Herrera et al v. JFK Medical Center Limited Partnership et al

Filing 51

ORDER: Defendant HCA Holdings, Inc.'s Motion Requesting Judicial Notice and Incorporated Memorandum of Law (Dkt. #34) is GRANTED. Defendant HCA Holdings, Inc.'s Motion to Dismiss Amended Complaint with Prejudice, Motion to Strike Class A llegations, and Joinder in Hospital Defendants' Motion to Dismiss and Motions to Strike, with Incorporated Memorandum of Law (Dkt. #35) is GRANTED in part. JFK Limited Center Partnership d/b/a JFK Medical Center, Memorial Healthcare Group, Inc. d/b/a Memorial Hospital Jacksonville, and North Florida Regional Medical Center, Inc.'s Motion to Dismiss and Motion to Strike and Supporting Memorandum of Law (Dkt. #36) is GRANTED in part. The Court dismisses Count III of the Amended Complai nt. The Court strikes Plaintiffs' class allegations. Marisela Herrera may proceed with this action. The remaining Plaintiffs are dismissed without prejudice and may file separate individual actions. Signed by Judge James S. Moody, Jr on 2/20/2015. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MARISELA HERRERA, LUZ SANCHEZ,
NICHOLAS ACOSTA and PENNY
WOLLMEN,
Plaintiffs,
v.

Case No: 8:14-cv-2327-T-30TBM

JFK MEDICAL CENTER LIMITED
PARTNERSHIP, et al.,
Defendants.

ORDER
THIS CAUSE comes before the Court upon the Defendant HCA Holdings, Inc.’s
Motion Requesting Judicial Notice and Incorporated Memorandum of Law (Dkt. #34),
Defendant HCA Holdings, Inc.’s Motion to Dismiss Amended Complaint with Prejudice,
Motion to Strike Class Allegations, and Joinder in Hospital Defendants’ Motion to Dismiss
and Motion to Strike, with Incorporated Memorandum of Law (Dkt. #35), Plaintiffs'
Response in Opposition to the Motion (Dkt. #44), JFK Limited Center Partnership d/b/a
JFK Medical Center, Memorial Healthcare Group, Inc. d/b/a Memorial Hospital
Jacksonville, and North Florida Regional Medical Center, Inc.’s Motion to Dismiss and
Motion to Strike and Supporting Memorandum of Law (Dkt. #36), and Plaintiffs’ Response
in Opposition to the Motion (Dkt. #45). Upon review and consideration, it is the Court’s

conclusion that the Motion Requesting Judicial Notice should be granted and the remaining
Motions should be granted in part and denied in part.
Background
Plaintiffs Marisela Herrera, Luz Sanchez, Nicholas Acosta, and Penny Wollmen
filed this putative class action against Defendants HCA Holdings, Inc. (hereinafter “HCA”)
and JFK Medical Center Limited Partnership d/b/a JFK Medical Center (hereinafter
“JFK”), Memorial Healthcare Group, Inc., d/b/a Memorial Hospital Jacksonville
(hereinafter “Memorial”), and North Florida Regional Medical Center, Inc. (hereinafter
“North Florida”) (collectively the “Defendant Hospitals”) alleging that they charge
unreasonable amounts for emergency radiological services. HCA removed this case to
this Court alleging jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d)
and § 1453.
Plaintiffs were patients at the HCA-operated Defendant Hospitals in Florida and
received emergency radiological services, including CT scans, X-rays, MRIs, and
ultrasounds. The services were covered by their Personal Injury Protection (“PIP”)
insurance.

When Plaintiffs were admitted to the Defendant Hospitals, they signed

Conditions of Admission contracts (hereinafter the “Contracts”). The Contracts contain a
paragraph titled “Financial Agreement” which provides that the patient or the patient’s
guarantor:
promises to pay the patient’s account at the rates stated in the hospital’s price
list (known as the “Charge Master”) effective on the date the charge is
processed for the service provided, which rates are hereby expressly
incorporated by reference as the price term of this agreement to pay the
patient’s account. Some special items will be priced separately if there is no

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price listed on the Charge Master…. An estimate of the anticipated charges
for services to be provided to the patient is available upon request from the
hospital. Estimates may vary significantly from the final charges based on
a variety of factors, including but not limited to the course of treatment,
intensity of care, physician practices, and the necessity of providing
additional goods and services.

Herrera alleges that JFK billed $5,900 for the CT scan of her spine; $6,404 for the
CT scan of her brain; $3,359 for the lumbar spine X-ray; and $2,222 for the thoracic spine
X-ray. Sanchez alleges that JFK billed $5,900 for the CT scan of her spine; $6,404 for the
CT scan of her brain; and $2,222 for the thoracic spine X-ray. Acosta alleges that Memorial
billed $6,965 for the CT scan of his spine; and $6,277 for the CT scan of his brain. Wollmen
alleges that North Florida billed $6,853 for the CT scan of her cervical spine; $6,140 for
the CT scan of her brain; and $1,454 for the X-ray of her thoracic spine.
Plaintiffs allege that the charges for these emergency radiological services are up to
65 times higher than the charges for the same services billed to other patients covered under
private or government sponsored insurance programs. The charges are so excessive that
they prematurely exhausted the PIP insurance benefits depriving Plaintiffs of coverage for
other medical services and leaving them with medical expenses in excess of what they
would otherwise have to pay.
Plaintiffs allege causes of action for violation of the Florida Deceptive Unfair Trade
Practices Act (“FDUTPA”), Fla. Stat. § 501.201 et seq., breach of contract, and breach of
implied covenant of good faith and fair dealing. Plaintiffs bring this putative class action
on behalf of:

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…similarly situated individuals who received PIP-covered emergency care
radiological services at HCA-operated facilities in Florida who either (a)
were billed by the facility for any portion of the charges for such services;
and/or (b) had their $10,000 of PIP coverage prematurely exhausted by the
facility’s charges for such services, and as a result, were billed for additional
medical services rendered by the facility and/or third party providers that
would otherwise have been covered under PIP.
Plaintiffs previously filed a Motion for Class Certification and Request for Stay of
Briefing and Consideration of this Motion and Incorporated Memorandum of Law (Dkt.
#3) on the basis that Defendants could pre-empt class certification by making offers of
judgment to the Plaintiffs. The Court denied that motion as premature.
Discussion
I.

Motion to Dismiss Standard

To warrant dismissal of a complaint under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, it must be “clear that no relief could be granted under any set of facts that
could be proved consistent with the allegations.” Blackston v. State of Alabama, 30 F.3d
117, 120 (11th Cir. 1994) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct.
2229, 81 L.Ed.2d 59 (1984)). “When considering a motion to dismiss, all facts set forth
in the plaintiff's complaint are to be accepted as true and the court limits its consideration
to the pleadings and exhibits attached thereto.” Grossman v. Nationsbank, N.A., 225 F.3d
1228, 1231 (11th Cir. 2000) (internal citations and quotations omitted). “A complaint may
not be dismissed pursuant to Rule 12(b)(6) unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief.” Id.
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement
of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant

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fair notice of what the ... claim is and the grounds upon which it rests.’“ Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting
Fed.R.Civ.P. 8; Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
Further, exhibits are part of a pleading “for all purposes.” Fed.R.Civ.P. 10(c); see Solis–
Ramirez v. U.S. Dep't of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985) (per curiam)
(“Under Rule 10(c) Federal Rules of Civil Procedure, such attachments are considered part
of the pleadings for all purposes, including a Rule 12(b)(6) motion.”).
On a motion to dismiss, the Court may consider matters judicially noticed. La
Grasta v. First Union Sec. Inc., 358 F.3d 840, 845 (11th Cir. 2004). These matters include
documents which are central to plaintiff's claim whose authenticity is not challenged,
whether the document is physically attached to the complaint or not, without converting
the motion into one for summary judgment. Speaker v. U.S. Dept. of Health and Human
Services Centers for Disease Control and Prevention, 623 F.3d 1371, 1379 (11th Cir.
2010); SFM Holdings. Ltd. v. Banc of America Securities, LLC, 600 F.3d 1334, 1337 (11th
Cir. 2010).
II.

Motion for Judicial Notice

HCA filed its Motion for Judicial Notice requesting that the Court take judicial
notice of the following documents: Certificate of Incorporation (DE) of HCA, Certificate
of Limited Partnership (DE) – JFK, Articles of Incorporation (FL) - Memorial, Articles of
Incorporation (FL) - North Florida, HCA’s Form 10-K for Fiscal Year 2013, JFK's
application and renewals (FL) re: fictitious name, Memorial's application and renewals
(FL) re: fictitious name, North Florida's application and renewals (FL) re: fictitious name,

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JFK – Agency for Healthcare Administration (“AHCA”) License, Memorial - AHCA
License, North Florida - AHCA License, Webpage, "Healthy Work Environment", and
Webpage, "Pricing and Financial Information". These documents are filed in support of its
Motion to Dismiss. Plaintiffs do not object to the Motion. The Court grants the Motion and
will take judicial notice of the attached documents.
III.

The Motions to Dismiss

HCA argues that since it is the ultimate parent company of the Defendant Hospitals
it has no direct liability for the Defendant Hospitals’ actions. Plaintiffs fail to allege a single
action or inaction taken by HCA, nor do they allege any other basis for disregarding the
corporate form rendering HCA liable for the alleged acts of the Defendant Hospitals.
Ultimately, it argues that Plaintiffs’ allegations do not state a cause of action under an alterego theory, agency theory, or direct liability theory. Further, it argues that Plaintiffs’
FDUTPA claims fail because Plaintiffs did not and cannot allege that HCA was engaged
in “trade or commerce” as required by the statute. Further, the breach of contract and breach
of covenant of good faith and fair dealing claims do not state a cause of action because
HCA is not a party to the Contracts.
The Defendant Hospitals argue that the Amended Complaint fails to state a claim
for violation of the FDUTPA because Plaintiffs do not allege any “deceptive” or “unfair”
conduct by the Defendant Hospitals. They also fail to allege breach of contract and breach
of the implied covenant of good faith and fair dealing because Plaintiffs do not allege the
Defendant Hospitals breached any of the express provisions in the Contracts.

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IV.

Parent-Subsidiary Liability

The Court finds In re Managed Care Litigation instructive on this issue . 298 F.
Supp. 2d 1259 (S.D. Fla. 2003). Plaintiffs in that case brought a class action suit alleging
ten separate causes of action against a parent company and its subsidiary hospitals based
on their improper billing practices with respect to radiological services. Plaintiffs in that
case also alleged that the parent company implemented the policy and instructed the
subsidiary hospitals to carry out the practice. The court held that the plaintiffs sufficiently
pled a cause of action for direct liability of the parent corporation where they alleged that
“all of the substantive practices, policies, and procedures of the Defendants' health plans
are established, implemented, monitored, and ratified by the Defendants themselves.” Id.
at 1309.
The Court finds this reasoning persuasive. Plaintiffs’ allege, among other things,
that:
HCA is directly involved in setting and enforcing hospital
guidelines and is specifically involved in the billing practices
of these hospitals…. all HCA-owned and operated Florida
hospitals, medical centers, and surgical centers, including
Defendant Hospitals, acted as the agents of Defendant HCA
and acted in the course and scope of their agency and were
acting with the consent, permission, authorization, satisfaction,
and knowledge of HCA, which ratified and approved of the
actions of its hospitals, medical centers, and surgical centers.
The Court will permit Plaintiffs to proceed with its claims against HCA. See also Jackam
v. Hosp. Corp. of Am. Mideast, Ltd., 800 F.2d 1577 (11th Cir. 1986) (allegations that parent
company established policies that subsidiary corporation executed as parent company’s
agent sufficiently stated cause of action, based on agency theory, to hold parent corporation

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directly liable for subsidiary corporation's alleged breach of contract); Teytelbaum v. Unum
Group, 8:09-CV-1231-T-33TBM, 2010 WL 4689818 at *1 (M.D. Fla. Nov. 11, 2010)
(stating that it was a “fact intensive inquiry whether the parent company could be
responsible for its subsidiary’s breach of contract, and in any event, plaintiff alleged that
both acting together caused the injuries.) Therefore, the Court denies HCA’s motion to
dismiss on this basis.
V.

FDUTPA

In Count I of the Amended Complaint, Plaintiffs allege that Defendants violate the
FDUTPA by using the unfair practice of charging unreasonable rates for PIP-covered
radiological services following motor vehicle accidents. Plaintiffs’ argue that the
Defendants’ actions are also deceptive because they conceal, or at a minimum do not
disclose, their practice of charging the unreasonable prices to PIP-insured patients.
Plaintiffs further allege that the Defendants “require emergency care patients, including
Plaintiffs and the putative Class members, to sign contracts of adhesion that purport to
expressly incorporate Defendants’ Charge Master price list, but fail to contain a list of the
Charge Master prices or otherwise provide notification of what the amounts of those prices
are.”
FDUTPA provides a civil cause of action for “[u]nfair methods of competition,
unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of
any trade or commerce.” Fla. Stat. § 501.204(1). To state a FDUTPA claim, a plaintiff must
allege: “(1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” City
First Mortg. Corp. v. Barton, 988 So. 2d 82, 86 (Fla. 4th DCA 2008).

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“The Florida Supreme Court has noted that ‘deception occurs if there is a
representation, omission, or practice that is likely to mislead the consumer acting
reasonably in the circumstances, to the consumer's detriment.’ ” Zlotnick v. Premier Sales
Grp., Inc., 480 F.3d 1281, 1284 (11th Cir. 2007) (quoting PNR, Inc. v. Beacon Prop.
Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003)). “An unfair practice is one that offends
established public policy and one that is immoral, unethical, oppressive, unscrupulous or
substantially injurious to consumers.” Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla.
2d DCA 2006) (internal quotation marks omitted). Under the FDUTPA , trade or commerce
is defined as “the advertising, soliciting, providing, offering, or distributing, whether by
sale rental, or otherwise, of any good or service, or any property, whether tangible or
§ 501.203(8).

intangible, or any other article, commodity, or thing of value, wherever situated.” Fla. Stat.

The Defendants argue that the Contracts expressly incorporate the Charge Master

as the contractual price term. Since this information is readily apparent on the face of the
Contracts, it negates Plaintiffs’ contention that the Defendant Hospitals materially
deceived them about the charges. Further, Plaintiffs do not allege that they ever requested
copies of the Defendant Hospitals’ price list. Defendants point to Section 395.301(1),
Florida Statutes, which requires hospitals to “notify each patient during admission and at
discharge of his or her right to receive an itemized bill upon request.” The statute further
provides that hospitals must provide a good faith estimate of reasonably anticipated charges
upon request for nonemergency medical services only. The Defendant Hospitals notify

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patients of this right in the Contracts, and therefore maintain that they have met their
obligation under the statute.
The Court has serious doubts that the Defendant Hospitals’ practice of incorporating
the Charge Master into the Contracts by reference rises to the level of unfairness and
deception as contemplated by the FDUTPA. Nonetheless, the Court will give Plaintiffs
an opportunity to prove their case recognizing that other courts have held that these types
of allegations support a FDUTPA claim. See Urquhart v. Manatee Mem'l Hosp., 8:06-cv1418T-17EAJ, 2007 WL 781738, at *5 (M.D. Fla. Mar. 13, 2007) (although ultimately
dismissing the FDUTPA claim because plaintiff failed to allege an injury, stating that
uninsured plaintiff could allege an unfair practice under the FDUTPA in a case filed against
a hospital and its parent corporation based on policy of charging objectively unreasonable
prices); Colomar v. Mercy Hosp., Inc., 461 F.Supp. 2d 1265, 1268 (S.D. Fla. 2006)
(allegations of hospital’s unreasonable pricing supported cause of action for an unfair
practice under the FDUTPA). The Court denies HCA and the Defendant Hospitals’
motions to dismiss Count I of the Amended Complaint and will revisit this issue at
summary judgment.
VI.

Breach of Contract

In Count II of their Amended Complaint, Plaintiffs allege a breach of contract based
on incorporation of the PIP statute into the Contracts as a matter of Florida law. The PIP
statute mandates that “[a]… hospital, … lawfully rendering treatment to an injured person
for a bodily injury covered by personal injury protection insurance may charge the insurer
and injured party only a reasonable amount pursuant to this section for the services and

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supplies rendered. . . . such a charge may not exceed the amount the person or institution
customarily charges for like services or supplies.” Fla. Stat. § 627.736(5)(a) (emphasis
added).
Section 627.736(5)(a) further provides that:
[i]n determining whether a charge for a particular service,
treatment, or otherwise is reasonable, consideration may be
given to evidence of usual and customary charges and
payments accepted by the provider involved in the dispute, and
reimbursement levels in the community and various federal
and state medical fee schedules applicable to motor vehicle and
other insurance coverages, and other information relevant to
the reasonableness of the reimbursement for the service,
treatment, or supply.
Plaintiffs allege that the Defendants breached the Contracts because they charged
unreasonable rates. Further, Plaintiffs were not provided a copy of the Charge Master at
the time of admission. Based on the foregoing, Plaintiffs argue that the Contracts contain
a “vague, ambiguous, undefined, and nondescript pricing term,” which “implies a
contractual obligation on Plaintiffs to pay no more than the reasonable value [of the]
services provided under the Contracts, and a corresponding obligation on Defendants to
bill for no more than the reasonable value of the services provided under the Contracts.”
Plaintiffs rely on Florida Beverage Corp. v. Div. of Alcoholic Beverages &
Tobacco, Dept. of Bus. Regulation, for the proposition that the PIP statute is incorporated
into the Contracts. 503 So. 2d 396, 398 (Fla. 1st DCA 1987) (“The laws in force at the time
of the making of a contract enter into and form a part of the contract as if they were
expressly incorporated into it.”). Therefore, Plaintiffs argue that since the PIP statute
requires that hospitals charge a reasonable rate, that obligation is an “express term” of the

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Contracts which Defendants violated. At oral argument, the Plaintiffs explicitly stated that
they are not proceeding under an adhesion contract theory.
Defendants first argue that the PIP statute should not be incorporated into the
Contracts because it only provides a remedy to PIP insurers to challenge the reasonableness
of the charges. Specifically, the statutory scheme provides that insurers can either pay a
percentage of the hospital’s “usual and customary charges” or dispute the reasonableness
of the charges and submit the matter to a fact-finder. Further, Defendants argue, the PIP
statute provides the insured only one private cause of action; a claim against the insurer for
benefits owed.
To the extent that the Court does read the PIP statute into the Contracts, the
Defendant Hospitals maintain that the PIP statute’s reasonableness requirement is not in
conflict with the Charge Master rates, because it reflects their usual and customary charges.
Therefore, according to the Defendant Hospitals, their usual and customary charges are the
upper limit of what is reasonable. Any differential in the charges are due to discounted
rates negotiated by private insurance companies or mandated by the government under its
Medicaid or Medicare programs.
The general doctrine regarding incorporation of statutes is that “where parties
contract upon a subject which is surrounded by statutory limitations and requirements, they
are presumed to have entered into their engagements with reference to such statute, and the
same enters into and becomes a part of the contract.” Citizens Ins. Co. v. Barnes, 98 Fla.
933, 124 So. 722, 723 (1929). See also Weldon v. All Am. Life Ins. Co., 605 So. 2d 911,
914 (Fla. 2d DCA 1992) (applying the general principle to determine the extent to which a

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chiropractor's services were covered under an insurance policy). PIP coverage is highly
regulated by a comprehensive statutory scheme. See Custer Med. Center v. United Auto.
Ins. Co., 62 So. 3d 1086, 1089 n.1 (Fla. 2010) (“PIP insurance is markedly different from
homeowner’s/tenants insurance, property insurance, life insurance, and fire insurance,
which are not subject to statutory parameters and are simply a matter of contract not subject
to statutory requirements.”).
The Southern District of Florida and various Florida state courts have held that
allegations that a hospital charged unreasonable rates for its services support a breach of
contract claim. See Colomar, 461 F. Supp. 2d 1265 (allegations that patients with insurance
and government benefits received significant discounts in price they paid for hospital's
services supported plaintiff’s claim for breach of contract for unreasonable pricing); Payne
v. Humana Hospital, 661 So. 2d 1239 (Fla. 1st DCA 1995) (reversing dismissal of putative
class action suit premised on unreasonable rates charged by a hospital even though contract
required the payment of “prevailing rates” and “regular charges,” but did not “express
prices within the four corners of the document.” The court described the charge master as
a “complicated and unobtainable master charge list containing hundreds of items”); Mercy
Hospital v. Carr, 297 So. 2d 598 (Fla. 3rd DCA 1974) (holding that although plaintiff was
liable for medical services rendered he was not bound by the amount of the charges listed
in the admission contract as he was entitled to question the reasonableness of the charges).
In this case, the PIP statute imposes a duty on hospitals to charge a reasonable price
to PIP patients for medical services. Although the statute explicitly provides a remedy to
insurers to challenge the charges under its particular statutory scheme, it does not preclude

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an insured from also challenging the reasonableness of the charges. Further, to the extent
that Florida law permits hospitals to use a “charge master,” the prices listed within it must
still be reasonable.
Contrary to the Defendants’ argument, even if the charges do not exceed the usual
and customary charges for like services or supplies, the charges are not automatically
reasonable. The statute itself provides guidance on determining the reasonableness of a
specific charge, and includes other factors such as payments accepted by the hospital and
charges within the community. See Fla. Stat. § 627.736(5)(a). Further, the Court rejects
the argument that a PIP insurer’s decision to pay a percentage of the billed charges implies
that the insurer finds the charges reasonable. An insurer’s business decision to pay rather
than litigate does not preclude the patient from challenging the reasonableness of the
charges, particularly when the patient is responsible for a percentage of those charges.
Therefore, the Court concludes that Plaintiffs may proceed with a breach of
contract claim which incorporates the PIP statute’s reasonableness requirement into the
Contracts. Plaintiffs will have the opportunity to prove that the Defendant Hospitals’ rates
are unreasonable. The Court denies HCA and the Defendant Hospitals’ motions to dismiss
Count II of Plaintiffs’ Amended Complaint.
VII.

Breach of Covenant of Good Faith and Fair Dealing

In Count III of the Amended Complaint, Plaintiffs allege that the Defendants
breached their duty of good faith and fair dealing by charging them unreasonable rates for
medical services. Defendants maintain that Plaintiffs may not properly make this claim
because they did not allege that Defendants breached an express term in the Contracts.

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Florida contract law recognizes the implied covenant of good faith and fair dealing.
Anthony Distribs. v. Miller Brewing Co., 941 F.Supp. 1567, 1574 (M.D. Fla. 1996).
However, “a claim for breach of the implied covenant of good faith and fair dealing cannot
be maintained under Florida law absent an allegation that an express term of the contract
has been breached.” Id. Essentially, any claim of breach of the implied covenant of good
faith and fair dealing is really a breach of contract claim, and “no independent cause of
action exists under Florida law for breach of the implied covenant of good faith and fair
dealing.” Burger King Corp. v. Weaver, 169 F.3d 1310, 1317 (11th Cir. 1999).
Accordingly, HCA and the Defendant Hospitals’ motions to dismiss Count III of Plaintiffs’
Amended Complaint for failure to state a claim is granted.
VIII.

Motions to Strike Class Allegations

HCA and the Defendant Hospitals move to strike the class allegations because
individual issues predominate, Plaintiffs lack standing to assert claims on behalf of patients
treated at facilities other than those operated by the Defendant Hospitals and the geographic
diversity and dispersion of the facilities preclude class treatment.
Although a plaintiff will typically move for class certification, the complaint's class
action allegations create a court's “independent obligation to decide whether an action was
properly brought as a class action, even where ... neither party moves for a ruling on class
certification.” Martinez–Mendoza v. Champion Intern. Corp., 340 F.3d 1200, 1216 n. 37
(11th Cir. 2003) (citing McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 559 (5th
Cir. Unit A 1981). See also MRI Assocs. of St. Pete, Inc. v. State Farm Mut. Auto. Ins. Co.,

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755 F.Supp. 2d 1205, 1207 (M.D. Fla. 2010) (Moody, J.) (“Where the propriety of a class
action procedure is plain from the initial pleadings, a district court may rule on this issue
prior to the filing of a motion for class certification.”). Therefore, it is appropriate to review
the class allegations at this juncture to determine whether a class may stand.
Given the nature of the claims and individual factual inquiries required, it is clear
the individualized issues are predominant and this suit cannot proceed as a class action.
Individualized money claims belong in Rule 23(b)(3) class action suits. Wal–Mart Stores,
Inc. v. Dukes, 131 S.Ct. 2541, 2558 (2011). The standard for a 23(b)(3) suit is “that the
questions of law or fact common to class members predominate over any questions
affecting only individual members, and that a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3).
In this case, the threshold inquiry is whether the Plaintiffs were charged an
unreasonable rate for their specific medical service, which would affect the portion of their
PIP benefits prematurely depleted and the portion of the charge for which they were
individually responsible. If this case were to proceed, the most important issue to settle,
the reasonableness of the charge for the specific radiological service and the damages
incurred by each putative plaintiff, would be highly individualized in nature. What is a
reasonable charge for radiological services in one geographical area may not be reasonable
for another.
Further, for those class members whose PIP benefits were completely depleted by
the Defendant Hospitals’ allegedly unreasonable charges, the Plaintiffs seek
reimbursement for any payments made to third party providers that would have been

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covered by their PIP coverage. In those cases, the Court would have to analyze whether
each Plaintiff had co-insurance which should have covered those expenses, whether the
medical services were reasonable and necessary and related to the motor vehcile accident
so that the PIP coverage would apply, and given the allegations in this case, whether the
third party provider’s charges are “reasonable.” After consideration of these factors, the
Court’s calculation of what constitutes a “reasonable amount” weighs strongly against the
use of a class action. MRI Associates of St. Pete, Inc., 755 F. Supp. 2d at 1208 (finding that
action for PIP benefits requiring the court to determine what constituted a “reasonable
amount” was inappropriate for a class action proceeding) (citing State Farm Mut. Auto.
Ins. Co. v. Sestile, 821 So. 2d 1244 (Fla. 2d DCA 2002)).
The Eleventh Circuit is clear on this issue. When “significant individualized issues
with respect to breach, materiality, and damages” exist, plaintiff cannot satisfy the
predominance element required for class certification. Vega v. T-Mobile USA, Inc., 564
F.3d 1256, 1274 (11th Cir. 2009). See also Shenandoah Chiropractic, P.A. v. National
Specialty Insurance Company, 526 F. Supp. 2d 1283 (S.D. Fla. 2007) (striking class
allegations based on breach of contract claim under PIP statute). Since the individual
factual inquiries will predominate in this litigation, making any sort of class litigation
highly impractical, the class allegations will be stricken. See Vandenbrink v. State Farm
Mut. Auto. Ins. Co., 8:12-CV-897-T-30TBM, 2012 WL 3156596, at *3 (M.D. Fla. Aug. 3,
2012) (Moody, J.) (striking class allegations where individual issues predominated.)

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Conclusion
Plaintiffs’ allegations are minimally sufficient to plead a cause of action under the
FDUTPA, and are sufficient to support a breach of contract action against all Defendants.
However, there is no independent cause of action for breach of implied covenant of good
faith and fair dealing.

Because Plaintiffs’ allegations clearly require a highly

individualized analysis of the damages issue, precluding class treatment, the Court need
not determine Plaintiffs’ Article III standing.
It is therefore ORDERED AND ADJUDGED that:
1.

Defendant HCA Holdings, Inc.’s Motion Requesting Judicial Notice and
Incorporated Memorandum of Law (Dkt. #34) is GRANTED.

2.

Defendant HCA Holdings, Inc.’s Motion to Dismiss Amended Complaint
with Prejudice, Motion to Strike Class Allegations, and Joinder in Hospital
Defendants’ Motion to Dismiss and Motions to Strike, with Incorporated
Memorandum of Law (Dkt. #35) is GRANTED in part.

3.

JFK Limited Center Partnership d/b/a JFK Medical Center, Memorial
Healthcare Group, Inc. d/b/a Memorial Hospital Jacksonville, and North
Florida Regional Medical Center, Inc.’s Motion to Dismiss and Motion to
Strike and Supporting Memorandum of Law (Dkt. #36) is GRANTED in
part.

4.

The Court dismisses Count III of the Amended Complaint.

5.

The Court strikes Plaintiffs’ class allegations.

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6.

Marisela Herrera may proceed with this action. The remaining Plaintiffs are
dismissed without prejudice and may file separate individual actions.

DONE and ORDERED in Tampa, Florida, this 20th day of February, 2015.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2014\14-cv-2327 mtd 35 36.docx

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