Hester v. UMR Insurance Company et al
Filing
76
ORDER granting UMR, Inc.'s 35 Motion to Dismiss; denying Memorial Healthcare Group, Inc.'s 36 Motion to Dismiss; granting Plaintiff's 61 Motion to Add Memorial Family. Signed by Judge Lisa G. Wood on 9/28/2017. (ca)
Sn tl^e ?limteb States! Bitittict Conit
tor ttie ^onttiem Btotnct ot 4^eorgta
li^apcrofiiO Btbtsiton
GEORGE
RAYMOND
JR.,
as
the
Estate
HESTER,
administrator
of
of
Teresa
Hester and as surviving
spouse of Teresa Hester,
No: 5:16-CV-82
Plaintiff,
V.
UMR,
INC.
&
MEMORIAL
HEALTHCARE GROUP, INC.
Defendants.
ORDER
Before the Court are Defendants UMR, Inc.'s (""UMR") Motion
to Dismiss (Dkt. No. 35) and Memorial Healthcare Group, Inc.'s
(^'Memorial") Motion to Dismiss (Dkt. No. 36).
Plaintiff George
Raymond
Memorial
Practice
Hester
also
brings
Associates,
LLC
a
Motion
(^'Memorial
to
Add
Family")
as
a
Family
Defendant
(Dkt. No. 61). The motions have been fully briefed and are now
ripe for decision.
to
Dismiss
(Dkt.
For the reasons stated below, UMR's Motion
No.
35)
is
GRANTED
and
Memorial's
Motion
to
Dismiss (Dkt. No. 36) is DENIED. In addition. Plaintiff's Motion
to Add Memorial Family (Dkt. No. 61) is GRANTED.
BACKGROUND
The
facts
stated
herein
are
taken
solely
from
Plaintiff
Amended Complaint and are assumed to be true, pursuant to Rule
12(b)(6).
Plaintiff
was the
husband of Teresa
Hester").
Mrs. Hester received
Hester
(^'Mrs.
gastric lapband surgery at a
hospital operated by Memorial on March 3, 2015.
Dkt. No. 30 25
13-14.
the
Plaintiff
Memorial assured
alleges
Mrs.
that
a
surgeon
Hester that the
in
surgery
employ
would
be
of
fully
covered through her insurance, and if not, that the rest would
be covered by Medicare.
Id. 22 18-19.
Plaintiff alleges that
the surgery was ultimately not covered by either Mrs. Hester's
insurance or Medicare.
22 20-21.
Mrs. Hester died on March 2, 2016.
Id.
Plaintiff alleges that Mrs. Hester's death was due to
complications from surgery.
Plaintiff further alleges that Mrs.
Hester never would have elected to undergo surgery had it not
been for Defendants' representations that the surgery would be
covered by Medicare.
Plaintiff
now
Id. 2 21.
brings
an
action
for
negligent
misrepresentation against all Defendants and seeks to obtain in
excess of two million dollars in damages.
The Court previously
granted the Plaintiff's Motion to Amend, finding that Plaintiff
was required to meet the heightened pleading standard of Federal
Rule
of
considers
Civil
Procedure
Defendants'
9(b).
renewed
Dkt.
No.
Motions to
29.
The
Dismiss,
that Plaintiff has failed to meet that standard.
Court
which
now
argue
LEGAL STANDARD
When ruling on a motion to dismiss brought pursuant to Rule
12(b)(6), a district court must accept as true the facts set
forth in the complaint and draw all reasonable inferences in the
plaintiff's favor.
Cir. 2010).
Randall v. Scott, 610 F.3d 701, 705 (11th
Although a complaint need not contain detailed
factual allegations, it must contain sufficient factual material
^^to raise a right to relief above the speculative level."
Atl. Corp. V. Twombly, 550 U.S. 544, 555 (2007).
complaint
should
^^contain
either
direct
Bell
At minimum, a
or
inferential
allegations respecting all the material elements necessary to
sustain a recovery under some viable legal theory."
Fin. Sec.
Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282-83 (11th
Cir. 2007) (per curiam) (quoting Roe v. Aware Woman Ctr. for
Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001)).
However,
pleading
applies.
when
standard
an
allegation
of
Federal
sounds in fraud, the
Rule
of
Civil
higher
Procedure
9(b)
Under this standard, the plaintiff must state with
^'particularity the circumstances constituting fraud." Fed. R.
Civ.
P.
9(b).
These
circumstances
include
"(1)
the
precise
statements, documents, or misrepresentations made; (2) the time,
place, and person responsible for the statement; (3) the content
and manner in which these statements misled [Plaintiff]; and (4)
what the defendants gained by the alleged fraud."
Brooks v.
Blue
Cross
&
Blue
Shield
of
Fla.,
Inc.,
116
F.3d
1364,
1381
(11th Cir. 1997).
DISCUSSION
The Court previously granted Plaintiff an opportunity to
amend his Complaint, with the caveat that he would need to meet
the more exacting standard of Federal Rule of Civil Procedure
9(b) in order to survive dismissal, as his allegations sound in
fraud.
Dkt. No. 29.
Plaintiff makes the allegation that ^'Mrs.
Hester was assured that her surgical procedure on March 3, 2015
would be covered by her insurance with UMR."
Other
paragraphs
from
Plaintiff's
Dkt. No. 30 SI 17.
Amended
Complaint
add
more detail, such as the claim that Mrs. Hester's surgeon. Dr.
Arundhati
Mrs.
Rao
(''Dr.
Hester's
Medicare.
Rao"),
surgery
JA.
made
would
SISI 18-19.
certain
be
representations
covered
by
that
insurance
and
In addition, while not providing a
specific date. Plaintiff alleges that the statements were made
during
"the
final
Jacksonville.
Memorial
pre-op
SI
both
when
visit)
and
facility).^
pre-op
19.
the
visit"
These
at
Memorial's
allegations
misrepresentation
where
it
occurred
tell
occurred
(at
facility
the
in
Defendant
(the
final
Jacksonville
Finally, Plaintiff alleges that Memorial
had
a
financial motivation in making the misrepresentation, in that it
sought to gain Mrs. Hester as a patient.
Id.
^ Plaintiff alleges UMR's misrepresentations were made at about the same
time.
Dkt. No. 30 5 19.
Plaintiff's allegations against UMR are far less specific.
Plaintiff
alleged
did
not
identify
misrepresentation,
occurred.
the
nor
person
did
responsible
for
identify
where
he
the
it
In fact, Plaintiff asserts that neither he nor Mrs.
Hester ever
had any contact with
Dkt. No. 30 SI 19.
UMR or its representatives.
As such. Plaintiff has not put UMR on notice
as to either the person who made the misrepresentation or where
the misrepresentation was made.
Therefore,
meet
the
while
heightened
Plaintiff's
pleading
allegations
standard
against Memorial
under
Rule
9{b),
his
allegations against UMR do not and will be dismissed.
Memorial argues that even if Plaintiff has provided more
particularity to comply with
has
failed
to
state
a
claim
Rule
for
9(b), Plaintiff nonetheless
relief,
because
stated a claim for negligent misrepresentation.
he
has
not
Memorial cites
this Court's ruling in Arch Insurance Co. v. Clements, Purvis &
Stewart, P.C. as support for the proposition that Plaintiff's
Amended Complaint should be dismissed.
Dkt No. 35 p. 4; 850 F.
Supp. 2d 1371 (S.D. Ga. 2011), aff'd, 434 F. App'x 826 (11th
Cir. 2011) (per curiam).
However, Plaintiff's allegations are
distinguishable from those set out in Arch.
That case involved
a defendant that had allegedly failed to complete construction
audits
in
plaintiff
a
timely
manner.
sustained
850
damages
F.
and
Supp.
sued
2d
at
for
1371.
The
negligent
misrepresentation.
Ultimately,
this
Court
granted
dismissal
because the plaintiff failed to explain two things: fist, how
the
defendant
acted
negligently
misrepresentation was actually made.
and
second,
what
JA. at 13.
But Plaintiff's Amended Complaint suffers from neither of
these two flaws.
Mrs.
Hester's
surgery.
Plaintiff alleges that Memorial misrepresented
insurance
status
Dkt. No. 30 SI 19.
in
order
to
profit
from
the
Unlike in Arch, the Plaintiff has
alleged the exact misrepresentation made and the exact conduct
that was negligent.
These allegations are plausible and stated
with particularity.
As such. Memorial's Motion to Dismiss will
be denied.
Lastly,
the
Court
Memorial Family.
addresses
that
he
Motion
to
Add
Plaintiff asserts that Memorial Family ''does
business with" Defendant Memorial.
claims
Plaintiff's
did
not
Dkt. No. 61 p. 1.
originally
include
Plaintiff
Memorial
Family
because he believed this entity was a trade name for Memorial.
Leave to amend must be granted absent a specific, significant
reason for denial.
Defendant
for
denial.
Foman v. Davis, 371 U.S. 178, 182 (1962).
Memorial
Certainly,
has
not
presented
Defendant
asserts
a
persuasive
that
reason
Plaintiff
had
sufficient notice of the existence of this party and should have
amended
sooner.
Dkt.
No.
66.
matter is in its initial stages.
But
the
Court
notes
that
this
No scheduling order has yet
been
set.
Furthermore,
Memorial
has
stated
no
prejudice
in
allowing Plaintiff to add Memorial Family.
Memorial's other arguments largely rely on the contentions
it previously made in its Motion to Dismiss.
As stated above.
Plaintiff's allegations are made with sufficient particularity
to
survive
a
motion
to
dismiss.
While
the
Court
cannot
yet
discern whether claims against Memorial and Memorial Family will
succeed,
they
particularity,
are
and
nonetheless
warrant
plausible,
discovery.
As
stated
such.
with
Plaintiff's
Motion to Add Memorial Family will be granted.
CONCLUSION
For the reasons set forth above, it is hereby ordered that
Defendant UMR, Inc.'s Motion to Dismiss {Dkt. No. 35) is GRANTED
and
Defendant
Dismiss
{Dkt.
Memorial
No.
36)
Healthcare
is DENIED.
Group,
Inc.'s
Plaintiff's
Motion
Memorial Family (Dkt. No. 61) is GRANTED.
SO ORDERED, this 28™ day of September, 2017.
HON. LISA GODBEY WOOD
UNITED STATES DISTRICT JUDGE
SOUTHERN
Motion
DISTRICT OF GEORGIA
to
to Add
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