JAMES D. WHITTEMORE, United States District Judge.
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.
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).
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,
(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).
Gulf Coast sent eight statements.
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.
(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).
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)
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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).
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.
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:
(Dkt. 46 ¶¶ 48, 50, 54, 55, 75, 82, 91, 98, 106, 113, 139, 146, 153, 155, 170).
(Id. ¶¶ 49, 51, 53, 56, 154).
(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.
It is unclear from the face of Daley's Second Amended Complaint whether she brings Count I under the FCCPA or as a Florida civil conspiracy claim. (Dkt. 46 at 2). In any event, the claim fails because the FCCPA does not provide a private right of action for a conspiracy claim, and Daley cannot prove the elements of Florida civil conspiracy.
Daley cites no authority or to any provision in the FCCPA that recognizes a private right of action for an FCCPA conspiracy claim. As the Florida Supreme Court explains, "courts cannot provide a remedy when the Legislature has failed to do so," and the most important factor to determine whether the legislature intended to create a private right of action is the "actual language used in the statute." QBE Ins. Corp. v. Chalfonte Condo. Apartment Ass'n, Inc., 94 So.3d 541, 553, 551 (Fla. 2012) (citations omitted). Defendants correctly point out that the FCCPA creates a cause of action against "a person violating the provisions of section 559.72," suggesting that only individual violators are liable. (Dkt. 49 at 11-12).
In support of her argument that the FCCPA provides a private right of action for conspiracy, Daley relies on Combs v. NCO Fin. Sys., Inc., No. CIV.A. 10-5673, 2011 WL 1288686 (E.D. Pa. Apr. 5, 2011). (Dkt. 54 at 8). But that case involved civil conspiracy under Pennsylvania law, not Florida law. 2011 WL 1288686, at *3. And the record evidence is distinguishable from Combs. That plaintiff alleged, among other things, that a creditor directed her to call a telephone number that played an automated message identifying the creditor but connecting her to a debt collector. Combs, 2011 WL 1288686, at *4. In denying a motion to dismiss, the court found that allegation "in particular is suggestive of concerted action." Id.
Even if, as Daley alleges, the Medical Defendants "have interlocking ownership and act in concert in their medical practices and collection procedures" (Dkt. 46 ¶ 35), there is no evidence of concerted action among them to violate the FCCPA. Finally, it follows that Defendants' retention of Shuttera to collect on their behalf does not support a civil conspiracy claim. Summary judgment on this claim is therefore due to be granted.
Summary judgment is likewise appropriate on Daley's claims that Defendants communicated with her rather than her attorney in violation of section 559.72(18). A plaintiff bringing a claim under section 559.72(18) must prove that: (1) a debt collector communicated with a consumer; (2) in connection with the collection of a debt; (3) where the debt collector had actual knowledge that the consumer is represented by an attorney with respect to such debt; and (4) the debt collector had knowledge, or could readily ascertain, the attorney's name or address. see Castellanos v. Portfolio Recovery Assocs., LLC, 297 F.Supp.3d 1301, 1310 (S.D. Fla. 2017) (citations omitted). Even if Defendants' communications were in relation to the collection of a debt, there is no evidence that Defendants communicated directly with Daley.
Not all communications with a debtor violate the FCCPA and FDCPA.
"[T]he Eleventh Circuit has not established a bright-line rule" as to what qualifies as "in connection with the collection of any debt." Dyer v. Select Portfolio Servicing, Inc., 108 F.Supp.3d 1278, 1280 (M.D. Fla. 2015). "As a general principle, the absence of a demand for payment is not dispositive," and courts should "instead consider whether the overall communication
Daley contends that the balance statements, LOP, assignment of benefits, financial policy notice, and Shuttera's letters to her attorney were in relation to the collection of a debt. Shuttera's letters do seem to relate to debt collection. Although it is a closer call, the Medical Defendants' statements do not. And because the LOP, assignment of benefits, and financial policy notice preceded any debt or collection activity, they cannot relate to the collection of a debt.
Shuttera's letters inform Meksraitis that Shuttera is acting on behalf of Dr. Bono and "handling the accounts receivable of Gulf Coast Spine Institute, BioSpine Institute and Anesthesia Services regarding medical services provided to your client, Lauren Daley." (Dkt. 50-5 at 6-12). Shuttera also notes he will "handle all legal issues pertaining to these accounts as well as any negotiations regarding any proposed settlement of the account." (Id.). The bottom of the letter states: "This is an attempt to collect a debt. Any information will be used for that purpose. If you dispute the validity of this debt you have 30 days to notify us of such." (Id. at 12). Although the letters do not explicitly demand payment, they do relate to debt collection. see Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1302 (11th Cir. 2014) (finding debt activity where communication stated it is "for the purpose of collecting a debt" and refers to "collection efforts"); Lear v. Select Portfolio Servicing, Inc., 309 F.Supp.3d 1237, 1240 (S.D. Fla. 2018) ("this is an attempt to collect a debt").
As for the statements sent by Gulf Coast, BioSpine, and Avion, Daley observes that they include balance information, detachable payment coupons, and the language, "PAYMENT DUE UPON RECEIPT *THANK YOU.*" Defendants respond that some statements reflect a $0.00 patient balance and the others do not demand payment.
Next, in a novel contention, Daley contends that the LOP, assignment of benefits, and financial policy notice constitute debt collection activity. Not unsurprisingly, however, she provides no authority finding that these industry standard forms are attempts to collect a debt.
Rather than demanding payment for an outstanding balance, the LOP merely assures payment to the Medical Defendants if insurance does not cover medical costs. (Dkt. 50-3 at 7). Indeed, the letter was signed before the surgery and before there was any debt to collect. The same is true for the assignment of benefits, which assigned Daley's rights under her insurance policy to BioSpine and directed the insurer to pay BioSpine. (Id. at 11). The forms also required her to "sign[] over" any check from her insurer to BioSpine. (Id.). And the only relevant provision in the financial policy notified Daley that a delinquent account would be turned over to an outside collection agency and she would be responsible for any collection costs. (Dkt. 50-1 at 50). Like the LOP, these forms do not demand a specific payment and preceded surgery and the existence of any debt. And it appears that these were consensual communications, if not initiated by Daley.
In sum, while Shuttera's letters to Daley's attorney relate to the collection of a debt, the LOP, assignment of benefit, and financial policy do not. Even if the statements for medical services relate to debt collection, summary judgment is appropriate because they were not sent directly to Daley and were not harassing.
Daley acknowledges that no Defendant directly communicated with her regarding any medical bills. (Dkt. 50-1 at 21). As noted, all medical bills and statements were directed to Meksraitis, and she did not have "any involvement in the back and forth" between him and the Defendants. (Id.).
Daley contends that, in contrast to section 559.72(18), communication with the debtor is not required for a claim under section 559.72(7) and that harassing communication through a debtor's lawyer can constitute a violation.
Even if the Medical Defendants' statements constitute debt collection activity, they were not sent with such frequency as can reasonably be expected to harass Daley. Gulf Coast sent statements on April 10, June 18, July 21, and September 14, 2015, March 17 and May 11, 2016, August 22, 2017, and August 3, 2018. (Dkt. 50-3 at 18-24; Dkt. 50-4 at 1-3; Dkt. 55-1 at 34, 39, 45). Avion sent statements on June 18 and September 14, 2015, May 11, 2016, August 22, 2017, and August 3, 2018. (Dkt. 50-4 at 5-7; Dkt. 55-1 at 36, 44). And BioSpine sent statements on July 21 and September 14, 2015, May 11, 2016, August 22 and 30, 2017. (Dkt. 50-4 at 9-12; Dkt. 55-1 at 37, 46). Shuttera's letters, meanwhile, are dated August 1 and November 1, 2016, and January 30 and May 15, 2017. (Dkt. 50-5 at 6-12).
Although some statements from different Medical Defendants were sent in the same month, each waited more than a month, or sometimes a year, before sending a successive statement. BioSpine was the only defendant to send a statement more than once in a month, and those were its first statements in more than a year. Shuttera's correspondence was likewise infrequent.
Most cases analyzing section 559.72(7) involve phone calls, not letters.
Daley also contends that misrepresenting the amount the Medical Defendants were owed and "holding up the disbursement of her personal injury funds indefinitely" constituted abusive or harassing conduct under section 559.72(7). (Dkt. 46 ¶ 48). In sum, this contention fails because she presents no evidence of misrepresentation or overcharging. She understood that medical providers negotiate reduced amounts for medical service with insurance companies, but that she would be responsible for an unpaid balance. (Dkt. 50-1 at 7-8). Nor is enforcing the LOP in the context of treating a personal injury patient and insuring payment from the settlement for treatment not covered by insurance an abusive or harassing activity.
First, it is not clear that this claim is available under section 559.72(7). Indeed, she points to no evidence that the Medical Defendants planned to use the LOP to coerce her to pay an overcharged amount when her insurers would not. And in any event, there is no evidence the Medical Defendants overcharged Daley or misrepresented the amount they were entitled to. Merely "holding up the disbursement of her personal injury funds" is not abusive or harassing in the context of a consensual LOP. That is the very purpose of LOPs, and standard in the industry.
Last, Daley's claim that the Medical Defendants did not fulfill their obligation under the LOP to "make every effort to collect benefits from any and all available and/or applicable coverage" is unavailing. First, the claim sounds in breach of contract, not a violation of the FCCPA or FDCPA. Second, Gulf Coast was paid in full by Daley's insurer. And Defendants have presented undisputed evidence that coverage under the State Farm policy was exhausted and that Avion and BioSpine were not approved to bill Tricare, but Daley nonetheless went ahead with the surgery.
Summary judgment is likewise appropriate on Daley's claim that Defendants violated 559.72(9) of the FCCPA by attempting to collect an illegitimate debt.
Additionally, Daley alleges in her complaint that the Medical Defendants overcharged her for services and performed unnecessary operations. (Dkt. 46 ¶¶ 22, 106). But in her deposition, she admits she is unaware of any unnecessary procedures that were performed. She has no expert to testify that any of the procedures were unnecessary, or that she was overcharged. In her opposition, she presents no proof of overcharging. Indeed, the Medical Defendants' evidence that they did not overcharge is undisputed.
Turning to the FDCPA claims against Shuttera, the statute prohibits debt collectors from "making false or misleading representations and from engaging in abusive and unfair practices in connection with the collection of any debt." Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1297-98 (11th Cir. 2015) (citing §§ 1692d-f). To establish a claim, Daley must show: (1) she was the object of collection activity arising from consumer debt;
Daley alleges that Shuttera violated §§ 1692d-f of the FDCPA. (Dkt. 46 ¶¶ 184-86). As with her FCCPA claims, because she cannot show that Shuttera engaged in harassing conduct, made misrepresentations, or used unfair or unconscionable means to collect a debt, summary judgment
Section 1692d prohibits a debt collector from "engag[ing] in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." This section lists examples of banned conduct, such as the "use of violence," the "use of obscene or profane language," and repeated phone calls intended to annoy or harass "any person at the called number." Miljkovic, 791 F.3d at 1305 (citing § 1692d(1)-(6)). This Circuit has held that "the debt collector's conduct must manifest a tone of intimidation." Id. (internal quotation marks and citations omitted). Claims under § 1692d are "viewed from the perspective of a consumer whose circumstances makes him relatively more susceptible to harassment, oppression, or abuse." Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir. 1985).
Put simply, Shuttera's conduct does not fall within any example in the statute. And for reasons discussed, based on the undisputed facts, an especially susceptible consumer would not find anything harassing, oppressive, or abusive about his correspondence and request to Meksraitis that settlement proceeds not be disbursed pursuant to the LOP. And there is no language in Shuttera's letters that is obscene, profane, or that "manifest[s] a tone of intimidation." Summary judgment is therefore appropriate on this claim.
Section 1692e prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." "Examples of proscribed conduct include implying that the consumer committed any crime, falsely representing the amount of the debt, and threatening to take legal action that is not intended to be taken." Miljkovic, 791 F.3d at 1306 (citing § 1692e(1)-(16)). Daley presents no evidence meeting this prohibition.
In evaluating whether a debt collector's communication violates §§ 1692e-f the FDCPA, this Circuit applies the "least-sophisticated consumer" standard. LeBlanc, 601 F.3d at 1193. As the appellate court explains:
Id. at 1194 (internal quotation marks, modifications, and citations omitted). The same standard applies to communications directed to a consumer's lawyer. Bishop v. Ross Earle & Bonan, P.A., 817 F.3d 1268, 1277 (11th Cir. 2016) (although not foreclosing "competent lawyer" standard, applying "least sophisticated consumer" standard where communications were directed at lawyer).
As with her § 1692d claim, Daley's allegations do not align with most of the statute's examples of proscribed conduct. The closest is § 1692e(2)'s prohibition against false representations of the amount of debt. Again, however, she presents no evidence to refute the Medical Defendants' evidence that they did not perform unnecessary procedures or overcharge her.
Moreover, Shuttera's conduct was not "misleading or deceptive in the traditional sense." Miljkovic, 791 F.3d at 1306. He did not misrepresent the effect of the LOP, incorrectly identify the holder of the debt, or include "false or deliberately ambiguous threats" of future litigation. Id. (citations omitted). Although the letters state that Shuttera "will handle all legal issues pertaining to these accounts," there is no mention of litigation. There is, in short, no evidence of false, deceptive, or misleading representations or means. Summary judgment is therefore appropriate on this claim.
Section 1692f prohibits a debt collector from using an "unfair or unconscionable means to collect or attempt to collect any debt." This Circuit describes § 1692f as a "catch-all prohibition on unfair and unconscionable conduct." Miljkovic, 791 F.3d at 1308. In applying the section, the court in Miljkovic considered the common usage of those terms: "Unfair" is defined as "marked by injustice, partiality, or deception," and "unconscionable" is defined as "shockingly unfair or unjust." Id. The court also noted that the plaintiff "fail[ed] to allege any conduct beyond that which he asserts violates the other provisions of the FDCPA, and, in doing so, [he] fails to specifically identify how [the debt collectors'] conduct ... was either unfair or unconscionable in addition to being abusive, deceptive, or misleading." Id. (emphasis in
As Daley's claims under §§ 1692d-e fail, so too does her claim under § 1692f. She offers no evidence that, under the least-sophisticated consumer standard, Shuttera used unfair or unconscionable means to collect on a debt. Summary judgment on this claim is therefore appropriate.
Based on the undisputed material facts, Defendants' motions for summary judgment are
Q: Did Dr. Bono ever contact you directly in regards to any type of collection activity?
A: No.
Q: What about BioSpine?
A: No.
Q: Gulf Coast Spine?
A: No.
Q: Avion?
A: No.
Q: What about any medical bills? Did you receive any medical bills directly? A: No.
Q: So all those went through Mr. Meksraitis?
A. Yes.
(Dkt. 50-1 at 21). Henderson confirmed the "billing statements for services provided by the Medical Defendants to [Daley] were sent to Michael Meksraitis, Esq.'s office." (Dkt. 50-3 at 3). Accordingly, Daley's unsupported contention in her opposition that there was direct contact is belied by the record and does not create a genuine dispute of material fact. That some of the statements (not the mailing envelopes) list Daley as the addressee does not show that they were sent directly to her.
(Dkt. 55-1 at 23). Indeed, this explanation notes that, under certain circumstances, the procedures or services could be appropriate. In any event, State Farm's explanation, without more, is insufficient to create a genuine dispute of material fact, as Daley presents no evidence that links this or any other explanation to overcharging.
The letters, moreover, note that Shuttera is an attorney "acting on behalf of" Dr. Bono and that "[o]wnership of these bills remains fully with the MEDICAL PROVIDERS." (Dkt. 50-5 at 6-12). And there were prior letters that listed Shuttera as a contact and used a CSC letterhead. (Dkt. 55-1 at 33). Given the circumstances, Shuttera's use of BioSpine's letterhead is not a false, deceptive, or misleading practice. see Mahan v. Retrieval-Masters Credit Bureau, Inc., 777 F.Supp.2d 1293, 1298-99 (S.D. Ala. 2011) (requiring that the name must be false, deceptive, or misleading); see also Sheriff v. Gillie, ___ U.S. ___, 136 S.Ct. 1594, 1601-02, 194 L.Ed.2d 625 (2016) (rejecting § 1692e(14) claim where "the letterhead identifies the principal—Ohio's Attorney General—and the signature block names the agent—a private lawyer hired as outside counsel to the Attorney General").
