6 Fla. L. Weekly Supp. 48b
Insurance — Health — Health maintenance organizations — Provider of medical services seeking payment of unpaid medical bills from defendant who is member of HMO — Section 641.315(3), which provides that no provider of services may maintain an action at law against a subscriber of HMO to collect money owed to such provider by HMO, does not provide a jurisdictional threshold — Because statute is not a jurisdictional requirement, motion to dismiss is denied, without prejudice to asserting statute as affirmative defense
BROWARD MEDICAL SYSTEMS, INC., d/b/a COLUMBIA UNIVERSITY HOSPITAL & MEDICAL CENTER, Plaintiff, vs. KATE LEE, Defendant. County Court, 17th Judicial Circuit, in and for Broward County. Case No. 98-8442 COCE 56. September 11, 1998. Robert W. Lee, Judge.
ORDER DENYING MOTION TO DISMISS
THIS CAUSE came before the Court on September 4, 1998 for hearing of the Defendant’s Motion to Dismiss, and the Court’s having reviewed the Motion and relevant caselaw, heard argument of counsel, and being otherwise advised in the premises, rules as follows:
The Plaintiff has brought this action seeking payment of unpaid medical bills. The Defendant responded by filing a Motion to Dismiss, asserting the Defendant is a member of an HMO, and as a result, Plaintiff cannot bring this action against her.
Florida Statute §641.315(3).(1997) provides in pertinent part:
No provider of services…shall collect or attempt to collect from an HMO subscriber any money for services covered by an HMO and no provider… may maintain any action at law against a subscriber of an HMO to collect money owed to such provider by an HMO (emphasis added).
The question for the Court is whether the statute is a jurisdictional requirement, or whether the statute is to be used as an affirmative defense. If the former is correct, then the Court must set this Motion for an evidentiary hearing. If not jurisdictional, then the Court should deny the Motion with leave to assert the statute as an affirmative defense. No reported Florida case has yet to rule on this statute, much less this precise issue.
Typically, a legal challenge raised in a motion to dismiss is limited to an examination of the four corners of the complaint. An exception exists for jurisdictional issues. The Court does not believe that the statutory language in this case provides a jurisdictional threshold. In support of this holding, the Court has reviewed McNayr v. Cranbrook Investments, Inc., 146 So.2d 400 (Fla. 3d DCA 1962). In McNayr, a statute provided that no lawsuit could be “maintained” to challenge the validity of a tax assessment unless the comptroller was made a party to the suit. Id. at 401. The plaintiff failed to join the comptroller. The defendant moved to dismiss the complaint, and the trial court denied the motion, finding that the statute was not a jurisdictional requirement. The appellate court affirmed. Id. at 402-03. The statutory language in the instant case is similar to that in McNayr.
A later case analyzed another statute in which the word “maintain” was used, Markham v. Hinckley, 544 So.2d 1139 (Fla. 4th DCA 1989). In Markham, the statute specifically provided that an action was subject to dismissal if the plaintiff failed to comply with the statutory requirements. Id. at 1140. The statute further specifically provided that the requirements were jurisdictional. Id. The appellate court found a motion to dismiss to be the proper remedy. These specific jurisdictional phrases, however, do not appear in the statute involved in the instant case. As a result, the Court does not believe Markham to control the instant case. Accordingly, it is hereby
ORDERED AND ADJUDGED that the Motion to Dismiss is denied, without prejudice to the Defendant’s asserting the matter as a defense. Defendant shall have ten days to file an Answer, inclusive of mailing time.
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