Government Employees Insurance Co. v. The Right Spinal Clinic, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

GOVERNMENT EMPLOYEES

INSURANCE CoO. et al.,

Plaintiffs,

v. Case No: 8:20-cv-0802-KKM-AAS

THE RIGHT SPINAL CLINIC,

INC. et al.,

Defendants.

ORDER

The parties file cross motions for summary judgment. The dispute concerns Plaintiff

GEICO’s obligation to reimburse Defendant Right Spinal Clinic, Inc., under a Florida

statute for services that Right Spinal provided to GEICO’s insured clients. In that regard,

Right Spinal was not entitled to reimbursement for physical therapy services, and Right

Spinal must return funds that GEICO already paid for those services. GEICO is also

entitled to a declaration that it is not obligated to pay outstanding bills for those same kinds

of services. As for other services provided by Right Spinal to GEICO’s insured clients,

disputes of fact preclude summary judgment on whether GEICO was obligated to pay for

them.

I. BACKGROUND!

Florida’s Motor Vehicle No-Fault Law requires that automobile insurers

compensate their insured clients for injuries sustained in car accidents. See §§ 627.730-

627.7405, Fla. Stat. That compensation is called Personal Injury Protection (PIP) benefits.

See § 627.736(1), Fla. Stat. An insured person may assign his right to seek PIP benefits

from an insurer to his health care provider. See § 627.736(5). The provider may then

submit claims directly to the insurance company. See id. The provider is entitled to PIP

reimbursement only if it complies with the No-Fault Law.

In addition to the No-Fault Law, clinics that wish to receive PIP reimbursement

must comply with the Clinic Act. See § 400.9935(1), (3), Fla. Stat. Among other demands,

the Act requires that clinics hire a medical director to systematically review the clinic’s

billing and, if necessary, correct it. See id.

Ifa clinic is not entitled to PIP reimbursement under either statute, an insurer may

refuse to pay the benefits or sue to recover benefits after paying. See § 627.736(4)(b), Fla.

Stat.; State Farm Mut. Auto. Ins. Co. v. Williams, 563 F. App’x 665, 669-70 (11th Cir.

2014) (per curiam).

' The Court recounts the undisputed facts as contained in the record. To the extent facts are disputed or

capable of multiple inferences, the Court construes the record in favor of the nonmovant. See Sconiers v.

Lockhart, 946 F.3d 1256, 1262 (11th Cir. 2020). Because the parties have filed cross motions for summary

judgment, the Court views the facts in the light most favorable to the nonmoving party on each motion.

See James River Ins. Co. v. Ultratec Special Effects Inc, 22 F.4th 1246, 1251 (11th Cir. 2022).

The Right Spinal Clinic, Inc., is a medical provider that caters to car accident

victims. Right Spinal’s services include initial examinations, follow-up examinations, and

physical therapy treatments. (Doc. 277-1 at 4.) After providing these services to insured

car accident victims, Right Spinal submits bills to GEICO and other Florida insurance

companies for PIP reimbursement. (Doc. 275 at 2; Doc. 272-7 at 81.)

Right Spinal’s billing represents that doctors Luis Merced, Kendrick Eugene

Duldulao, Stephen Diamantides, and Victor Silva performed the initial and follow-up

examinations. (Doc. 277-1 at 4-5.) In addition to patient examinations, Merced also served

as Right Spinal’s medical director under the Clinic Act from October 2017 to April 2021.

(Id. at 3; Doc. 275 at 2.)

Three licensed massage therapists (LMTs)—Alexis Garcia-Gamez, Mignelis Veliz

Sosa, and Yulieta Perez Rodriguez—provided Right Spinal’s physical therapy services.

(Doc. 277-1 at 6.) Although they held no other licensure (id.), these LMTs performed all

the physical therapy services at Right Spinal from November 2017 through January 2020,

(Id. at 12, 67, 199-200).

Right Spinal submitted its PIP billing to GEICO on HCFA-1500 forms. It

submitted 60,518 of these forms for physical therapy services alone. (Id. at 9.) Those forms

billed GEICO for services performed on 554 days between November 2017 and January

2020. (Id. at 8.) On over 99% of the forms Right Spinal represented that Merced personally

performed or directly supervised the underlying treatment. (Id. at 8-9, 63-64.) They did

so despite the reality that Merced did not perform any physical therapy services as □□□□□□

doctor provide[d] therapy services,” and he was not present at Right Spinal every day to

directly supervise the LMTs. (Id. at 9, 65, 67-68, 87, 121-23.)

In reliance on Right Spinal’s PIP billing, GEICO paid Right Spinal $2,015,882.52

between November 2017 and April 2020. (Id. at 13.) Of that amount, $690,251.44 was for

physical therapy services. (Id. at 12-13.) In approximately April 2020, GEICO ceased

paying Right Spinal’s PIP bills. (Doc. 275 at 3.) Bills have accumulated since and remain

outstanding. (Doc. 277-1 at 13.)

On April 7, 2020, GEICO? sued Right Spinal, its doctors (Merced, Duldulao,

Diamantides, and Silva), its LMTs (Garcia-Gamez, Sosa, and Rodriguez), as well as its

then-owner Yunied Mora-Jimenez. (Doc. 1.) GEICO later amended the complaint to add

Lianny Jimenez-Urdanivia as a defendant after learning that she served as Right Spinal’s

manager from 2017 through February 2020. (Doc. 248; Doc. 249; Doc. 277-1 at 2.)

GEICO alleges that these Defendants submitted fraudulent or unlawful billing in violation

of the No-Fault Law and the Clinic Act.

2 Plaintiffs include Government Employees Insurance Co., GEICO Indemnity Co., GEICO General

Insurance Company, and GEICO Casualty Co.

Il. LEGAL STANDARD

Summary judgment is appropriate if there is no genuine dispute of material fact and

the moving party is entitled to judgment as a matter of law. See FED R. CIV. P. 56(a). A

fact is material if it might affect the outcome of the suit. See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).

A moving party is entitled to summary judgment when the nonmoving party “fail[s]

to make a sufficient showing on an essential element of her case with respect to which she

has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant

bears the initial burden of informing the court of the basis for its motion and identifying

those parts of the record that show an absence of a genuine issue of fact. See Clark v. Coats

& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).

When that burden is met, the burden shifts to the nonmovant to prove that there is

a genuine issue of fact that precludes summary judgment. Id. The nonmoving party must

“go beyond the pleadings” and point to evidence of a real issue for trial. Celotex, 477 U.S.

at 324 (quotation omitted). “A mere ‘scintilla’ of evidence” does not suffice; “there must be

enough of a showing that the jury could reasonably find for [the nonmovant].” Walker v.

Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (quotation omitted). In reviewing the

evidence, the Court draws all legitimate inferences in the nonmoving party’s favor. See

Sconiers v. Lockhart, 946 F.3d 1256, 1263 (11th Cir. 2020).

ANALYSIS

The parties file cross motions for summary judgment. GEICO seeks partial

summary judgment, moving for judgment on less than all claims and against less than all

Defendants. Meanwhile, all Defendants who are not in default (with the exception of

Jimenez-Urdanivia) request judgment on GEICO’s claims. The Court addresses the

motions separately.

A. GEICO’s Motion for Partial Summary Judgment

GEICO moves for summary judgment against Right Spinal, Jimenez-Urdanivia,

Mora-Jimenez, and Garcia-Gamez on GEICO’s claims for unjust enrichment (Count

VII), declaratory judgment (Count I), and Florida’s Deceptive and Unfair Trade Practices

Act (FDUTPA) (Count IV). (Doc. 278.)

1. GEICO’s Unjust Enrichment Claim (Count VII)

To succeed on its unjust enrichment claim, GEICO must show (1) that it conferred

a benefit on Defendants; (2) that Defendants “voluntarily accepted and retained that

benefit;” and (3) that it would be inequitable for Defendants to retain the benefit under the

circumstances. See Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1337 (11th Cir. 2012)

(citing Fla. Power Corp. v. City of Winter Park, 887 So. 2d 1237, 1241 n.4 (Fla. 2004)).

GEICO easily satisfies the first two elements. GEICO paid Right Spinal

$2,015,882.52 between November 2017 and April 2020 in reliance on the legitimacy of its

PIP charges. Defendants accepted and retained that money. (Doc. 277-1 at 13.) GEICO

satisfies the third element if it shows that Right Spinal was not entitled to receive the

payments. See State Farm Fire & Cas. Co. v. Silver Star Health & Rehab, 739 F.3d 579,

584 (11th Cir. 2013). GEICO argues that the No-Fault Law and the Clinic Act erect four

independent barriers to Right Spinal’s receipt of PIP benefits. Defendants claim they

hurdle each one. If there is at least one barrier to Right Spinal’s entitlement to PIP benefits,

then GEICO satisfies all three elements of its unjust enrichment claim and is entitled to

summary judgment on Count VII.

i. The No-Fault Law’s Limitations on Massage Therapists

Does the No-Fault Law prohibit reimbursement for physical therapy services that

LMTs perform? If it does, GEICO was not required to pay Right Spinal’s physical therapy

PIP charges—$690,251.44—because it is undisputed that LMTs provided all Right

Spinal’s physical therapy services. (Doc. 277-1 at 73.) But if the No-Fault Law allows for

such billing, then GEICO must find another basis on which to deny payment. The statute

prohibits billing for an LMT’s services, thus GEICO is entitled to summary judgment on

the unjust enrichment claim as it relates to physical therapy services.

The No-Fault Law requires insurers pay for medical benefits. See § 627.736(1). But

not all medical treatment qualifies as a medical benefit and not all medical benefits are

reimbursable. First, medical benefits “do not include massage therapy.” § 627.736(1)(a)(5),

Fla. Stat. Second, “a licensed massage therapist... may not be reimbursed for medical

benefits under this section.” Id.° In other words, the statute “excludes massage from the

types of health care services that are eligible for PIP reimbursement” and it “prohibits

massage therapists from receiving PIP reimbursement.” Geico Gen. Ins. Co. v. Beacon

Healthcare Ctr. Inc., 298 So. 3d 1235, 1238 (Fla. 3d DCA 2020).

The latter exclusion is determinative. It is undisputed that LMTs performed all the

physical therapy services that Right Spinal billed to GEICO. The No-Fault Law “flatly

precludes reimbursement for LMTs providing advanced physical therapy services.” See

State Farm Mut. Auto. Ins. Co. v. Muse, No. 20-13319, 2022 WL 413417, at *6 (11th

Cir. Feb. 10, 2022) (per curiam). And so, Right Spinal’s services are not reimbursable. See

S. Owners Ins. Co. v. Hendrickson, 299 So. 3d 524, 525 (Fla. 5th DCA 2020) (concluding

that the statute “explicitly prohibits” an LMT “from being reimbursed for medical

benefits”).

Defendants doubt that Florida law would completely exclude LMTs from the PIP

regime. But it does. And it does so “explicitly” and by its “plain text.” See id. at 525-26.

3 Section 627.736(1)(a)(5) thus clearly circumscribes what insurers must reimburse for services provided

by licensed message therapists:

Medical benefits do not include massage therapy as defined in s. 480.033 or acupuncture

as defined in s. 457.102, regardless of the person, entity, or licensee providing massage

therapy or acupuncture, and a licensed massage therapist or licensed acupuncturist may not

be reimbursed for medical benefits under this section.

The “statute excludes licensed massage therapists from being reimbursed for medical

benefits.” Id. at 525; accord McCarty v. Myers, 125 So. 3d 333, 335 (Fla. 1st DCA 2013)

(“[T]he law specifically excludes licensed massage therapists and licensed acupuncturists

from being reimbursed for medical benefits.”).

Defendants persist, arguing for an unstated exception. They posit that an LMT’s

physical therapy services are reimbursable if a licensed physician supervised them. But

Defendants cite no authority for a supervision exception. For that reason alone, their

argument fails. See U.S. Steel Corp. v. Astrue, 495 F.3d 1272, 1287 n.13 (11th Cir. 2007)

(refusing to consider arguments made without supporting legal authority).

Though Defendants do not say so, perhaps they meant to invoke a provision of the

No-Fault Law providing that reimbursable medical benefits include care that is “lawfully

provided, supervised, ordered, or prescribed by a licensed physician under chapter 458.”

§ 627.736(1)(a)(1), Fla. Stat. (emphasis added). Even if Defendants had cited this

provision, it would not have helped them establish a supervision exception.

Look first at the No-Fault Law’s structure. Subsection (a) defines the scope of

reimbursable medical benefits. In paragraphs (1) and (2), it explains that “medical benefits”

include initial and follow-up care that a physician lawfully provides or supervises.

Paragraph (5) limits this definition in two ways. First, it excludes massage therapy from

the definition of medical benefits. Second, it excludes LMTs from receiving

reimbursement “for medical benefits under this section.” In other words, paragraph (5)

limits the broad definition of compensable medical benefits in paragraph (1).

That structure shows Defendants have the statute backwards. A doctor’s supervision

is not an exception to the rule prohibiting LMT reimbursement; the prohibition on LMT

reimbursement is an exception to the rule that doctor-supervised care is reimbursable.

Thus, even if doctor-supervised care is usually a qualifying medical benefit, it is not

reimbursable if the supervised provider is an LMT. In other words, “Florida’s No-Fault

Law precludes reimbursement for physical therapy services provided by massage therapists

without regard to the level of supervision.” Gov't Emps. Ins. Co. v. Quality Diagnostic

Health Care, Inc., No. 21-10297, 2021 WL 5157535, at *4 (11th Cir. Nov. 5, 2021) (per

curiam). That alone conclusively forecloses Defendants’ argument on this score.

Look next at the constraints subparagraphs (1) and (2) place on supervised care. See

§ 627.736(1)(a), Fla. Stat. Under those paragraphs, care that is “lawfully” supervised “by a

physician licensed under chapter 458” is reimbursable. § 627.736(1)(a)(1), Fla. Stat. So

too, the No-Fault Law explains elsewhere that an insurer is not required to pay for any

“treatment that was not lawful.” § 627.736(5)(b), Fla. Stat. Lawfulness requires

“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.” § 627.732(11), Fla. Stat.

10

For their supervision exception to work then, Defendants would have to show that

it was lawful for “a physician licensed under chapter 458” to delegate physical therapy

services to a massage therapist. Florida law makes that showing a challenge—and it is a

challenge that Defendants do not attempt.

First, Florida’s Physical Therapy Act generally limits the practice of physical therapy

to licensed physical therapists. See § 486.028, Fla. Stat.; Beacon, 298 So. 3d at 1238. It is

undisputed that Right Spinal’s services constituted physical therapy and that no employee

held a physical therapy license. And Defendants never argue that the services were merely

incidental to a licensed doctor’s practice of his profession. See § 486.161(1), Fla. Stat. Cf

State Farm Mut. Auto. Ins. Co. v. Universal Med. Ctr. of S. Fla., Inc., 881 So. 2d 557,

560 (Fla. 3d DCA 2004) (concluding that the physical therapy modalities at issue were

incidental to a physician’s practice).

Second, Florida law limits a doctor’s ability to delegate duties. For example, doctors

may delegate some tasks to a registered nurse, a licensed physician’s assistant, or a medical

assistant. See § 458.303(2), Fla. Stat.; § 458.347(4)(d), (h), Fla. Stat.; § 458.3485, Fla.

Stat. Defendants do not argue that Right Spinal’s LMTs were qualified for those positions.

And Defendants cite no case, statute, or regulation suggesting that a doctor could legally

delegate physical therapy services to LMTs.

11

In sum, the No-Fault Law denies PIP reimbursement for services that an LMT

provides. Defendants’ arguments to the contrary are unsupported and unconvincing.

Because Right Spinal was not entitled to PIP reimbursement for its physical therapy

treatments, GEICO is entitled to summary judgment on its unjust enrichment claim for

the $690,251.44 it paid for those services.

ii. The Clinic Act’s Medical Director Requirement

Florida’s Clinic Act requires that clinics like Right Spinal “appoint a medical

director” to “accept legal responsibility” for the clinic. § 400.9935(1), Fla. Stat. The medical

director must perform “systematic reviews of clinic billing to ensure that the billings are

not fraudulent or unlawful.” § 400.9935(1)(g), Fla. Stat. He must also “take immediate

corrective action” if he discovers an unlawful charge. Id.

“A clinic’s failure to comply with the Clinic Act’s [medical director] requirements

carries significant consequences.” Allstate Ins. Co. v. Vizcay, 826 F.3d 1326, 1328 (11th

Cir. 2016). The Act provides that a “charge or reimbursement claim made by or on behalf

of a clinic” that is “operating in violation of this part... is an unlawful charge and is

noncompensable and unenforceable.” § 400.9935(3), Fla. Stat. In other words, if GEICO

shows that Right Spinal operated in violation of the Clinic Act, then it is “entitled to

recover the amounts it paid” on a theory of unjust enrichment. Vizcay, 826 F.3d at 1330.

12

GEICO contends that Merced was not systematically reviewing Right Spinal’s

billing. And so, GEICO concludes, Right Spinal operated in violation of the Clinic Act

and is not entitled to PIP reimbursement. Defendants disagree, arguing that they are

entitled to summary judgment because Merced conducted adequate reviews. There is

evidence to support both parties. Because weighing that evidence is the jury’s task,

summary judgment is inappropriate.

Merced, a doctor in his eighties, served as the medical director for at least four clinics

and as a treating physician for several others. (Doc. 277-1 at 105-13.) On a monthly basis,

he reviewed between five and ten patient files at Right Spinal. (Id. at 101.) During that

review, he would go through the patient’s entire file. (Id.) One of Merced’s monthly review

sheets shows that he reviewed the files of seven patients and identified one that was in

error. (Doc. 272-5.) While Merced served as medical director, Right Spinal billed an

average of 109 physical therapy services each day. (Doc. 277-1 at 8.) Defendants assert—

without citation—that Right Spinal saw between nineteen and eighty-nine patients a

month. (Doc. 272 at 12.)

GEICO questioned Merced on his duties as medical director at his deposition. At

that time, Merced could not remember the CPT codes that Right Spinal used for its billing

or the guidelines for selecting them. (Doc. 277-1 at 129-31, 133.) Nor did he recall if he

had received training on how to select or evaluate CPT codes. (Id. at 130.) Although he

13

reviewed them for years, Merced also testified that he did not know what information

clinics were required to put in their billing forms. (Id. at 100.)

GEICO argues that the size of Merced’s monthly review and his inability to

remember the basics of PIP billing are clear evidence that Merced did not perform his

medical director duties. How, GEICO asks, could Merced have systematically reviewed

Right Spinal’s billing if he did not know how to complete the forms? Or how many patients

Right Spinal saw each month? Fair questions. And ones Defendants try to answer. ‘They

explain that Merced suffered an injury several months before his deposition that impaired

his memory and recall. (Doc. 272 at 19 n.3; Doc. 208 at 3-4.) Defendants claim that any

“fair reading of the transcript” shows that Merced’s memory was impaired. As it is

essentially a dispute over credibility, the Court may not draw inferences from Merced’s

inability to remember. Resolving such disputes is the factfinder’s task. See Sconiers, 946

F.3d at 1263 (explaining that a court cannot grant summary judgment when credibility is

material).

For the same reason, the Court will not infer from Merced’s age, competing

obligations, or his failure to identify billing errors that he was a sham medical director.

Doing so would require the Court to disregard Merced’s testimony, as well as the review

sheet exemplifying Merced’s behavior. It cannot do that. Nor may the Court weigh the

evidence or draw inferences against the nonmovant. See id. at 1263. Of course, a jury might

14

not find Merced’s schedule credible. But a jury might also weigh the evidence and find that

Merced’s reviews were systematic. Cf. Vizcay, 826 F.3d at 1332 (concluding that there was

sufficient evidence for the jury to find that a medical director’s reviews were not systematic).

But the Court is “not at liberty to pick [the] side [it] think[s] is more credible.” Sconiers,

946 F.3d at 1263.

iii. The No-Fault Law’s Requirement that Treatments Are

Not Medically Unnecessary or Upcoded

The No-Fault Law limits medical benefits to “medically necessary” treatment.

§ 627.736(1)(a), Fla. Stat. A medically necessary treatment is one that a “prudent

physician” would use to treat an injury and that fits with “generally accepted standards of

medical practice;” is of appropriate type, frequency, and duration; and that is not primarily

for the convenience of the patient or health care provider. § 627.732(2), Fla. Stat.

Unnecessary treatments are not entitled to PIP reimbursement. See § 627.736(1)(a), Fla.

Stat.

The No-Fault Law also prohibits exaggerating the extent of the service provided, a

practice known as “upcoding.” See § 627.736(5)(b). Upcoding occurs when a provider uses

a billing code that “result[s] in payment greater in amount than would be paid using a

billing code that accurately describes the services performed.” § 627.732(14), Fla. Stat.

Clinics like Right Spinal report the treatment they provide using “current procedural

15

terminology” (CPT) codes. The No-Fault Law incorporates sources on selecting proper

codes. See § 627.736(5)(d), Fla. Stat.

GEICO argues that Right Spinal violated both rules. First, GEICO contends that

the treatments were medically unnecessary because Right Spinal’s patients “received a

substantially similar physical therapy treatment plan.” (Doc. 277-1 at 8.)* This similarity,

GEICO argues, proves that treatments were not tailored to individuals, but rather were

predetermined. Right Spinal’s expert Daniel Bowerman disagrees. He points to variation

in treatments and the number of patient visits to show that Right Spinal did not use a

prescribed, inflexible plan. (Doc. 272-18 at 3-5.) He also points out that similarity might

reflect good treatment: “If something works for a condition, it would be prudent to

prescribe what works.” (Id. at 9.)

GEICO next argues that Right Spinal upcoded its bills, systematically using codes

that inflated its services to receive additional PIP reimbursement. GEICO cites Bowerman

for support. Bowerman acknowledges that some of Right Spinal’s billing was “[p]robably”

either inflated or inadequately documented. (Doc. 277-1 at 160; Doc. 272-18 at 14.) Either

way, such billing is at least technically “improper” under standard coding principles. (Doc.

GEICO primarily relies on Michael Shatzer’s Expert Report for evidence on medical necessity and

upcoding. Because the Court granted Defendants’ motion to exclude Shatzer’s Report and his testimony,

(Doc. 291), the Court does not consider this evidence.

16

277-1 at 162.) At his deposition, Bowerman also identified one of Right Spinal’s initial

evaluations as improperly coded. (Id. at 163-64.)

Right Spinal counters with the rest of Bowerman’s report. While Right Spinal’s use

of some codes appeared “deficient,” Bowman claimed that “these could also be argued as

being in substantial compliance.” (Doc. 272-18 at 14-15.) He explained at his deposition

that the deficiencies he noted may be simple failures to document the extent of services,

rather than deliberate inflations. (Doc. 277-1 at 161-62.)

Viewing the evidence in the light most favorable to the nonmovant, the Court

denies GEICO’s motion for summary judgment on these issues. A reasonable jury could

agree with either party’s interpretation of Right Spinal’s billing practices.

iv. The No-Fault Law’s Requirement for Box 31 of the

HCFA-1500 Form

A clinic is not entitled to PIP benefits if it violates the rules for submitting PIP

billing. See § 627.736(5)(d), Fla. Stat. One such rule requires that clinics “properly

complete[]” the HCFA-1500 billing form. § 627.736(5)(b), (d). A form is properly

completed when it provides “truthful, substantially complete, and substantially accurate

responses as to all material elements to each applicable request for information or

statement.” § 627.732(13), Fla. Stat.

GEICO argues that Right Spinal’s billing violated these rules because Box 31 of its

HCFA-1500 forms contained false information. Box 31 must list “the name of the

17

individual who either personally performed or directly supervised” the treatment billed. See

Beacon, 298 So. 3d at 1237 n.2 (citing the Medicare Claims Processing Manual’s

instructions for completing Box 31 of the CMS-1500 form as controlling under the No-

Fault Law). To directly supervise, a doctor must be physically present at the facility. See

42 C.F.R. § 410.32(b)(3)(ii) (defining direct supervision for CMS-1500 billing forms); see

also § 627.736(5)(d), Fla. Stat. (incorporating the instructions for the CMS-1500 form).

Nearly all Right Spinal’s 60,518 HCFA-1500 forms for physical therapy services

listed Merced’s name in Box 31. (Doc. 277-1 at 8-9.) It is undisputed that Merced did not

perform any of those services himself and that he was not always present at Right Spinal

to directly supervise. (Id. at 9, 65, 67-68, 73, 121-23.) And yet, by listing Merced’s name

in Box 31, Right Spinal represented to GEICO that Merced either performed the service

or was present to directly supervise it.

Right Spinal was not entitled to PIP reimbursement if falsely listing Merced’s name

in Box 31 was a “material element[| of a] request for information or statement.”

§ 627.732(13), Fla. Stat. Predictably, the parties dispute whether inserting Merced’s name

was a material error. Resolving that dispute is a task for the jury.

> Even if the statement was not material, Right Spinal would not be entitled to PIP reimbursement if it

knowingly submitted a false or misleading statement on its HCFA-1500 forms. See § 627.736(5)(b), (d),

Fla. Stat.; see also § 627.732(10), Fla. Stat. (defining knowingly to include “actual knowledge,” “deliberate

ignorance,” and “reckless disregard”). The Court does not address this avenue further because GEICO does

not expressly argue that the errors in Box 31 were made knowingly and because a defendant's knowledge

and state of mind are usually issues for the finder of fact.

18

Under Florida law, materiality is a question of fact for a jury to decide. See Silverman

v. Pitterman, 574 So. 2d 275, 276 (Fla. 3d DCA 1991) (collecting cases showing that

materiality of a negligent misrepresentation, of a modification of an offer to contract, and

of a relationship with an attorney are all reserved for the jury). For that reason, it is “an

error for [a] trial court to direct a verdict and not submit the issue to the jury.” Lopes v.

Allstate Indem. Co., 873 So. 2d 344, 347 (Fla. 3d DCA 2004). Although the No-Fault

Law does not define material, Florida courts have held that materiality is a decision for the

jury when an insured misrepresents information to an insurer. See Haiman v. Fed. Ins. Co.,

798 So. 2d 811, 811 (Fla. 4th DCA 2001); Anchor Prop. & Cas. Ins. Co. v. Trif, 322 So.

3d 663, 672 (Fla. 4th DCA 2021). Though both parties move for summary judgment,

neither addresses the longstanding rule that “materiality of a misrepresentation is a question

for the jury.” Id.; see also Hauben v. Harmon, 605 F.2d 920, 924 (5th Cir. 1979). Nor do

they argue that the No-Fault Law changes the rule or that Florida courts do not apply it

to the No-Fault Law. In the absence of authority to the contrary, the Court declines to

remove materiality from the jury’s province.

Applying the general rule and leaving materiality to a jury makes sense given the

facts and law at issue here. Start with the facts. The parties disagree on whether having the

correct information in Box 31 would have mattered to GEICO in this case. Defendants

argue that any error in Box 31 was immaterial because, even if Merced was not on site,

19

another doctor was present to directly supervise the treatment. Swapping one doctor’s name

for another, Defendants posit, is not important because it does not change GEICO’s

obligation to pay for the underlying treatment.

GEICO counters that knowing the name of the physician who performed or

directly supervised the treatment is “obviously” material. (Doc. 281 at 20.) While

conclusory, there is something to that position. Knowing who performed or supervised the

treatment would allow GEICO to ensure the provider was licensed. If a search revealed

that he was not, GEICO could deny payment. See § 627.736(5)(d), Fla. Stat. (requiring

that all billed services are performed by persons with “the valid licenses required to perform

such services”). Accurate information in Box 31 would also help GEICO analyze treatment

patterns, making it easier to see if a provider was systematically over billing or upcoding

treatments.

In short, Defendants and GEICO disagree on whether accurate information in Box

31 would have altered GEICO’s behavior. But whether a reasonable insurance company

would attach importance to a mispresented fact is a question for the jury. See Trif, 322 So.

3d at 671-72.

Turn now to the law. The parties cite no authority that compels or allows the Court

to decide as a matter of law that an error in Box 31 of a HCFA-1500 form is material.

Neither party offers a test to determine materiality under the No-Fault Law. Nor do they

20

cite controlling authority on materiality. For their part, Defendants do not cite any caselaw

to support their position. GEICO does little better. The cases GEICO cites are not on

point because they either exclusively concern misrepresentations other than Box 31 or

concern misrepresentations in addition to Box 31. See State Farm Mut. Auto. Ins. Co. v.

Health & Wellness Servs., Inc., 446 F. Supp. 3d 1032, 1060 (S.D. Fla. 2020) (Scola, J.)

(concluding that misrepresentations as to the necessity and lawfulness of claims were

material), rev'd in part on other grounds, 2022 WL 413417 (11th Cir. Feb. 10, 2022);

Quality Diagnostic Health Care, Inc., 2021 WL 5157535, at *3 (considering the

materiality of defendants’ false statements cumulatively). Thus, GEICO cites no support

for its argument that an error in Box 31 is material on its own.

In sum, given the parties’ dispute over whether correct information in Box 31 of a

HCFA-1500 form mattered to GEICO, their failure to identify controlling authority or

to address Florida law, and the general rule in Florida that materiality is a question of fact

for a jury, the Court denies GEICO’s motion for summary judgment on this issue.

v. The Conclusion to GEICO’s Unjust Enrichment Claim

While disputes of fact bar summary judgment on three of GEICO’s arguments that

Right Spinal was not entitled to PIP reimbursement, GEICO succeeds on one. The No-

Fault Law precludes reimbursement for services that provide. It is undisputed that

LMTs performed all Right Spinal’s physical therapy services and that GEICO paid

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$690,251.44 for those services. (Doc. 277-1 at 12, 73.) Accordingly, Defendants were not

legally entitled to receive those payments and allowing them to retain the money would be

inequitable. See Silver Star Health & Rehab, 739 F.3d at 584 (“If an entity accepts and

retains benefits that it is not legally entitled to receive in the first place, Florida law provides

for a claim of unjust enrichment.”); accord State Farm Mut. Auto. Ins. Co. v. Physicians

Grp. of Sarasota, L.L.C., 9 F. Supp. 3d 1303, 1312 (M.D. Fla. 2014) (Kovachevich, J.).

The Court grants GEICO’s motion for summary judgment on Count VII, but only as to

the $690,251.44 it paid for physical therapy services. Disputes of fact preclude summary

judgment on whether Right Spinal was entitled to the remaining $1,325 ,631.08 GEICO

paid Right Spinal.

2. GEICO’s Declaratory Judgment Claim (Count I)

“In a case of actual controversy,” a federal court “may declare the rights and other

legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201(a). To

satisfy Article II’s standing requirement, a plaintiff seeking declaratory relief must show a

“substantial continuing controversy between two adverse parties” and a “substantial

likelihood that he will suffer injury in the future.” Malowney v. Fed. Collection Deposit

Grp., 193 F.3d 1342, 1346-47 (11th Cir. 1999); see also GTE Directories Publ’g Corp. v.

Trimen Am., Inc., 67 F.3d 1563, 1567 (11th Cir. 1995). An insurer makes that showing

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when it argues that it is not obligated to pay outstanding PIP bills. See Silver Star Health

& Rehab, 739 F.3d at 584.

GEICO makes that showing. There is an “actual controversy” between GEICO

and Defendants because Right Spinal submitted PIP billing to GEICO that remains

outstanding. (Doc. 277-1 at 13.) There is a “substantial likelihood” that GEICO will suffer

future injury because Right Spinal may pursue collection of these bills. (Id. at 13.)

GEICO also shows that it is entitled to summary judgment on its declaratory

judgment claim. Under the No-Fault Law, Right Spinal is not entitled to PIP

reimbursement for services that its LMTs provided. Accordingly, GEICO is not obligated

to pay outstanding PIP bills that are based on services that Right Spinal’s LMTs provided.

And GEICO is entitled “to obtain a declaratory judgment that it is not required to pay

[Right Spinal] for [those] outstanding bills.” Vizcay, 826 F.3d at 1330.

But GEICO asks for more. It seeks a declaratory judgment that it need not pay any

of Right Spinal’s outstanding bills, even for treatments not provided by massage therapists.

For support, GEICO looks to cases positing that a single unlawful PIP bill may void all of

a clinic’s billing. (Doc. 278 at 29; Doc. 284 at 13-14). But these cases all concern false or

fraudulent statements that a clinic submitted knowingly. See, e.g., Quality Diagnostic

Health Care, Inc., 2021 WL 5157535, at *2; Silver Star Health & Rehab, 739 F.3d at 582-

84. While some evidence suggests that Right Spinal’s employees may have known the bills

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were false or misleading, disputes of fact preclude summary judgment on what they knew.

Because GEICO provides no other reason to extend it, the Court limits the declaratory

relief to Right Spinal’s bills for an LMT’s services.

3. GEICO’s FDUTPA Claim (Count IV)

To establish a FDUTPA claim, GEICO must show (1) a deceptive or unfair

practice; (2) causation; and (3) actual damages. See Carriuolo v. Gen. Motors Co., 823

F.3d 977, 983 (11th Cir. 2016). An insurer is entitled to summary judgment on its

FDUTPA claim when it paid PIP bills to a clinic that violated the No-Fault Law or the

Clinic Act. See State Farm Mut. Auto. Ins. Co. v. First Care Sol., Inc., 232 F. Supp. 3d

1257, 1268 (S.D. Fla. 2017) (Gayles, J.) (collecting cases).

GEICO makes that showing. Defendants engaged in deceptive or unfair practices

by violating the No-Fault Law and submitting PIP bills that GEICO had “the statutory

right to deny.” Gov't Emps. Ins. Co. v. Quality Diagnostic Health Care Inc., No. 18-cv-

20101, 2019 WL 11687706, at *8 (S.D. Fla. Dec. 20, 2019) (Martinez, J.), affd, 2021 WL

5157535 (11th Cir. Nov. 5, 2021). Specifically, Right Spinal submitted PIP bills for

services that LMTs performed, while representing that Merced performed or directly

supervised every treatment. And yet, such bills are not entitled to PIP reimbursement and

Defendants admit that Merced was not always present to directly supervise treatments as

its billing represents. See id. at *9 (reasoning that an insurer succeeded on its FDUTPA

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claim where the clinic billed a masseuse’s services and falsely represented that a doctor had

performed or directly supervised the services); (Doc. 277-1 at 68). By submitting facially

valid bills, Defendants caused GEICO to believe that it was obligated to pay them. See

Harrison v. Lee Auto Holdings, Inc., 295 So. 3d 857, 862 (Fla. 1st DCA 2020) (reasoning

that a representation or practice is deceptive if it is “likely to mislead the consumer acting

reasonably in the circumstances” (quotation omitted)). And Defendants’ practice harmed

GEICO because it paid Right Spinal for services that LMTss performed. Accordingly, the

Court grants GEICO’s motion for summary judgment on Count IV, but only as to Right

Spinal’s physical therapy billing.

B. Defendants’ Motion for Summary Judgment

Defendants Right Spinal, Mora-Jimenez, Garcia-Gamez, Duldulao, Silva,

Diamantides, Rodriguez, and Sosa move for summary judgment on all GEICO’s claims

against them and on their anti-SLAPP claim. (Doc. 272.)

1. GEICO’s Causes of Action

Defendants moves for summary judgment against GEICO “as to all claims.” (Doc.

272 at 2.) Defendants’ motion must be denied on Counts I, IV, and VI because Right

Spinal was not entitled to PIP reimbursement for services that its LMTs provided. As to

the remaining Counts, disputes of material fact preclude summary judgment on whether

Right Spinal’s practices and bills complied with the No-Fault Law and the Clinic Act.

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Defendants also abandoned their request for summary judgment because their

motion does not identify the elements of GEICO’s claims, cite authority discussing those

claims, or apply the facts to those claims. See Sapuppo v. Allstate Floridian Ins. Co., 739

F.3d 678, 681 (11th Cir. 2014) (holding that a party “abandons” a position “when he either

makes only passing references to it or raises it in a perfunctory manner without supporting

arguments and authority”). Because “the onus is upon the parties to formulate arguments”

at summary judgment and Defendants fail to do so, their motion is denied. Resol. Tr.

Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995).

2. Defendants’ Anti-SLAPP Claim

Florida’s Anti-SLAPP Statute prohibits a person from suing another “without merit

and primarily because such person has exercised the constitutional right of free speech.”

§ 768.295(3), Fla. Stat. (defining “SLAPP” as a “Strategic Lawsuit[] Against Public

Participation”). A defendant in a SLAPP suit may file a motion for summary judgment.

See § 768.295(4). An anti-SLAPP claim fails if the plaintiff initiated the suit for a proper

purpose or if the suit is meritorious. See § 768.295(3); see also Mastandrea v. Snow, 333

So. 3d 326, 327 (Fla. Ist DCA 2022) (per curiam).

Defendants argue that GEICO’s claims violate Florida’s Anti-SLAPP Statute.

According to Defendants, GEICO began this lawsuit to deter them from filing suits in

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state court over GEICO’s failure to pay outstanding PIP charges. GEICO disputes

Defendants’ characterization of its motives.

Regardless, Defendants’ anti-SLAPP claim fails because GEICO’s case is not

without merit. Instead, GEICO is entitled to summary judgment on Counts I, IV, and

VII. Because at least some of GEICO’s claims are meritorious, Defendants’ Anti-SLAPP

claim is denied. See Mastandrea, 333 So. 3d at 327 (noting that the lawsuit must be without

merit for the statute to apply); see also Grippa v. Rubin, No. 4:20-cv-457, 2021 WL

5033817, at *5 (N.D. Fla. Feb. 22, 2021) (Walker, CJ.) (denying an anti-SLAPP claim

because the lawsuit was meritorious); Pierre-Paul v. ESPN Inc., No. 16-cv-21156, 2016

WL 4530884, at *2 (S.D. Fla. Aug. 29, 2016) (Cooke, J.) (same).

As the prevailing party on the anti-SLAPP claim, GEICO is entitled to the

attorney’s fees and costs that it accrued in connection with Defendants’ invocation of

Florida’s Anti-SLAPP Statute. See § 768.295(4), Fla. Stat.; Bongino v. Daily Beast Co.,

LLC, 477 F. Supp. 3d 1310, 1322 (S.D. Fla. 2020) (Martinez, J.) (explaining that the

statute “entitles” the prevailing party to fees and costs).°

Neither party argues that Florida’s Anti-SLAPP statute does not apply in federal court. For that reason,

the Court does not reconsider its decision that the statute applies in federal court. See Gov't Emps. Ins.

Co. v. Glassco Inc., No. 8:19-cv-1950, 2021 WL 4391717, at *5 (MLD. Fla. Sept. 24, 2021) (Mizelle, J.);

see also Corsi v. Newsmax Media, Inc., 519 F. Supp. 3d 1110, 1128 (S.D. Fla. 2021) (Ruiz, J.) (reaching

the same conclusion); Bongino, 477 F. Supp. 3d at 1322-23 (same).

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IV. CONCLUSION

For the reasons stated above, the following is ORDERED:

1. GEICO’s Motion for Summary Judgment (Doc. 278) is GRANTED-IN-

PART and DENIED-IN-PART.

a. The Court GRANTS judgment in GEICO’s favor and against

The Right Spinal Clinic, Inc., Lianny Jimenez-Urdanivia, Yunied

Mora-Jimenez, and Alexis Garcia-Gamez on Counts I, IV, and

VII, but only to the extent that those Counts are based on physical

therapy services.

b. The Court DECLARES that GEICO is not obligated to pay

Right Spinal for outstanding PIP bills that were performed by

massage therapists.

2. Defendant’s Motion for Summary Judgment (Doc. 272) is DENIED.

a. GEICO is ENTITLED to the reasonable attorney’s fees and costs

that it incurred responding to Defendants’ anti-SLAPP claim.

b. GEICO must file a motion seeking the determination of these fees

and costs within forty-five days of this order. See Local Rule

7.01(c).

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3. Defendants are DIRECTED to move for entry of final judgment in accord

with this order within seven days of the conclusion of a jury verdict or any

other final resolution of this case.

ORDERED in Tampa, Florida, on July 6, 2022.

Fa □ imball Mizelle

United States District Judge

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