Andrews v. Scott et al

Filing 92

ORDER denying 77 Defendant Corizon Health, Inc.'s Motion to Dismiss. Signed by Judge Sheri Polster Chappell on 9/13/2018. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ANITA ANDREWS,
Plaintiff,
v.

Case No: 2:16-cv-814-FtM-99MRM

MIKE SCOTT, DEPUTY BRANDON
MARSHALL, SERGEANT ROBERT
KIZZIRE, DEPUTIES JOHN AND
MARY DOES, JANE AND JOHN
DOES and CORIZON HEALTH,
INC.,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on Defendant Corizon Health, Inc.’s Motion to
Dismiss (Doc. 77) filed on July 10, 2018. Plaintiff Anita Andrews filed a Response in
Opposition (Doc. 88) on August 13, 2018, to which Corizon replied (Doc. 91). For the
following reasons, the Motion is denied.
BACKGROUND
This is a civil rights action stemming from a traffic stop that took place in the early
morning hours of November 7, 2012, resulting in the arrest and detention of Plaintiff in

1

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the Lee County Jail. On November 4, 2016, Plaintiff filed an eighteen-count Complaint
(Doc. 1), and is currently proceeding on a sixteen-count Amended Complaint (Doc. 64),
alleging both common law and 42 U.S.C. § 1983 claims against Defendants. Relevant
here, Plaintiff alleges two Counts against Defendant Corizon Health, Inc. - deliberate
indifference for failure to provide medical care under Section 1983 (Count 14), and breach
of contract for Corizon’s failure to provide necessary medical services to Andrews (Count
16).
The Court previously denied the law enforcement defendants’ Motion to Dismiss
based in part on qualified immunity with leave to amend (Doc. 53), which Defendants
Brandon Marshall and Robert Kizzire appealed.

The case was stayed during the

pendency of the appeal. The Eleventh Circuit affirmed (Doc. 70) and the stay was lifted.
The Court directed Corizon to respond to the Amended Complaint2, and Corizon moves
to dismiss, arguing that Andrews fails to state a claim of constitutional magnitude, and the
breach of contract claim fails because Andrews is not a third-party beneficiary to the
contract. (Doc. 77).
The facts are detailed in this Court’s previous Opinion and Order (Doc. 53), and
the Eleventh’s Circuit’s Opinion (Doc. 70); therefore, the Court will only recite the facts
relevant to the Court’s consideration of the issues raised by Corizon, which mainly relate
to the medical care (or lack thereof) that Plaintiff received while in Defendants’ custody.
A. Arrest and Detention
On the late evening of November 6, 2012 (an election day), until the early morning
of November 7, 2012, Plaintiff was a passenger in a pick-up truck driven by her friend,

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The law enforcement Defendants filed an Answer to the Amended Complaint. (Doc. 66).

2

Keith O’Bryant, undertaking post-election clean up by removing political signs from the
public roadways and intersections. Around 1:00 a.m., Deputy Brandon Marshall with the
Lee County Sheriff’s Office (LCSO) pulled O’Bryant’s truck over for a broken headlight.
After Andrews refused to provide the officer with identification, she was forcefully arrested
for loitering and prowling and taken to the Lee County Jail.
At the time of the arrest, Corizon employees provided medical and mental health
care to inmates in the Lee County Jail. Upon arrival at the police station, Plaintiff’s right
arm was swollen to twice its normal size due to the rough handling by the officers. Plaintiff
was told that she could not leave until she identified herself before being placed in
isolation. Plaintiff was disrobed, left barefoot with inadequate clothing in a freezing cold
room, and without aid for her swollen arm and shoulder. She then advised her jailors she
suffers from “thick blood,” requiring continuing hydration and warm temperatures. Plaintiff
warned officers, and a Corizon nurse, that without salt water and an aspirin, her blood
could coagulate, and she could lose consciousness. She also warned that excessively
cold temperatures in the jail could send her into shock and that she had had no water for
hours. None of her requests for aid were met. Instead, the officers informed her that
receipt of medical assistance was conditioned on her stating her name.

When

Plaintiff met with a nurse, she was refused aid. Plaintiff asserts the grounds for
this denial was premised on her failure to surrender her name.
Andrews was finally taken to a cell, where she went in and out of consciousness
for several hours, hitting her head on the concrete floor. She was then taken to the mental
health unit of the jail and was told she “should not expect any medical attention for at least
three days.” (Doc. 64, ¶ 64). While there, Andrews began suffering terrible headaches,

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but her continued requests for medical attention were to no avail. Although she was
sometimes told that she would receive treatment in a few hours, Andrews came to learn
that such promises were empty.
When Plaintiff was released from the jail on November 8, 2012, she was
involuntarily committed to the Lee County Mental Health Hospital for an additional 72
hours of mandatory observation based on false reports from officers about her mental
state (also known as “Baker Act”). Andrews was released from the hospital on the
evening of November 8, 2012 because contrary to Defendants’ assertions, Plaintiff’s
mental state was fine.
B. Andrews’ Medical Conditions and Damages
Plaintiff states that in the weeks following the arrest and because of the negligent
failures by the Defendants’ to address Andrews’ injuries and medical issues, she
experienced serious health related symptoms of post-traumatic stress, including
nightmares, the inability to drive, refusal to leave her home, and panic attacks. She also
suffered for several weeks from flu-like symptoms with aches, fevers, and chills. And the
refusal to provide Andrews with the appropriate hydration combined with Andrews’ thick
blood condition resulted in bladder and kidney infections. Plaintiff’s medical damages are
severe and permanent and will require costly medical treatment.
Plaintiff states that during her detention at the Lee County Jail, she disclosed to
and placed Corizon’s medical personnel and employees on notice of her serious medical
conditions, including, but not limited to:
a. Her swollen right arm and shoulder,
b. Her blood condition known as “thick blood”, which requires continuous
hydration and warmer temperatures.

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c. She advised that she had had nothing to drink for hours, felt dehydrated,
and warned that: (1) without salted water and an aspirin her blood could
coagulate and she could lose consciousness and (2) the excessively
cold temperatures could send her into shock.
(Doc. 64, ¶ 75). Plaintiff generally alleges that Corizon had a policy of denying necessary
medical and mental health services to detainees, including the provision of prescription
medications.

(Id., ¶¶ 77-78, 80).

Plaintiff states this policy or practice constitutes

deliberate indifference to and/or callous disregard for the known serious medical and
mental health needs of Andrews. (Id., ¶ 77).
LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), "a [c]omplaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged." Id. at 678. The issue in resolving such a motion is not whether
the non-movant will ultimately prevail, but whether the non-movant is entitled to offer
evidence to support his claims. See id. at 678-79.
"Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense." Id. at 679 (citations omitted). Although legal conclusions can
provide the framework for a complaint, factual allegations must support all claims. See
id. Based on these allegations, the court will determine whether the plaintiff's pleadings
plausibly give rise to an entitlement to relief. See id. at 678-79. Legal conclusions

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couched as factual allegations are not sufficient, nor are unwarranted inferences,
unreasonable conclusions, or arguments. See Twombly, 550 U.S. at 555.
Rule 8 of the Federal Rules of Civil Procedure provides parallel pleading
requirements that also must be satisfied. Under this rule, "a pleading must contain a short
and plain statement of the claim showing that the pleader is entitled to relief." Fed. R.
Civ. P. 8(a)(2). "[T]he pleading standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an unadorned, the-defendant-unlawfullyharmed-me-accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Labels, conclusions, and formulaic recitations of the elements of a cause of action are not
sufficient. See id. at 678-79. Mere naked assertions are also inadequate. See id.
DISCUSSION
A. Deliberate Indifference under 42 U.S.C. § 1983 (Count 14)
Corizon alleges that Count 14 should be dismissed for three reasons: (1) the claim
lacks factual support as every mention of Corizon and its policies is by conclusory
statement, (2) Andrews refused to cooperate in the provision of her care, and (3) the claim
improperly includes vicarious liability as a basis, alleging that Corizon’s “agents and
employees” were deliberately indifferent in their treatment of her. (Doc. 77, pp. 9-10).
Title 42 U.S.C. § 1983 imposes liability on anyone who, under color of state law,
deprives a person “of any rights, privileges, or immunities secured by the Constitution and
laws[.]” To state a claim under 42 U.S.C. § 1983, Plaintiff must allege: (1) defendants
deprived her of a right secured under the United States Constitution or federal law, and
(2) such deprivation occurred under color of state law. Arrington v. Cobb C’nty, 139 F.3d
865, 872 (11th Cir. 1998); U.S. Steel, LLC v. Tieco, Inc., 261 F.3d 1275, 1288 (11th Cir.

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2001). The Eighth Amendment3 forbids “cruel and unusual punishments.” U.S. Const.
amend. VIII. The Supreme Court has interpreted the Eighth Amendment to include
“deliberate indifference to serious medical needs of prisoners[.]” Estelle v. Gamble, 429
U.S. 97, 104 (1976). “To prevail on a deliberate indifference to serious medical need
claim, Plaintiffs must show: (1) a serious medical need; (2) the defendants' deliberate
indifference to that need; and (3) causation between that indifference and the plaintiff's
injury.” Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009). A plaintiff can
demonstrate deliberate indifference by establishing the defendant: (1) had a subjective
knowledge of a risk of serious harm, (2) disregarded that risk, and (3) engaged in conduct
that is more than mere negligence. Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir.
2004). For Eighth Amendment purposes, the “medical need of the prisoner need not be
life threatening.” Washington v. Dugger, 860 F.2d 1018, 1021 (11th Cir. 1989). In
addition, each individual defendant must: (3) “be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists,” and (4) “must also draw the
inference.”

Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1234 (11th Cir. 2010)

(citations omitted).

As a pre-trial detainee, Andrews’ rights arise from the due process clause of the Fourteenth
Amendment, but her claims are subject to the same scrutiny as deliberate indifference claims
under the Eighth Amendment. See Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1306 (11th Cir. 2009).
Plaintiff states in her Response that the more appropriate amendment from which her rights derive
might be the Eighth Amendment. (Doc. 88, n.1). However, because Andrews was a pre-trial
detainee, her cruel and unusual punishment claim sounds properly in the Fourteenth Amendment
right to due process of law rather than in the Eighth Amendment. See Lancaster v. Monroe C’nty,
Alabama, 116 F.3d 1419, 1425 n.6 (11th Cir. 1997) (overruled on other grounds by LeFrere v.
Quezada, 588 F.3d 1317, 1318 (11th Cir. 2009)). Either way, allegations of cruel and unusual
punishment are analyzed in identical fashions regardless of whether they arise under the Due
Process Clause or the Cruel and Unusual Punishment Clause of the United States Constitution.
Taylor v. Adams, 221 F.3d 1254, 1257 n.3 (11th Cir. 2000).
3

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Here, Count 14 alleges that while acting under color of law under its contract to
provide medical care to pretrial detainees, Corizon’s agents and employees acted in a
deliberately indifferent manner to Andrews’ serious medical needs, violating 42 U.S.C. §
1983 and her clearly established Fourth and Fourteenth Amendment rights, ignoring her
most basic plea for water and aspirin. Plaintiff states that Corizon’s nurse told Andrews,
“she could have a glass of water and aspirin when she told the nurse her name.” (Doc.
64, ¶ 184). This is so despite Corizon’s nurse already knowing Andrews’ name and was
following up on the abusive manner in which Andrews had been treated by the deputies
and jailors. (Id., n. 4). Plaintiff states that Corizon’s intake nurse was apprised of andrews'
having gone many hours without water, was dehydrated, knew of her serious medical
condition of thick blood and faced a substantial risk of serious harm “as would any
layperson under the circumstances.” (Id., ¶ 185). Because of this, Andrews’s pre-existing
condition of thick blood was exacerbated, and she slipped into a state of shock, passed
out, and hit her head on the concrete floor. (Id., ¶¶ 186, 191). Plaintiff states this failure
to hydrate constitutes an inexcusable delay under normal circumstances and is
particularly egregious considering Andrews’ serious pre-existing medical condition which
Corizon’s nurse knew of.
The Court finds that the Amended Complaint adequately states a claim for
deliberate indifference under the Fourteenth Amendment.

The Amended Complaint

alleges that Plaintiff suffers from a serious medical need for having “thick blood which
required appropriate continuing hydration, and for which she has been on a regimen of
aspirin and salt water every day for decades as advised by her long-term physician.”
(Doc. 64, ¶ 189). A “serious medical need” is one that has been diagnosed by a physician

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as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention, and, in either case, must be one that if
left unattended poses a substantial risk of serious harm. Kelley v. Hicks, 400 F.3d 1282,
1284 n. 3 (11th Cir. 2005). Although Corizon argues there is no medical condition known
as “thick blood”, the Court will assume, without deciding, that Plaintiff's “thick blood” is a
serious medical need in part because Plaintiff alleges as much which the Court accepts
as true at this stage, and because Corizon provides no support for its statement.

The

Court can reasonably infer that Andrews’ physical deterioration was not “mere
negligence” or “accidental inadequacy” because the Amended Complaint avers that
Andrews’ serious condition was known to medical staff and left wholly untreated by
Corizon.
The Court agrees that Andrews’ claim is based on vicarious, rather than direct,
liability against Corizon.

Corizon, although a private entity, may be held liable under §

1983 because it was tasked with providing medical care to inmates and detainees in the
Lee County Jail, which is a “function traditionally within the exclusive prerogative of the
state.” Buckner v. Toro, 116 F.3d 450, 452 (11th Cir. 1997). But because it is a corporate
entity, the Monell4 policy or custom requirement applies. Ibid. Thus, Plaintiff must allege
facts that Corizon “had a ‘policy or custom’ of deliberate indifference that led to the
violation of his constitutional right.” Craig, v. Floyd Cty., 643 F.3d 1306, 1310 (11th Cir.
2011). “Because a [corporation] rarely will have an officially-adopted policy of permitting
a particular constitutional violation, most plaintiffs... must show that the [corporation] has
a custom or practice of permitting it and that the [corporation’s] custom or practice is ‘the

4

Monell v. Dep’t of Social Servs. of New York, 436 U.S. 658, 690-91 (1978).

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moving force [behind] the constitutional violation.’” Grech v. Clayton Cty., Ga., 335 F.3d
1326, 1330 (11th Cir. 2003) (citations omitted and alterations added). For Corizon to be
liable, Plaintiff must identify a policy or practice which was “the moving force” behind injury
or harm to Plaintiff. See Fields v. Corizon Health, Inc., 490 F. App'x. 174, 183-85 (11th
Cir. 2012). And, there must be “a direct causal link between the policy or custom and the
alleged constitutional deprivation.” Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
Here, Plaintiff has alleged that policies, customs, or practices of Corizon caused
her harm in violation of her Fourth and Fourteenth Amendment rights. See Doc. 64, ¶¶
77-8-, 192-94. Specifically, Plaintiff states that Corizon had a “de facto” policy, custom,
or practice of “allowing agents and subordinates to treat arrestees/detainees with reckless
indifference to their constitutional rights, including having unchecked processes for
hydration and attention for a serious medical need, and unchecked processes for the
misdirection of detainees to the county jail psych ward, resulting in the improper Baker
Acting of detainees.” (Doc. 64, ¶ 192). Corizon also had a “de facto” policy, custom, or
practice of “allowing arrestees to be medically mistreated. Personnel at the Lee County
Mental Health Hospital revealed to Andrews the “routine” receipt of detainees from the
county hospital in a “beat up” condition, from which one can reasonably infer an ongoing
custom and practice, and acquiescence to a de facto policy of medical indifference.” (Id.,
¶ 193).

Plaintiff states that Corizon also has a policy of “delaying providing necessary

prescription medications to pre-trial detainees in the custody of the Lee County Sheriff at
the Lee County Jail.” (Id., ¶ 78).
Here, Plaintiff identifies at least an unofficial custom or practice that constituted the
moving force behind the alleged constitutional violation. Plaintiff has plausibly alleged,

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and a jury could reasonably infer, that one of these alleged policies, individually or in
combination, were directly or causally linked to Andrews’ injuries while a pre-trial detainee
in the Lee County Jail under Corizon’s care. Plaintiff’s argument that Andrews refused to
cooperate with medical staff compels no different result at the motion to dismiss stage.
In support, Corizon points to Andrews’ jail records (Doc. 31-1), which Corizon requests
that the Court consider without converting the motion into one for summary judgment
because the records are central to Andrews’ claim and their authenticity cannot
reasonably be disputed. (Doc. 77, n.2). The Court declines to do so at this point because
whether Plaintiff failed to cooperate (and whether her failure to cooperate was voluntary)
is an issue of fact that will not be decided on a motion to dismiss. Thus, the Court finds
that Count 14 of the Amended Complaint sufficiently states a § 1983 claim against
Corizon to withstand a motion to dismiss.
B. Breach of Contract (Count 16)
Count 16 is a breach of contract claim for Corizon’s failure to provide necessary
medical services to Andrews who is an alleged third-party beneficiary of the contract
between Corizon and the LCSO as a pre-trial detainee. Corizon argues that the Count
should be dismissed for three reasons: (1) the statute of limitations has run, (2) Andrews
is not an intended third-party beneficiary of the contract, and (3) even if Andrews could
be considered a third-party beneficiary, a claim of this type is considered a medical
malpractice claim.

1. Statute of Limitations

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According to Fla. Stat. § 95.11, a breach of contract claim based on a written
contract must be brought within five years of the breach. Here, Andrews claims the
breach (failure to provide necessary medical services) occurred on November 7-8, 2012,
and she included the breach of contract claim for the first time in the Amended Complaint
filed on October 6, 2017. This was within five years of the breach; therefore, Corizon’s
first argument for dismissal fails.
2. Third-Party Beneficiary
Third-party beneficiary status allows a non-contracting party to enforce a contract
against a contracting party.
“Florida courts have recognized three types of third party beneficiaries to a
contract: (1) donee beneficiaries; (2) creditor beneficiaries; and (3)
incidental beneficiaries.” Int'l Erectors, Inc. v. Wilhoit Steel Erectors &
Rental Serv., 400 F.2d 465, 471 (5th Cir. 1968).... The key distinction is
that the first two categories are classes of “intended” beneficiaries, who
have a right to sue for enforcement of the contract, whereas the third
category, “third party beneficiaries recognized as incidental beneficiaries[,]
have no enforceable rights under a contract.” Id. ... The intent of the parties
is the key to determining whether a third party is an intended (i.e., donee or
creditor) or only an incidental beneficiary. See, e.g., Marianna Lime Prods.
Co. v. McKay, 109 Fla. 275, 147 So. 264, 265 (1933).
Bochese v. Town of Ponce Inlet, 405 F.3d 964, 981 (11th Cir. 2005). Under Florida law,
“[t]he contracting parties’ intent to benefit the third party must be specific and must be
clearly expressed in the contract in order to endow the third-party beneficiary with a legally
enforceable right.” Id. at 982 (citing Am. Sur. Co. v. Smith, 100 Fla. 1012, 130 So. 440,
441 (1930)). “A party is an intended beneficiary only if [both] parties to the contract clearly
express ... an intent to primarily and directly benefit the third party or a class of persons
to which that party claims to belong.” Caretta Trucking, Inc. v. Cheoy Lee Shipyards, Ltd.,
647 So. 2d 1028, 1030-31 (Fla. 4th DCA 1994) (citations omitted); see also Biscayne Inv.

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Grp., Ltd. v. Guarantee Mgmt. Servs., Inc., 903 So. 2d 251, 254 (Fla. 3d DCA 2005). In
determining whether the contracting party intends to benefit a third-party, Florida law
analyzes the “nature and terms of the contract.” Esposito v. True Color Enters. Constr.,
Inc., 45 So. 3d 554, 555 (Fla. 4th DCA 2010). “[T]he language used in a contract is the
best evidence of the intent and meaning of the parties.” Boat Town U.S.A., Inc. v. Mercury
Marine Div. of Brunswick Corp., 364 So. 2d 15, 17 (Fla. 4th DCA 1978).
To establish an action for breach of a third-party beneficiary contract, Andrews
must allege and prove these four elements: “(1) existence of a contract; (2) the clear or
manifest intent of the contracting parties that the contract primarily and directly benefit the
third party; (3) breach of the contract by a contracting party; and (4) damages to the third
party resulting from the breach.” Networkip, LLC v. Spread Enters., Inc., 922 So. 2d 355,
358 (Fla. 3d DCA 2006) (citing Biscayne Inv. Group, Ltd. v. Guar. Mgmt. Servs., Inc., 903
So. 2d 251, 254 (Fla. 3d DCA 2005)).

Here, Plaintiff has sufficiently pled these four

elements. However, Corizon argues that the case should be dismissed because Andrews
is not a third-party beneficiary of the contract, relying on Section 11.10 of the contract
between LCSO and Corizon.5

The clause, which is included in the “Miscellaneous”

section at the end of the contract, states:
11.10 Other Contracts and Third-Party Beneficiaries. The parties agree
that the SHERIFF shall take all reasonable steps necessary to assist in
obtaining third party reimbursement. The parties agree that they have not
entered into this Agreement for the benefit of any third person or persons,
5

Corizon states that the contract between Corizon and the Sheriff is in the record at Doc. 76, and
the Court may consider the contract without converting the Motion into one for summary judgment
because the contract is central to Andrews’ breach of contract claim. (Doc. 77, n.3). Although
the contract was not attached to the Amended Complaint, the Court agrees that where Plaintiff
refers to certain documents in the complaint that are central to Plaintiff’s claims, the Court may
consider the documents submitted by Defendant as part of the pleadings for purposes of a Rule
12(b)(6) dismissal. See Brooks v. Blue Cross & Blue Shield of Fla., 116 F.3d 1364, 1369 (11th
Cir. 1997).

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and it is their express intention that the Agreement is intended to be for their
respective benefit only and not for the benefit of others who might otherwise
be deemed to constitute third-party beneficiaries hereof.
(Doc. 76-1, Sec. 11.10, pp. 19-20). Plaintiff responds that it would be unconscionable for
Corizon to be permitted to escape liability by wording in the contract alone, and the
contract was intended to benefit pre-trial detainees such as Andrews. (Doc. 88, p. 3). In
this regard, the “General Engagement” clause at the beginning of the contract (Article I)
states:
The SHERIFF hereby contracts with PHS to provide for the delivery of
reasonably necessary medical, dental, mental health and substance abuse
care to individuals under the custody and control of the SHERIFF and
incarcerated at the JAIL. Individuals who, during the arresting process by
any state, county, or municipal law enforcement officer, sustains an injury
at the time of a lawful arrest, or is found to have a pre-existing illness and
is immediately transported to the arresting agency to a designated hospital
or medical facility prior to normal processing of such person into the JAIL,
shall also be covered under this Agreement, subject to the limits established
in Section 1.5.
(Id., Sec. 1.1). Furthermore, Section 1.7 under Article I specifically states in part that
“health care services are intended only for those inmates in the custody of the SHERIFF
or other law enforcement agency lawfully arrested and to be booked into as well as in
custody of the JAIL.” (Id., Sec. 1.7).
The Court finds after review of the contract, and specifically the above provisions,
that the contract is at least ambiguous on the parties’ intent to benefit third parties or a
class of persons to which that party claims to belong.6 See Caretta, 647 So. 2d at 103031. And as the case law states, a party is an intended beneficiary only if both parties to
the contract clearly express such an intent. The Court will not dismiss a breach of contract

6

The contract is also ambiguous as to what Section 11.10 is referring to as it also discusses thirdparty reimbursement.

14

claim when presented with an ambiguous contract. Unless it “clearly appears as a matter
of law that a contract cannot support the action alleged, a complaint should not be
dismissed on motion to dismiss for failure to state a cause of action.” Vienneau v. Metro.
Life Ins. Co., 548 So. 2d 856, 859 (Fla. 4th DCA 1989). “A cardinal rule is that where the
language used in a contract is ambiguous or unclear, the court may consider extrinsic
matters not to vary the terms of the contract, but to explain, clarify or elucidate the
ambiguous language with reference to the subject matter of the contract, the
circumstances surrounding its making, and the relation of the parties.” Id. Such evidence
may be presented at the summary judgment stage.
3. Medical Malpractice
Corizon argues that even if Andrews is considered a third-party beneficiary, a claim
of this type is considered a medical malpractice claim that is controlled by Florida’s
Medical Malpractice Act, which contains a complex pre-suit investigation procedure that
Andrews has not followed. However, Corizon points the Court to no authority that a
breach of contract claim cannot be pled instead of a medical malpractice claim. Plaintiff
has clearly chosen to bring a breach of contract claim, which the Court has found is viable
at this stage of the proceedings. The Court sees no reason to convert Plaintiff’s breach
of contract claim into one for medical malpractice, when Plaintiff herself has chosen to
not bring such a claim.
Accordingly, it is now
ORDERED:
Defendant Corizon Health, Inc.’s Motion to Dismiss (Doc. 77) is DENIED.

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DONE and ORDERED in Fort Myers, Florida this 13th day of September, 2018.

Copies: All Parties of Record

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