The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GOVERNMENT EMPLOYEES
INSURANCE CO., et al.,
Plaintiffs,
v. Case No. 8:20-cv-2419-VMC-CPT
AFO IMAGING, INC. d/b/a
ADVANCED DIAGNOSTIC GROUP,
et al.,
Defendants.
/
ORDER
This matter comes before the Court upon consideration of
Plaintiffs and Counterclaim-Defendants Government Employees
Insurance Co., Geico Indemnity Co., Geico General Insurance
Company, and GEICO Casualty Co.’s (collectively, “Geico’s”)
Motion to Dismiss Counterclaims (Doc. # 54), filed on March
29, 2021. Defendant and Counterclaimant AFO Imaging, Inc.
d/b/a Advanced Diagnostic Group responded on April 19, 2021.
(Doc. # 56). For the reasons below, the Motion is granted in
part and denied in part.
I. Background
Both the Court and the parties are familiar with the
facts of the civil conspiracy case. Thus, the Court need not
reiterate them in detail here. Advanced Diagnostic owns and
operates multiple Florida diagnostic clinics. (Doc. # 1 at ¶
10). Geico is a motor vehicle insurer that reimbursed Advanced
Diagnostic for certain personal injury protection insurance
(“PIP insurance”) covered radiology procedures. (Id. at ¶¶ 1,
9). In the underlying suit, Geico asserts that Advanced
Diagnostic entered into two related fraudulent schemes with
the other Defendants. First, Advanced Diagnostic allegedly
submitted or caused to be submitted thousands of PIP insurance
charges for medically unnecessary, falsified radiology
services. (Id. at ¶¶ 1, 7). Second, the Advanced Diagnostic
clinics allegedly operated in violation of Florida law
because their medical directors did not properly perform
their duties. (Id. at ¶¶ 120-38).
Geico filed the underlying complaint on October 16,
2020. (Doc. # 1). On January 4, 2021, Advanced Diagnostic
moved to dismiss the complaint. (Doc. # 36). The Court denied
the motion to dismiss on February 25, 2021. (Doc. # 50). On
March 11, 2021, Advanced Diagnostic filed its answer, also
asserting the following counterclaims against Geico: tortious
interference with contractual or prospective business
relationships (Count I), and defamation per se (Count II).
(Doc. # 51). Now, Geico moves to dismiss the counterclaims.
(Doc. # 54). Advanced Diagnostic has responded (Doc. # 56),
and the Motion is 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 counterclaim and construes them in the
light most favorable to the counterclaim-plaintiff. Jackson
v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004).
Further, the Court favors the counterclaim-plaintiff with all
reasonable inferences from the allegations in the
counterclaim. Stephens v. Dep’t of Health & Human Servs., 901
F.2d 1571, 1573 (11th Cir. 1990). But,
[w]hile a [counterclaim] attacked by a Rule
12(b)(6) motion to dismiss does not need detailed
factual allegations, a [counterclaim-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
[counterclaim], and matters judicially noticed.” La Grasta v.
First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).
III. Analysis
Geico moves to dismiss both of Advanced Diagnostic’s
counterclaims. The Court will address each claim in turn.
A. Tortious Interference
First, Geico moves to dismiss Count I – Advanced
Diagnostic’s claim for tortious interference with contractual
or prospective business relationships – because it (1) fails
to “identify a single contract or relationship with any GEICO
Insureds that Advanced Diagnostic actually lost as a result
of GEICO’s actions,” (2) does not “explain how the
[explanation of benefits (“EOB”)] . . . caused ‘certain’
totally unspecified ‘primary care physicians’ to stop
referring patients to Advanced Diagnostic” or “caused the
unspecified ‘other patients’ to stop treating at Advanced
Diagnostic,” and (3) “[t]here can be no claim for tortious
interference with a business relationship where the action
complained of is undertaken to safeguard or promote one’s
financial or economic interest.” (Doc. # 54 at 9-10 (emphasis
and citation omitted)). Advanced Diagnostic responds that the
Motion fails to comply with Local Rule 3.01(g), its claim is
sufficiently pled, and Geico does not have a privilege to
interfere in the business relationship between Advanced
Diagnostic and the patients. (Doc. # 56 at 5-14).
1. Local Rule 3.01(g)
At the outset, the Court agrees with Advanced Diagnostic
that the Motion fails to comply with Local Rule 3.01(g), which
requires that parties confer in good faith before filing
certain motions – including motions to dismiss. Local Rule
3.01(g), M.D. Fla. A certification noting this conferral must
be included at the end of the motion. (Id.). Prior to February
2021, however, the Local Rules did not require such conferral
when moving to dismiss. See U.S. Dist. Ct. Middle Dist. of
Fla., 2020 Local Rule Revisions – Bullet Point Summary,
available at https://www.flmd.uscourts.gov/sites/flmd/files/
documents/flmd-2020-local-rule-revisions-bullet-point-
summary.pdf (last visited June 30, 2021) (noting the
expansion of Rule 3.01(g) to include motions to dismiss).
Because this Motion was filed in March 2021 – shortly
after the change in Local Rules – and because denying this
Motion for this reason would further delay the case, the Court
excuses the omission. Accordingly, the Motion is denied as to
this requested relief. See Judkins v. Bloomen Int’l, Inc.,
No. 8:09-cv-2538-EAK-TBM, 2010 WL 2510665, at *2 (M.D. Fla.
June 21, 2010) (“The Court will not use this technicality as
the basis for denying the motion but advises that Plaintiff’s
counsel henceforth adhere to Local Rule 3.01(g).”).
2. Failure to State a Claim
Turning to the substance of the counterclaims,
“[t]ortious interference with a contract and tortious
interference with a business relationship are very similar
causes of action. The primary difference is that in one there
is a contract and in the other there is only a business
relationship.” Plain Bay Sales, LLC v. Gallaher, No. 18-
80581-CIV-DIMITROULEAS, 2018 WL 4208343, at *4 (S.D. Fla.
Aug. 23, 2018). The Court will address each in turn.
a. Contractual Relationship
To state a claim for tortious interference with a
contractual relationship under Florida law, the plaintiff
must sufficiently allege the following elements: (1) “the
existence of a contract”; (2) “the defendant’s knowledge
thereof”; (3) “the defendant’s intentional and unjustified
procurement of a breach thereof”; and (4) damages. Sun Life
Assurance Co. of Can. v. Imperial Premium Fin., LLC, 904 F.3d
1197, 1215 (11th Cir. 2018) (citation omitted).
Here, Advanced Diagnostic has not alleged the existence
of a contract with any patients. Advanced Diagnostic only
cursorily states: “Geico was aware that AFO maintains
contractual or prospective business relationships with
patients who sustained personal injuries in motor vehicle
accidents and who were insured under polices [(sic)] of
insurance issued by Geico.” (Doc. # 51 at ¶ 58). This vague
allegation fails to raise the alleged right to relief above
a speculative level. See Collier HMA Physician Mgmt., LLC v.
NCH Healthcare Sys., Inc., No. 2:18-cv-408-SPC-MRM, 2019 WL
277733, at *8 (M.D. Fla. Jan. 22, 2019) (dismissing a claim
for tortious interference with a contractual relationship
where the plaintiff failed to allege the existence of an
actual contract to which it was a party).
Accordingly, Count I is dismissed without prejudice to
the extent it asserts a claim for tortious interference with
a contractual relationship. See Roberta L. Marcus, Inc. v.
New Cingular Wireless PCS, LLC, No. 12-20744-Civ-SCOLA, 2012
WL 12866788, at *6 (S.D. Fla. Oct. 25, 2012) (“[T]he Amended
Complaint fails to allege the existence of a contract that
Marcus contends the Defendants interfered with. Although
there are other pleading deficiencies regarding Count VII,
this defect is fatal.”).
b. Business Relationship
To state a claim for tortious interference with a
business relationship under Florida law, the plaintiff must
sufficiently allege the following elements: “(1) the
existence of a business relationship under which the
plaintiff has legal rights; (2) an intentional and
unjustified interference with the relationship; and (3)
damage to the plaintiff as a result of the tortious
interference with that relationship.” Coach Servs., Inc. v.
777 Lucky Accessories, Inc., 752 F. Supp. 2d 1271, 1273 (S.D.
Fla. 2010) (quoting Ad-Vantage Tel. Directory Consultants,
Inc. v. GTE Directories Corp., 849 F.2d 1336, 1348-49 (11th
Cir. 1987)). “To satisfy the first prong of a tortious
interference of a business relationship claim, the plaintiff
may allege ‘tortious interference with present or prospective
customers but no cause of action exists for tortious
interference with a business’s relationship to the community
at large.’” Id. (quoting Ethan Allen, Inc. v. Georgetown
Manor, Inc., 647 So.2d 812, 815 (Fla. 1994)). “As a general
rule, an action for tortious interference with a business
relationship requires a business relationship evidenced by an
actual and identifiable understanding or agreement which in
all probability would have been completed if the defendant
had not interfered.” Bell v. Tampa Bay Downs, Inc., No. 8:10-
cv-2835-JSM-TBM, 2011 WL 6718266, at *1 (M.D. Fla. Dec. 21,
2011) (citation omitted).
Here, the business relationship in question is between
Advanced Diagnostic and “patients who sustained personal
injuries in motor vehicle accidents and who were insured under
polices [(sic)] of insurance issued by Geico” and to whom
Advanced Diagnostic “provides health care services.” (Doc. #
51 at ¶¶ 58-59). However, Count I does not allege there is or
was an understanding between these patients and Advanced
Diagnostic such that they would seek medical care at their
clinics. See Drenberg v. Focus! . . . On Surety, LLC, No.
6:13-cv-1351-RBD-KRS, 2013 WL 6768667, at *3 (M.D. Fla. Dec.
20, 2013) (“At the pleading stage, it is not necessary to
name the specific customers at issue so long as there are
sufficient allegations concerning a business relationship
that affords the claimant ‘existing or prospective legal or
contractual rights.’” (citation omitted)). Although Advanced
Diagnostic alleges that it had a right to receive payment
from Geico, that evidences a business relationship between
Advanced Diagnostic and Geico – not between Advanced
Diagnostic and these patients. (Doc. # 51 at ¶ 59).
Accordingly, Count I is dismissed without prejudice to
the extent it asserts a claim for tortious interference with
a business relationship.1 See Vibo Corp. v. U.S. Flue-Cured
Tobacco Growers, Inc., No. 17-22034-WILLIAMS, 2018 WL
1. In its response to Geico’s Motion, Advanced Diagnostic has
not moved for leave to amend. (Doc. # 56).
11149759, at *7 (S.D. Fla. May 15, 2018) (“Here, . . . the
tortious interference claim must be dismissed because
Plaintiff has not identif[ied] any legal rights at stake, and
it [has] not allege[d] any instances of customers[,
distributors or retailers] not performing pursuant to those
legal rights. . . . Absent an allegation of an identifiable
agreement [or understanding] . . . that they would return for
future business, [Plaintiff] has failed to state a claim. The
mere hope that some of its past customers may choose to buy
again cannot be the basis for a tortious interference claim.”
(internal quotation marks and citations omitted)).
B. Defamation Per Se
Next, Geico moves to dismiss Count II – Advanced
Diagnostic’s claim for defamation per se – arguing that it
(1) “fail[s] to identify any specific Insureds who received
the allegedly defamatory EOBs,” (2) “fail[s] to plead any
facts to plausibly allege that the statements in the EOBs
actually tended to injure Advanced Diagnostic in its trade or
profession,” and (3) has “not . . . ple[d] express malice or
. . . overcome the qualified privilege pertaining to EOBs
sent from GEICO to its own Insureds, regarding claims on the
Insureds’ insurance policies.” (Doc. # 54 at 14-17).
“Under Florida law, to state a claim for defamation –
libel or slander – the plaintiff must allege: (1) the
defendant published a false statement; (2) about the
plaintiff; (3) to a third party; and (4) that the falsity of
the statement caused injury to the plaintiff.” Rubinson v.
Rubinson, 474 F. Supp. 3d 1270, 1274 (S.D. Fla. 2020)
(internal quotation marks and citations omitted). “To
successfully plead a claim for defamation per se, the
plaintiff must allege the ‘identity of the particular person
to whom the remarks were made with a reasonable degree of
certainty’ to afford the defendant ‘enough information to
determine affirmative defenses.’” Aflalo v. Weiner, No. 17-
61923-CIV-MORENO, 2018 WL 3235529, at *4 (S.D. Fla. July 2,
2018) (citation and emphasis omitted).
“A written publication constitutes libel per se under
Florida law if, when considered alone and without innuendo,
it (1) charges that a person has committed an infamous crime;
(2) tends to subject one to hatred, distrust, ridicule,
contempt, or disgrace; or (3) tends to injure one in his trade
or profession.” Alan v. Wells Fargo Bank, N.A., 604 F. App’x
863, 865 (11th Cir. 2015). “The significance of the
classification of a communication as actionable per se lies
in the fact that its victim need not plead or prove malice
(except where a privilege is involved) or special damage
because malice and the [occurrence] . . . of damage are both
presumed from the nature of the defamation.” Rubinson, 474 F.
Supp. 3d at 1274-75 (quoting Wolfson v. Kirk, 273 So.2d 774,
777 (Fla. 4th DCA 1973)).
“In a libel per se action, consideration is given only
to the ‘four corners’ of the publication.” Aflalo, 2018 WL
3235529, at *2 (citation and emphasis omitted). Such per se
“defamatory statement[s] must impute conduct to
[counterclaimants] ‘incompatible with the essential functions
of their respective jobs.’” Klayman v. Jud. Watch, Inc., 22
F. Supp. 3d 1240, 1249 (S.D. Fla. 2014) (citation omitted).
Here, Advanced Diagnostic alleges that “[s]ince on or
about November 2, 2020, [Geico] has sent [d]efamatory EOBs to
at least 198 [Geico]-insured [p]atients.” (Doc. # 51 at ¶
65). These EOBs contained the following allegedly false and
defamatory statements: “This claim is denied because the
provider is not in compliance with the licensing and operating
requirements of the Florida Health Care Clinic Act, Fla. Stat.
400.990, et seq.” (Id. at ¶¶ 38, 40). Advanced Diagnostic
contends this falls under the third category of defamation
per se, as it “tend[s] to injure [Advanced Diagnostic] in its
trade or profession.” (Id. at ¶ 66).
1. Specificity
First, Geico argues that Count II has not sufficiently
identified the individuals who received the defamatory EOBs.
(Doc. # 54 at 15). The Court disagrees. The counterclaim
explains that the 198 individuals are insured by Geico,
received medical care from an Advanced Diagnostic clinic, and
received an EOB from Geico denying their claim. (Doc. # 51 at
¶¶ 36-39, 65). Geico attaches examples of such EOBs to its
counterclaim (Doc. # 51-2). This sufficiently identifies
“‘the particular person to whom the remarks were made with a
reasonable degree of certainty’ to afford the [counterclaim-
]defendant ‘enough information to determine affirmative
defenses.’” Ward v. Triple Canopy, Inc., No. 8:17-cv-802-SCB-
MAP, 2017 WL 3149431, at *3 (M.D. Fla. July 25, 2017) (quoting
Buckner v. Lower Fla. Keys Hosp. Dist., 403 So.2d 1025, 1027
(Fla. 3d DCA 1981)); see also Williamson v. Digit. Risk, LLC,
No. 6:18-cv-767-GAP-TBS, 2018 WL 3870064, at *3 (M.D. Fla.
Aug. 15, 2018) (“While the Plaintiff does not identify all of
those to whom the allegedly defamatory statements were made,
she does identify specific groups of people: members of
Taylor’s teams, Defendants’ operations leaders, and the
Plaintiff’s former clients. Identifying specific groups of
people to whom defamatory statements were published is
sufficient; a plaintiff is not required to identify every
individual member of each group by name.”).
2. Injury to Trade or Profession
Next, Geico argues that Count II fails to plausibly
allege that the statements in the EOBs tended to injure
Advanced Diagnostic’s trade or profession. (Doc. # 54 at 15).
Yet, a person reading the EOB could reasonably understand it
to implicate Advanced Diagnostic’s ability to conduct its
business – that is, lawfully operate a clinic in Florida.
Indeed, the EOB specifically stated that Advanced Diagnostic
is not in compliance with the Florida Health Care Clinic Act.
(Doc. # 51 at ¶ 66). Thus, if this statement is false,
Advanced Diagnostic has sufficiently alleged the statement
tends to injure its trade or profession. See Mackroy-Snell v.
Lake Wales Charter Schs., No. 8:06-cv-1380-JSM-MAP, 2006 WL
2864317, at *6 (M.D. Fla. Oct. 5, 2006) (“Plaintiff has
alleged that LWCS board members stated publicly that
‘Plaintiff was terminated for poor job performance’, when in
fact Plaintiff had performed all requisite job duties
properly and effectively. If proven, such statement could be
injurious to Plaintiff’s trade or profession. Of course, this
is a fact that must be proven. This issue is more
appropriately addressed at the summary judgment stage.”).
3. Qualified Privilege
Last, Geico argues that “the statements in the EOBs are
subject to a qualified privilege” and Advanced Diagnostic has
not pled express malice. (Doc. # 54 at 16). Advanced
Diagnostic responds that this privilege determination is
inappropriate at this stage, and that it has sufficiently
pled bad faith and improper means. (Doc. # 56 at 11-14).
“As a general rule, there is a presumption of malice
where statements are defamatory per se.” Shaw v. R.J. Reynolds
Tobacco Co., 818 F. Supp. 1539, 1542 (M.D. Fla. 1993).
However, “a qualified privilege exists for communications
‘made in good faith on any subject matter by one having an
interest therein, or in reference to which he has a duty . .
. if made to a person having a corresponding interest or
duty.’” Gills v. Armfield, No. 8:10-cv-895-JDW-TBM, 2011 WL
13175840, at *5 (M.D. Fla. Mar. 30, 2011) (quoting Nodar v.
Galbreath, 462 So.2d 803, 809 (Fla. 1984)). In such cases,
“the plaintiff then has the burden of rebutting a presumption
of good faith.” Shaw, 818 F. Supp. at 1542. “The elements of
a qualified privilege include: (1) good faith; (2) an interest
in the subject by the speaker or a subject in which the
speaker has a duty to speak; (3) a corresponding interest or
duty in the listener or reader; (4) a proper occasion; and
(5) publication in a proper manner.” Gills, 2011 WL 13175840,
at *5. “Generally, immunity is an affirmative defense that
should be pled by the party asserting it, and which may
thereafter be considered after the facts are fleshed out by
summary judgment or trial.” Fariello v. Gavin, 873 So.2d 1243,
1245 (Fla. 5th DCA 2004).
Here, even assuming the statements in the EOBs are
protected by a qualified privilege, the Court finds that
Advanced Diagnostic has sufficiently alleged actual malice.
The counterclaim avers that Geico intentionally and
unjustifiably made these false statements and that Geico did
so in bad faith to “avoid[] paying for medical benefits.”
(Doc. # 51 at ¶¶ 35, 55, 68). Taking these allegations as
true and making all reasonable inferences in Advanced
Diagnostic’s favor, the Court finds this sufficient. The
Court will be in a better position to determine privilege and
malice at summary judgment. See Stewart Title Guar. Co. v.
Title Dynamics, Inc., No. 2:04-cv-316-VMC-SPC, 2005 WL
2548419, at *5 (M.D. Fla. Oct. 11, 2005) (“Since Prince
alleges malice in its complaint[,] . . . Prince reserves the
ability to set forth facts which may overcome the economic
interest privilege. Furthermore, the Court finds that the
mere existence of a conceivably sustainable affirmative
defense . . . does not mandate the dismissal of a claim;
rather, the claim should be permitted to advance to the next
stage of litigation where the claim and the affirmative
defenses may be fleshed out.”). Therefore, the Motion is
denied as to Count II.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1) Plaintiffs and Counterclaim-Defendants’ Motion to
Dismiss Counterclaims (Doc. # 54) is GRANTED in part and
DENIED in part.
(2) Count I is DISMISSED without prejudice.
(3) Plaintiff and Counterclaim-Defendants’ answers to the
counterclaim (Doc. # 51) are due by July 21, 2021.
DONE and ORDERED in Chambers, in Tampa, Florida, this
7th day of July, 2021.
tina 90. Husmerby Coe
VIR IA M. HERNANDEZ’*COVINGTON
UNITED STATES DISTRICT JUDGE
17