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