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Daley v. Bono

United States District Court, M.D. Florida, Tampa Division

October 28, 2019

LAUREN DALEY, Plaintiff,
v.
DR. FRANK S. BONO, D.O., ROBERT J. SHUTTERA, GULF COAST SPINE INSTITUTE, BIOSPINE INSTITUTE, LLC, and AVION ANESTHESIA, LLC, Defendants.

          ORDER

          JAMES D. WHITTEMORE, United States District Judge.

         BEFORE THE COURT are Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint with Prejudice (Dkt. 47), Plaintiff Lauren Daley's response (Dkt. 51), and motions for summary judgment from Defendant Robert Shuttera (Dkt. 48) and Defendants Gulf Coast Spine Institute, BioSpine Institute, LLC, and Avion Anesthesia, LLC (collectively, the “Medical Defendants”) (Dkt. 49), and Plaintiff's responses (Dkts. 54, 55). Upon consideration, Defendants' motions for summary judgment are GRANTED. The motion to dismiss is DENIED as moot.

         I. BACKGROUND AND UNDISPUTED FACTS

         This lawsuit alleging violations of the Florida Consumer Collection Practices Act (“FCCPA”) and the Fair Debt Collection Practices Act (“FDCPA”) arises from efforts by medical providers to guarantee and collect payment for medical services provided to a patient injured in two automobile accidents who was referred to them for treatment by her personal injury attorney. Before being treated, the patient signed an industry standard letter of protection (“LOP”) guaranteeing payment from the proceeds of any settlement of her personal injury claims or verdict award, to cover medical costs not covered by insurance. She also signed assignments of benefits in favor of the medical providers.

         In her Second Amended Complaint, Daley alleges the medical providers and their attorney violated the FCCPA and FDCPA by conditioning medical services on a guarantee of payment, unsuccessfully billing her insurers, sending balance statements, and enforcing the LOP through their attorney after her personal injury claims were settled. She contends that those actions constituted debt collection activity and that the medical providers and their attorney conspired to violate the state and federal consumer protection statutes.

         The material facts are largely undisputed. In August 2014, Daley suffered slipped discs in her neck and a dislocated jaw as a result of two automobile accidents. (Dkt. 50-1 at 6, 16). She initially saw a chiropractor for her neck injury and a dentist for her jaw injury. (Id. at 6). Her personal injury lawyer, Michael Meksraitis, referred her to Dr. Bono for continuing neck pain. (Id. at 6-7). On May 27, 2015, during her third visit with Dr. Bono, he performed surgery to cauterize the nerves in her neck. (Id. at 7; Dkt. 50-3 at 4).

         Dr. Bono's medical services were billed through Gulf Coast Spinal Institute. (Dkt. 50-3 at 4). BioSpine Institute, LLC provided the surgical center for the surgery. (Id.). Avion Anesthesia provided anesthesia during the surgery. (Id.). Daley is not aware of any medical treatments or procedures that were medically unnecessary. (Dkt. 50-1 at 11).

         At the time of the accident, Daley had health insurance with Tricare and automobile insurance with State Farm. (Id. at 6, 16). Dr. Bono's charges were covered by her insurance. (Dkt. 50-3 at 4). At the time of surgery, BioSpine was not approved to bill Tricare. (Id.; Dkt. 55-1 at 18, 20). Daley knew BioSpine could not bill Tricare, but still went ahead with the surgery. (Dkt. 50-3 at 4).[1] BioSpine's attempts to obtain payment from Tricare after it was approved to bill were unsuccessful. (Id.). Avion submitted its bill to State Farm, but the State Farm coverage had been exhausted. (Id.; Dkt. 50-2 at 3).[2] Avion also billed Tricare, but payment was declined since Avion was not approved to bill Tricare at the time of surgery. (Dkt. 50-3 at 4).

         During her first visit with Dr. Bono, Daley signed an LOP. LOPs guarantee payment for medical treatment from a future lawsuit settlement or verdict award where insurance does not cover all the costs. (Dkt. 50-3 at 3). The letter Daley signed provided,

I authorize my attorney to withhold such sums from any insurance settlement, judgment, verdict, or other source as may be necessary to adequately protect provider on all funds owing to me from my case by way of insurance payments, judgment, verdict, or other such source which may be paid to my attorney or myself.
Provider agrees to make every effort to collect benefits from any and all available and/or applicable coverage. . . .
It is understood that if the attorney of record no longer represents me for my claim, makes no recovery on my claim, or fails to adhere to any and all terms agreed to in this [LOP], the entire balance for services rendered to me will be immediately regarded as my responsibility.

(Dkt. 50-1 at 44). That letter was faxed to Meksraitis for his signature, but he did not sign it. (Dkt. 55-1 at 1-5).

         Daley also signed a Gulf Coast/BioSpine Financial Policy and Acknowledgment of Notice of Privacy Practices in which she acknowledged “delinquent accounts will be turned over to an outside collection agency or attorney if balances remain unpaid.” (Dkt. 50-1 at 17, 50). And she signed a BioSpine assignment of benefits, agreeing to pay the balance of any charges not covered by insurance. (Id. at 18; Dkt. 50-2 at 1).[3]

         In her deposition, Daley acknowledged that none of the Medical Defendants communicated with her regarding any of the medical bills. (Dkt. 50-1 at 21). All medical bills and statements went directly to her attorney, Meksraitis, and Daley did not have “any involvement in the back and forth” between Meksraitis and the Medical Defendants. (Id.).

         Gulf Coast sent eight statements.[4] (Dkt. 50-3 at 18-24; Dkt. 50-4 at 1-3; Dkt. 55-1 at 34-35, 39, 45). The final two statements reflect that Daley does not have a balance because her insurance paid the amount. (Dkt. 50-4 at 2-3). One statement listing Meksraitis as the addressee requested payment of $13.85. (Dkt. 55-1 at 35). Avion sent five statements, (Dkt. 50-4 at 5-7; Dkt. 55-1 at 36, 44), and BioSpine sent six (Dkt. 50-4 at 9-12; Dkt. 55-1 at 37, 46). Although the statements include a balance, each Avion and BioSpine statement reflects that Daley does not have a patient balance and that $0.00 is due.

         To assist in collecting Daley's unpaid balance, the Medical Defendants retained CSC Medical Services, LLC (“CSC”). (Dkt. 50-5 at 3). CSC is operated by Shuttera, an attorney and member of the Florida Bar who “practice[s] debt collection services” through CSC.[5] (Id. at 2). Shuttera sent four letters to Meksraitis informing him that Shuttera would represent and handle billing issues and negotiations for the Medical Defendants.[6] (Id. at 6-12). The letters also included the following language:

PLEASE DO NOT DISBURSE FUNDS IN SETTLEMENT OF THIS CASE WITHOUT OUR WRITTEN AGREEMENT. We are SERVICING THIS PAPER ONLY. Ownership of these bills remains fully with the MEDICAL PROVIDERS.

(Id.). Shuttera never had any contact with Daley. (Id. at 3; Dkt. 50-1 at 8). And she did not see the letters he sent to Meksraitis. (Dkt. 50-1 at 21). Meksraitis has not disbursed Daley's settlement proceeds because of Shuttera's letters. (Dkt. 55-2 at 4). In June 2018, she filed this action. (Dkt. 1).

         Pending Claims

         In her Second Amended Complaint, Daley alleges conspiracy to violate the FCCPA against all Defendants (Count I), violations of the FCCPA by Dr. Bono (Count II), Gulf Coast Spine Institute (Count III), BioSpine Institute (Count IV), Avion Anesthesia (Count V), and Shuttera (Count VI)[7], and a violation of the FDCPA by Shuttera (Count VII). (Dkt. 46). Defendants have moved to dismiss the complaint and for summary judgment. Because there is no genuine issue of material fact and Defendants are entitled to judgment as a matter of law, summary judgment is appropriate. The motion to dismiss is due to be denied as moot.[8]

         II. STANDARD

         Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A genuine factual dispute exists only if a reasonable fact-finder ‘could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.'” Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). A fact is material if it may affect the outcome of the suit under the governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

         The moving party bears the initial burden of showing, by reference to materials on file, that there are no genuine disputes of material fact. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the movant adequately supports its motion, the burden shifts to the nonmoving party to show specific facts that raise a genuine issue for trial. Dietz v. Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010). The evidence presented must be viewed in the light most favorable to the nonmoving party. Ross v. Jefferson Cty. Dep't of Health, 701 F.3d 655, 658 (11th Cir. 2012). “Although all justifiable inferences are to be drawn in favor of the nonmoving party, ” Baldwin Cty. v. Purcell Corp., 971 F.2d 1558, 1563-64 (11th Cir. 1992), “inferences based upon speculation are not reasonable, ” Marshall v. City of Cape Coral, 797 F.2d 1555, 1559 (11th Cir. 1986).

         III. DISCUSSION

         In summary, Daley presents no evidence of an agreement between the Defendants to violate the FCCPA, any direct communication by any of the Defendants with her relating to debt collection, no harassing or abusive conduct by any Defendant, or any false or misleading representations by Defendants. Accordingly, she cannot demonstrate a genuine issue of material fact and summary judgment in favor of the Defendants is appropriate on her FCCPA and FDCPA claims.

         FCCPA Claims

         In conclusory fashion, Daley alleges that Defendants “in connection with the delivery of, and payment for health care benefits . . . did knowingly and willfully . . . agree with each other . . . to commit certain violations of the FCCPA.” (Dkt. 46 ¶ 16). She alleges the “acts engaged in were through the use of false pretenses, and the making of false representations, and promises, to Ms. Daley in order to obtain proceeds from her lawsuits for personal injuries for which she was being treated in excess of the reasonable value of their services.” (Id. ¶ 18). Essentially, she alleges the Medical Defendants overcharged her for services and, when the insurers did not pay, sought payment from her personal injury settlement proceeds using practices that violate the FCCPA. (Id. ¶¶ 20-22).

         In her other counts, she alleges Defendants violated the following provisions of section 559.72 of the FCCPA:

In collecting consumer debts, no person shall:
. . .
(7) Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family.

(Dkt. 46 ¶¶ 48, 50, 54, 55, 75, 82, 91, 98, 106, 113, 139, 146, 153, 155, 170).

(9) Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist.

(Id. ¶¶ 49, 51, 53, 56, 154).

(18) Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the debtor's attorney fails to respond within 30 days to a communication from the person, unless the debtor's attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication.

(Id. ¶¶ 34, 46, 47, 52, 57, 74, 81, 90, 97, 106, 112, 124, 130, 138, 145, 147, 151, 152).

         Notwithstanding her conclusory allegation of an agreement between the Defendants, the FCCPA does not recognize a conspiracy cause of action. And in the absence of an agreement to violate the FCCPA or an underlying FCCPA violation, Daley cannot prove a Florida civil conspiracy claim. As noted, there is no evidence that Defendants communicated directly with Daley about debt collection, engaged in abusive or harassing conduct, or attempted to collect an illegitimate debt. Accordingly, Daley has not established a genuine issue of material fact and Defendants are entitled to judgment as a matter of law on her FCCPA claims.

         1. Conspiracy to ...


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