Antonello v. Wal-Mart Stores East, LP et al

Filing 18

ORDER: Plaintiff Michael Antonello's Motion to Remand (Doc. # 9) is GRANTED. Antonello's Motion to Amend Complaint (Doc. # 10) is DENIED AS MOOT. The Clerk is directed to REMAND this case to state court. After remand, the Clerk shall terminate all other pending motions and CLOSE this case. Signed by Judge Virginia M. Hernandez Covington on 11/16/2021. (SGM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MICHAEL ANTONELLO,
Plaintiff,
v.

Case No. 8:21-cv-2194-VMC-TGW

WAL-MART STORES EAST, LP, and
JOHN DOE
Defendants.
________________________________/
ORDER

This matter is before the Court on consideration of
Plaintiff Michael Antonello’s Motion to Remand (Doc. # 9) and
Motion to Amend Complaint (Doc. # 10), both filed on October
12, 2021. Defendant Wal-Mart Stores East, LP responded to
both Motions on October 27, 2021. (Doc. ## 16, 17). For the
reasons that follow, the Court grants the Motion to Remand,
denies the Motion to Amend Complaint as moot, and remands the
case.
I.

Background
Antonello initiated this case in state court on July 30,

2021. (Doc. # 1-1). The case arises from injuries sustained
by Antonello when he slipped and fell at a Wal-Mart store in
Lakeland, Florida. See (Id.). The Complaint did not allege a

1

specific amount of damages, merely alleging that “[t]his is
an action for damages that exceeds the sum of [$30,000].”
(Id. at ¶ 1).
Wal-Mart removed the case to this Court on September 15,
2021, on the basis of diversity jurisdiction. (Doc. # 1). As
part of the documents attached to its Notice of Removal, WalMart attached Antonello’s demand letter. (Doc. # 1-8). In
that letter, Antonello listed his past medical expenses as
totaling $138,361.47. (Id. at 3).
Within a month of removal, Antonello filed the instant
Motions. (Doc. ## 9, 10). The Motions are fully briefed (Doc.
## 16, 17) and ripe for review.
II.

Legal Standard
“Federal

courts

have

limited

subject

matter

jurisdiction.” Morrison v. Allstate Indem. Co., 228 F.3d
1255, 1260-61 (11th Cir. 2000). As such, “[a] federal court
not only has the power but also the obligation at any time to
inquire

into

jurisdiction

whenever

the

possibility

that

jurisdiction does not exist arises.” Fitzgerald v. Seaboard
Sys. R.R., Inc., 760 F.2d 1249, 1251 (11th Cir. 1985).
When

jurisdiction

is

premised

upon

diversity

of

citizenship, 28 U.S.C. § 1332(a) requires that the action is
between “citizens of different States” and that “the matter
2

in controversy exceeds the sum or value of $75,000, exclusive
of interest and costs.” If “the jurisdictional amount is not
facially apparent from the complaint, the court should look
to the notice of removal and may require evidence relevant to
the amount in controversy at the time the case was removed.”
Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir.
2001). When “damages are unspecified, the removing party
bears the burden of establishing the jurisdictional amount by
a preponderance of the evidence.” Lowery v. Ala. Power Co.,
483 F.3d 1184, 1208 (11th Cir. 2007).
III. Analysis
Antonello argues that this case must be remanded to state
court because Wal-Mart has not met its burden of showing that
the amount in controversy is at least $75,000. The Court
agrees.
Antonello
expenses

have

[Antonello’s]

argues

that

already
insurance

“most

been

of

paid

provider,”

[his]

by
and

past

medical

Medicaid

through

he

attaches

a

composite of medical records in support. (Doc. # 9 at 10;
Doc. # 9-1).
While Antonello acknowledges that case law is “split” on
whether post-trial setoffs are relevant at the jurisdictional
stage, he argues that this case is distinguishable because
3

“Medicaid made these payments pre-removal and Florida law
limits [Antonello’s] ability to present and recover for past
medical

expenses

anything

more

than

the

amount

paid

by

Medicaid.” (Doc. # 9 at 10, 11-12). Based on a claims report
that he attaches to his Motion, Antonello argues that his
damages

for

past

medical

expenses

will

be

limited

to

$5,523.10, the amount already paid by Medicaid. (Id. at 12).
Florida law prohibits a plaintiff in a tort action from
recovering damages for expenses that have already been paid
through a collateral source as follows:
In any action to which this part applies in which
liability is admitted or is determined by the trier
of fact and in which damages are awarded to
compensate the claimant for losses sustained, the
court shall reduce the amount of such award by the
total of all amounts which have been paid for the
benefit of the claimant, or which are otherwise
available to the claimant, from all collateral
sources; however, there shall be no reduction for
collateral sources for which a subrogation or
reimbursement right exists. Such reduction shall be
offset to the extent of any amount which has been
paid, contributed, or forfeited by, or on behalf
of, the claimant or members of the claimant’s
immediate family to secure her or his right to any
collateral source benefit which the claimant is
receiving as a result of her or his injury.
Fla. Stat. § 768.76(1). The statute, however, carves out an
exception

for

benefits

received

programs:

4

from

federal

healthcare

Notwithstanding any other provision of this
section, benefits received under Medicare, or any
other federal program providing for a Federal
Government lien on or right of reimbursement from
the plaintiff’s recovery, the Workers’ Compensation
Law, the Medicaid program of Title XIX of the Social
Security Act or from any medical services program
administered by the Department of Health shall not
be considered a collateral source.
Fla. Stat. § 768.76(2)(b).
Here, as admitted by Antonello in his Motion and as
reflected

in

the

attached

documentation,

Antonello

is

a

Medicaid recipient. 1 And benefits received under Medicaid
“shall not be considered a collateral source and they are not
subject to a setoff” under the statute. See Matrisciani v.
Garrison Prop. & Cas. Ins. Co., 298 So. 3d 53, 58 (Fla. 4th
DCA 2020).
However, that does not mean that Antonello will be able
to recover the entire $138,361.47 in claims submitted by
healthcare providers. Florida courts have held that “Section
The documents that Antonello attached to his Motion
demonstrate that Antonello is a participant in the Florida
Medicaid Casualty Recovery Program. See, e.g., (Doc. # 9-1 at
10-11). That program is administered pursuant to Fla. Stat.
§ 409.910, et seq., which provides that “[a]ll other sources
of payment for medical care are primary to medical assistance
provided by Medicaid” and mandates that, when a third party
is liable to a Medicaid recipient after medical assistance
has been provided by Medicaid, Medicaid shall be repaid in
full. Indeed, the claim report submitted by Antonello lists
the amount of $5,523.10 as the “preliminary subrogation
claim.” See (Doc. # 9-1 at 14).
1

5

768.76, Florida Statutes (2017), is clear[]. A trial court
cannot setoff the difference between the amount billed and
the amount [Medicaid] paid.” Gulfstream Park Racing Ass’n,
Inc. v. Volin, No. 4D19-3471, 2021 WL 1997278, at *3 (Fla.
4th DCA May 19, 2021); Dial v. Calusa Palms Master Ass’n,
Inc., 308 So. 3d 690, 692 (Fla. 2d DCA 2020) (affirming trial
court’s order limiting past medical expenses to Medicare
bills

that

were

indisputably

tendered

and

paid);

Coop.

Leasing, Inc. v. Johnson, 872 So. 2d 956, 960 (Fla. 2d DCA
2004) (holding that “the appropriate measure of compensatory
damages

for

past

medical

expenses

when

a

plaintiff

has

received Medicare benefits does not include the difference
between the amount that the Medicare providers agreed to
accept and the total amount of the plaintiff’s medical bills).
As the Cooperative Leasing court explained:
Section 768.76 excludes Medicare benefits as a
collateral source because the federal government
has a right to reimbursement from [plaintiff’s]
recovery for payments it has made on her behalf.
Under federal law the government’s right to
reimbursement does not extend to amounts never
actually paid to medical providers. See 42 U.S.C.
§ 1395y(b)(2)(B)(i). If we adopted [plaintiff’s]
construction of “benefits received” she would be
entitled to recover an amount equal to the full
amount of her medical bills, including the amount
for which she never became liable and for which the
federal government has no right to reimbursement.
This would result in a windfall that is contrary to
the legislative policy evidenced by section 768.76.
6

Consequently, the amount that was written off by
her
medical
providers
cannot
be
considered
“benefits received” under section 768.76(2)(b).
Coop. Leasing, 872 So. 2d at 960.
In other words, under current Florida law, Antonello
would likely not be precluded from recovering $5,523.10 in
damages

because

“benefits

received”

from

Medicaid

are

exempted from the collateral-source rule under Fla. Stat. §
768.76(2)(b). However, he would not be entitled to receive
the difference between his total medical bills and the amount
paid out by Medicaid under Dial and Cooperative Leasing.
The Court agrees with Antonello that, under the relevant
Florida law, “[t]he fact that Medicaid has paid [Antonello’s]
past

medical

expenses

is

pivotal

to

this

Court’s

determination of the amount in controversy because it likely
restricts

the

total

amount

of

past

medical

expenses

[Antonello] can present and recover at any future trial.”
(Doc.

#

9

at

11).

Notably,

Wal-Mart

does

not

dispute

Antonello’s argument on this point, nor does it provide any
alternative calculation of Antonello’s medical expenses. See
(Doc.

#

16

at

8)

(arguing

that

“even

if

Plaintiff’s

entitlement after Medicaid payments were only $5,523.10 . .
. the amount-in-controversy requirement is satisfied due to
non-economic damages and “projected future expenses”).
7

Furthermore,

“the

weight

of

authority

[within

this

Circuit] considers pre-removal payments when determining the
amount in controversy for jurisdictional purposes.” Walsh v.
Target Corp., No. 6:20-cv-1185-RBD-EJK, 2020 WL 5634125, at
*4 (M.D. Fla. Aug. 27, 2020), report and recommendation
adopted, No. 6:20-cv-1185-RBD-EJK, 2020 WL 5628903 (M.D. Fla.
Sept.

21,

2020)

(considering

plaintiff’s

insurer

controversy

because

when

pre-removal

calculating

Florida

Statute

payment

the
§

from

amount

768.76

in

limited

plaintiff’s damages); see also Jackson v. St. Jude Med.
Neuromodulation Div., 62 F. Supp. 3d 1343, 1347 (M.D. Fla.
2014) (taking into account payments made prior to removal for
plaintiff’s medical care in determining amount in controversy
and finding that, where only $10,000 remained to be paid,
remand

was

appropriate);

Armbrister

v.

Cumberland

Farms,

Inc., No. 2:17-cv-14062, 2017 WL 7794284, at *2 (S.D. Fla.
July 24, 2017) (similar).
The other damages pled in the complaint and mentioned in
the demand letter – past pain and suffering, loss of capacity
for the enjoyment of life, unstated loss of wages, unstated
loss of earning capacity, future medical expenses, and future
pain and suffering – are too speculative to include in the
Court’s calculation. See Pennington v. Covidien LP, No. 8:198

cv-273-VMC-AAS, 2019 WL 479473, at *2 (M.D. Fla. Feb. 7,
2019)(excluding lost wages and pain and suffering damages
from the amount in controversy calculation because the Court
“would [] be required to engage in rank speculation to ascribe
any monetary value to these damages”). Without these noneconomic damages, the only concrete damages established in
this case are less than $6,000 – far short of the $75,000
needed to establish diversity jurisdiction.
In

short,

establishing

Wal-Mart

this

has

Court’s

not

carried

diversity

its

burden

jurisdiction

by

of
a

preponderance of the evidence. The Court, finding that it
lacks subject matter jurisdiction, remands this case to state
court.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiff Michael Antonello’s Motion to Remand (Doc. #
9) is GRANTED.

(2)

Antonello’s Motion to Amend Complaint (Doc. # 10) is
DENIED AS MOOT. 2

See Sinton v. Creative Hairdressers, Inc., No. 10-80021CIV, 2010 WL 11602240, at *1 n.2 (S.D. Fla. Mar. 26, 2010)
(“Since the Court is granting Plaintiff's Motion for Remand,
all other pending motions, including the Motion to Amend to
add two Florida residents as defendants and the underlying
issue of whether such joinder would destroy diversity of
2

9

(3)

The Clerk is directed to REMAND this case to state court.
After

remand,

the

Clerk

shall

terminate

all

other

pending motions and CLOSE this case.
DONE and ORDERED in Chambers in Tampa, Florida, this
16th day of November, 2021.

citizenship, are moot for
jurisdictional decision.”).
10

purposes

of

this

Court's