Opinion
Case No. 8:21-cv-2536-SCB-AEP
2023-08-07
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and State Farm Fire and Casualty Company, Plaintiffs, v. Michael LAROCCA, D.C., et al., Defendants.
Bart R. Valdes, Aaron H. Baroff, DeBaeubien, Knight, Simmons, Mantzaris & Neal, LLP, Tampa, FL, Eric T. Gortner, Pro Hac Vice, John W. Reale, Pro Hac Vice, Michael J. Powers, Katten Muchin Rosenman LLP, Chicago, IL, Ross O. Silverman, Pro Hac Vice, Chicago, IL, for Plaintiffs. Patrick M. Causey, Trenam Law, St. Petersburg, FL, John D. Goldsmith, Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Tampa, FL, Kyle Francis McCabe, Margaret R. Knaust, Trenam Law, St. Petersburg, FL, for Defendants Michael Thomas LaRocca, Blake Thomas LaRocca, Michael August Major, Jason Edward Hunt, Antoinetter Denise Stewart, Ruth Germaine Griffin, Cecilio Torres-Ruiz, Lori Rebein, All Accidents Chiropractic Center, PLLC, LaRocca Chiropractic Centers, LLC, LaRocca Chiropractic Injury Center, LLC, LaRocca Injury Centers, LLC, LaRocca Auto Injury Center, LLC. Patrick M. Causey, Trenam Law, St. Petersburg, FL, Margaret R. Knaust, Trenam Law, St. Petersburg, FL, for Defendant Savannah Jane Mayberry. Patrick M. Causey, Trenam Law, St. Petersburg, FL, John D. Goldsmith, Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Tampa, FL, Margaret R. Knaust, Trenam Law, St. Petersburg, FL, for Defendant Mournir Semia. Patrick M. Causey, Trenam Law, St. Petersburg, FL, Philip Matthew Luka, Ronald Patrick Hanes, Trombley & Hanes, PA, Tampa, FL, Kyle Francis McCabe, Margaret R. Knaust, Trenam Law, St. Petersburg, FL, for Defendant Tobias Bacaner.
Bart R. Valdes, Aaron H. Baroff, DeBaeubien, Knight, Simmons, Mantzaris & Neal, LLP, Tampa, FL, Eric T. Gortner, Pro Hac Vice, John W. Reale, Pro Hac Vice, Michael J. Powers, Katten Muchin Rosenman LLP, Chicago, IL, Ross O. Silverman, Pro Hac Vice, Chicago, IL, for Plaintiffs. Patrick M. Causey, Trenam Law, St. Petersburg, FL, John D. Goldsmith, Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Tampa, FL, Kyle Francis McCabe, Margaret R. Knaust, Trenam Law, St. Petersburg, FL, for Defendants Michael Thomas LaRocca, Blake Thomas LaRocca, Michael August Major, Jason Edward Hunt, Antoinetter Denise Stewart, Ruth Germaine Griffin, Cecilio Torres-Ruiz, Lori Rebein, All Accidents Chiropractic Center, PLLC, LaRocca Chiropractic Centers, LLC, LaRocca Chiropractic Injury Center, LLC, LaRocca Injury Centers, LLC, LaRocca Auto Injury Center, LLC. Patrick M. Causey, Trenam Law, St. Petersburg, FL, Margaret R. Knaust, Trenam Law, St. Petersburg, FL, for Defendant Savannah Jane Mayberry. Patrick M. Causey, Trenam Law, St. Petersburg, FL, John D. Goldsmith, Trenam, Kemker, Scharf, Barkin, Frye, O'Neill & Mullis, Tampa, FL, Margaret R. Knaust, Trenam Law, St. Petersburg, FL, for Defendant Mournir Semia. Patrick M. Causey, Trenam Law, St. Petersburg, FL, Philip Matthew Luka, Ronald Patrick Hanes, Trombley & Hanes, PA, Tampa, FL, Kyle Francis McCabe, Margaret R. Knaust, Trenam Law, St. Petersburg, FL, for Defendant Tobias Bacaner. ORDER SUSAN C. BUCKLEW, United States District Judge
Before the Court is Defendants' Amended Motion for Partial Summary Judgment on Affirmative Defense of Voluntary Payment (Doc. 260), Plaintiffs' Response (Doc. 271), and Defendants' Reply thereto (Doc. 280). As explained below, the Motion is denied.
Defendants have filed an unredacted version of their Amended Motion for Partial Summary Judgment under seal. (Doc. 261).
I. BACKGROUND
Defendants seek partial summary judgment on their third affirmative defense of voluntary payment. A summary of the procedural background and law relevant to the resolution of the instant Motion follows.
This case involves an alleged fraud scheme to collect millions of dollars in no-fault automobile insurance benefits for chiropractic and medical services that were not medically necessary or lawfully rendered. The Florida Motor Vehicle No-Fault Law ("No-Fault Law"), Fla. Stat. §§ 627.730-7405, requires automobile insurers to provide personal injury protection ("PIP") benefits that pay a percentage of reasonable expenses for medically necessary services when an insured is injured in an automobile accident. See Fla. Stat. § 627.736(1)(a). The purpose of PIP benefits is to "provide swift, virtually automatic payment" of medical benefits to those injured in automobile accidents without regard to fault. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 683-84 (Fla. 2000) (citations omitted).
Section 627.736, Florida Statutes, is often referred to as the "PIP" statute. See, e.g., MRI Assocs. of Tampa, Inc. v. State Farm Mut. Auto. Ins. Co., 334 So.3d 577, 579 (Fla. 2021).
A healthcare provider that has a valid assignment of benefits from an insured may submit PIP claims directly to an insurer to receive reimbursement. See Gov't Emps. Ins. Co. v. Quality Diagnostic Health Care, Inc., No. 21-10297, 2021 WL 5157535, at *1 (11th Cir. Nov. 5, 2021). The insurer must pay the claims within thirty days. See Fla. Stat. § 627.736(4). However, the insurer is not required to pay PIP claims for services or treatment that were not lawfully rendered or to persons who knowingly submit a false or misleading statement relating to the claim. Fla. Stat. § 627.736(5)(b)(1)(b)-(c). Rather, if the insurer has a reasonable belief that a fraudulent insurance act has been committed, it is required to:
"Lawfully" is defined as "in substantial compliance with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services or treatment." Fla. Stat. § 627.732(11).
" 'Knowingly' means that a person, with respect to information, has actual knowledge of the information; acts in deliberate ignorance of the truth or falsity of the information; or acts in reckless disregard of the information, and proof of specific intent to defraud is not required." Fla. Stat. § 627.732(10).
notify the [healthcare provider] in writing within that same thirty-day period in order to toll the time period for payment and to conduct a sixty-day investigation—giving the insurer who gave the requisite notice a total of ninety days to pay or deny the claim. If the insurer fails to either pay or deny the claim within this timeframe the payment becomes "overdue" and the insurer is subject to specific penalties, which include interest, a ten percent penalty on the overdue amount, and attorney's fees, in the event the insured ultimately prevails.Century-National Ins. Co. v. Regions All Care Health Ctr., Inc., 336 So.3d 445, 448 (Fla. 2d DCA 2022) (citing Fla. Stat. § 627.736(4), (8), (10)). While the insurer's failure to pay or deny a PIP claim within the statutory time frame results in the claim being "overdue," nothing in the statute bars the insurer from contesting the claim once it has become overdue. Id. at 448-49 (citations omitted).
Plaintiffs provide automobile insurance coverage that includes PIP benefits and optional medical payment coverage ("MPC benefits") (collectively, "no-fault benefits"). (Doc. 1, ¶ 1). Defendants are individuals and chiropractic clinics that treat patients involved in automobile accidents.
Plaintiffs opened an investigation in 2018 for fraud related to alleged patterns in Defendants' medical billing. Plaintiffs and Defendants entered into a confidential Tolling and Forbearance Agreement (the "Tolling Agreement") in August 2019, which allowed Plaintiffs to stop making payments on any claims submitted by Defendants while they engaged in discussions and the Tolling Agreement remained in effect. Their discussions ended in November 2019, and Plaintiffs resumed paying the PIP claims submitted by Defendants.
Plaintiffs initiated this action on October 29, 2021, alleging that beginning in at least 2017, Defendants engaged in an insurance fraud scheme by providing medically unnecessary and fraudulent services to their patients in order to defraud Plaintiffs out of $2.1 million in money paid for no-fault insurance claims. (Doc. 1, ¶¶ 1-5). Plaintiffs asserted five causes of actions in their complaint. In Counts I-III, Plaintiffs asserted common law claims for fraud, civil conspiracy, and unjust enrichment. In Count IV, Plaintiffs asserted a statutory claim under the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq. ("FDUTPA"). Plaintiffs brought Counts I-IV against all Defendants. In Count V, Plaintiffs sought a declaratory judgment that they were not liable for any unpaid charges the LaRocca Clinics had submitted to Plaintiffs through the date of their complaint and the trial of this case.
Defendants All Accidents Chiropractic Center, PLLC, LaRocca Chiropractic Centers, LLC, LaRocca Chiropractic Injury Center, LLC, LaRocca Injury Centers LLC, and LaRocca Auto Injury Center LLC are collectively referred to as the "LaRocca Clinics."
After engaging in significant discovery disputes, Plaintiffs sought leave to file an amended complaint to add new factual allegations to support their existing claims. Plaintiffs alleged that in addition to submitting medically unnecessary claims for PIP benefits, certain Defendants also engaged in an illegal patient brokering and kickback scheme as evidenced by their marketing activities. Over Defendants' objections, the Court granted Plaintiffs' motion.
Plaintiffs filed their amended complaint (the operative "Complaint") on October 26, 2022. Aside from the additional factual allegations, the Complaint is identical to the initial complaint. (Doc. 161). The significance of the additional factual allegations is that they provide another theory of liability for each claim. As such, two independent theories of liability underlie each claim: (1) that Defendants provided unnecessary medical treatment; and (2) that all charges Defendants submitted are unlawful and non-compensable because the clinic owners failed to ensure compliance with the law as shown by their marketing activities. (Doc. 161). Defendants filed their Answer and [Affirmative] Defenses to the Complaint on November 30, 2022. (Doc. 192). Defendants' third affirmative defense asserts the defense of voluntary payment pursuant to Florida's common-law voluntary payment doctrine. It alleges that:
Plaintiffs' claims are barred, at least in part, by the voluntary payment doctrine. Plaintiffs are sophisticated insurance companies. Plaintiffs had existing rights to dispute the amounts when paid, Plaintiffs had knowledge of the underlying facts to dispute these amounts, and Plaintiffs paid the amounts despite being
aware of the facts that form the basis of their claim. For example, Plaintiffs were expressly aware of the manner by which the LaRocca Defendants treated their patients starting in 2018, when they started investigating the LaRocca Defendants for alleged fraud. Rather than deny claims based on the manner by which the LaRocca Defendants treated their patients, Plaintiffs paid the claims and waited years to file this action. By being expressly aware of the facts that form the basis of this claim in 2018, and paying the claims anyway, Plaintiffs waived their rights to recover these amounts from the LaRocca Defendants under the voluntary payment doctrine.(Id., pp. 21-22).
Defendants now seek partial summary judgment on their third affirmative defense only as the defense relates to Plaintiffs' first theory of liability, which, as noted above, underlies each count in the Complaint. Specifically, Defendants argue the defense bars Plaintiffs from recovering damages for payments they made to Defendants from November 25, 2019—the date on which the Tolling Agreement terminated—to October 29, 2021—the date on which Plaintiffs filed suit, because Plaintiffs made the payments voluntarily with full knowledge of Defendants' allegedly fraudulent conduct. (Doc. 260). Plaintiffs counter that their payments were made pursuant to a legal duty and/or without full knowledge of the facts-rendering the payments involuntary. (Doc. 271).
In reply to Plaintiffs' Response, Defendants clarify that the instant Motion is "specifically directed at Plaintiffs' theory of liability arising from the medical necessity of the treatment provided by Defendants to their patients," not the theory of liability arising from improper marketing. (Doc. 280, p. 4).
For the reasons discussed below, the Court finds Plaintiffs' argument that the voluntary payment defense does not apply in this case because Plaintiffs' payments to Defendants were based on a legal duty unavailing. However, because there remains a genuine issue of material fact as to whether Plaintiffs had full knowledge of the facts constituting the alleged fraud at the time payments were made, summary judgment must be denied.
II. LEGAL STANDARD
A court may dispose of affirmative defenses by summary judgment. Int'l Ship Repair & Marine Servs., Inc. v. St. Paul Fire & Marine Ins. Co., 944 F. Supp. 886, 891 (M.D. Fla. 1996). Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A "genuine" dispute exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is "material" if it could affect the outcome of the case. Id.
The movant bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record that it believes demonstrate the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed. R. Civ. P. 56(c). If the movant meets its burden, the burden shifts to the nonmovant to demonstrate there are, in fact, genuine factual disputes that preclude summary judgment. Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006). At this stage of the proceedings, the court must view all facts and draw all reasonable inferences in the light most favorable to the nonmovant. Id.
III. DISCUSSION
Florida's "voluntary payment doctrine provides that 'where one makes a payment of any sum under a claim of right with knowledge of the facts, such a payment is voluntary and cannot be recovered.' " Ruiz v. Brink's Home Sec., Inc., 777 So.2d 1062, 1064 (Fla. 2d DCA 2001) (quoting City of Miami v. Keton, 115 So.2d 547, 551 (Fla. 1959)); see also Taylor, Bean & Whitaker Mortg. Corp. v. GMAC Mortg. Corp., No. 5:05-cv-260-Oc-GRJ, 2007 WL 1114045, at *3 (M.D. Fla. Apr. 12, 2007) ("In Florida, as long ago as before the turn of the twentieth century, the Florida Supreme Court recognized that money voluntarily paid upon claim of right with full knowledge of all of the facts, cannot be recovered back merely because the party, at the time of payment, was ignorant, or mistook the law, as to his liability."). The doctrine applies even if the claim paid was illegal. See Sanchez v. Time Warner, Inc., No. 98-211-CIV-T-26A, 1998 WL 834345, at *2 (M.D. Fla. Nov. 4, 1998) (quoting McMullen v. Inland Realty Corp., 113 Fla. 476, 152 So. 740 (1933)). A payment is considered to have been made involuntarily if it was demanded with attendant compulsion or coercion, i.e., the "potential consequences of non-payment are sufficiently severe so as to leave little or no choice but to tender payment." City of Key West v. Fla. Keys Cmty. Coll., 81 So.3d 494, 500-01 (Fla. 3d DCA 2012); see also Avatar Props., Inc. v. Gundel, No. 6D23-170, 372 So.3d 715, 724 (Fla. 6th DCA June 22, 2023) (the voluntary payment defense is not available in contract cases under § 725.04, Florida Statutes).
A. Legal Obligation or Duty
Plaintiffs contend that the voluntary payment doctrine does not apply to an insurer's mandated payments of insurance benefits. Plaintiffs argue that because their payments were made under the legal obligation or duty of Florida's No-Fault Law, they were involuntary. The parties, however, do not cite any Florida legal authority that addresses the exact question here—whether an insurance company's payment of a PIP claim on behalf of its insured as required by statute is considered voluntary for purposes of applying Florida's voluntary payment doctrine. Nor do Plaintiffs cite to any binding legal authority applying Florida law that clearly finds that payment made pursuant to a legal obligation or duty is voluntary. While Plaintiffs cite to Markel Insurance Company v. American Safety Risk Retention Group, Inc., 3:15-cv-240/RV-CJK, 2016 WL 10611374 (N.D. Fla. Aug. 3, 2016), as authority for this proposition, the Court is not bound by this decision and, more importantly, does not read the case as making the specific finding that a payment made pursuant to a legal duty is involuntary.
Markel Insurance Company relies on City of Key West for the proposition that "a payment will be 'involuntary,' and the doctrine not apply, 'if payment is demanded, and the potential consequences of non-payment are sufficiently severe as to leave little or no choice but to tender payment.' " Markel Ins. Co., 2016 WL 10611374, at *4 (quoting City of Key West, 81 So. 3d at 500). This statement of law is well-supported in Florida case law as discussed in the section below. The Markel court goes on to state that "a payment is deemed involuntary if it is made under 'threat of ligation' " and again credits City of Key West. Id. (quoting City of Key West, 81 So.3d at 501). This is, however, a misleading statement, especially when taken out of context, in that it presents as a singular qualification for determining the voluntary nature of a payment, i.e., that if a threat of litigation is made, a payment is involuntary. Florida case law, clearly, does not support the proposition that threat of litigation alone renders a payment involuntary. See New York Life Ins. Co. v. Lecks, 122 Fla. 127, 165 So. 50, 53 (1935). In fact, the City of Key West plainly includes "threat of litigation" in a list of multiple items it deemed cumulatively determinative of a payment as involuntary:
Because the threat of litigation, liens, the discontinuance of utility services, the denial of city permits, and the imposition of a five percent per month late fee and attorney's fees was enough to severely disrupt, if not debilitate, the financial operation of this small State institution, we conclude that the [defendant's] payment of the demanded fees was involuntary.City of Key West, 81 So.3d at 501. In addition, the Markel court found that the insurance company's payments "were obviously not 'voluntary' " because when they began paying on the claim, they had been threatened with suit and "had the duty and responsibility to pay the claim or else run the risk of being liable for bad faith to [its insured]." Markel Ins. Co., 2016 WL 10611374, at *4. The Court reads this analysis as in conformity with the established body of Florida case law that payment to avoid onerous penalties is generally considered to be involuntary or compulsory and declines Plaintiffs' invitation to take the terminology "duty and responsibility" out of context to create a singularly qualifying criteria of legal duty.
Plaintiffs cite to legal authority from three other states for the proposition that a contractually obligated payment by an insurer to an insured is not voluntary because the insurer acts pursuant to its duty to pay. See, e.g., Taybron v. Liberty Mut. Pers. Ins. Co., No. 20-10925, 2022 WL 1598585, at *3 (E.D. Mich. May 19, 2022) (providing that an insurer's payment on behalf of its insured pursuant to an insurance contract is not voluntary) (applying Michigan law); S. Ins. Co. v. Affiliated FM Ins. Co., 830 F.3d 337, 347-48 (5th Cir. 2016) (providing that a contractually obligated payment between insurer and insured is not made voluntarily because the insurer acts pursuant to its duty to pay) (applying Mississippi law); Genesis Ins. Co. v. Wausau Ins. Cos., 343 F.3d 733, 738 (5th Cir. 2003) (observing that an involuntary payment does not evolve from choice; that "[p]ayments that are made by virtue of legal obligation . . . are inherently involuntary") (applying Mississippi law); In re Dahlin, 590 B.R. 759, 765 (Bkrtcy.S.D. Tex. 2018) (payments are not "voluntary" when made "under any legal obligation") (applying Texas law). The Court is unpersuaded, however, as to the applicability of these non-binding cases to the specific circumstances of the case at bar. For example, the court in Taybron points to the insurer's strong incentive for paying the insured's claim promptly and sorting out its liability later—under Michigan law, if first-party insurance claims are not paid on a timely basis, the claimant is entitled to 12 percent interest, irrespective of whether the claim is reasonably in dispute. Taybron, 2022 WL 1598585, at *3. Similarly, in Affiliated FM Insurance, the court was guided by Mississippi law that defines a volunteer is "[a] stranger or intermeddler who has no interest to protect and is under no legal or moral obligation to pay." Affiliated FM Ins., 830 F.3d at 347. Even upon a cursory review of these cases, it is evident that the laws of these other states as related to the voluntary payment doctrine are distinguishable enough to make these cases inapposite. The voluntary payment doctrine under Florida law does not share the same parameters. Given the absence of Florida case law finding that a "legal obligation or duty" makes the payment involuntary, the Court declines to find that Plaintiffs' payments were involuntary on this basis.
B. Potential Consequences of Non-Payment
Florida case law, however, is clear that the voluntary nature of the payment can be determined by assessing whether the "potential consequences of non-payment are sufficiently severe so as to leave little or no choice but to tender payment." City of Key West, 81 So.3d at 500. " 'Payment to avoid onerous penalties is generally considered [to be] involuntary or compulsory.' " Sheckler v. Monroe Cnty., 335 So.3d 1265, 1268 (Fla. 3d DCA 2022) (quoting Clements v. Roberts, 151 Fla. 669, 10 So.2d 425, 427 (1942) (alterations in original)); see also Broward Cnty. v. Mattel, 397 So. 2d 457, 460 (Fla. 4th DCA 1981) (holding that "payment of a tax is deemed involuntary where the penalty exacted for nonpayment is so severe that it constitutes coercion and duress"). The repercussions "must be of such an extent as to remove the situation from the ordinary debtor-creditor relationship and negate the voluntariness of the payment." Hassen v. Mediaone of Greater Fla., Inc., 751 So.2d 1289, 1290 (Fla 1st DCA 2000).
As touched on above, threat of litigation is not enough as explained in New York Life Ins. Co. v. Lecks, 122 Fla. 127, 165 So. 50 (1935):
The reason of the rule that money voluntarily paid with full knowledge of the facts can never be recovered and its propriety are quite obvious when applied to a case of payment on a mere demand of money unaccompanied with any power or authority to enforce such demand, except by suit at law. In such case if the party would resist an unjust demand, he must do so at the threshold. The parties treat with each other on equal terms, and if litigation is intended by the one of whom the money is demanded, it should precede payment. When the person making the payment can only be reached by a proceeding at law, he is bound to make his defense in the first instance, and he cannot postpone the litigation by paying the demand in silence and afterward suing to recover the amount paid.Id. at 53 (emphasis added). In other words, payment made pursuant to the threat or potential threat of litigation or to prevent the bringing of a legal action is regarded as voluntary for the reason that an ample remedy by way of defense to the suit would exist and because no loss could occur until the lawsuit was instituted and proceeded to judgment. The payor is, in that situation, expected to withhold payment and assert its defense to the payee's claim in the litigation. See Hall v. Humana Hosp. Daytona Beach, 686 So. 2d 653, 657 n.7 (Fla. 5th DCA 1996) (quoting New York Life Ins. Co., 165 So. at 53).
Here, non-payment under the PIP statute potentially results in interest, ten percent penalty on the overdue amount, and attorney's fees, in the event the insured ultimately prevails in litigation. The Court finds that these are not sufficiently severe as to leave little or no choice but to tender payment. Compare Seaboard Air Line Ry. Co. v. Allen, 82 Fla. 191, 89 So. 555, 557 (1921) (determining that payment tendered in order to avoid seizure of property was involuntary because "plaintiff was constrained to pay in order to avoid further ills and to continue the operation of its business . . . ."); N. Miami v. Seaway Corp., 151 Fla. 301, 9 So.2d 705, 706 (1942) (holding that "[w]here the levy of an illegal tax may become a cloud upon the title to real estate, payment of the tax to avoid a cloud on the real estate or to avoid the imposition of substantial burdens upon property rights of the owner is not a voluntary payment"); Broward Cnty., 397 So.2d at 459-60 (explaining that "payment of an illegal tax, even without protest, in order to avoid forfeiture of the right to do business is not a voluntary payment" where consequences of non-payment of tax by lawyer included civil suits and penalties, the institution of criminal charges, and imposition of an injunction to prevent practice of the profession). Plaintiffs did not face, for example, a choice between payment and the forfeiture of the right to do business or their ability to continue the operation of their business. As such, Plaintiffs have not established that the voluntariness of their payments was negated by the threat of litigation or related potential consequences.
C. Full Knowledge of All the Facts
Finally, Florida's voluntary payment doctrine has been found to only apply where the payor has "full knowledge of the facts." See Fox v. Ritz-Carlton Hotel Co., LLC, No. 17-CV-24284-COOKE, 2022 WL 6566991, at *14-15 (S.D. Fla. Aug. 11, 2022), report & recommendation adopted, 2022 WL 4462060 (S.D. Fla. Sept. 26, 2022). Here, there is a question of fact as to when Plaintiffs discovered the alleged fraud to an extent that would change the payments from involuntary to voluntary. In other words, a determination as to when Plaintiffs had full knowledge of all the facts so as to preclude recovery of their payments is not appropriate for summary judgment; particularly where, as here, the allegedly fraudulent scheme required comparison of a sufficiently large pool of claims. This would require the Court to inappropriately weigh the evidence on a motion for summary judgment. Gurzi v. Penn Credit, Corp., 449 F. Supp. 3d 1294, 1296-97 (M.D. Fla. 2020) (court may not make credibility determinations or weigh evidence on summary judgment); see Cox v. Porsche Fin. Servs., Inc., 342 F. Supp. 3d 1271, 1290 (S.D. Fla. 2018) (denying summary judgment because of a factual dispute regarding plaintiff's knowledge of the factual circumstances). Because this factual determination is within the jury's province alone, summary judgment must be denied.
Defendants contend that they must only show Plaintiffs were aware of the material facts. (Doc. 280, p. 6). As authority for this proposition, Defendants quote Cox v. Porsche Financial Services, Inc., 337 F.R.D. 426, 430 (S.D. Fla. 2020). A review of the Cox case reveals that the quote relied upon by Defendants—"money voluntarily paid under a claim of right, with full knowledge of the material facts, cannot be recovered merely because the paying party, at the time of the payment, mistook the law as to his ability to pay"—was, in turn, credited by the Cox court as a direct quote from Schojan v. Papa John's International Inc., 34 F. Supp. 3d 1206, 1210 (M.D. Fla. 2014) (emphasis added). However, a review of the Schojan case discloses that the language quoted from Schojan by Cox was not a finding of the Schojan court or a statement of law, but merely a recounting of the defendant's argument; i.e., "[Defendant] claims that the complaint should be dismissed because, under Florida's voluntary payment doctrine, money voluntarily paid under a claim of right, with full knowledge of the material facts, cannot be recovered merely because the paying party, at the time of the payment, mistook the law as to his liability to pay." Id. (emphasis added). This phrase "full knowledge of the material facts" was not used by the Schojan court as the standard for the application of the voluntary payment doctrine. In fact, the Schojan court instead cites to Hassen, 751 So.2d at 1290, and parenthetically quotes Hassen for the proposition: "It does not matter that the payment may have been made upon a mistaken belief as to the enforceability of the demand, or liability under the law, as long as payment is made with knowledge of the factual circumstances." Id. This is all to say that the term "material" appears to have been inadvertently added as a term of art to the voluntary payment doctrine standard of "full knowledge of the facts" in Cox and will not be adopted by this Court.
IV. CONCLUSION
For the reasons set forth above, Defendants have failed to demonstrate entitlement to summary judgment on this affirmative defense. Accordingly, Defendants' Amended Motion for Partial Summary Judgment on Affirmative Defense of Voluntary Payment (Doc. 260) is DENIED.
DONE AND ORDERED at Tampa, Florida, this 7th day of August 2023.