Lopez et al v. UnitedHealth Group, Inc. et al

Filing 21

ORDER: Defendants United Health Group, Inc. and OptumRx's Motion to Compel Arbitration (Dkt. #7) is GRANTED. This case is abated pending arbitration. All pending motions are denied as moot and the Clerk of Court is directed to administratively close this case. Signed by Judge James S. Moody, Jr. on 12/30/2014. (AR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOSE I. LOPEZ, M.D. and JOSE
IGNACIO LOPEZ, M.D., P.A.
Plaintiffs,
v.

Case No: 8:14-cv-2925-T-30AEP

UNITEDHEALTH GROUP, INC. and
OPTUMRX, INC.,
Defendants.

ORDER
THIS CAUSE comes before the Court upon the Defendants United Health Group,
Inc. and OptumRx, Inc.’s Motion to Compel Arbitration (Dkt. #7), Plaintiffs' Response in
Opposition to the Motion (Dkt. #17), and Defendants’ Reply to Plaintiffs’ Response (Dkt.
# 20). Upon review and consideration, it is the Court’s conclusion that the Motion should
be granted.
Background
Plaintiff, Dr. Jose I. Lopez executed a Physician Contract with non-party United
Healthcare Insurance Company (“UHIC”) on behalf of himself and his medical practice
Jose Ignacio Lopez, M.D., P.A. Under the Physician’s Contract, Plaintiffs provided
medical services to the individual members of UHIC’s health plans, and UHIC paid
Plaintiffs for those services.

At some point, Dr. Lopez’s patients received letters from “United Healthcare”
asserting that Medicare sanctioned him and that his prescriptions would not be honored.
When patients called the number provided on the letters to get more information, the
representatives of “United Healthcare” confirmed that the information was accurate.
Plaintiffs allege that in fact, someone bearing the name “Jose A. Lopez” was sanctioned,
and that the letters involved a case of mistaken identity. Despite his various efforts to
correct this mistake, Dr. Lopez could not resolve the issue and this lawsuit ensued.
Plaintiffs filed this action against Defendants “United HealthCare Corp.,”
OptumRx, Inc. (“OptumRx”) and United Health Group, Inc. (“UHG”). The allegations
state that “United HealthCare Corp.” and OptumRx are subsidiaries of UHG. Dr. Lopez
alleges that he was a member of “United HealthCare Corp.” from 2004 through December
31, 2013. “United HealthCare Corp.” discontinued his participation in their network,
effective January 1, 2014. On information and belief, Plaintiffs attribute the discontinuation
of the Physician’s Contract to the mistaken belief that Medicare sanctioned Dr. Lopez.
Plaintiffs allege in the first 36 paragraphs that the Defendants collectively engaged
in sending these letters. The complaint then alleges defamation, libel, and slander and
negligence against all of the Defendants in individual counts, but incorporates the first 36
paragraphs into each count. Throughout the complaint, Plaintiffs collectively refer to the
“Defendants” as having made the defamatory statements regarding his medical license and
refusing to cooperate to correct the error.
Defendants OptumRx and UHG filed this Motion to Compel Arbitration based on
the arbitration provision in the Physicians Contract. Although UHIC is not a named party

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to the lawsuit, Defendants argue that it is clear from the allegations in the complaint that
Plaintiffs improperly named UHIC as “United HealthCare Corp.” Therefore, although
they are not signatories to the Physician’s Contract, the Defendants nonetheless can compel
arbitration because Plaintiffs refer to and rely on the Physicians Contract and allege
concerted misconduct between them and UHIC. After Defendants filed this Motion,
Plaintiffs dropped “United HealthCare Corp.” as a party, and has not named UHIC.
Discussion
I.

Legal Standard

It is well established that federal law strongly favors the arbitration of disputes and
requires that federal courts rigorously enforce arbitration agreements. See United States
Fid. & Guar. Co. v. West Point Constr. Co., Inc., 837 F.2d 1507, 1508 (11th Cir. 1988).
“[A]rbitration is a matter of contract [and] the [Federal Arbitration Act’s] strong
proarbitration policy only applies to disputes that the parties have agreed to arbitrate.”
Lawson v. Life of the S. Ins. Co., 648 F.3d 1166, 1170 (11th Cir. 2011) (internal citations
omitted).
There are three elements for courts to consider in ruling on a motion to compel
arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists, (2)
whether an arbitrable issue exists, and (3) whether the right to arbitration has been waived.
Cuningham Hamilton Quiter, P.A., 776 So. 2d 940, 942 (Fla. 3d DCA 2000). Florida law
recognizes that non-signatories can compel signatories to arbitration based on the equitable
estoppel doctrine. Id. at 942.

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I.

The Arbitration Agreement

The parties to the Physician’s Contract are “UnitedHealthcare Insurance Company,”
“UnitedHealthcare of Florida, Inc. and its other affiliates for certain products and services”
and Dr. Jose I. Lopez, M.D. The arbitration provision states as follows:
If one of us does not agree with an action taken by the other, we will both
follow the dispute procedures set out in our Administrative Guide. If a
decision reached as part of those procedures is still not satisfactory to one of
us, the dispute will be submitted to binding arbitration in accordance
with the Commercial Dispute Procedures of the American Arbitration
Association, as they may be amended from time to time (see
http://www.adr.org). The arbitrator will not vary the terms of this agreement
and will be bound by governing law. The arbitrator will not have the authority
to award punitive or exemplary damages against either of us, except in
connection with a statutory claim that explicitly provides for such relief.
(Emphasis added). The parties dispute whether the arbitrator or the Court may
decide the gateway matter of arbitrability. The Supreme Court has recently reaffirmed that
the question “whether the parties have a valid arbitration agreement at all” is for the court,
not the arbitrator, to decide. Green Tree Fin. Corp. v. Bazzle, 539 U.S. 444, 452, 123 S.Ct.
2402, 2407, 156 L.Ed.2d 414 (2003) (plurality opinion). However when there is “clear and
unmistakable evidence” that the parties intended the arbitrator to rule on the validity of the
arbitration agreement itself, the Court will compel arbitration. Terminix Intern. Co., LP v.
Palmer Ranch Ltd. P'ship, 432 F.3d 1327, 1331-32 (11th Cir. 2005).
In Terminix, the court found that the parties clearly and unmistakably evidenced
their intention to have arbitrability determined by the arbitrator by incorporating the
Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which
mandate that the arbitrator will determine his own jurisdiction. Id. at 1332 (quoting AAA

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Rule 8(a), now 7(a) , which states that “the arbitrator shall have the power to rule on his or
her own jurisdiction, including any objections with respect to the existence, scope or
validity of the arbitration agreement….”).
It is clear in this case, that Dr. Lopez and UHIC agreed to arbitrate all disputes and
that they would submit the threshold determination regarding arbitrability to the arbitrator.
However, a signatory’s agreement to arbitrate the issue of arbitrability does not mean that
it must arbitrate with any non-signatory. Gunson v. BMO Harris Bank, N.A., 13-62321CIV, 2014 WL 4472725, at *4 (S.D. Fla. Sept. 10, 2014) (“In order to decide whether
arbitration of arbitrability is appropriate, a court must first determine whether the parties
have a sufficient relationship to each other and to the rights created under the agreement.”).
See also Oehme, van Sweden & Assocs., Inc. v. Maypaul Trading & Servs., 902 F.Supp.
2d 87, 97 (D.D.C.2012) (“A signatory to a contract [incorporating the AAA Rules] has
clearly and unmistakably agreed to its terms, but that is not necessarily true of a
nonsignatory.”).

UHG and OptumRx argue that they can enforce all aspects of the

arbitration provision under the doctrine of equitable estoppel.
II.

Equitable Estoppel

Equitable estoppel permits a non-signatory to enforce the provisions of a contract
against a signatory in two specific circumstances. MS Dealer Serv. Corp. v. Franklin, 177
F.3d 942, 947 (11th Cir. 1999). First, it applies when the signatory to the contract relies on
the terms of the contract to assert his or her claims against the non-signatory; meaning that
the signatory's claim against a non-signatory “makes reference to” or “presumes the
existence of ” the agreement. MS Dealer Serv. Corp., 177 F.3d at 947; Armas v. Prudential

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Sec., Inc., 842 So. 2d 210, 212 (Fla. 3d DCA 2003). Second, it applies when the signatory
raises allegations of concerted misconduct by both the non-signatory and one or more of
the signatories to the contract. See Bailey v. ERG Enter., 705 F.3d 1311, 1321 (11th Cir.
2013) (citing MS Dealer Serv. Corp., 177 F.3d at 947); Marcus v. Fla. Bagels, LLC, 112
So.3d 631, 633–34 (Fla. 4th DCA 2013). Defendants assert that both circumstances exist
here.
a. Reliance on the Physician’s Contract
Defendants argue that Plaintiffs rely on the Physician Contract to make out their
claims against them since they allege “exhaustion of administrative remedies.” Because
the source of any “administrative remedies” is UHIC’s Administrative Guide, this
allegation therefore makes reference to, or presumes the existence of, the Physician’s
Contract. However, this allegation regarding administrative remedies is not essential to any
of Plaintiffs’ claims.
Plaintiffs’ success on their defamation, libel and slander claims do not rely on any
contractual obligation. See King Motor Co. of Fort Lauderdale v. Jones, 901 So. 2d 1017
(Fla. 4th DCA 2005) (holding that customer's tort action alleging breached duty to keep
customers' confidential and financial information safe against automobile dealership, did
not fall within arbitration agreement because claims did not implicate contractual duties
but rather concerned duties generally owed to the public.) See also Seifert v. U.S. Home
Corp., 750 So. 2d 633, 638 (Fla. 1999) (“the mere fact that the dispute would not have
arisen but for the existence of the contract and consequent relationship between the parties

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is insufficient by itself to transform a dispute into one ‘arising out of or relating to’ the
agreement.”).
b. Concerted Misconduct
When a plaintiff alleges concerted conduct between signatories and non-signatories,
the Court may compel the signatory to arbitration. See Kolsky v. Jackson Square, LLC, 28
So. 3d 965, 969 (Fla. 3d DCA 2010) (holding that non-signatories could compel arbitration
where plaintiff alleged conspiracy and claims rose out of allegations of concerted
misconduct between non-signatories and signatories); Lash & Goldberg LLP v. Clarke, 88
So. 3d 426, 427-28 (Fla. 4th DCA 2012) (estopping plaintiff from refusing to arbitrate
claims against non-signatories where plaintiff attempted to “spin the… count as involving
only her independent attorney-client relationship with the [non-signatory]”).
Defendants argue that Plaintiffs’ complaint alleges concerted misconduct between
them and UHIC. As explained above, Plaintiffs alleged that Dr. Lopez had a contract with
“United HealthCare Corp.” since 2004. Clearly, Plaintiff was attempting to name UHIC as
a defendant. The letters which include the allegedly defamatory statements carry the name
of “United HealthCare” as the sender and it bears the same address as that associated with
OptumRx. The claims are based on concerted misconduct by UHG, OptumRx and UHIC.
Plaintiff’s arguments against arbitration are unavailing. Although Plaintiffs have
dropped “United Healthcare Corp.” as a party, the Court may still compel the parties to
arbitration. Accord Morselife Foundation, Inc. v. Merrill Lynch Bank & Trust, Co., No.
09–81143, 2010 WL 2889932 at *3–4 (S.D.Fla. July 21, 2010) (pointing out that plaintiff
engaged in “tactical ploy” to avoid agreement to arbitrate “all controversies” by dropping

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signatory defendants and holding that because none of plaintiffs claims against defendant
could be considered without considering the misconduct of the other signatory, equitable
estoppel was appropriate); see also Gunson, 2014 WL 4472725 at *7 (“Florida state law
does not appear to mandate the naming of the signatory as a defendant in order to apply
the concerted misconduct test.”) (citing Heller v. Blue Aerospace, LLC, 112 So.3d 635
(Fla. 4th DCA 2013) (compelling claims against non-signatory defendant to arbitration
where claims against signatory were already in arbitration)).
Conclusion
The Court concludes that UHG and OptumRx may compel the dispute to arbitration.
It is therefore ORDERED AND ADJUDGED that:
1.

Defendants United Health Group, Inc. and OptumRx’s Motion to Compel
Arbitration (Dkt. #7) is GRANTED.

2.

This case is abated pending arbitration.

3.

All pending motions are denied as moot and the Clerk of Court is directed to
administratively close this case.

DONE and ORDERED in Tampa, Florida, this 30th day of December, 2014.

Copies furnished to:
Counsel/Parties of Record
S:\Odd\2014\14-cv-2925 arbitration 7.docx

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