# Lake v. Aetna Life Insurance Company

> District Court, M.D. Florida · March 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10107243

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SCOTT LAKE,
on behalf of himself and all
other similarly situated,

Plaintiff,
v. Case No. 8:20-cv-3010-VMC-TGW

AETNA LIFE INSURANCE COMPANY,
and PINELLAS COUNTY SCHOOL
BOARD,

Defendants.
/

ORDER
This matter comes before the Court upon consideration of
Defendant Pinellas County School Board’s Motion to Dismiss
and Motion to Strike (Doc. # 9), filed on December 23, 2020.
Plaintiff Scott Lake responded on January 20, 2021. (Doc. #
28). For the reasons below, both Motions are granted.
I. Background
This case arose out of the denial of insurance coverage
for Lake’s prostate cancer treatment. (Doc. # 1-1 at ¶¶ 1,
54). Lake’s wife “is an Aetna [Life Insurance Company]
policyholder with a self-funded insurance plan through her
employer, the School Board.” (Id. at ¶ 8). “Lake is covered
as a dependent under that policy.” (Id.). Following Lake’s
prostate cancer diagnosis in May 2019, his oncologist
recommended that he undergo proton beam radiation therapy, “a
procedure that uses protons to deliver a curative radiation
dose to a tumor, while reducing radiation doses to healthy
tissues and organs.” (Id. at ¶¶ 27, 54). According to the
complaint, proton beam radiation therapy “results in fewer
complications and side effects than traditional [radiation
therapy].” (Id. at ¶ 27). Lake avers that this form of
treatment “has been well-accepted for over 30 years,” having
been approved by the Food and Drug Administration in 1988,

and subject to numerous peer-reviewed studies validating its
safety and efficacy. (Id. at ¶¶ 30-31).
However, Aetna denied Lake’s request to pre-authorize
his proton beam radiation therapy because his plan “does not
cover experimental or investigational services except under
certain conditions.” (Id. at ¶ 55). Aetna stated that it
reviewed Lake’s condition and circumstances, but referred him
to Aetna’s “Clinical Policy Bulletin” on proton beam
radiation therapy, which states: “Aetna considers proton beam
radiotherapy not medically necessary for individuals with
localized prostate cancer because it has not been proven to
be more effective than other radiotherapy modalities for this

indication.” (Id. at ¶¶ 35, 56).
Following this denial, “UF Health submitted two internal
appeals on [Lake’s] behalf, asking that Aetna reconsider its
decision to deny coverage or payment for [proton beam
radiation therapy].” (Id. at ¶ 57). Both of those appeals
were denied. (Id. at ¶¶ 58-59). “Lake then formally requested
an external review of Aetna’s decision to deny his request
for [proton beam radiation therapy].” (Id. at ¶ 61). The
independent review conducted by AllMed Healthcare Management
indicated that it agreed with Aetna’s denial of coverage.
(Id. at ¶ 62).

Lake then made one final appeal to the School Board,
which allegedly holds “ultimate responsibility for the final
review of claims under [Lake’s] health benefits plan.” (Id.
at ¶ 63). The School Board again “upheld [Aetna’s] . . .
previous denial decisions.” (Id. at ¶ 65). In denying the
appeal, the School Board explained that the therapy was “not
covered under Aetna’s Clinical Policy Bulletin because the
procedures are ‘experimental and investigational.’” (Id.).
Despite these denials, Lake followed his oncologist’s
recommendations, and underwent proton beam radiation therapy.
(Id. at ¶ 66). “Lake personally paid over $78,000 for the
treatment[.]” (Id.). Although Aetna did not reimburse Lake

for the treatment itself, it did reimburse him for “some
ancillary charges.” (Id.).
On October 30, 2020, Lake initiated this putative class
action in state court. (Doc. # 1). Thereafter, on December
17, 2020, the case was removed to this Court on the basis of
Class Action Fairness Act (“CAFA”) diversity jurisdiction.
(Id.). Lake seeks class certification on behalf of other
similarly situated Aetna customers who were denied coverage
for proton beam radiation therapy. (Id. at ¶ 68). Lake also
proposes two subclasses: (1) for class members whose plans
were underwritten or administered by Aetna under Florida law,

and (2) for class members whose plans were underwritten or
administered by Aetna for the School Board. (Id. at ¶¶ 69-
70). The complaint includes only one claim against the School
Board: breach of the implied covenant of good faith and fair
dealing (Count II). (Doc. # 1).
On December 23, 2020, the School Board moved to dismiss
Count II and to strike Lake’s request for disgorgement of the
School Board’s profits. (Doc. # 9 at 1). In the alternative,
the School Board joins Aetna’s motion to strike Lake as the
class representative. (Id. at 13). Lake responded on January
20, 2021 (Doc. # 28), and the Motion is now ripe for review.
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
complaint, and matters judicially noticed.” La Grasta v.
First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).
Under Federal Rule of Civil Procedure 12(f), a court
“may strike from a pleading an insufficient defense or any
redundant, immaterial, impertinent, or scandalous matter.”
Fed. R. Civ. P. 12(f). However, motions to strike are
considered drastic remedies, and are thus disfavored by
courts. See Thompson v. Kindred Nursing Ctrs. E., LLC, 211 F.
Supp. 2d 1345, 1348 (M.D. Fla. 2002). Indeed, they are
generally denied “unless the allegations have no possible
relation to the controversy and may cause prejudice to one of
the parties.” Agan v. Katzman & Korr, P.A., 328 F. Supp. 2d
1363, 1367 (S.D. Fla. 2004) (citations omitted).
III. Analysis

The School Board moves to dismiss Count II – the only
claim against it – and to strike Lake’s request for
disgorgement of the School Board’s profits. (Doc. # 9)
Alternatively, the School Board joins Aetna’s motion to
strike Lake as the class representative. (Id.). The Court
will address each Motion in turn.
A. Motion to Dismiss
The School Board argues that Count II, Lake’s claim for
breach of the implied covenant of good faith and fair dealing,
should be dismissed because the complaint “is devoid of any
allegation that the School Board breached an express term of
the parties’ contract.” (Doc. # 9 at 3, 7-11). Lake responds

that “the failure to perform a discretionary act in good faith
may constitute a breach of the implied covenant of good faith
and fair dealing. And, [Lake’s] claim clearly refers to the
provision under the Plan affording the School Board
discretion over the final appeal decision concerning a claim
denial.” (Doc. # 28 at 3).
“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); Cnty. of Brevard v. Miorelli Eng’g, Inc., 703 So.2d

1049, 1050 (Fla. 1997)). “However, there are two limitations
on such claims: (1) where application of the covenant would
contravene the express terms of the agreement; and (2) where
there is no accompanying action for breach of an express term
of the agreement.” QBE Ins. Corp. v. Chalfonte Condo.
Apartment Ass’n, Inc., 94 So.3d 541, 548 (Fla. 2012).
Here, Lake maintains that the School Board breached the
implied covenant of good faith and fair dealing by:
a) Exercising its discretion to deny Plaintiff’s
treatment relying exclusively on Aetna’s [proton
beam radiation therapy] Clinical Policy Bulletin
and Aetna’s prior denials;

b) Failing to review the medical records, medical
literature, and other materials that Plaintiffs’
doctors submitted with his appeals of denial;

c) Exercising its discretion to determine that
[Lake] and the Subclass members’ [proton beam
radiation therapy] treatment was not medically
necessary and was experimental or investigational
despite overwhelming medical evidence to the
contrary; and

d) Exercising its discretion to deny [Lake’s proton
beam radiation therapy] treatment to increase its
own profits and avoid paying for a higher-cost
treatment.

(Doc. # 1-1 at ¶ 103).
Although Lake refers to his wife’s insurance agreement
with the School Board, he does not point to an express
provision of that agreement that the School Board breached in
his complaint. (Id. at ¶¶ 95-105). Lake posits that as the
sponsor of his plan, the School Board has the “ultimate
authority over final appeal decisions to claim denials” and
“has extensive and ultimate discretion to determine whether
a treatment is ‘medically necessary’ or ‘experimental and
investigational.’” (Id. at ¶¶ 100-01). But, the complaint
does not state that there is any such express provision in an
agreement, nor does it state that such a provision was
breached. (Doc. # 1-1). This alone is fatal to Lake’s claim.
See Sapuppo v. Allstate Floridian Ins. Co., No. 4:12-cv-382-
RH/CAS, 2013 WL 6925674, at *6 (N.D. Fla. Mar. 12, 2013) (“[A]
party cannot recover under the implied covenant if there has
been no breach of a specific contract provision. This is fatal
to the implied-covenant claim.”), aff’d, 739 F.3d 678 (11th
Cir. 2014); see also Diageo Dominicana, S.R.L. v. United
Brands, S.A., --- So.3d ----, 2020 WL 2892566, at *3 (Fla. 3d
DCA June 3, 2020) (“Allowing a claim for breach of the implied
covenant of good faith and fair dealing where no enforceable
executory contractual obligation exists would add an
obligation to the contract that was not negotiated by the
parties.” (internal quotation marks and citation omitted)).
In his response to the Motion, Lake states that this
implied duty stems from provisions of his plan with Aetna,

under which “the School Board has the discretion to uphold or
reverse the [external review organization’s] decision on the
denials” of Lake’s claims. (Doc. # 28 at 7). Lake cites to
the “Aetna Select Medical Plan, at pages 8, and 58 - 59
attached as Exhibit A to the Complaint.” (Id. (internal
quotation marks omitted)). However, none of those pages
include the provision Lake alleges they include. Page 8 of
the plan states: “The plan tells you how we work through our
differences. And if we still disagree, an independent group
of experts called an ‘external review organization’ or ERO
for short, will make the final decision for us.” (Doc. # 1-1
at 39). This page does not state that the School Board has

discretion to reverse the external review organization’s
final decision. (Id.). Next, Lake offers pages 58-59 of the
plan, but these pages do not include the alleged provision
either. (Id. at 89-90).
Accordingly, the Motion is granted and Count II is
dismissed without prejudice. See W. Coast Invs., LLC v. D.R.
Horton, Inc., No. 19-CV-14360-ROSENBERG/MAYNARD, 2020 WL
533988, at *3-4 (S.D. Fla. Feb. 3, 2020) (dismissing an
implied covenant claim because the court could not discern
from the complaint any allegation that an express contractual
duty was breached); see also Alhassid v. Bank of Am., N.A.,

No. 14-CIV-20484-BLOOM/Valle, 2015 WL 11216719, at *2 (S.D.
Fla. Jan. 21, 2015) (“Further, the covenant cannot ‘add an
obligation to the contract which was not negotiated by the
parties and not in the contract.’” (emphasis added) (citation
omitted)).
B. Motion to Strike
Next, the School Board moves to strike Lake’s request
for disgorgement of its profits, arguing that such equitable
relief is unavailable in breach of contract cases. (Doc. # 9
at 11-12). In his response to the instant Motion, Lake
“withdraws his claim for disgorgement of profits and other
equitable relief to the extent it is asserted against the

School Board.” (Doc. # 28 at 1 n.1). Accordingly, the Motion
is granted, and the request for disgorgement of the School
Board’s profits is stricken from the complaint.
Given that the School Board’s Motion to Strike plaintiff
as the class representative was argued in the alternative to
its other Motions - which have been granted - and was premised
solely on the arguments in Aetna’s first motion to dismiss,
which has since been amended, the Court denies the Motion
without prejudice. (Doc. # 9 at 13; Doc. # 41). The Court
grants Lake’s request for leave to file an amended complaint.
(Doc. # 28 at 9).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1) Defendant Pinellas County School Board’s Motion to
Dismiss (Doc. # 9) is GRANTED.
(2) Count II is DISMISSED without prejudice.
(3) Plaintiff Scott Lake may file an amended complaint by
April 9, 2021.
DONE and ORDERED in Chambers, in Tampa, Florida, this
26th day of March, 2021.

tina 90. Husmerby Coe
VIR IA M. HERNANDEZ’*COVINGTON
UNITED STATES DISTRICT JUDGE

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10107243. Public record. Not legal advice.