Quilty v. Envision Healthcare Corp. et al

Filing 59

ORDER: Defendants Envision Healthcare Corp., Emcare Holdings Inc., Emcare Inc., and Baxley Emergency Physicians, LLC's Motion to Dismiss (Doc. # 44) is GRANTED. All Counts of the Complaint are DISMISSED. The Clerk is directed to CLOSE the case. Signed by Judge Virginia M. Hernandez Covington on 5/31/2018. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
STEPHEN M. QUILTY,
individually and on behalf
of others similarly situated,
Plaintiff,
v.

Case No.: 8:18-cv-341-T-33CPT

ENVISION HEALTHCARE CORP.,
EMCARE HOLDINGS INC.,
EMCARE INC., and BAXLEY
EMERGENCY PHYSICIANS, LLC,
Defendants.
______________________________/
ORDER
This matter comes before the Court upon consideration of
Defendants Envision Healthcare Corp., Emcare Holdings Inc.,
Emcare Inc., and Baxley Emergency Physicians, LLC’s Motion to
Dismiss (Doc. # 44), filed on April 4, 2018. Plaintiff Stephen
M. Quilty responded on May 4, 2018. (Doc. # 54). Defendants
replied on May 18, 2018. (Doc. # 58). For the reasons that
follow, the Motion is granted and the case is dismissed.
I.

Background
Balance-billing is the practice of an out-of-network

healthcare provider billing a patient the difference between
the provider’s charge for services and the amount (if any)
the provider recovered from the patient’s insurance. Florida

1

law

generally

prohibits

emergency-care

providers

from

balance-billing patients for out-of-network emergency care
services they receive. Fla. Stat. §§ 627.64194, 641.513,
641.3154.
The Defendants provide emergency healthcare services.
Specifically, Defendant Envision Healthcare Corp. is a large
“publicly traded for-profit nationwide provider of healthcare
services, including physician services.” (Doc. # 1 at 4).
Defendant EmCare Holdings Inc. is “a wholly owned subsidiary
of Envision.” (Id.). In turn, Defendant EmCare Inc. is “a
wholly owned subsidiary of EmCare Holdings Inc.” and “a
physician

practice

management

company

that

provides

outsourced facility-based physician services for clinicians,
hospitals, health systems, and other healthcare clients in
the United States.” (Id.). Among other things, EmCare Inc.
handles

“coding

and

billing

services,

and

customiz[es]

financial and staffing models.” (Id. at 5). Defendant Baxley
Emergency Physicians, LLC — a wholly owned subsidiary of
Defendant EmCare Inc. — is “a provider of emergency physician
services to hospitals.” (Id.).
According to the Complaint, Defendants “have engaged in
a corporate scheme to directly bill insured patients for outof-network

[emergency

department]

2

services,

even

though

Florida law prohibits such conduct.” (Id. at 11-12). “The
purpose of Defendants’ actions was to raise corporate revenue
and profits at the expense of consumers who are ultimately
held accountable by Defendants for the remainder of any
unpaid, inflated bills.” (Id. at 12). Defendants and their
employees do not disclose to patients in the emergency room
that

the

physician

is

out-of-network

for

the

patient’s

insurance. (Id. at 13). And, when patients later “contact[]
Defendants with billing questions, Defendants mislead the
patients by failing to inform [them] that Defendants were not
permitted to hold patients liable for their bills, pursuant
to state law.” (Id.). Defendants thereby induce patients to
pay “the bill, believing that the bill is lawful and justified
and that non-payment would result in the bill being sent to
collections.” (Id.).
In 2014, Quilty went to the emergency room of a hospital
that was in-network for his HMO plan to treat an injury to
his face. (Id. at 14). Baxley was the treating provider for
that emergency room, but was not in the network for Quilty’s
HMO — a fact Quilty was not told. (Id.). Subsequently, Quilty
received a bill from the hospital for its services. Under the
terms of the policy, Quilty’s HMO paid the majority of the

3

bill, and Quilty paid the remainder. (Id.). Quilty thought
that ended the matter.
But then he received another bill for $2,255.01 for
Baxley’s “out-of-network physician services” provided by a
Dr. Nuss. (Id.). This charge especially surprised Quilty
because he had not interacted with or been treated by Dr.
Nuss – his injury was tended to by a physician’s assistant.
(Id.). So Quilty called Baxley and “asked why he was being
billed

for

interacted

services
with

provided

him.”

by

(Id.).

a

The

physician
Baxley

that

never

representative

responded that “Dr. Nuss was the on-duty emergency physician
at that time and that he was responsible for payment for
services rendered in the amount specified on the bill.” (Id.
at 15). Fearing the effect of the bill being turned over to
a collection agency, Quilty paid the bill. (Id.). In short,
Quilty alleges that he “received a balance-bill for out-ofnetwork physician services rendered by Defendants.” (Id. at
11).
Quilty
Defendants

initiated
on

this

February

putative

8,

2018,

class

action

asserting

against

claims

for

violation of Florida’s HMO and PPO balance-billing statutes,
Fla. Stat. §§ 627.64194, 641.3154, and 641.513, and Florida’s
Deceptive and Unfair Trade Practices Act (FDUTPA), Fla. Stat.

4

§ 501.201 et seq., as well as claims for unjust enrichment
and declaratory relief. (Doc. # 1). In the Complaint, Quilty
seeks to represent a class defined as “All commercially
insured beneficiaries that live or reside in Florida who
sought

emergency

medical

care

at

an

in-network

hospital

managed by Defendants and who were subsequently balancebilled for the cost of that care.” (Id. at 15). Defendants
moved to dismiss the Complaint on April 4, 2018. (Doc. # 44).
Quilty responded (Doc. # 54), and Defendants have replied.
(Doc. # 58). The Motion is now ripe for review.
II.

Legal Standard
On a motion to dismiss pursuant to Rule 12(b)(6), this

Court accepts as true all the 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). But,
[w]hile 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

5

raise a
level.

right

to

relief

above

the

speculative

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). 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). The Court must limit its
consideration to well-pleaded factual allegations, documents
central

to

or

referenced

in

the

complaint,

and

matters

judicially noticed. La Grasta v. First Union Sec., Inc., 358
F.3d 840, 845 (11th Cir. 2004).
Additionally, motions to dismiss for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) may attack
jurisdiction facially or factually. Morrison v. Amway Corp.,
323

F.3d

920,

924

n.5

(11th

Cir.

2003).

Where

the

jurisdictional attack is based on the face of the pleadings,
the Court merely looks to determine whether the plaintiff has
sufficiently alleged a basis of subject matter jurisdiction,
and the allegations in the plaintiff’s complaint are taken as
true for purposes of the motion. Lawrence v. Dunbar, 919 F.2d
1525, 1529 (11th Cir. 1990).

6

III. Analysis
Defendants make numerous arguments for why the various
counts of the Complaint should be dismissed. The Court will
address them one-by-one.
A.

Standing

First, Defendants challenge Quilty’s standing to bring
any claims based on violation of Section 627.64194, Fla.
Stat., which is the PPO balance-billing statute. (Doc. # 44
at 5-6). “A plaintiff’s standing to bring and maintain her
lawsuit is a fundamental component of a federal court’s
subject matter jurisdiction.” Baez v. LTD Fin. Servs., L.P.,
No. 6:15-cv-1043-Orl-40TBS, 2016 WL 3189133, at *2 (M.D. Fla.
June 8, 2016)(citing Clapper v. Amnesty Int’l USA, 133 S. Ct.
1138, 1146 (2013)). The doctrine of standing “limits the
category of litigants empowered to maintain a lawsuit in
federal court to seek redress for a legal wrong.” Spokeo,
Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May
24, 2016).
To establish standing, “[t]he plaintiff must have (1)
suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is
likely to be redressed by a favorable judicial decision.” Id.
“‘The party invoking federal jurisdiction bears the burden of

7

establishing’ standing.” Clapper, 133 S. Ct. at 1148 (quoting
Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
The injury-in-fact requirement is the most important
element. Spokeo, 136 S. Ct. at 1547. An injury in fact is
“‘an

invasion

of

a

legally

protected

interest’

that

is

‘concrete and particularized’ and ‘actual or imminent, not
conjectural or hypothetical.’” Id. at 1548 (quoting Lujan,
504 U.S. at 560). The injury must be “particularized,” meaning
it “must affect the plaintiff in a personal and individual
way.” Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at
560

n.1).

Additionally,

the

injury

must

be

“concrete,”

meaning “it must actually exist.” Spokeo, 136 S. Ct. at 1548.
The Supreme Court in Spokeo emphasized that a plaintiff cannot
“allege

a

bare

procedural

violation,

divorced

from

any

concrete harm, and satisfy the injury-in-fact requirement of
Article III.” Id. at 1549.
Defendants

point

out

that

Quilty’s

injury

(being

balance-billed) occurred in 2014 — two years before the PPO
balance-billing statute, Fla. Stat. § 627.64194, was enacted.
(Doc. # 44 at 6). Defendants reason: “As Plaintiff’s alleged
experience occurred two years before Section 627.64194 was
enacted and there is no indication the statute has retroactive
effect, he cannot have standing to assert a claim thereunder.”

8

(Id.).

Furthermore,

allegations

in

the

according
Complaint

to

Defendants,

establish

that

“[t]he
[Quilty]

experienced no violation of the PPO balance-billing statute
because [he] was not insured through a PPO at the time.”
(Id.).
Quilty acknowledges that he had an HMO, not a PPO, when
he was balance-billed in 2014. (Doc. # 54 at 2). So Quilty
does not contest that he was not balance-billed in violation
of the PPO balance-billing statute. But he insists that he
nevertheless has standing to represent the putative class
members who have PPO coverage and were balance-billed. (Id.
at 3-5). Quilty argues that “the standing requirement[] for
a class representative at the motion to dismiss stage” is “a
less significant burden than at class certification.” (Id. at
3). According to Quilty, “the proper analysis is whether
putative class members were similarly harmed by Defendants’
practices” and that Quilty has pled “sufficient facts that he
suffered the same injury as proposed class members under the
same legal theories.” (Id. at 3-4).
The Court agrees with Defendants. Quilty was not injured
by a violation of the PPO balance-billing statute, as he did
not have a PPO plan when he was allegedly balance-billed and
the PPO balance-billing statute was not even in existence at

9

that time. True, in the context of putative class actions,
the standing burden is lower at the motion to dismiss stage
than the class certification stage. See Porter v. Chrysler
Grp. LLC, No. 6:13-cv-555-Orl-37, 2013 WL 6839872, at *2 (M.D.
Fla. Dec. 27, 2013)(denying motion to dismiss for lack of
standing and stating “as the litigation progresses, the named
Plaintiffs will have to show by a higher standard of proof
that they have Article III standing to raise the class claims
before

the

Court

can

consider

whether

they

adequately

represent the proposed class”).
Nevertheless, it is clear from the pleadings that Quilty
does not have individual standing to bring a claim based on
the violation of the PPO balance-billing statute. Quilty’s
attempt to cast his injury as the same suffered by PPO-insured
putative class members is unavailing. While both Quilty and
PPO-insured putative class members were allegedly balancebilled in violation of Florida law, those billings were
alleged violations of different statutes. So Quilty and PPOinsured

putative

class

members

did

not

suffer

identical

injuries and are proceeding under different legal theories.
Therefore, Quilty does not have individual standing to
bring a claim under the PPO balance-billing statute, which
precludes

him

from

representing

10

class

members

who

were

allegedly billed in violation of the PPO balance-billing
statute. See Piazza v. Ebsco Indus., Inc., 273 F.3d 1341,
1347 (11th Cir. 2001)(“Without individual standing to raise
a legal claim, a named representative does not have the
requisite typicality to raise the same claim on behalf of a
class.”). All Quilty’s claims are dismissed to the extent
they are brought under Fla. Stat. § 627.64194.
B.

Private
Right
Collectability

of

Action

and

Presumptive

Next, Defendants argue that Quilty cannot bring Count I
for violation of Florida’s balance-billing statutes, Sections
627.64194, 641.513, and 641.3154, because these sections do
not create private rights of action. (Doc. # 44 at 7-10).
Again, the Court has already dismissed Count I to the extent
it

is

based

on

violation

of

Section

627.64194,

the

PPO

balance-billing statute. Thus, the Court need only analyze
whether the statutes related to HMOs, Sections 641.513 and
641.3154, establish private rights of action.
As

Defendants

succinctly

explain,

Section

641.513

“requires HMOs to cover certain emergency services provided
by non-participating emergency providers for their subscriber
patients.” (Doc. # 44 at 8)(citing Fla. Stat. § 641.513(3)).

11

Regarding the amount an out-of-network provider may charge an
HMO, Section 641.513 states in relevant part:
Reimbursement for services pursuant to this section
by a provider who does not have a contract with the
health maintenance organization shall be the lesser
of:
(a) The provider’s charges;
(b) The usual and customary provider charges for
similar services in the community where the
services were provided; or
(c) The charge mutually agreed to by the health
maintenance organization and the provider within 60
days of the submittal of the claim.
Such reimbursement shall be net of any applicable
copayment authorized pursuant to subsection (4).
Fla. Stat. § 641.513(5).
Nowhere does Section 641.513 mention that subscribers to
HMO plans, like Quilty, may bring a claim for violation of
this section. And “it is axiomatic that under Florida law,
the judiciary cannot provide a remedy for a violation of the
Insurance Code when the legislature has failed to do so.”
Patel v. Catamaran Health Sols., LLC, No. 15-CV-61891, 2016
WL 5942475, at *5 (S.D. Fla. Jan. 14, 2016)(quoting Lemy v.
Direct Gen. Fin. Co., 885 F. Supp. 2d 1265, 1272-73 (M.D.
Fla. 2012), aff’d, 559 F. App’x 796 (11th Cir. 2014))(internal
quotation marks omitted).
True, one case cited by Quilty involved a Florida court
finding an implied cause of action for a healthcare provider
against an insurer for violation of Section 641.513(5). See

12

Merkle v. Health Options, Inc., 940 So. 2d 1190, 1194-98 (Fla.
4th DCA 2006). But that case is easily distinguished. Merkle
involved a healthcare provider seeking reimbursement from an
HMO for emergency medical services it provided to the HMO’s
subscribers. Id. Here, Quilty is not a healthcare provider
seeking reimbursement from an insurer. He is a subscriber.
And

nothing

in

the

language

of

Section

641.513

makes

a

healthcare provider’s balance-billing a subscriber unlawful
– only Section 641.3154, infra, does that.
Therefore, the language of Section 641.513 does not
evince an intent by the legislature to allow a subscriber to
bring a claim under that section against a provider for
balance-billing.

Instead,

as

the

Merkle

court

explained,

“Section 641.513(5) is aimed at protecting non-participating
providers who must provide emergency medical services to HMO
subscribers, ensuring they are compensated fairly.” Merkle,
940 So. 2d at 1196. Therefore, the Court finds that no private
right

of

action

for

subscribers

like

Quilty

against

healthcare providers like Defendants is implied in Section
641.513.
Quilty also seeks to bring Count I for violation of
Section 641.3154, which is part of the HMO Act. Section
641.3154 states in relevant part:

13

A provider or any representative of a provider,
regardless of whether the provider is under
contract with the health maintenance organization,
may not collect or attempt to collect money from,
maintain any action at law against, or report to a
credit agency a subscriber of an organization for
payment of services for which the organization is
liable, if the provider in good faith knows or
should know that the organization is liable.
Fla.

Stat.

§

641.3154(4).

Again,

the

statute

does

not

expressly create a private right of action for subscribers
who are balance-billed by healthcare providers. Indeed, in
its entirety, “Florida’s ‘Health Maintenance Organization
Act,’ sections 641.17–.3923, Florida Statutes (2005), does
not provide a private statutory right of action for damages
stemming from a violation of one of the Act’s provisions.”
Health Options, Inc. v. Palmetto Pathology Servs., P.A., 983
So. 2d 608, 613 (Fla. 3d DCA 2008). So, the Court agrees with
Defendants that this section does not expressly create a
private right of action.
And the Court further agrees that Section 641.3154 does
not

create

a

private

right

of

action

by

implication.

Discussing another section within Chapter 641, one Florida
court has written: “The courts of this state have long been
reluctant to find the legislature intended private parties to
have causes of action to enforce statutes like chapter 641,
without strong indication that was the legislature’s intent.

14

In our view that intent is contraindicated (to use medical
jargon) by the context of this statute.” The Fla. Physicians
Union, Inc. v. United Healthcare of Fla., Inc., 837 So. 2d
1133, 1137 (Fla. 5th DCA 2003).
Here, the legislature has revealed its intent to have
the Office of Insurance Regulation (OIR) investigate and
punish any entities that violate the regulations of the HMO
Act, including Section 641.3154. Another section of the HMO
Act, Section 641.3905, provides in relevant part that the OIR
shall . . . have the power . . . to examine and
investigate the affairs of every person, entity, or
health maintenance organization in order to
determine whether the person, entity, or health
maintenance organization is operating in accordance
with the provisions of this part [i.e., the HMO
Act] or has been or is engaged in any unfair method
of competition or in any unfair or deceptive act or
practice prohibited by s. 641.3901.
Fla.

Stat.

§

641.3905.

Furthermore,

another

portion

of

Section 641.3154 provides: “An organization, the office, and
the department shall report any suspected violation of this
section by a health care practitioner to the Department of
Health and by a facility to the agency, which shall take such
action as authorized by law.” Fla. Stat. § 641.3154(5). As
these sections demonstrate, “the general scheme of [Chapter
641] is to empower the Department of Insurance to enforce the
statute’s requirements and determine whether the provisions

15

are being complied with or violated.” The Fla. Physicians
Union, Inc., 837 So. 2d 1133 at 1135.
Furthermore, Merkle does not suggest that an implied
right of action exists under Section 641.3154, as it did not
address that section at all. Again, Section 641.513, which
Merkle addressed, is not part of the HMO Act. And the HMO Act
specifies that the OIR is to investigate alleged violations.
Therefore, the legislature has given a clear signal that it
intends only for enforcement by the OIR. Therefore, Quilty
cannot maintain his claim for violation of Section 641.3154.
Count I is dismissed in its entirety. No private right
of action exists under either Section 641.513 or Section
641.3154 for subscribers like Quilty. And, the Court has
already ruled that Quilty does not have standing to pursue a
claim

under

Section

627.64194,

the

PPO

balance-billing

statute.
C.

FDUTPA Claim

According
FDUTPA

fails

to

Defendants,

because

the

Count

II

for

balance-billing

violation
statutes

of
are

exempted from FDUTPA and the Complaint’s allegations fail to
state a FDUTPA claim or satisfy Rule 9(b). (Doc. # 44 at 12).
Regarding exemption, Defendants state that FDUTPA “does
not apply to any person or activity regulated under the laws

16

administered by Florida’s Office of Insurance Regulation of
the

Financial

Services

Commission.”

(Doc.

#

44

at

12).

Furthermore, Defendants insist that “the activity that is the
subject

of

the

lawsuit,

improper

balance-billing,

falls

within the OIR’s jurisdiction and is exempted.” (Id.).
FDUTPA specifies that it does not apply to “[a]ny person
or activity regulated under laws administered by: (a) The
Office of Insurance Regulation of the Financial Services
Commission.”
resolve

Fla.

questions

Stat.
about

§

501.212(4)(a).
the

“Florida

applicability

of

courts
section

501.212(4) by looking to the activity that is the subject of
the lawsuit and determining whether the activity is subject
to the regulatory authority of the [OIR].” State v. Beach
Blvd. Auto. Inc., 139 So. 3d 380, 387–88 (Fla. 1st DCA
2014)(citation omitted).
Here, Quilty alleges Defendants balance-billed him in
violation of Florida’s balance-billing statutes, which are
part of Florida’s Insurance Code (Chapters 624-651). The OIR
has the power to investigate and enforce the provisions of
the Insurance Code. Fla. Stat. § 624.307. And the HMO Act,
within the Insurance Code, specifically addresses unfair or
deceptive acts and practices to be investigated by the OIR.
Section

641.3901

states:

“No

17

person,

entity,

or

health

maintenance organization shall engage in this state in any
trade practice which is defined in this part as, or determined
pursuant to s. 641.3905 to be, an unfair method of competition
or an unfair or deceptive act or practice involving the
business of health maintenance organizations.” Fla. Stat. §
641.3901. And, again, Section 641.3905 provides in relevant
part that the OIR
shall . . . have the power . . . to examine and
investigate the affairs of every person, entity, or
health maintenance organization in order to
determine whether the person, entity, or health
maintenance organization is operating in accordance
with the provisions of this part [i.e., the HMO
Act] or has been or is engaged in any unfair method
of competition or in any unfair or deceptive act or
practice prohibited by s. 641.3901.
Fla. Stat. § 641.3905.
The Court agrees with Defendants that the OIR regulates
the

activity

investigating
contains

the

of

balance-billing

violations

of

as

the

balance-billing

it

is

Insurance

statutes.

The

tasked
Code,
fact

with
which
that

Defendants are not HMOs themselves is irrelevant. By the
statutory language, the OIR is able to investigate not only
HMOs,

but

also

other

entities

–

including

health

care

providers like Defendants — in order to ensure compliance
with the HMO Act. And, indeed, Section 641.3154 within the
HMO Act contemplates that providers like Defendants would be

18

the ones balance-billing patients. Therefore, Quilty’s claim
cannot

be

enforced

through

FDUTPA,

as

improper

balance-

billing is an activity regulated by the OIR.
Because the Court finds that improper balance-billing is
conduct exempt from FDUTPA, the FDUTPA claim is dismissed.
The Court need not address Defendants’ other arguments for
dismissal of this claim.
D.

Unjust Enrichment

Defendants

contend

that

Count

III,

for

unjust

enrichment, should be dismissed because statutory violations
“cannot give rise to a common law unjust enrichment claim”
and the Complaint’s “allegations establish that Defendants
were not unjustly enriched.” (Doc. # 44 at 17).
The elements of a cause of action for unjust enrichment
under Florida law are: “(1) plaintiff has conferred a benefit
on the defendant, who has knowledge thereof; (2) defendant
voluntarily accepts and retains the benefit conferred; and
(3) the circumstances are such that it would be inequitable
for the defendant to retain the benefit without paying the
value thereof to the plaintiff.” Lewis v. Seneff, 654 F. Supp.
2d 1349, 1369 (M.D. Fla. 2009).
The Court agrees with Defendants that Quilty cannot
establish an unjust enrichment claim based on violations of

19

the

HMO

641.513.

balance-billing
The

Court

statutes,

has

already

Sections

641.3154

determined

that

and
the

legislature did not provide private rights of action for
violations of these sections. And “a plaintiff ‘may not evade
the Florida legislature’s decision to withhold a statutory
cause of action’ for a violation of the insurance code ‘by
asserting common law claims based on such violations.’” Lemy,
885 F. Supp. 2d at 1273 (quoting Buell v. Direct General Ins.
Agency, Inc., 267 F. App’x 907, 909-10 (11th Cir. 2008)); see
also Hucke v. Kubra Data Transfer, Corp., 160 F. Supp. 3d
1320, 1326 (S.D. Fla. 2015)(“Where, as here, the plaintiff
alleges no injury apart from violation of the statute [that
does not create a private right of action], the Court agrees
. . . that there must be ‘something more,’ in terms of
statutory language or public policy, to allow the plaintiff
to bring a restitution-based cause of action based solely on
violation of the statute.”).
The cases cited by Quilty do not alter the Court’s
conclusion. Those cases involved different statutes outside
the

Insurance

Code

that

included

language

implying

the

underlying agreements that gave rise to the charges were void
and unenforceable. See State Farm Fire & Cas. Co. v. Silver
Star

Health

&

Rehab,

739

F.3d

20

579,

583

(11th

Cir.

2013)(allowing unjust enrichment claim to proceed based on
payments State Farm made to an unlicensed clinic because,
although the Clinic Act did not create a private right of
action, it included mandatory language that charges by an
illegal

unlicensed

clinic

are

“noncompensable

and

unenforceable”); accord Allstate Ins. Co. v. Vizcay, 826 F.3d
1326 (11th Cir. 2016).
In short, Quilty cannot assert the common law claim of
unjust enrichment for violation of the HMO balance-billing
statutes. See Sapuppo v. Allstate Floridian Ins. Co., No.
12cv382–RH/CAS, 2013 WL 6925674, at *4–5 (M.D. Fla. Mar. 12,
2013), aff’d 739 F.3d 678 (11th Cir. 2014)(dismissing claims
for breach of contract, unjust enrichment, and breach of
fiduciary duty after determining that no private cause of
action existed under the Insurance Code for the alleged
violations).
E.

Declaratory Judgment

In Count IV, Quilty seeks “a judicial determination of
whether Defendants’ acts and practices described in this
Complaint violate the laws of Florida and/or other states so
that

(1)

the

rights

of

[Quilty]

and

the

Class

may

be

determined with certainty for purposes of resolving this
litigation; and (2) so that the parties and the marketplace

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have

a

consistent

understanding

of

Defendants’

legal

obligations moving forward so that patients are not at risk
of

being

unlawfully

balance-billed

for

future

healthcare

services.” (Doc. # 1 at 23).
According to Defendants, Quilty “is essentially seeking
an ‘obey-the-law’ injunction which runs afoul of Federal Rule
of Civil Procedure, Rule 65(d).” (Doc. # 44 at 20). The Court
disagrees

that

Quilty

injunction.

Quilty

Defendants’

conduct

is

seeking

merely

seeks

violates

an
a

“obey-the-law”

declaration

the

HMO

finds

that

that

balance-billing

statutes.
Nevertheless,

the

Court

the

declaratory

judgment claim should be dismissed because the HMO balancebilling statutes do not create private rights of action. See
Millenium Labs., Inc. v. Universal Oral Fluid Labs., LLC, No.
8:11-cv-1757-MSS-TBM, 2012 WL 12905083, at *4 (M.D. Fla. Apr.
25,

2012)(“Plaintiff

is

also

unable

to

seek

declaratory

relief as to Florida Statutes §§ 817.505, 456.054, and 483.245
because none of these statutes appear to imply a private right
of action.”). “Many courts, including the Eleventh Circuit,
have

held

that

a

claim

for

declaratory

relief

must

be

dismissed where there is no private right of action available
for an alleged statutory violation.” Id. at *3; see also

22

Florida v. Seminole Tribe of Fla., 181 F.3d 1237, 1250 (11th
Cir.

1999)(affirming

dismissal

of

claim

where

plaintiff

sought judgment declaring tribal gaming was being unlawfully
conducted because the Indian Gaming Regulatory Act did not
create a private cause of action).
The

reasoning

behind

the

prohibition

on

declaratory

relief regarding statutes that do not create private rights
of action is especially strong here, where a state agency or
department

is

charged

with

investigating

and

declaring

violations of the statutes at issue. In the context of another
section of the HMO Act that did not create a private right of
action, a Florida court refused to declare that certain
conduct violated the statute:
Neither provision expressly or impliedly authorizes
a private suit brought for purposes of enforcing or
declaring violations of the statute. Indeed, if in
the context of a declaratory judgment, a circuit
court found that statutory violations were ongoing
or in existence, its judgment would either be
advisory and still require the Department [of
Insurance] to take action, or it would usurp the
jurisdiction of the Department to investigate, find
violations of and enforce the provisions of the
statute. Conceivably the Department might disagree
with a circuit court about the existence of a
violation or the method to remedy it. And, there
would be no ready appellate mechanism to resolve
the dispute.
The Fla. Physicians Union, Inc., 837 So. 2d at 1137 (emphasis
added). The Court shares this concern. A declaration by this

23

Court about the legality of Defendants’ conduct would usurp
the authority of the OIR to investigate alleged violations
and enforce the HMO balance-billing statutes. Therefore, the
Court dismisses Count IV.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Defendants Envision Healthcare Corp., Emcare Holdings
Inc.,

Emcare

Inc.,

and

Baxley

Emergency

Physicians,

LLC’s Motion to Dismiss (Doc. # 44) is GRANTED.
(2)

All Counts of the Complaint are DISMISSED.

(3)

The Clerk is directed to CLOSE the case.
DONE and ORDERED in Chambers in Tampa, Florida, this

31st day of May, 2018.

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