United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE, United States District Judge.
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.
BACKGROUND AND UNDISPUTED FACTS
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.
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.
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).
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
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). 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). Avion also billed
Tricare, but payment was declined since Avion was not
approved to bill Tricare at the time of surgery. (Dkt. 50-3
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
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).
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).
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.
Coast sent eight statements. (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.
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
(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. (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
(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).
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), 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.
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).
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).
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.
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).
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).
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.
Conspiracy to ...