final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Thomas M.
Scott Schuler and Brian J. Lee of Schuler & Lee, P.A.,
Jacksonville, for Appellant.
Timothy J. Conner and Jennifer Mansfield of Holland &
Knight, Jacksonville, for Appellee.
appeal, Ms. Hotchkiss challenges the trial court's
dismissal of her claims for breach of contract and violation
of the Florida Deceptive and Unfair Trade Practices Act
(FDUTPA). We find the trial court properly dismissed the
claims and affirm.
first claim, Ms. Hotchkiss alleged that Blue Cross and Blue
Shield of Florida, Inc. (BCBSF) breached a contract between
the parties. Ms. Hotchkiss sought full payment for her
medical procedure even though it was performed by an
out-of-network provider. This breach of contract claim had
already been brought before an administrative law judge (ALJ)
who had denied that a breach of contract occurred. Because
this issue had already been adjudicated on the merits, the
trial court properly dismissed the claim.
second claim, Ms. Hotchkiss alleged that BCBSF violated
FDUTPA by the way it provided a statewide network of
providers in accordance with the contract. One of the ways
BCBSF sought to dismiss this claim was through collateral
estoppel, also known as issue preclusion, and res judicata,
also known as claim preclusion. Ms. Hotchkiss's FDUTPA
claim could not have been dismissed under these doctrines
because the issues that were presented to the ALJ were not
identical to the issues before the trial court. See
Hetrick v. Ideal Image Dev. Corp., 372 Fed.Appx. 985,
991-92 (11th Cir. 2010) (generally the issues are not the
same when the legal standard governing the evaluation of
facts are different). In the case before the ALJ, the ALJ was
asked to decide if the in-network provider list was
sufficient. In the case before the trial court, the trier of
fact was asked to determine if BCBSF engaged in deceptive and
unfair practices in the way it fulfilled its obligation to
provide a comprehensive provider network. This Court has
described an "unfair action under FDUTPA [as] an act
that offends established public policy and one that is
substantially injurious to consumer, unscrupulous,
oppressive, unethical, or immoral" and deception as
"a representation, omission, or practice that is likely
to mislead consumers acting reasonably in the circumstances,
to the consumers' detriment." State v. Beach
Blvd. Auto Inc., 139 So.3d 380, 386-87 (Fla. 1st DCA
2014) (citing PNR, Inc. v. Beacon Prop. Mgmt., Inc.,
842 So.2d 773, 777 (Fla. 2003)). Because a FDUTPA violation
encompasses a broader range of actions, the issues before the
trial court were different from the issues that had been
adjudicated by the ALJ. And because the issues were not
identical, the trial court erred when it dismissed Ms.
Hotchkiss's FDUTPA claim under the doctrines of
collateral estoppel and res judicata.
trial court also dismissed Ms. Hotchkiss's FDUTPA claim
based on its finding that FDUTPA did not apply to BCBSF. The
trial court correctly concluded that the statutory language
contained in FDUTPA precluded Ms. Hotchkiss's FDUTPA
claim. Section 501.212(4)(a), Florida Statutes (2009), states
that FDUTPA does not apply to any person or activity
regulated by the Office of Insurance Regulation (OIR). In
determining whether FDUTPA applies, courts must look to the
alleged activities in the lawsuit and determine if that
activity is subject to regulation by OIR. Beach Blvd.
Auto., Inc., 139 So.3d at 387-88 (citing State Farm
Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr., 427
Fed.Appx. 714, 723 (11th Cir. 2011)). Ms. Hotchkiss alleged
that BCBS violated FDUTPA based on the provider network,
failure to provide in-network coverage for her procedure, and
claiming her procedure was not medically necessary. Since all
the alleged activities are regulated by OIR, FDUTPA does not
apply. See §§ 626.8805, 627.6471, Fla.
Stat. (2009). As a result, the trial court properly dismissed
Ms. Hotchkiss's FDUTPA claims.
C.J, and Roberts ...