Altamonte Pediatric Associates, P.A. v. Greenway Health, LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ALTAMONTE PEDIATRIC

ASSOCIATES, P.A.,

Plaintiff,

v. Case No. 8:20-cv-604-T-33JSS

GREENWAY HEALTH, LLC,

Defendant.

____________________________/

ORDER

This matter comes before the Court upon consideration of

Defendant Greenway Health, LLC’s Motion to Dismiss Complaint

(Doc. # 36), filed on May 29, 2020. Plaintiff Altamonte

Pediatric Associates, P.A., responded on June 12, 2020. (Doc.

# 47). For the reasons set forth below, the Motion is granted

in part and denied in part.

I. Background

Altamonte is a pediatric healthcare provider that was in

the market for certified Electronic Health Record (“EHR”)

software. (Doc. # 1 at ¶ 1). EHR software “offers a variety

of features relevant to the practice of healthcare, including

. . . access to patient medical records, demographics, care

history and allergies[,] electronic communication with

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patients[,] and electronic placement of prescriptions.”

(Id.). Beyond these features, healthcare providers are

incentivized to use EHR software through the federal

Meaningful Use program. (Id. at ¶ 2). The program provides

“monetary incentive payments through Medicare and Medicaid”

to those who utilize certified EHR software. (Id.). A

significant part of the determination of whether healthcare

providers receive these benefits includes if the EHR software

utilized is certified, meaning that it complies with federal

regulations and “actually meets the standards of the

Meaningful Use program.” (Id. at ¶¶ 2, 22, 31-33).

Beginning in 2013, Altamonte contracted with Greenway to

obtain certified EHR software for its pediatric practice.

(Id. at ¶ 3). Greenway represented to Altamonte and its other

customers that the software in question, Intergy, “satisfied

the requirements of the Meaningful Use program.” (Id.). This

promise was included in Greenway’s standard-form contract.

(Id. at ¶ 4). Specifically, the contract provides that

Greenway would “continue to support the Subscription

Services, including providing upgrades and updates if and

when available” and “cause the Subscription Services to

2

remain compliant with federal regulations (including those

promulgated by the Centers for Medicare and Medicaid

Services) establishing healthcare industry standards.”

(“Guaranty clause”) (Id.).1 In return, Altamonte “paid tens

of thousands of dollars to Greenway for Intergy and related

services.” (Id. at ¶ 3).

However, Altamonte alleges that “Intergy does not meet

the requirements of the Meaningful Use program and has not

met them for years.” (Id. at ¶ 5). Following a 2017 Department

of Justice investigation into Prime Suite, a separate

Greenway-owned EHR software, Greenway ran tests on its three

“core EHR products: Prime Suite, Intergy, and SuccessEHS.”

(Id. at ¶ 6). “All three EHRs failed these tests,” (Id.), and

the government’s investigation into Prime Suite resulted in

1. Altamonte alleges that this is reiterated in the Software

License Agreement, which provides: “[Greenway] warrants that,

for the Software Warranty Period, the [Intergy] software, as

updated and used in accordance with the Documentation . . .

will operate in all material respects in conformity with the

functional specifications in the Documentation.”

(“Documentation clause”) (Doc. # 1 at ¶ 45, 120). Altamonte

avers that the Documentation clause incorporates Greenway’s

repeated assurances “that Intergy met the Meaningful Use

program’s certification requirements and would enable users

to attest to meaningful use of certified EHR technology and

take advantage of incentive programs.” (Id. at ¶ 45-48).

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a $57 million settlement to resolve alleged violations of the

False Claims Act for “intentionally rigg[ing] the software to

cheat on testing during the certification process.” (Id. at

¶ 7). The government further “alleged that Prime Suite had

not been compliant with the Meaningful Use program for at

least between January 1, 2014, and December 31, 2017.” (Id.).

Although the settlement between Greenway and the government

did not pertain to Intergy, Altamonte alleges that certain

contemporaneous disclosures by Greenway of similar flaws in

both Prime Suite and Intergy “support[] an inference that the

two products share the same code or design and suffer from

the same basic deficiencies.” (Id. at ¶ 8).

In 2018, Greenway began disclosing certain flaws in

Intergy and the other software to its customers. (Id. at ¶¶

6, 51-52). In 2018 and 2019, Greenway then “told customers

they could not use the software to attest to the certified

use of an EHR when reporting to Medicare and Medicaid.” (Id.

at ¶¶ 6, 58-61, 65-68, 72). Because of these flaws, Altamonte

employees had to spend “numerous hours addressing . . . errors

in Intergy” in 2018 and 2019. (Id. at ¶ 9). Altamonte then

“submitted reports for the 2018 calendar year to Medicaid in

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2019.” (Id.). However, following Altamonte’s submission of

these reports to Medicaid, Greenway announced additional

errors in Intergy, “which prevented eight of Altamonte[’s] .

. . pediatricians and nurses from qualifying for $68,000 in

incentive payments.” (Id.).

Altamonte filed this class action in this Court on March

13, 2020. (Doc. # 1). Altamonte seeks class certification on

behalf of other similarly situated Intergy customers. (Id. at

¶ 111). Altamonte also proposes two subclasses: (1) for class

members whose contracts with Greenway include the Guaranty

clause, and (2) for class members whose contracts include the

Documentation clause. (Id. at ¶ 112-13). The complaint

includes claims against Greenway for violations of the

Florida Deceptive and Unfair Trade Practices Act (FDUTPA)

(Count I), common law fraud (Count II), negligent

misrepresentation (Count III), and breach of contract (Counts

IV and V). (Doc. # 1).

On May 29, 2020, Greenway moved to dismiss the complaint

for failure to state a claim, (Doc. # 36), and Altamonte has

responded. (Doc. # 47). The Motion is now ripe for review.

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II. Legal Standard

On a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), this Court accepts as true all the

allegations in the complaint and construes them in the light

most favorable to the plaintiff. Jackson v. Bellsouth

Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,

the Court favors the plaintiff with all reasonable inferences

from the allegations in the complaint. Stephens v. Dep’t of

Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990).

But,

[w]hile a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action

will not do. Factual allegations must be enough to

raise a right to relief above the speculative

level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(quotations and citations omitted). Courts are not “bound to

accept as true a legal conclusion couched as a factual

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The

Court must limit its consideration to “well-pleaded factual

allegations, documents central to or referenced in the

6

complaint, and matters judicially noticed.” La Grasta v.

First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

The Federal Rules of Civil Procedure accord a heightened

pleading standard to claims for fraud, requiring that they be

pled with particularity. Fed. R. Civ. P. 9(b). Under Rule

9(b), the “plaintiff must allege: (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 the [p]laintiffs; and

(4) what the defendants gained by the alleged fraud.” Am.

Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir.

2010) (quoting Brooks v. Blue Cross & Blue Shield of Fla.,

Inc., 116 F.3d 1364, 1380-81 (11th Cir. 1997)). This

“requirement serves an important purpose in fraud actions by

alerting defendants to the precise misconduct with which they

are charged and protecting defendants against spurious

charges of immoral and fraudulent behavior.” W. Coast Roofing

and Waterproofing, Inc. v. Johns Manville, Inc., 287 F. App’x

81, 86 (11th Cir. 2008) (quoting Ziemba v. Cascade Int’l,

Inc., 256 F.3d 1194, 1202 (11th Cir. 2001)).

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III. Analysis

Greenway seeks to dismiss nearly all counts of the

complaint. The Court will address each claim in turn.

A. FDUTPA

Greenway moves to dismiss Count I, Altamonte’s FDUTPA

claim, on the following bases: (1) Altamonte fails to allege

an actionable defect as required by FDUTPA; (2) Altamonte’s

claim “is nothing more than an improper attempt to recast a

breach of contract claim into an [FDUTPA] claim”; (3)

Altamonte has not met the heightened Rule 9(b) pleading

standard; (4) Altamonte has failed to plead the elements of

an “unfair” trade practice under FDUTPA; and (5) Altamonte

has not properly pled FDUTPA damages. (Doc. # 36 at 22-24).

To establish a cause of action under FDUTPA, a plaintiff

must sufficiently allege the following three elements: “(1)

a deceptive act or unfair practice; (2) causation; and (3)

actual damages.” Kertesz v. Net Transactions, Ltd., 635 F.

Supp. 2d 1339, 1348 (S.D. Fla. 2009) (quoting City First

Mortg. Corp. v. Barton, 988 So.2d 82, 86 (Fla. 4th DCA 2008)).

“A deceptive practice is one that is likely to mislead

consumers, and an unfair practice is one that ‘offends

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established public policy’ or is ‘immoral, unethical,

oppressive, unscrupulous or substantially injurious to

consumers.’” Bookworld Trade, Inc. v. Daughters of St. Paul,

Inc., 532 F. Supp. 2d 1350, 1364 (M.D. Fla. 2007) (quoting

Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla. 2d DCA

2006)).

Courts in this District are split as to whether a claim

for relief under FDUTPA must also meet Rule 9(b)’s heightened

pleading standard.2 Compare Allstate Ins. Co. v. Auto Glass

Am., LLC, 418 F. Supp. 3d 1009, 1021-22 (M.D. Fla. 2019) (“As

a threshold matter, this Court declines to impose the

heightened pleading standard set forth in Rule 9(b)[.]”) with

Blair v. Wachovia Mortg. Corp., No. 5:11-cv-566-Oc-37TBS,

2012 WL 868878, at *3 (M.D. Fla. Mar. 14, 2012) (“[T]his Court

concludes that where the gravamen of the [FDUTPA] claim sounds

2. Courts in other districts in Florida are similarly split.

Compare Harris v. Nordyne, LLC, No. 14-CIV-21884-BLOOM/Valle,

2014 WL 12516076, at *4 (S.D. Fla. Nov. 14, 2014) (“FDUTPA

claims seek a remedy for conduct distinct from traditional

common law torts such as fraud. As such, the uniqueness of

the cause of action place[s] it outside the ambit of Rule

9(b).”), with Llado-Carreno v. Guidant Corp., No. 09-20971-

CIV, 2011 WL 705403, at *5 (S.D. Fla. Feb. 22, 2011)

(requiring that a FDUTPA claim be pled under the heightened

Rule 9(b) standard).

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in fraud, as here, the heightened pleading standard of Rule

9(b) would apply.”).

The trend has been for courts to apply the Rule 9(b)

standard when FDUTPA claims sound in fraud. See, e.g., Hummel

v. Tamko Bldg. Prods., No. 6:15-cv-910-Orl-40GJK, 2015 WL

12843907, at *2-3 (M.D. Fla. Nov. 6, 2015) (finding that the

plaintiff’s FDUTPA claim had to be pled with particularity

because it was primarily based on allegations sounding in

fraud); Casey v. Fla. Coastal Sch. of Law, Inc., No. 3:14-

cv-1229-J-39PDB, 2015 WL 10096084, at *10 (M.D. Fla. Aug. 11,

2015) (recognizing this trend). “Absent an allegation of

fraudulent conduct,” however, courts typically do not apply

the heightened pleading requirement. Total Containment Sols.,

Inc. v. Glacier Energy Servs., No. 2:15-cv-63-FtM-38CM, 2015

WL 3562622, at *2 (M.D. Fla. June 5, 2015).

Here, Altamonte alleges that Greenway’s false statements

and concealment of Intergy’s certification under the

Meaningful Use program constitute an unfair and deceptive act

and practice that misled Altamonte and other consumers to

continue to contract with Greenway and pay inflated prices

for Intergy, in turn causing Altamonte to lose incentive

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payments under the Meaningful Use program. (Doc. # 1 at ¶

127-28). Although Count I of Altamonte’s complaint does not

specifically allege actual damages, a fair reading of the

complaint demonstrates that these lost incentive payments

amount to $68,000 in alleged actual damages, among other

potential damages. (Doc. # 1 at ¶ 90-94).

Given the above allegations of the complaint,

Altamonte’s FDUTPA claim sounds in fraud as it avers only

false statements and misrepresentations by Greenway. (Doc. #

1 at ¶ 127). Therefore, Rule 9(b)’s heightened pleading

standard applies. See PB Prop. Mgmt., Inc. v. Goodman Mfg.

Co., No. 3:12-cv-1366-J-20JBT, 2013 WL 12172912, at *6 (M.D.

Fla. Aug. 28, 2013) (“[T]he Middle District of Florida has

consistently held that those FDUTPA claims that hinge on

allegations of misrepresentation are ‘grounded in fraud’ and

are therefore governed by Rule 9(b)’s heightened pleading

requirements.”).

In its FDUTPA claim, Altamonte does not allege the

specific time, place, or person responsible for the allegedly

fraudulent statements, as required by Rule 9(b). Am. Dental,

605 F.3d at 1291. Rather, Altamonte refers to other parts of

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its complaint for the proposition that “[t]hroughout the term

of [Altamonte’s] . . . agreement with Greenway, Greenway made

multiple claims that Intergy was compliant with the

certification criteria of the Meaningful Use program[.]”

(Doc. # 1 at ¶ 83). These conclusory allegations do not meet

the heightened Rule 9(b) pleading standard.3 See Sol. Z v.

Alma Lasers, Inc., No. 11-cv-21396-CIV-LENARD/O’SULLIVAN,

2012 WL 13012765, at *3 (S.D. Fla. Jan. 25, 2012) (dismissing

a conclusory FDUTPA claim that did not specifically allege

3. Giving Altamonte’s complaint a generous reading, it argues

that some evidence of Greenway’s FDUTPA violation is “not

publicly available” and that Altamonte is unable to

“determine the precise dates, locations, or speakers of” the

misrepresentations, so that it need not plead these facts

with particularity. (Doc. # 1 at ¶ 34). However, to qualify

for a more lenient pleading standard, the information must be

“in [the] exclusive control of the defendant and cannot be

possessed by other entities.” Davis v. Bos. Sci. Corp., No.

2:17-cv-682-FtM-38CM, 2018 WL 3155683, at *4 (M.D. Fla. June

28, 2018) (emphasis added) (quoting Bray & Gillespie Mgmt.

LLC v. Lexington Ins. Co., No. 6:07-cv-222-Orl-19KRS, 2007 WL

3457585, at *3 (M.D. Fla. Nov. 14, 2007)); see also United

States ex rel. Clark v. Tallahassee Surgical Assocs., P.A.,

No. 4:09-cv-411-RH/WCS, 2010 WL 11650951, at *2 (N.D. Fla.

Dec. 15, 2010) (“[T]o invoke the exception, there must not be

alternative avenues for obtaining information[.]” (citation

omitted)). Altamonte admits that these certifications are

also within the certifying bodies’ control. (Doc. # 1 at ¶¶

21, 26, 34). Therefore, Altamonte cannot benefit from this

more lenient pleading standard.

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who made the alleged false statements, when and where they

were made, and the content thereof); Fellner v. Cameron, 2:10-

cv-155-FtM-99SPC, 2012 WL 1648886, at *3 (M.D. Fla. May 10,

2012) (finding a fraud claim insufficiently pled where the

plaintiff did not “identify specific misrepresentations in

the transaction documents or related communications,” or the

dates of the transactions or communications (emphasis in

original)).

In its response to Greenway’s motion to dismiss,

Altamonte argues that “because Greenway’s fraud was a

prolonged multi-act scheme, [it] need only plead the overall

nature of the fraud and then . . . allege with particularity

one or more illustrative instances of the fraud.” (Doc. # 47

at 17) (quotations and citations omitted). However, Altamonte

fails to particularly plead any such examples (Doc. # 1), and

thus cannot benefit from this exception. See Fogle v. IBM

Corp., No. 8:19-cv-2896-T-33JSS, 2020 WL 1873567, at *5 (M.D.

Fla. Apr. 15, 2020)(“Even under the relaxed requirement,

however, a plaintiff is still required to allege at least

some particular examples of fraudulent conduct to lay a

foundation for the rest of the alleged fraud.” (emphasis

13

added) (citing Burgess v. Religious Tech. Ctr., Inc., 660 F.

App’x 657, 663 (11th Cir. 2015))). Therefore, Greenway’s

Motion is granted with respect to Count I, which is dismissed

without prejudice. See Fidelity Nat’l Fin., Inc. v.

Attachmate Corp., No. 3:15-cv-1400-HES-PDB, 2017 WL 3726687,

at *4 (M.D. Fla. Mar. 1, 2017) (dismissing an FDUTPA claim

that was not pled with particularity); Hummel, 2015 WL

12843907 at *3 (dismissing without prejudice).

B. Common Law Fraud

Next, Greenway moves to dismiss Count II, Altamonte’s

common law fraud claim, arguing that (1) it is barred by the

independent tort doctrine, (2) Altamonte has failed to plead

it with particularity, and (3) Altamonte has failed to allege

other essential elements of fraud. (Doc. # 36 at 14-19).

Under Florida’s independent tort doctrine, “it is well

settled that a plaintiff may not recast causes of action that

are otherwise breach-of-contract claims as tort claims.”

Spears v. SHK Consulting and Dev., Inc., 338 F. Supp. 3d 1272,

1279 (M.D. Fla. 2018) (quoting CEMEX Constr. Materials Fla.,

LLC v. Armstrong World Indus., Inc., No. 3:16-cv-186-J-34JRK,

2018 WL 905752, at *10 (M.D. Fla. Feb 15, 2018)). However,

14

fraud that is “separate and apart from the performance of the

contract” is not barred by the doctrine. CEMEX, 2018 WL

905752, at *10-11.

“Florida courts recognize the specific intentional tort

of fraud in the inducement as an independent fraud claim that

can be brought despite the existence of contractual privity.”

Id. at 11 (citing Dantzler Lumber & Exp. Co. v. Bullington

Lumber Co., Inc., 968 F. Supp. 1543, 1546 (M.D. Fla. 1997));

see also Glob. Quest, LLC v. Horizon Yachts, Inc., 849 F.3d

1022, 1030-31 (11th Cir. 2017) (explaining that a fraudulent

inducement claim may be considered independent of a breach of

contract claim).

Here, Altamonte’s complaint alleges that Greenway

“falsely stat[ed] to Altamonte . . . that Intergy currently

satisfied the certification criteria of the Meaningful Use

program,” made “false statements to its accredited

certification body in order to fraudulently obtain an

unearned certification of compliance with the criteria of the

Meaningful Use program,” and “conceal[ed] from Altamonte . .

. the truth about its software’s failure to satisfy the

certification criteria of the Meaningful Use program.” (Doc.

15

# 1 at ¶ 129). Altamonte further alleges that this fraud

“induced Altamonte . . . into entering into and/or renewing

contracts that they otherwise would not have made.” (Id. at

¶ 133).

Although in its response, Altamonte attempts to couch

its fraud claim as one for fraudulent inducement, it fails to

state clearly, let alone with particularity, that any fraud

occurred before Altamonte and Greenway first contracted in

2013. (Id.). In fact, Altamonte’s earliest allegation stems

from 2014, based on the Department of Justice’s allegation

that a separate EHR software owned by Greenway, Prime Suite,

was not compliant with the Meaningful Use program beginning

in January 2014. (Id. at ¶ 7). However, Altamonte and Greenway

began contracting in 2013. (Id. at ¶ 3). Therefore,

Altamonte’s claim is better characterized as fraud during

performance of the contract. See CEMEX, 2018 WL 905752, at

*12 (denying a motion to dismiss with respect to actions

occurring before a contract but granting the motion with

respect to actions that arose during the contract). This claim

is thus barred by the independent tort doctrine to the extent

that it arises out of fraud that occurred during the

16

contractual period.4 See Reagan v. Wireless Corp. v. Apto

Sols., Inc., No. 18-cv-61147-BLOOM/Valle, 2018 WL 4901127, at

*2-4 (S.D. Fla. Oct. 9, 2018) (barring a breach-of-contract

claim couched as fraudulent inducement).

To the extent that Altamonte alleges that Greenway

fraudulently induced it prior to entering each yearly

contract since 2013, Altamonte has not done so with

particularity. As set forth above regarding the FDUTPA claim,

Altamonte has not alleged the specific time each statement

was made prior to and separate from these contracts, as

required by Rule 9(b)’s heightened pleading standard. See Am.

4. Altamonte argues that its common-law fraud and negligent

misrepresentation claims can be pled in the alternative,

despite the independent tort doctrine. (Doc. # 47 at 22).

However, the cases Altamonte cites either were decided before

the 11th Circuit reiterated the doctrine’s application in

Lamm v. State Street Bank and Trust in 2014 or did not decide

whether the doctrine applied. See F.D.I.C. ex rel. Colonial

Bank v. Pearl, No. 8:12-cv-1813-T-30TBM, 2013 WL 1405941

(M.D. Fla. Apr. 8, 2013) (discussing the economic loss rule

prior to Lamm); F.D.I.C. v. Howard, No. 3:12-cv-578-J-34JRK,

2013 WL 12097642 (M.D. Fla. Sept. 5, 2013) (not invoking the

independent tort doctrine or the economic loss rule before

Lamm); Coast to Coast Supply Sols., LLC v. Bank of Am., Corp.,

No. 20-cv-606-T-60AEP, 2020 WL 2494487, at *2 (M.D. Fla. May

14 2020) (not deciding whether the independent tort doctrine

actually applied); see also Lamm v. State St. Bank & Tr., 749

F.3d 938, 947 (11th Cir. 2014) (discussing the doctrine). It

would be contrary to the basic premise of the independent

tort doctrine to allow such pleadings in the alternative.

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Dental, 605 F.3d at 1291 (“[A] plaintiff must allege . . .

the time, place and person responsible for the statement[.]”

(quoting Brooks, 116 F.3d at 1380-81)). Therefore, Greenway’s

Motion is granted with respect to Count II, which is dismissed

without prejudice. See Krinsk v. SunTrust Banks, Inc., No.

8:09-cv-909-T-27EAJ, 2010 WL 11475608, at *8 (M.D. Fla. Jan.

8, 2010) (dismissing an insufficiently pled fraud claim

without prejudice).5

C. Negligent Misrepresentation

Greenway next moves to dismiss Count III, Altamonte’s

5. In its response to Greenway’s Motion, Altamonte argues

that “because Greenway’s fraud was a prolonged multi-act

scheme, [it] need only plead the overall nature of the fraud

and then . . . allege with particularity one or more

illustrative instances of the fraud.” (Doc. # 47 at 17)

(quotations and citations omitted). But, just as with the

FDUTPA claim, Altamonte fails to particularly plead any

examples of fraud before the contractual terms themselves

(Doc. # 1), and thus cannot benefit from this sort of

exception. See Fogle, 2020 WL 1873567, at *5 (“Even under the

relaxed requirement, however, a plaintiff is still required

to allege at least some particular examples of fraudulent

conduct to lay a foundation for the rest of the alleged

fraud.” (citation omitted)). Furthermore, when these

contracts were entered into is not “peculiarly within [the]

defendant’s knowledge or control.” See Davis, 2018 WL 3155683

at *4 (explaining that this lower pleading standard only

applies “where the information is in the exclusive control of

the defendant and cannot be possessed by other entities”

(emphasis added) (citation omitted)).

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claim for negligent misrepresentation, arguing that (1) it is

barred by the independent tort doctrine, (2) Altamonte failed

to plead it with particularity, and (3) because “it is unclear

what type of negligent misrepresentation claim [Altamonte]

intends to allege.” (Doc. # 36 at 14-20).

Under Florida law, “for an alleged misrepresentation

regarding a contract to be actionable, the damages stemming

from that misrepresentation must be independent, separate and

distinct from the damages sustained from the contract’s

breach.” Perez v. Scottsdale Ins. Co., No. 19-cv-22346-

GAYLES, 2020 WL 607145, at *2 (S.D. Fla. Feb. 7, 2020).

Additionally, plaintiffs must plead negligent

misrepresentation under the heightened Rule 9(b) standard.

Lamm v. State St. Bank & Tr., 749 F.3d 938, 951 (11th Cir.

2014); see also Kling v. Jon Bourbeau, P.A., No. 15-cv-22439-

COOKE/TORRES, 2016 WL 8730199, at *4 (S.D. Fla. Apr. 25, 2016)

(“[U]nder Florida law, the heightened pleading standard for

fraud under [Rule 9(b)] applies to claims for negligent

misrepresentation, which sound in fraud rather than

negligence.” (quoting Souran v. Travelers Ins. Co., 982 F.2d

1497, 1511 (11th Cir. 1993))).

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Here, Altamonte simply reiterates the basis for its

fraud claim in arguing its claim for negligent

misrepresentation. (Doc. # 1 at ¶ 135-39). These claims are

only specifically pled with respect to Greenway’s allegedly

false statements in its contracts. (Id.). For the reasons set

forth above regarding Altamonte’s claims of fraud during

performance of the contract, its claim for negligent

misrepresentation during performance of the contract is also

barred by the independent tort doctrine. See Perez, 2020 WL

607145, at *3 (barring a negligent representation claim that

was not “independent” from the plaintiff’s contractual

claims). Therefore, Greenway’s Motion is granted with respect

to Count III and Altamonte’s claim for negligent

misrepresentation is dismissed without prejudice. See Kelly

v. Lee Cty. RV Sales Co., No. 8:18-cv-424-JDW-JSS, 2018 WL

3126750, at *3 (M.D. Fla. June 26, 2018) (dismissing a claim

for negligent representation where the alleged statements

were made during “the performance of the contract” and thus

could not “be considered independent”); Kling, 2016 WL

8730199 at *4-5 (dismissing without prejudice a negligent-

misrepresentation claim that was not pled with

20

particularity).

D. Breach of Contract

Finally, Greenway moves to dismiss Counts IV and V,

Altamonte’s claims for breach of contract. (Doc. # 36 at 8).

Count IV of Altamonte’s complaint relates to the Guaranty

Clause, while Count V relates to the Documentation Clause.

(Doc. # 1 at ¶ 140-47). Both counts also allege breaches of

the implied covenant of good faith and fair dealing. (Id.).

Greenway argues that Altamonte’s claims for breach of the

contract’s Guaranty and Documentation clauses should be

dismissed because the contract provides an “exclusive remedy”

for any such claim, wherein Altamonte would be limited to

receiving “a refund for the license fees paid for the [EHR]

software.” (Doc. # 36 at 10-14). Greenway then argues that

Altamonte’s claim for breach of the implied covenant of good

faith and fair dealing should be dismissed because the

parties’ contract disclaims such a covenant. (Id. at 9-10).

Under Florida law, to state a cause of action for breach

of contract, the plaintiff must allege: “(1) the existence of

a contract, (2) a breach of the contract, and (3) damages

resulting from the breach.” Textron Fin. Corp. v. Lentine

21

Marine Inc., 630 F. Supp. 2d 1352, 1356 (S.D. Fla. 2009)

(quoting Rollins, 951 So.2d at 876)). Greenway does not

dispute the existence of the contract, but rather argues that

the claims “should be dismissed because [they] are subject to

contractual limitations.” (Doc. # 36 at 10). Altamonte

counters that the waiver in question applies only to a

separate agreement and not the Guaranty clause. (Doc. # 47 at

10-11).

Here, Altamonte has plausibly pled the existence of the

contractual clauses, which required that Intergy “remain

compliant with federal regulations (including those

promulgated by the Centers for Medicare and Medicaid

Services) establishing healthcare industry standards.” (Doc.

# 1 at ¶¶ 90, 140-42). It has also sufficiently alleged a

breach of the contract when Greenway allegedly did not

“satisfy many requirements of the Meaningful Use program for

years,” and resulting in damages in the form of lost incentive

payments, among other things. (Id.).

At this stage in the litigation, and given the contract’s

potential ambiguity, the Court declines to determine whether

the limitation of liability provision applies to Altamonte’s

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breach of contract claims. See TYR Tactical, LLC v. Protective

Prods. Enters., LLC, No. 15-cv-61741-BLOOM/Valle, 2015 WL

13655803, at *5 (S.D. Fla. Dec. 10, 2015) (refraining from

deciding whether an ambiguous limitation of liability

provision applied to certain damages at the motion-to-dismiss

stage); see also Underwriters at Lloyds v. Fedex Freight Sys.,

Inc., No. 8:07-cv-212-T-EAJ, 2008 WL 763800, at *5 (M.D. Fla.

Mar. 19, 2008) (finding it “premature . . . to determine the

effect of a limitation of liability clause when that issue is

. . . factually undeveloped at this stage”). Greenway may

raise this issue again at the summary judgment stage.

Regarding Altamonte’s claim for breach of the implied

covenant of good faith and fair dealing, “Florida courts

recognize an implied covenant of good faith and fair dealing

in every contract.” Shibata v. Lim, 133 F. Supp. 2d 1311,

1318 (M.D. Fla. 2000) (citing Burger King Corp. v. C.R.

Weaver, 169 F.3d 1310, 1315 (11th Cir. 1999); Cty. of Brevard

v. Miorelli Eng’g, Inc., 703 So.2d 1049, 1050 (Fla. 1997)).

“[T]o state a claim for breach of the implied covenant of

good faith and fair dealing, plaintiffs must identify the

specific contract term(s) giving rise to the implied duty of

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good faith and also allege how defendants breach their implied

duty, alleging facts different from those giving rise to the

breach of contract claim.” Watts-Robinson v. Anderson

Reporting Servs., Inc., 3:11-cv-290-J-37JBT, 2011 WL

13295707, at *2 (M.D. Fla. Sept. 22, 2011) (quoting Stallworth

v. Hartford Ins. Co., No. 3:06-cv-89-MCR/EMT, 2006 WL

2711597, at *6 (N.D. Fla. Sept. 19, 2006)).

“The duty of good faith must relate to the performance

of an express term of the contract and is not an abstract and

independent term of a contract which may be asserted as a

source of breach when all other terms have been performed

pursuant to the contract requirements.” ACG S. Ins. Agency,

LLC v. Safeco Ins. Co., No. 8:19-cv-528-T-36AAS, 2019 WL

8273657, at *8 (M.D. Fla. Dec. 16, 2019) (quoting Resnick v.

AvMed, Inc., 693 F.3d 1317, 1319 (11th Cir. 2012)).

Additionally, “a party cannot maintain a cause of action for

breach of the implied covenant of good faith and fair dealing

in derogation of the express terms of the underlying

contract.” Karp v. Bank of Am., N.A., No. 8:12-cv-1700-T-

17MAP, 2013 WL 1121256, at *3 (M.D. Fla. Mar. 18, 2013)

(quoting Burger King, 169 F.3d at 1318)).

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Here, Altamonte alleges that Greenway breached the

covenant of good faith and fair dealing implied in the

Guaranty and Documentation clauses by, among other things,

“failing to timely or reasonably redress non-compliant

aspects of its software,” “encouraging Altamonte . . . to

attest for Meaningful Use incentive payments without

informing them that Greenway was not compliant with the

certification criteria of the Meaningful Use program,”

“failing to completely or timely disclose many of the problems

with its software,” and “recklessly failing to test Intergy

with reasonable diligence during development of software code

and updates.” (Doc. # 1 at ¶¶ 142, 146).

These claims are both different from those alleged in

Altamonte’s other breach of contract claims and are tied to

specific contractual provisions. And, for the same reasons

discussed above regarding Altamonte’s breach of contract

claims, the Court declines to decide at this stage of the

litigation whether an ambiguous waiver or liability

limitation provision applies to the implied covenant of good

faith and fair dealing under the Guaranty and Documentation

clauses. Thus, Altamonte has plausibly pled a claim for breach

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of the implied covenant of good faith and fair dealing. See

OCULUS Optikgerate GmbH v. Insight Instruments, Inc., No. 12-

14394-CIV-GRAHAM/LYNCH, 2013 WL 12095533, at *3 (S.D. Fla.

Feb. 14, 2013) (finding a claim for breach of the implied

covenant of good faith and fair dealing sufficiently pled

where the plaintiff’s claim was “not duplicative of those

within its breach of contract claim”).

Therefore, Greenway’s Motion is denied as to Counts IV

and V of Altamonte’s complaint. See Modern Gaming, Inc. v.

Malone, No. 6:10-cv-182-Orl-28DAB, 2010 WL 724434, at *3

(M.D. Fla. Feb. 24, 2010) (denying motion to dismiss where

the plaintiff had sufficiently stated a claim for breach of

contract); Tampa Bay Health Partners, LLC v. Diversus Mgmt.,

Inc., No. 8:17-cv-2922-T-26JSS, 2018 WL 454223, at *2 (M.D.

Fla. Jan. 17, 2018) (allowing a claim for breach of the

implied covenant of good faith and fair dealing to proceed

after concluding that a valid breach of contract claim

existed).

Accordingly, it is

ORDERED, ADJUDGED, and DECREED:

(1) Defendant Greenway Health, LLC’s Motion to Dismiss (Doc.

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# 36) is GRANTED with respect to Counts I, II, and III

and DENIED with respect to Counts IV and V.

(2) Counts I, II, and III are DISMISSED without prejudice.

(3) Altamonte may file an amended complaint within 14 days

from the date of this Order.

DONE and ORDERED in Chambers, in Tampa, Florida, this

4th day of September, 2020.

bio I. Heen, jut

VIRGINIA M. HERNANDEZ*COVINGTON

UNITED STATES DISTRICT JUDGE

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