Unimerica Insurance Company v. GA Food Services, Inc.
Filing
80
ORDER: Third-Party Defendant Blue Cross and Blue Shield of Florida, Inc.'s Motion to Dismiss Third-Party Complaint 78 is DENIED. Blue Cross and Blue Shield of Florida, Inc. has until and including December 19, 2014, to file its Answer to the Third-Party Complaint. Signed by Judge Virginia M. Hernandez Covington on 12/10/2014. (AKH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNIMERICA INSURANCE COMPANY,
Plaintiff,
v.
Case No. 8:14-cv-2419-T-33TBM
GA FOOD SERVICES INC., ET AL.,
Defendants.
________________________________/
ORDER
This matter comes before the Court pursuant to Third
Party Defendant Blue Cross and Blue Shield of Florida, Inc.’s
(BCBSF) Motion to Dismiss Third Party Complaint pursuant to
Fed. R. Civ. P. 12(b)(6) (Doc. # 78), filed on November 24,
2014. Defendant/Counter-Plaintiff/Third-Party
Plaintiff
GA
Food Services, Inc. (GA Food) filed a response in opposition
to the Motion on December 8, 2014. (Doc. # 79). For the
reasons stated below, the Motion is denied.
I.
Background
On
December
27,
2013,
Plaintiff
Unimerica
Insurance
Company filed an action against GA Food in the United States
District Court for the District of Minnesota. (Doc. # 1).
The requirements of diversity jurisdiction were established
in the Complaint as the amount in controversy exceeds seventy-
five thousand dollars, Unimerica is a Wisconsin corporation
with its principal place of business in Minnesota, and GA
Food is a Florida corporation with its principal place of
business in St. Petersburg, Florida. (Id. at ¶¶ 1-3).
The action arises out of a stop-loss insurance coverage
dispute between Unimerica and GA Food relating to an Excess
Loss Insurance Policy (Policy) issued by Unimerica. (Id. at
¶ 5). The Policy provides stop-loss coverage to GA Food for
obligations it may have related to its self-funded group
employee health benefit plan (Plan). (Id.). Under the Policy,
Unimerica reimburses GA Food for covered expenses under the
Plan that exceed a $75,000 deductible for any individual
covered person under the Plan. (Id. at ¶ 6).
One of GA Food's employees had end stage renal disease.
(Id.). GA Food sought reimbursement for $386,256.00 from
Unimerica under the Policy. (Id.). However, "GA Food did not
disclose to Unimerica that the employee became entitled to
Medicare on August 1, 2011." (Id. at ¶ 12). Unimerica paid
$248,887.00 to GA Food. Unimerica later learned that the
employee's coverage under the Plan should have terminated on
August 1, 2011, because the employee became entitled to
Medicare on that date. (Id.). Unimerica seeks repayment from
GA Food for money it paid for the employee's claim (the amount
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sought is $129,655, not $248,887 because Unimerica applied an
offset).
(Id.).
Declaratory
The
Complaint
Judgment;
Breach
sets
of
forth
counts
Contract;
and
for
Unjust
Enrichment. (Doc. # 1).
On February 11, 2014, GA Food filed a Motion to Dismiss
or Transfer case to the Middle District of Florida. (Doc. ##
11, 13). On May 27, 2014, the Minnesota court granted the
Motion by transferring the case to the Middle District of
Florida. (Doc. # 25). The Court ruled:
A transfer to the Middle District of Florida serves
the interest of justice. Although Minnesota has an
interest in ensuring its citizens and corporations
receive appropriate legal relief, the balance of
considerations favors Florida. . . . The dispute
involves the coverage of a Florida entity in
connection with a Florida employee, under an
insurance policy issued under the laws of Florida
and administered by a Florida healthcare company.
And, to the extent a choice of law analysis is
necessary, Florida law will likely apply to this
dispute.
(Id. at 10). The Minnesota court further remarked that: "to
the
extent
this
action
involves
non-party
witnesses,
a
transfer would undoubtedly increase the convenience to these
entities and persons. GA Food submits contractual documents
demonstrating that BCBSF - a Florida Corporation with its
principal
place
administered
of
claims
business
and
claim
3
in
Jacksonville,
payments
under
Florida
the
-
Plan."
(Id.).
The Minnesota court ordered the case be transferred
to the Middle District of Florida, but did not specify the
division
of
the
Court.
It
was
sent
to
the
Jacksonville
Division.
Once in Jacksonville, the District Judge, the Honorable
Brian J. Davis, entered an Order requiring the parties to (1)
file a case management report by August 22, 2014, and (2) to
brief
the
Court
as
to
why
the
case
should
stay
in
Jacksonville, as it appeared the case belonged in the Tampa
division. (Doc. # 29). Judge Davis observed: "the Court cannot
even infer any of the conduct at issue occurred in the
Jacksonville Division." (Id. at 1). After extensive briefing,
Judge Davis transferred the case to the Tampa Division. (Doc.
# 64). However, before transferring the case, Judge Davis
entered a Case Management and Scheduling Order. (Doc. # 51).
The case came to Tampa with GA Food's Motion for Leave
to File a Third-Party Complaint against Blue Cross and Blue
Shield of Florida, Inc. (Doc. # 58), filed on August 19, 2014.
The Motion was timely filed under the Jacksonville Case
Management and Scheduling Order. (See Doc. # 51). On October
2, 2014, this Court entered an Order granting leave to file
a Third Party Complaint against BCBSF. (Doc. # 66). GA Food
filed the Third Party Complaint that same day. (Doc. # 67).
4
BCBSF filed its Motion to Dismiss Third-Party Complaint on
November 24, 2014, (Doc. # 78), which is ripe for this Court’s
review.
II. Legal Standard
On a motion to dismiss, this Court accepts as true all
of the factual allegations in the complaint and construes
them in the light most favorable to the plaintiff. Jackson v.
Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further, this Court favors the plaintiff with all reasonable
inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990)(“On a motion to dismiss, the facts stated in [the]
complaint and all reasonable inferences therefrom are taken
as true.”). However, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). Further, courts are not “bound to accept
as true a legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
5
In
accordance
with
Twombly,
Federal
Rule
of
Civil
Procedure 8(a) calls “for 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, 663 (2009) (quoting
Twombly, 550 U.S. at 570). A plausible claim for relief must
include “factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
II.
Analysis
A. Third-Party Defendant under Rule 14(a)
In this case, Third-Party Defendant BCBSF contends that
it is an improper third party to this action, compelling
reasons
support
the
Court’s
discretion
not
to
exercise
supplemental jurisdiction over the third-party claims, and GA
Food has failed to state a claim upon which relief can be
granted. (Doc. # 78). As an initial matter, BCBSF argues that
it is an improper third party defendant to this action under
Federal Rule of Civil Procedure 14(a), therefore this Court’s
supplemental jurisdiction does not attach to GA Food’s ThirdParty Complaint. (Id. at 6).
BCBSF states that “under section 1367(a), a district
court has ‘supplemental jurisdiction over all other claims
6
that are so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy
under
Constitution.’”
Article
(Id.);
28
III
U.S.C.
of
§
the
United
1367(a).
States
Furthermore,
“Rule 14(a) of the Federal Rules of Civil Procedure allows a
defendant to implead a third party defendant ‘who is or may
be liable to it for all of the claim[s] against it.’” (Id.);
Fed. R. Civ. P. 14(a). BCBSF notes, however, that “Rule 14(a)
does
not
allow
the
defendant
to
assert
a
separate
and
independent claim even though the claim arises out of the
same general set of facts as the main claim.” (Id.)(quoting
United States v. Olavarrierta, 812 F. 2d 640, 643 (11th Cir.
1987).
It
is
BCBSF’s
position
that
GA
Food’s
Third-Party
Complaint fails to assert how BCBSF is liable for Unimerica’s
claims against it as that action is based solely on the excess
policy between Unimerica and GA Food. (Id. at 7). Moreover,
BCBSF contends that it is not a party or signatory to the
Excess Policy and, accordingly, cannot be liable for any part
of Unimerica’s claims against GA Food under the Excess Policy.
Thus, BCBSF contends that it was inappropriate for GA Food to
implead it into this action under Rule 14. (Id.).
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GA Food responds that BCBSF’s Motion fails to note the
contract that links Unimerica, GA Food, and BCBSF together –
the
BlueOptions
attached
as
Group
Exhibit
D
Health
to
GA
Plan
document
Food’s
Answer,
–
which
was
Affirmative
Defenses, and Counterclaim. (Doc. # 79 at 5); (see Doc. #
37). According to GA Food, “the GA Food/ BCBSF Administrative
Services Agreement incorporates the BlueOptions Group Health
Plan into same. The Unimerica/ GA Food Excess Loss Insurance
Policy also incorporates the BlueOptions Group Health plan
into same.” (Id. at 6).
It is GA Food’s position that “the obligations and
liabilities of all three parties in this matter simply cannot
be determined under the Excess Loss Insurance Policy and/or
the Administrative Services Agreement without the BlueOptions
Group Health Plan document that is incorporated into same.”
(Id.). “The inextricably intertwined BlueOptions Group Health
Plan provides the contractual privity between Unimerica and
BCBSF that Unimerica claimed is lacking and that BCBSF claims
is lacking, and this contractual privity forms a basis for
this Court’s continuing to exercise ancillary or derivative
jurisdiction over the third-party action.” (Id.). This Court
agrees that the actions are inextricably intertwined due to
8
the Plan and therefore declines to dismiss the Third-Party
Complaint on this ground.
B. Supplemental Jurisdiction over Third-Party Complaint
Next,
BCBSF
argues
that
“[e]ven
if
BCBSF
is
appropriately joined under Rule 14, the Court should exercise
its discretion and decline supplemental jurisdiction over GA
Food’s Third-Party Complaint.” (Doc. # 78 at 11). BCBSF states
that “section 1367(c)(4) permits a district court to decline
to exercise supplemental jurisdiction over a claim if, in
exceptional circumstances, there are other compelling reasons
for declining jurisdiction. A court evaluates the factors of
judicial economy, convenience, fairness to the parties, and
whether all claims would be expected to be tried together.”
(Id.); Parker v. Scrap Metal Processors, Inc., 468 F. 3d 733,
745 (11th Cir. 2006). BCBSF argues that the venue clause in
FA Food’s Services Agreement with BCBSF provides a compelling
reason for this Court to decline supplemental jurisdiction
over the Third-Party claims. The provision provides that “all
actions or proceedings instituted by [GA Food] or BCBSF
hereunder
shall
be
brought
in
a
court
of
competent
jurisdiction in Duval County, Florida.” (Id. at 12).
The primary question for the Court is not whether the
forum-selection clause is valid, but whether it encompasses
9
claims of the type alleged in the Third-Party Complaint.
While finding that the forum-selection clause is not broad
enough to apply to the instant action, the Court acknowledges
that, as is often the case with the interpretation of forumselection clauses, this case presents a close call. See PODS,
Inc. v. Paysource, Inc., 2006 U.S. Dist. LEXIS 31838, *13,
n.6 (M.D. Fla. May 18, 2006).
Contractual forum-selection clauses are entitled to a
presumption of validity and the Court will honor the parties’
choice of venue unless there is a compelling reason to the
contrary. See Sompo Japan Ins., Inc. v. Alarm Detection Sys.,
Inc., 2003 U.S. Dist. LEXIS 13689, *3 (N.D. Ill. Aug. 6,
2003). In the Eleventh Circuit, “[c]lauses referencing ‘any
lawsuit regarding this agreement’ and ‘any action brought by
either party in any court’ have been broadly construed to
include contract claims ‘arising directly or indirectly from’
the contractual relationship, as well as tort and extracontractual claims.”
See PODS, Inc., 2006 U.S. Dist. LEXIS
31838 at *4 (citing for example Digital Envoy, Inc. v. Google,
Inc., 319 F. Supp. 2d 1377, 1380 (N.D. Ga. 2004); Stephens v.
Entre Computer Ctrs., Inc., 696 F. Supp. 2d 636, 638 (N.D.
Ga. 1998); Stewart Org., Inc. v. Ricoh Corp., 810 F.2d 1066,
1070 (11th Cir. 1987)).
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This
Complaint
Court
comes
cannot
within
clause in this case.
conclude
the
scope
that
of
the
the
Third-Party
forum-selection
First, as stated by Judge Davis, and
placed in a footnote in BCBSF’s Motion, “the venue clause did
not apply to this case as it then stood because neither GA
food nor BCBSF instituted the action.” (Doc. # 78 at 12);
(see Doc. # 64). Although BCBSF argues that GA Food instituted
the third-party action after Judge Davis transferred this
action to the Tampa Division, this Court disagrees. (Id.). On
August 19, 2014, GA Food’s filed its Motion for leave to file
a Third-Party Complaint. (See Doc. # 58). The case was then
transferred to the Tampa Division on September 23, 2014. (See
Doc. # 23).
Although this Court entered an Order on October 2, 2014,
allowing GA Food’s to file its Third-Party Complaint against
BCBSF (see Doc. # 66), the third-party proceeding began while
the case was before the Jacksonville Division. Second, it is
not clear that the forum-selection clause applies to thirdparty
actions
being
brought
supplementary
to
already
initiated proceedings. (Doc. # 78 at 12). Therefore, BCBSF
has not provided this Court with compelling reasons to decline
supplemental jurisdiction over GA Food’s third-party claims.
C. Failure to State a Claim
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Lastly, BCBSF argues that GA Food’s third-party claims
fail as a matter of law on their merits. (Doc. # 78 at 14).
BCBSF contends that “the claims as plead conflict with the
express language of the Services Agreement and GA Food’s
negligence claim fails to allege any conduct independent of
a breach of contract in any event.” (Id.). BCBSF further
argues that “where a contract exists, a tort action will lie
only for intentional or negligent acts that are independent
from acts that breach the contract.” (Id. at 16)(quoting Brown
v. Chamax, LLC, 51 So. 3d 552, 556 (Fla. 2d DCA 2010). BCBSF
contends that “GA Food’s negligence claim fails to allege any
action that is independent of BCBSF’s alleged breaches of the
Services Agreement.” (Id. at 17). “To the extent GA Food
alleges that BCBSF breached the standard of care provision in
the Services Agreement, GA Food’s negligence claim is still
no different than its breach of contract claim.” (Id.).
GA Food counters that “it would be premature to force GA
Food to elect its remedy at this juncture, and an election of
remedy is precisely what would occur if the Court endorses
BCBSF’s independent tort doctrine argument.” (Doc. # 79 at
11). “With tortious behavior being one way in which BCBSF can
breach the Administrative Services Agreement, GA Food should
12
not have to plead a batch of tort-based allegations separate
from contract-based allegations.” (Id.).
It is undisputed that GA Food and BCBSF entered into a
valid contract – the Administrative Services Agreement. (Doc.
# 78 at 15); (see Doc. # 79-2). However, BCBSF takes issue
with the provision – Section 5.2 - contained within the
Agreement. (Id.). In order for this Court to determine whether
the provision is enforceable, the Court would need to engage
in contract interpretation; specifically, whether Florida law
recognizes exculpatory provisions as valid and enforceable
where the parties’ intentions are clear and unequivocal and
if there is conduct that overcomes the contractual limit of
liability. (Id.). Such analysis is better suited for the
summary judgment stage of these proceedings.
Furthermore, as argued by GA Food in its response, GA
Food has engaged in “alternative pleading,” with regard to
its contract and tort based claims. (Doc. # 79 at 11). “As
the Eleventh Circuit Court of Appeals has made clear, ‘the
doctrine of election of remedies only applies after one of
the remedies has been satisfied.’” (Id.)(quoting Princeton
Homes, Inc. v. Virone, 612 F.3d 1324, 1334 (11th Cir. 2010).
For the reasons set forth above, and for purposes of the
Court’s present analysis only, GA Food has satisfied its
13
burden under Rule 8(a) as to the Third-Party Complaint.
Therefore, BCBSF’s Motion is denied.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)
Third-Party Defendant Blue Cross and Blue Shield of
Florida, Inc.’s Motion to Dismiss Third-Party Complaint
(Doc. # 78) is DENIED.
(2)
Blue Cross and Blue Shield of Florida, Inc. has until
and including December 19, 2014, to file its Answer to
the Third-Party Complaint.
DONE and ORDERED in Chambers in Tampa, Florida, this
10th day of December, 2014.
Copies: All Counsel of Record
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