Opinion
Case No. 5:20cv216-TKW-MJF
2020-09-09
Michael S. MORSE, Plaintiff, v. GUARDIAN LIFE INSURANCE COMPANY OF AMERICA, et al., Defendants.
Matthew David Liebenhaut, Law Office of Matthew Liebenhaut PLLC, Tallahassee, FL, for Plaintiff. Grace Robinson Murphy, Maynard Cooper & Gale PC, Birmingham, AL, for Defendant Guardian Life Insurance Company of America. Christopher Benton Hopkins, McDonald Hopkins Co., PA, West Palm Beach, FL, for Defendants Genex Services LLC, Exam Coordinators Network Inc.
Matthew David Liebenhaut, Law Office of Matthew Liebenhaut PLLC, Tallahassee, FL, for Plaintiff.
Grace Robinson Murphy, Maynard Cooper & Gale PC, Birmingham, AL, for Defendant Guardian Life Insurance Company of America.
Christopher Benton Hopkins, McDonald Hopkins Co., PA, West Palm Beach, FL, for Defendants Genex Services LLC, Exam Coordinators Network Inc.
ORDER ON MOTIONS TO DISMISS
T. KENT WETHERELL, II, UNITED STATES DISTRICT JUDGE
This case is before the Court on Defendants’ motions to dismiss (Docs. 49, 51, 62), Plaintiff's responses in opposition (Docs. 63, 64, 71), and the replies filed by Defendants Guardian Life Insurance Company of America (Guardian), Genex Services, LLC (Genex), and Exam Coordinators Network (ECN) (Docs. 70, 74). Upon due consideration of these filings and the amended complaint (Doc. 26), the Court finds that the motions to dismiss are due to be granted in part and denied in part for the reasons that follow.
Facts (As Alleged in the Amended Complaint)
Plaintiff participated in a long-term disability insurance plan sponsored by his employer, The Harvey Gulf International Marine, LLC (Harvey). The plan is administered by Guardian and is subject to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq.
The plan provides benefits to covered persons who have a "disability," as defined by the plan. The definition of "disability" is different during and after the so-called "own occupation period." During the period, the definition focuses on the covered person's inability to perform the major duties of his own occupation. After the period, the definition focuses on the covered person's inability to perform two or more activities of daily living (ADLs)—bathing, dressing, toileting, transferring, continence, and eating—on a routine basis without help.
In March 2013, Plaintiff began to lose his eyesight due to bilateral macular degeneration, bilateral hypertensive retinopathy, and symptoms secondary to these conditions. Plaintiff continued to work for Harvey as a ship captain for three more years, but on June 15, 2016, he stopped working due to his visual impairments.
Guardian paid Plaintiff benefits under the plan from October 2016 to October 2018 (during the own occupation period) because he was found to be totally and permanently disabled from sedentary, part-time, and full-time employment.
In October 2018, Guardian stopped paying benefits to Plaintiff after conducting a change in definition (CID) review of Plaintiff. As part of the CID review, Guardian provided questionnaires to medical professionals who could evaluate whether Plaintiff needed help with his ADLs as defined in the plan.
During the CID review period (and before Plaintiff's benefits were terminated), Guardian provided Plaintiff's optometrist, Dr. Davis, a questionnaire regarding Plaintiff's need for help with ADLs. Dr. Davis did not return the questionnaire, and Guardian did not arrange for Plaintiff to be evaluated by an ophthalmologist for his ophthalmological conditions.
Also during the CID review period (and before Plaintiff's benefits were terminated), Guardian had two expert consultants examine his medical records to determine whether a registered nurse (R.N.) should visit Plaintiff at his home to evaluate his disabled status. The consultants each determined that Plaintiff was disabled under the plan because he regularly needed help with two or more ADLs and thus a nurse did not need to evaluate him. Nevertheless, Guardian requested that a nurse visit Plaintiff to evaluate him.
In November 2018 (during the CID review period but after Plaintiff's benefits had been terminated), Guardian contracted with Genex, ECN, and Alicia Melvin, R.N., to evaluate Plaintiff. Guardian, Genex, ECN, and Nurse Melvin knew that Plaintiff was visually impaired and that he had requested accommodations for his visual impairments, but they did not give him notice of the evaluation that would have been appropriate in light of his disability.
Nurse Melvin did not have adequate qualifications or information to evaluate Plaintiff. She did not perform an adequate physical examination of Plaintiff given his ophthalmological conditions. She evaluated him by asking him questions about his ADLs, but she did not know the relevant definitions under the plan. As a result of Nurse Melvin's various inadequacies, she determined that Plaintiff did not need any help with any ADLs.
Plaintiff was living in a Federal Emergency Management Administration trailer in his backyard at the time of Nurse Melvin's evaluation (due to Hurricane Michael) and he was "extremely vulnerable and on guard" due to his visual impairments and the constant threat of looting.
Guardian did not consider the circumstances under which the evaluation took place, nor did it look into the discrepancy between the two consultants’ prior determinations and Nurse Melvin's determination. Instead, Guardian merely accepted Nurse Melvin's determination that Plaintiff did not need any help with ADLs, and terminated his benefits based on that determination.
On December 3, 2018, Guardian provided Plaintiff notice of the termination of his benefits. By that point, Plaintiff had gone without his benefits for over a month without explanation.
The notice of termination used a standard font, not a font that accommodated Plaintiff's visual disability. As a result, Plaintiff was unaware that he had 180 days to find legal counsel or that he could have participated in alternative dispute resolution regarding the termination of his benefits.
Plaintiff called Guardian and was told that he could file an internal appeal, but the call left him with the impression that he needed to do so quickly. As a result, on January 19, 2019, Plaintiff appealed the termination of his benefits through handwritten statements made with a non-lawyer friend's help.
Plaintiff included a letter from his treating ophthalmologist, Dr. Ram Peddada, as part of his appeal. The letter stated that Plaintiff needed help with several ADLs.
Guardian sent Dr. Peddada and Plaintiff's primary care physician, Dr. Ahmed Ismail, questionnaires to fill out. The doctors responded that Plaintiff needed help with toileting, dressing, and bathing. Guardian disregarded these opinions and ordered another at-home evaluation of Plaintiff.
Guardian hired a private investigator to conduct surveillance on Plaintiff. The private investigator told Guardian that Plaintiff was not seen leaving home during the surveillance.
In April 2019, Advance Rehab & Home Health, LLC (Advance) and Cassie Cole examined Plaintiff. They also made Plaintiff a patient of their practice.
Cole visited Plaintiff at his home and filled out a questionnaire stating that Plaintiff needed help with two ADLs: bathing and transferring. However, days later, Cole submitted a final report stating that Plaintiff did not need help with any ADLs.
Guardian disregarded the discrepancy between Cole's questionnaire and her final report and sought no further clarification or evaluation of Plaintiff.
Guardian sent a form to Plaintiff's medical providers along with Cole's questionnaire and her final report. The form asked the providers to check a box either agreeing or disagreeing with Cole's opinion. Two of Plaintiff's medical providers checked the box that they agreed, but the form did not clarify whether the providers were agreeing with Cole's questionnaire (which supported that Plaintiff was disabled) or her final report (which found Plaintiff not to be disabled).
On May 24, 2019, Guardian sent Plaintiff a letter denying his appeal based on Cole's final report. The letter did not inform Plaintiff of the consultants’ previous determinations that he was disabled, nor did it inform him that a private investigator had surveilled him and could corroborate his claim that he could not even leave his home without help.
Plaintiff never visited Defendants’ offices, but he claims that the "policies and decisions made in such offices affect [his] treatment by Defendants."
Procedural History
In October 2019, Plaintiff filed a two-count complaint in the Tallahassee Division of this Court against Guardian to recover plan benefits and to clarify his right to receive plan benefits under Title I of ERISA. The case was assigned to Judge Walker.
In December 2019, Guardian answered the complaint with admissions, denials, and affirmative defenses. A scheduling order was entered in January 2020, but very little discovery had taken place as of April 2020 when Plaintiff filed a motion to amend the complaint.
Guardian opposed the proposed amendment as futile, preempted by ERISA, untimely, and adding undue cost and delay, but Judge Walker granted the motion to amend. See Doc. 36. The amended complaint names five Defendants—Guardian, Genex, ECN, Advance, and Cole—and asserts four counts: Count I sues Guardian to recover and clarify plan benefits under Title I of ERISA; Count II sues Guardian, Genex, ECN, and Advance for violations of Title III of the Americans with Disabilities Act (ADA); Count III sues Genex, ECN, Advance, and Cole for negligence under Florida common law; and Count IV sues Advance and Cole for breach of fiduciary duty under Florida common law.
None of the pending motions to dismiss raise a preemption argument.
Defendants responded to the complaint with motions to dismiss, and all defendants except Guardian challenged venue in the Tallahassee Division in their motions to dismiss. Judge Walker granted the motions to dismiss in part, finding that venue was improper in the Tallahassee Division and transferring the case to the Panama City Division. See Doc. 75. Judge Walker deferred consideration of the remainder of the motion to dismiss to the transferee judge. Id. at 1 n.1 ("Because this Court finds that venue is improper in this Division, it declines to address the remainder of Defendants’ arguments. ... Whoever gets the case on reassignment will address the balance of Defendants’ arguments.").
Guardian only moved to dismiss Count II, and it separately filed an answer responding to the other count in which it was named.
Analysis
"To survive a motion to dismiss [under Fed. R. Civ. P. 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The "plausibility standard" requires a showing of "more than a sheer possibility" that the defendant is liable on the claim. Id. at 678, 129 S.Ct. 1937. Legal "labels and conclusions," unsupported by factual allegations, will not suffice. Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). The Court accepts the complaint's well-pleaded factual allegations as true and construes them in the light most favorable to the plaintiff. Id. at 679, 129 S.Ct. 1937 ; Crespo v. Coldwell Banker Mortg. , 599 F. App'x 868, 874 (11th Cir. 2014).
Count II – ADA
Plaintiff alleges in Count II that by not communicating with him in a way that he could read and understand, Guardian, Genex, ECN, and Advance violated Title III of the ADA. Defendants argue (among other things) that Title III of the ADA does not cover alleged discrimination in the administration of a health care plan. The Court agrees.
Title III of the ADA prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation." 42 U.S.C. § 12182(a). Public accommodations include buildings, structures, and other physical facilities operated by private entities, including insurance offices and professional offices of a health care provider. Id. at § 12181(7)(F); see also 28 C.F.R. § 36.104 (defining "place of public accommodation" and "facility").
"The definition of discrimination provided in Title III covers both tangible barriers, that is, physical and architectural barriers that would prevent a disabled person from entering an accommodation's facilities and accessing its goods, services and privileges, and intangible barriers, such as discriminatory policies and procedures that restrict a disabled person's ability to enjoy the defendant entity's goods, services and privileges." J.A.M. v. Nova Se. Univ., Inc. , 646 F. App'x 921, 925 (11th Cir. 2016) (citing Rendon v. Valleycrest Prods., Ltd. , 294 F.3d 1279, 1283-84 (11th Cir. 2002) ). However, there still must be a nexus between the defendant's premises and the services the plaintiff is allegedly being denied access to. See Rendon , 294 F.3d at 1284 n.8. Here, the alleged nexus—that "policies and decisions made in [Defendants’] offices affect [Plaintiff's] treatment by Defendants"—is too attenuated to support a claim under Title III of the ADA. See Petrano v. Nationwide Mut. Fire Ins. Co. , 2013 WL 1325045, at *7-8 (N.D. Fla. Jan. 24, 2013) (recommending dismissal of Title III claim against an insurance company based on its alleged failure to provide information to visually impaired persons in an easier-to-read format because there was no "nexus" between the complained-of activity and the physical structure of the insurance company's offices), report and recommendation adopted in pertinent part by 2013 WL 1325030 (N.D. Fla. Mar. 27, 2013) ; cf. Rendon, supra (reversing dismissal of suit under Title III of the ADA because defendants used a screening mechanism that effectively precluded certain disabled persons from being able to access studio where television gameshow was being filmed). Accordingly, Count II is due to be dismissed.
Count III – Negligence
In Count III, Plaintiff alleges claims of negligence against Genex, ECN, Advance, and Cole in connection with their examinations of Plaintiff. Specifically, Plaintiff alleges that these defendants breached duties they owed to him "to select and assign that professional (and perform such assignment) reasonably and with due diligence." Doc. 26, at ¶109.
To the extent that Plaintiff's claims are based on alleged deficiencies in the performance of the examinations, the claims are due to be dismissed because there is no indication that Plaintiff complied with the statutory pre-suit requirements in Florida law for medical negligence claims; however, to the extent the claims are based on other matters (such as inadequate training), the claims sound in ordinary negligence and are not subject to dismissal for failure to comply with the pre-suit requirements in Florida law. See generally Nat'l Deaf Acad., LLC v. Townes , 242 So. 3d 303, 313 (Fla. 2018) ("[O]nly claims that arise out of an action or inaction directly related to medical care or services, which require the use of professional judgment or skill, sound in medical malpractice.").
That, however, does not end the inquiry because, under Florida law, a health care provider hired by an insurance company to conduct a medical examination of the insured generally owes no negligence-based duties to the plaintiff who is the subject of the examination because the examiner is an agent of the insurance company, not in a provider-patient relationship with the insured. See Casamassina v. United States Life Ins. Co. , 958 So. 2d 1093, 1102 (Fla. 4th DCA 2007). Here, although Plaintiff plausibly alleges that Advance and Cole assumed a provider-patient relationship with him, he does not allege that Genex and ECN did so. Accordingly, the ordinary negligence claims in Count III against Genex and ECN (but not Advance and Cole) are due to be dismissed.
See Doc. 26, at ¶121 ("Advance and Cole undertook to not only conduct a forensic evaluation on [Plaintiff], but to make [him] a patient of their practice."). Additionally, although outside of the four corners of the amended complaint (and not a basis for the Court's decision), it is noteworthy that the informed consent form signed by Plaintiff in connection with the examination performed by Advance expressly stated, "I understand that I am a patient of Advance Rehab & Home Health, LLC ...." Doc. 34, at 7.
Count IV – Breach of Fiduciary Duty
In Count IV, Plaintiff alleges that Advance and Cole breached various fiduciary duties they owed to him. Advance and Cole argue that Count IV fails to state a claim because they owed fiduciary duties to Guardian, not Plaintiff. The Court rejects this argument because, under Florida law, "a fiduciary relationship exists between physician and patient," Gracey v. Eaker , 837 So. 2d 348, 354 n.6 (Fla. 2002), and as stated above, Plaintiff plausibly alleged that Advance and Cole assumed a provider-patient relationship with him.
That said, because the claims asserted against Advance and Cole in Count IV appear to be duplicative of the claims asserted against them in Count III, the breach of fiduciary duty claims in Count IV are due to be dismissed. See Greenberg v. Miami Children's Hosp. Resch. Inst., Inc. , 264 F. Supp. 2d 1064, 1071 (S.D. Fla. 2003) ("Courts routinely hold that where a patient's claim that the doctor breached his fiduciary duty arises from the same operative facts and results in the same injury as another claim asserted against the doctor, then the breach of fiduciary claim is duplicative and should be dismissed."). Moreover, to the extent the claims in Count IV are based on alleged deficiencies in the performance of the examinations conducted by Advance and Cole (which they largely appear to be), the claims would also be subject to dismissal for failure to comply with the pre-suit procedures in Florida law for medical negligence claims. See Paulk v. Nat'l Med. Enterprises Inc. , 679 So. 2d 1289, 1290 n.3 (Fla. 4th DCA 1996) ("Even though chapter 766 uses the term ‘negligence’ or ‘medical negligence’ in several of its provisions, we do not believe that the legislature intended to limit coverage of the statutory scheme to only those actions framed in terms of negligence. It seems to us that the intent expressed in the text is to extend the statute whenever the medical judgment of the provider is being challenged."); Tunner v. Foss , 655 So. 2d 1151, 1152 (Fla. 5th DCA 1995) (holding that the medical malpractice statutory scheme applies to a breach of fiduciary duty claim based on the rendering of, or failure to render, medical care or services).
Conclusion
In sum, for the reasons stated above, it is ORDERED that Defendants’ motions to dismiss (Docs. 49, 51, 62) are GRANTED in part and DENIED in part as discussed above, and
1. Count II is DISMISSED .
2. The claims against Genex and ECN in Count III are DISMISSED .
3. The claims in Count III alleging that Advance and Cole negligently performed the evaluation of Plaintiff are DISMISSED for failure to comply with the pre-suit procedures in Florida law for medical negligence claims, but the other claims against Advance and Cole may proceed.
4. Count IV is DISMISSED .
5. Advance and Cole shall answer the amended complaint within 14 days from the date of this Order. See Fed. R. Civ. P. 12(a)(4).
6. The stay imposed by Judge Walker in this case is lifted, and within 21 days from the date of this Order, the parties shall file an amended Rule 26(f) report. See Doc. 67.
DONE and ORDERED this 9th day of September, 2020.