallant similarly testified that she had no gap in coverage and that none of her health insurance claims were denied.
53. Donna Arduini cannot demonstrate that BCBSF breached her individual policy, nor has she alleged any breach that is independent from Section 627.6487, Florida Statutes. Donna Arduini was aware at the time she applied for coverage with BCBSF that an individual policy for her with BCBSF might not cover her pre-existing medical conditions. She then accepted the BCBSF individual policy, including the exclusionary riders. The fact that BCBSF followed the terms of the exclusionary riders and denied payment of certain claims that were excluded from coverage by those riders does not demonstrate a material breach of her insurance contract.
iii) Requirement of damages
54. Finally, it appears that at least as to Deborah Shooter and Kim Wallant there are no damages in any event, as neither of them ever had any health care claim denied.
E) Plaintiffs have no basis for a declaratory judgment action.
55. The Court has found within this Order that the Plaintiffs in this lawsuit do not have standing to pursue their claims against BCBSF for alleged violation of Florida Statute § 627.6487, because Plaintiffs do not come within the definition of “eligible individual” under Section 627.6487. Therefore, the Court finds that declaratory relief is inappropriate in this action because Plaintiffs fail to demonstrate an actual, present need for the declaration. The Court does not address or decide in this Order the purely legal issue of whether an eligible individual would have a right to seek a declaratory judgment related to the provisions of Section 627.6487 under different factual circumstances.
Therefore, based upon the above, it is thereupon
ORDERED AND ADJUDGED that:
1. Defendant, Blue Cross Blue Shield of Florida’s Motion for Summary Judgment is GRANTED.
2. This Order is entered as the Final Summary Judgment in favor of Defendant, Blue Cross Blue Shield of Florida, Inc., and against the Plaintiffs, Donna Arduini , Deborah Shooter, and Kim Wallant, and it is adjudged that Plaintiffs, Donna Arduini, Deborah Shooter, and Kim Wallant, take nothing by this action and that Defendant, Blue Cross Blue Shield of Florida, Inc., shall go hence without day.
3. The Court reserves jurisdiction to consider any parties claim for attorneys’ fees or costs upon proper application.
