Worldwide Aircraft Services, Inc. v. Connecticut General Life Insurance Company

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

WORLDWIDE AIRCRAFT SERVICES INC.,

d/b/a JET ICU, a Florida corporation,

Plaintiff,

v. Case No. 8:24-cv-01604-WFJ-CPT

CONNECTICUT GENERAL LIFE INSURANCE

COMPANY, a corporation, a/k/a CIGNA,

Defendant.

_________________________________/

ORDER

Before the Court is Connecticut General Life Insurance Company’s a/k/a

Cigna (“Cigna” or the “Defendant”) Motion to Dismiss the Amended Complaint

filed by Plaintiff Worldwide Aircraft Services, Inc. d/b/a Jet ICU (“Jet ICU” or the

“Plaintiff”) pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. 13. As

explained below, Defendant’s motion to dismiss is granted with prejudice as to

Count I but without prejudice as to Count II.

BACKGROUND

Plaintiff Jet ICU alleges that on or about June 10, 2022, J.K. (hereinafter

referred to as “Patient”) was an insured beneficiary under a health insurance policy

provided by Defendant Cigna. Dkt. 1-1 ¶ 4. On the same day, Plaintiff contends that

Patient suffered a medical malady that required emergency air transportation from

St. Thomas, U.S. Virgin Islands to Tampa, Florida. Id. ¶¶ 5–7. The treating physician

determined immediate air medical transportation was appropriate and necessary for

the treatment of Patient’s condition. Id. ¶ 6.

At the time of the air transportation, Plaintiff did not have a pre-negotiated

contract with Cigna, and Plaintiff was not part of Cigna’s provider network. Id. ¶ 10.

Following the transportation of Patient, Plaintiff billed Cigna $418,511 for the

ground and air transportation services rendered based on its “usual and customary

rate.” Id. ¶ 7, 12. Cigna only made a partial payment of $2,003.44 for the ground

transportation services. Id. ¶ 8.

In its Amended Complaint, Plaintiff asserts two counts: (1) Cigna allegedly

acted with the intent to convert and obtain Plaintiff’s services without paying for

them in violation of Florida Statute § 772.11(1) and (2) quantum meruit. Dkt. 1-1.

In response, Defendant filed the instant motion to dismiss, arguing that: (1)

both counts are preempted by the Airline Deregulation Act, and (2) Plaintiff’s

Amended Complaint fails to sustain a claim for relief due to fundamental defects.

Dkt. 13 at 2.

DISCUSSION

Based on a careful review of the pleadings, the Court grants Cigna’s motion

to dismiss the Amended Complaint. As discussed below, Jet ICU’s theft of service

claim under Florida Statute § 772.11(1) is dismissed with prejudice, but the quantum

meruit claim is dismissed without prejudice.

I. Standard of Review

Federal Rule of Civil Procedure 8(a)(2) requires a short and plain statement

of the claim showing that the plaintiff is entitled to relief in order to give the

defendant fair notice of the claims and grounds. See Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007) (citation omitted). The plaintiff is required to allege “more

than labels and conclusions, and a formulaic recitation of the elements of a cause of

action will not do.” Id. (citation omitted).

In considering a motion to dismiss, the court must construe the facts in the

light most favorable to the Plaintiff. Wiersum v. U.S. Bank, N.A., 785 F.3d 483, 485

(11th Cir. 2015). A complaint “must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face” to survive a motion to

dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks

omitted). “A claim is facially plausible when the court can draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. at 662. The

standard on a Federal Rule of Civil Procedure 12(b)(6) motion is not whether the

plaintiff will ultimately prevail in his claims, but whether the allegations are

sufficient to allow the case to proceed to discovery in an attempt to prove those

claims. See Jackam v. Hospital Corp. of Am. Mideast, Ltd., 800 F.2d 1577, 1579

(11th Cir. 1986).

II. Failure to State a Cause of Action

Defendant asserts Plaintiff failed to state any plausible cause of action for civil

theft and quantum meruit. The Court finds Jet ICU has sufficiently alleged a cause

of action for Counts I and II.

a. Count I- Theft of Service under Florida Statute 772.11(1)

For the civil theft claim under Florida Statute 772.11(1), Defendant argues Jet

ICU has failed to show that “Cigna knowingly obtained or used the Plaintiff’s

property” since it was Patient (not Cigna) who received Jet ICU’s ground and

ambulance services. Dkt. 13 at 9.

Under Florida law, a plaintiff can obtain “treble damages if he proves by clear

and convincing evidence that he has been injured by the defendant’s violation of

Section 812.014, Florida Statutes – the criminal theft statute.” Omnipol, a.S. v.

Worrell, 421 F. Supp. 3d 1321, 1346 (M.D. Fla. 2019) (citing Fla. Stat. § 772.11(1)).

In a civil theft claim, “the plaintiff must allege an injury resulting from a violation

of the criminal theft statute.” Id. Under Florida’s criminal theft statute, the plaintiff

must allege the defendant: “(1) knowingly (2) obtained or used, or endeavored to

obtain or use, the plaintiff’s property with (3) ‘felonious intent’ (4) either

temporarily or permanently to . . . appropriate the property to the defendant’s own

use or the use of another.” Id.; United States v. Bailey, 288 F. Supp. 2d 1261, 1265

(M.D. Fla. 2003), aff'd, 419 F.3d 1208 (11th Cir. 2005).

Viewing the facts in the light most favorable to Plaintiff, the civil theft

allegations made in the Amended Complaint cover the required elements. Jet ICU

has sufficiently alleged that it sent Cigna the written pre-suit notice as required under

Fla. Stat. § 772.11(1). Dkt.1-1 ¶ 16. Plaintiff also asserts it submitted a

reimbursement claim, which indicates Cigna had “actual knowledge that the services

had been rendered to its insured, Patient, to [Cigna’s] benefit.” Id. ¶ 19. Further, it

alleges Cigna “acted with intent, or in reckless disregard, to convert and obtain Jet

ICU’s services,” and the “intent to steal” is demonstrated by Cigna’s partial payment

for Jet ICU’s ground transportation of Patient. Id. ¶ 21.

b. Count II- Quantum Meruit

The Court finds Jet ICU has sufficiently alleged a claim for quantum meruit.1

A claim for quantum meruit requires a plaintiff to allege: “the plaintiff provided, and

the defendant assented to and received, a benefit in the form of goods or services

under circumstances where, in the ordinary course of common events, a reasonable

person receiving such a benefit normally would expect to pay for it.” Paschen v.

1 As discussed in further detail below, Plaintiff’s quantum meruit claim is preempted as pled

since the Court cannot determine if it is alleging an implied-in-fact or an implied-in-law contract.

But for purposes of resolving whether Plaintiff failed to state a cause of action for quantum

meruit, the Court finds the Amended Complaint passes the low bar of FRCP 8(a).

B&B Site Dev., Inc., 311 So. 3d 39, 48 (Fla. 4th DCA 2021) (quoting W.R. Townsend

Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So. 2d 297, 305 (Fla. 1st DCA

1999)).

Here, Jet ICU sufficiently stated a cause of action for quantum meruit. The

Amended Complaint alleges Jet ICU conferred a “significant economic benefit”

upon Cigna by providing Cigna’s insured member with emergent medical

transportation to which Patient was entitled under its insurance plan. Dkt. 1-1 ¶¶ 26–

28, 31. Further, it claims Cigna was “aware, or reasonably should have been aware,”

that Jet ICU was required to confer a benefit (i.e., air transportation services) upon

Patient. Id. ¶ 29. Finally, Jet ICU alleges Cigna “knew or should have known” there

was no pre-negotiated contract between the parties, so Jet ICU would charge its

“reasonable, customary, and fair market value for the services.” Id. ¶¶ 11, 30–33.

III. Preemption under the Airline Deregulation Act

Generally, an affirmative defense like federal preemption of state law will not

be grounds to dismiss a complaint. Quiller v. Barclays Am./Credit, Inc., 727 F.2d

1067, 1069 (11th Cir. 1984), aff’d, 764 F.2d 1400 (11th Cir. 1985). However, “a

complaint may be dismissed under Rule 12(b)(6) when its own allegations indicate

the existence of an affirmative defense.” Id. Thus, a Rule 12(b)(6) dismissal is proper

if “the defense clearly appears on the face of the complaint.” Id.

Congress enacted the Airline Deregulation Act (“ADA”) in 1978 to “promote

‘efficiency, innovation, and low prices’ in the airline industry through ‘maximum

reliance on competitive market forces and on actual and potential competition.’”

Northwest, Inc. v. Ginsberg, 572 U.S. 273, 280 (2014) (quoting 49 U.S.C. §§

40101(a)(6), (12)(A)). To prevent states from undoing the federal deregulation, the

ADA has an express preemption provision that prohibits states from “enact[ing] or

enforc[ing] a law, regulation, or other provision having the force and effect of law

related to a price, route, or service of an air carrier that may provide air

transportation. . . .” Id. (quoting 49 U.S.C. § 41713(b)(1)). Thus, any state laws

having a connection with or reference to airline “price, rates, routes, or services” are

preempted. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992).

This Court must interpret the ADA’s preemption provision broadly, encompassing

“state enforcement actions having a connection with or reference to airline ‘rates,

routes, or services.’” Morales, 504 U.S. at 384 (quoting 49 U.S.C. § 1305(a)(1)). 2

a. Plaintiff’s Claim for Theft of Service Under Florida Statute § 772.11(1)

is Preempted by the ADA

The Court finds that Plaintiff’s claim under Florida Statute § 772.11(1) is

preempted by the ADA because (i) Jet ICU is an “air carrier” and (ii) Florida’s

2 Contrary to Plaintiff’s argument that an “expansive interpretation of the ADA’s preemption

clause [is] unsupported by Congressional intent,” Dkt. 14 at 3, the Supreme Court has held twice

that courts must interpret the ADA’s preemption provision broadly. See Morales, 504 U.S. at 383

(finding the language in the ADA expresses a “broad preemptive purpose”); Ginsberg, 572 U.S.

at 281 (“We reaffirmed Morales’ broad interpretation of the ADA preemption provision.”).

civil theft statute is “related to a price” over which air carriers compete. The Court

will address each point in turn.

i. Plaintiff is an “Air Carrier” for Purposes of the ADA

To determine if a claim under Florida Statute § 772.11(1) is preempted by the

ADA, the Court must first ascertain whether Plaintiff is an “air carrier” under the

ADA. See 49 U.S.C. § 41713(b)(1). The ADA defines an “air carrier” as “a citizen

of the United States undertaking by any means, directly or indirectly, to provide air

transportation.” 49 U.S.C. § 40102(a)(2). “Air transportation” is defined as “foreign

air transportation, interstate air transportation, or the transportation of mail by

aircraft.” 49 U.S.C. § 40102(a)(5).

Here, based on the plain language of the statute, Jet ICU is an “air carrier”

under the ADA. Plaintiff’s Amended Complaint admits it “provides air transport via

fixed-wing aircraft” as a health care provider and rendered emergency air

transportation to Patient on June 10, 2022. Dkt. 1-1 ¶¶ 2, 4–7. In other words, Jet

ICU “directly” provided “interstate air transposition” when Patient was flown from

St. Thomas to Tampa for medical treatment. See 49 U.S.C. § 40102(a)(2), (5).

Furthermore, courts have uniformly found that air ambulance providers are

“air carriers” subject to the ADA. See e.g., Air Evac Ems v. Sullivan, 8 F.4th 346,

352 (5th Cir. 2021) (“Air ambulances transporting patients to hospitals fall squarely

within that definition. Courts are agreed on this point.”); Air Evac EMS, Inc. v.

Cheatham, 910 F.3d 751, 766 (4th Cir. 2018) (“[T]he ADA's preemption clause

applies to the air ambulance industry.”); Schneberger v. Air Evac EMS, Inc., No.

CIV-16-843-R, 2017 WL 1026012, at *2 (W.D. Okla. Mar. 15, 2017) (“Courts have

all but uniformly held that air ambulance providers are ‘air carriers’ under the

ADA.”); Bailey v. Rocky Mountain Holdings, LLC, 889 F.3d 1259, 1266 n.13 (11th

Cir. 2018); Eaglemed Ltd. Liab. Co. v. Cox, 868 F.3d 893, 904 (10th Cir. 2017);

Worldwide Aircraft Servs., Inc. v. United Healthcare Ins. Co., No.

818CV2549T24TGW, 2018 WL 6589838, at *2 (M.D. Fla. Dec. 14, 2018); Stout v.

Med-Trans Corp., 313 F. Supp. 3d 1289, 1295 (N.D. Fla. 2018); Reva, 2018 WL

1701969, at *5; Med–Trans Corp. v. Benton, 581 F.Supp.2d 721, 732 (E.D.N.C.

2008).

In response to Cigna’s motion to dismiss, Jet ICU disputes that it is an “air

carrier” under the ADA since it is not a commercial airline, and the Amended

Complaint never alleges it is an airline. See Dkt. 14 at 4. Jet ICU further contends

the “instant case only involves one air ambulance – not an airline and certainly not

the airline industry with which Congress was concerned.” Id.

While the Court must accept the facts in the Amended Complaint as true,

Plaintiff’s argument still misses the mark. The Supreme Court has made it clear a

court must “begin with the language employed by Congress and the assumption that

the ordinary meaning of that language accurately expresses the legislative purpose.”

Morales, 504 U.S. at 383 (quotations and citations omitted). The text of 49 U.S.C. §

40102(a) plainly encompasses the emergency air transportation Jet ICU provided to

Patient, and Plaintiff has failed to “present[] a single textual reason to support the

argument that the broad language of the [ADA]’s express preemption provision

should not include air-ambulance services.” Cox, 868 F.3d at 904; see also Bailey v.

Rocky Mountain Holdings, LLC, 889 F.3d 1259, 1268 (11th Cir. 2018) (quoting

Morales, 504 U.S. at 384) (finding 49 U.S.C. § 41713(b)(1) “expresses a broad

preemptive intent”).

ii. Florida Statute § 772.11(1) is Related to a Price of an Air Carrier

under the ADA

Since Plaintiff is an “air carrier” under the ADA, the next issue is whether the

Florida Statute § 772.11(1) is “related to a price . . . of an air carrier.” 49 U.S.C. §

41713(b)(1). A law “relate[s] to a price, route, or service” if it has “a connection

with, or reference to” an air carrier’s prices, routes, or services. See Ginsberg, 572

U.S. at 280 (citing Morales, 504 U.S. at 384). Because the phrase “related to”

expresses a “broad pre-emptive purpose,” “[s]tate enforcement actions having a

connection with or reference to airline ‘rates, routes, or services’ are preempted”

under the ADA. Morales, 504 U.S. at 383–84. Therefore, “[w]henever a state law

has ‘the forbidden significant effect’ on the prices of an air carrier, the ADA

preempts that law.” Bailey, 889 F.3d at 1262 (quoting Morales, 504 U.S. at 388).

Here, Defendant’s motion to dismiss argues Jet ICU is attempting to use a

state enforcement action (i.e., Florida’s civil theft statute) to dictate the

reimbursement amount an air ambulance provider can receive. Dkt. 13 at 6. The

Court agrees.

Florida Statute § 772.11(1) states in relevant part:

Any person who proves by clear and convincing evidence that he or she

has been injured in any fashion by reason of any violation of ss.

812.012-812.037 or s. 825.103(1) has a cause of action for threefold the

actual damages sustained and, in any such action, is entitled to

minimum damages in the amount of $200, and reasonable attorney’s

fees and court costs in the trial and appellate courts.

Fla. Stat. § 772.11(1) (emphasis added). To the extent that Florida Statute

§ 772.11(1) applies in this case, it is preempted because the statute directly increases

the price that an insurer must pay for Jet ICU’s air ambulance service. See Worldwide

Aircraft Servs., 2018 WL 6589838, at *6 (holding Florida Statute § 641.513(5) was

preempted “because it directly specifies the price that an HMO insurer must pay for

the plaintiff’s air ambulance services”).

Put another way, Florida Statute § 772.11(1) has a connection with or

reference to Jet ICU’s price since it affects the reimbursement amount Jet ICU can

receive for air transportation. Indeed, Florida Statute § 772.11(1) would allow Jet

ICU to receive “threefold the actual damages sustained” (in addition to reasonable

attorney’s fees and court costs) if it prevails in its civil theft suit. Fla. Stat.

§ 772.11(1). In doing so, the statute triples the amount Jet ICU could obtain from an

insurer for services it provides to a patient. Such an expansion—even if it benefits

Jet ICU by increasing the amount it could be reimbursed—has a “forbidden

significant effect” on Jet ICU’s price. See Bailey, 889 F.3d at 1271 (holding the ADA

preempted Florida Statute § 627.736 since it has a “forbidden significant effect” on

the prices of an air ambulance by reducing the contract price for services rendered);

Air Evac EMS, Inc. v. Sullivan, 331 F. Supp. 3d 650, 662–63 (W.D. Tx. 2018)

(finding that a Texas workers compensation statute was preempted by the ADA since

it restricted how much an air ambulance could receive for its services, which had “a

forbidden significant effect on” the air carrier’s prices).

However, Plaintiff contends the ADA does not preempt Florida Statute

§ 772.11(1) since preemption only applies when a state law affects the relationship

between the airline and its customers, not other third-party relationships like

contractor-subcontractor. Dkt. 14 at 6 (citing Amerijet Intern., Inc. v. Miami-Dade

Cnty., Fla., 627 Fed. App’x 744, 749–50 (11th Cir. 2015)). Thus, the “Jet ICU-Cigna

relationship as provider and insurer-payor is a reimbursement dispute” which cannot

support preemption. Id.

Plaintiff’s reliance on Amerijet is misplaced. The Amerijet court only

addressed whether Miami’s living wage ordinance for cargo handlers was related to

a “service” under the ADA, not the “price” charged by an air carrier. Amerijet, 627

Fed. App’x at 748–49. Specifically, Amerijet’s discussion concerning the “airline-

consumer” or “airline-end user relationship” only pertains to whether Miami’s wage

ordinance for airport workers met the ADA’s elements of a preempted “service.” Id.

at 749. Thus, Amerijet has no application to the instant case. See e.g., Roman v. Spirit

Airlines, Inc., No. 19-CIV-61461-RAR, 2020 WL 255202, at *4–5 (S.D. Fla. Jan.

14, 2020) (conducting two separate and distinct analyses for “price” preemption and

“service” preemption under the ADA).

iii. Congressional Intent and Preemption

Plaintiff also asserts Congress never intended to regulate the air ambulance

market, only the consumer airline market. Dkt. 14 at 5. Even if Congress intended

to deregulate the air ambulance market, Jet ICU contends its claims do not “alter or

interfere with that market’s operation.” Id. at 6.

This Court declines Jet ICU’s attempt to carve out an exception to the ADA’s

preemption provision. The Supreme Court has long held that courts “are not at

liberty to create an exception where Congress has declined to do so.” Freytag v.

C.I.R., 501 U.S. 868, 874 (1991) (quoting Hallstrom v. Tillamook Cty., 493 U.S. 20,

27 (1989)). The ADA’s legislative history demonstrates Congress intended to

comprehensively preempt state regulation of interstate air transportation. See

Sullivan, 331 F. Supp. 3d at 663 (reviewing the legislative history of the ADA to

show air ambulances are covered by the ADA). Nor is this Court the first one to hold

the ADA preempts state laws that relate to the air ambulance market. See e.g., Bailey,

889 F.3d at 1266–68; Cheatham, 910 F.3d at 764; Cox, 868 F.3d at 904; Worldwide

Aircraft Servs., 2018 WL 6589838, at *2; Reva, 2018 WL 1701969, at *7;

Schneberger, 2017 WL 1026012, at *2; Benton, 581 F. Supp. 2d at 732. Conversely,

Plaintiff’s response fails to provide any case or legislative document to support its

contention that Congress intended to exclude air ambulances from the ADA’s reach.

Further, Plaintiff’s assertion that the ADA’s preemption provision was only

intended to be used defensively by air carriers is also unavailing. See Dkt. 14 at 7.

Plaintiff cites no cases indicating the ADA’s preemption provision can only be

asserted by air carriers, and the argument has previously been rejected by another

district court. See Reva, 2018 WL 1701969, at *6. Moreover, prior cases have found

the ADA can be used defensively to preempt state law claims brought by air carriers.

See e.g., Worldwide Aircraft Servs., 2018 WL 6589838, at *2; Reva, 2018 WL

1701969, at *7.

Accordingly, the Court finds ADA preemption “clearly appears on the face of

the complaint” and preempts Florida Statute § 772.11(1) from being used by Jet ICU

to obtain reimbursement from Cigna. Quiller, 727 F.2d at 1069 (citations omitted).

Because no such claim is amenable to be cured, Count I is dismissed with prejudice.

b. Plaintiff’s Common-Law Claim of Quantum Meruit is Preempted by the

ADA as pled

Turning to Jet ICU’s second count, the ADA has also preempted Plaintiff’s

quantum meruit claim as pled. The Supreme Court has already determined that the

ADA’s preemption provision applies to state common law claims just as it applies

to state statutes. Ginsberg, 572 U.S. at 281. State common-law rules are preempted

because they are “provisions having the force and effect of law” like state statutes

and regulations. Id. at 282, 286 (finding the implied covenant of good faith and fair

dealing is a state-imposed obligation and thus preempted by the ADA).

However, the ADA’s preemption of state-imposed regulations of air carriers

does not prohibit “court enforcement of contract terms set by the parties

themselves.” American Airlines v. Wolens, 513 U.S. 219, 222 (1995). Put simply,

“terms and conditions that air carriers offer, and which are accepted, are privately

ordered obligations that can be enforced through a breach of contract claim, even if

the claim relates to the air carrier’s rates, routes, or services.” Worldwide Aircraft

Servs., 2018 WL 6589838, at *2 (citing Ginsberg, 572 U.S. at 281); Wolens, 513

U.S. 232–33 (recognizing a breach-of-contract exception to ADA preemption).

Prior federal courts are split on whether a quantum meruit claim is an implied-

in-fact contract or an implied-in-law contract. Compare Toolltrend, Inc. v. CMT

Utensili, SRL, 198 F.3d 802, 806 (11th Cir. 1999) (stating that quantum meruit

claims derive from contacts implied-in-fact), with Reva, 2018 WL 1701969, at *4

(stating that quantum meruit claims derive from contacts implied-in-law); Posely,

433 F. Supp. 2d at 1314 (same).

This distinction may be relevant since some district courts have found that

implied-in-fact contracts are not preempted by the ADA. See Med. Mut. of Ohio v.

Air Evac EMS, Inc., 341 F. Supp. 3d 771, 783 (N.D. Ohio 2018) (finding the

plaintiff’s breach of implied-in-fact contract claim was not preempted by the ADA);

Wagner v. Summit Air Ambulance, LLC, No. CR-17-57-BU-BMM, 2017 WL

4855391 (D. Mont. Oct. 26, 2017) (denying motion to dismiss since the plaintiff’s

implied-in-fact contract claim might not be preempted by the ADA); Worldwide

Aircraft Servs., 2018 WL 6589838, at *5 (giving the plaintiff leave to amend

complaint since an implied-in-fact contract claim might not be preempted by the

ADA). But see Stout, 313 F. Supp. 3d at 1298 (finding the plaintiffs’ claim for breach

of an implied-in-fact contract is preempted by the ADA).

On the other hand, courts have been unanimous in finding that implied-in-law

contract claims are preempted by the ADA because they are inherently predicated

on the lack of a contract and thus involve a state-imposed obligation. See, e.g., Byler

v. Air Methods Corp., 823 F. App’x 356, 364 (6th Cir. 2020); Scarlett v. Air Methods

Corp., 922 F.3d 1053, 1065 (10th Cir. 2019); Brown v. United Airlines, Inc., 720

F.3d 60, 69–71 (1st Cir. 2013); Reva, 2018 WL 1701969, at *6; Worldwide Aircraft

Servs., 2018 WL 6589838, at *5; Med. Mut. of Ohio, 341 F. Supp. 3d at 781. As

such, the Court should consider whether Plaintiff’s quantum meruit claim is an

implied-in-fact or an implied-in-law contract for purposes of ADA preemption.

At least one Florida court has firmly stated that “the doctrine of quantum

meruit [is] also called a contract implied-in-fact.” Paschen, 311 So. 3d at 48 (citing

Commerce P'ship., 695 So. 2d at 385); see also 14th & Heinberg, LLC v. Terhaar &

Cronley Gen. Contractors, Inc., 43 So. 3d 877, 881 n.1 (Fla. 1st DCA 2010) (“A

contract implied in law or quasi contract is to be distinguished from a contract

implied in fact which permits recovery under the theory of quantum meruit.”); Rite-

Way Painting & Plastering, Inc. v. Tetor, 582 So. 2d 15, 17 (Fla. 2d DCA 1991)

(“While contracts implied in fact, such as an action in quantum meruit, require the

assent of the parties, contracts implied in law do not require such assent.”); Rhythm

& Hues, LLC v. Nature's Lawn Care, Inc., 368 So. 3d 12, 15 (Fla. 4th DCA 2023)

(discussing the differences between implied-in-fact and implied-in-law contracts).

But see Posely, 433 F. Supp. 2d at 1314 (“A claim of quantum meruit is synonymous

with a claim for a contract implied-in-law, as opposed to a contract implied in fact.”).

Because recent Florida courts agree that a quantum meruit claim is a claim for

a contract implied-in-law, the Court finds Count II is preempted as pled and gives

Plaintiff leave to amend its complaint to specify whether it is bringing an implied-

in-fact or an implied-in-law claim. Worldwide Aircraft Servs., Inc. v. United

Healthcare Ins. Co. is instructive as to why Plaintiff’s quantum meruit claim should

be dismissed without prejudice.

In Worldwide Aircraft Servs., the same Plaintiff as the instant case raised a

quantum meruit claim against United Airlines for failing to reimburse Plaintiff for

the emergency air transportation it provided to a patient. 2018 WL 6589838, at *2.

The court found the common law claim was preempted by the ADA “as pled”

because the complaint failed to “clearly allege that this is a claim for breach of a

contract implied-in-fact, as opposed to a preempted claim for breach of a contract

implied-in-law.” Id. at *5. In making its decision, the court explained:

Plaintiff must allege sufficient facts to show that Plaintiff and United

entered into a contract as demonstrated by their conduct. This would be

consistent with the Eleventh Circuit's interpretation of Wolens, in which

the Bailey court stated: “[A]n air carrier may bring a state action to enforce

the terms of a contract, whether express or implied, ... so long as the action

concerns voluntary commitments and not state-imposed obligations.”

Bailey v. Rocky Mountain Holdings, LLC, 889 F.3d 1259, 1268 (11th Cir.

2018) (citing Wolens, 513 U.S. at 232–33).

This means that Plaintiff will have to allege (and later ultimately prove)

that based on Plaintiff and United’s conduct, they entered into an implied-

in-fact contract. Whether a reasonable price can be implied by law once

an implied-in-fact contract is shown to exist is a difficult question in the

context of the ADA, and there is sparse case law on the issue. For example,

in Medical Mutual of Ohio, the court stated that “the possibility that a

reasonable price term may be supplied for the contract implied-in-fact—

if it is found to exist—does not affect whether the ADA preempts the

breach of [implied] contract claim.” Medical Mutual of Ohio, 2018 WL

4411695, at *8. If implying a reasonable price simply enforces the intent

of the parties, then such is not preempted by the ADA. See Stout, 313 F.

Supp.3d at 1295 (stating that “whether a contract claim is preempted

depends on the extent to which the doctrine is employed to effectuate the

public policies of the given state rather than to enforce the intent of the

parties”). However, implying a reasonable price would contravene the

ADA if an air carrier sues on an implied-in-fact contract to collect on a

bill that charges in excess of what is found to be a reasonable price and

the air carrier cannot produce evidence that the parties implicitly agreed

to the billed rate.

Id. Additionally, the court did not want to leave Plaintiff “without a remedy” if it

could prove an implied-in-fact contract existed between the parties. Id. This Court

is not worried about Plaintiff being left without a remedy since the No Surprises Act

provides Plaintiff with an adequate remedy to resolve the instant reimbursement

dispute. See 42 U.S.C. § 300gg-112.

Here, Plaintiff’s claim is not relying on an express contract or a “privately

ordered obligation” Jet ICU and Cigna “voluntarily undertook.” Ginsberg, 572 U.S.

at 281. The claim therefore does not fall under the Wolens exception to ADA

preemption. Indeed, Plaintiff’s Amended complaint admits there was no “pre-

negotiated contract with Cigna” at the time of the emergency air transportation. Dkt.

1-1 ¶ 10. However, the Amended Complaint does allege Cigna “knew or should have

known that Jet ICU. . . would charge its usual and customary rate for services” at the

“reasonable, customary, [and] fair market value.” Id. at 11, 30–32. Like the court in

Worldwide Aircraft Servs., this Court finds Plaintiff is attempting to collect on an

implied-in-fact contract for a reasonable price. Therefore, this specific quantum

meruit claim might not be preempted by the ADA since “implying a reasonable price

simply enforces the intent of the parties.” Worldwide Aircraft Servs., 2018 WL

6589838, at *5 (citing Stout, 313 F. Supp. 3d at 1295).

Despite this conclusion, Count II is still preempted as pled since Plaintiff has

not clearly alleged whether it is making an implied-in-fact contract claim or a

preempted implied-in-law claim. Plaintiff must allege sufficient facts to show that

Cigna “assented” to the benefit given by Jet ICU as demonstrated by their conduct.

See Rhythm & Hues, 368 So. 3d at 15 (quoting Rite-Way Painting & Plastering, Inc.

v. Tetor, 582 So. 2d 15, 17 (Fla. 2d DCA 1991)) (“A key distinction between

contracts implied in fact and contracts implied in law is that ‘[w]hile contracts

implied in fact . . . require the assent of the parties, contracts implied in law do not

require such assent.’”).

IV. The No Surprises Act Does Not Prevent the ADA’s Preemption of

Plaintiff’s State Law Claims

Finally, Plaintiff argues the No Surprises Act (“NSA”) 42 U.S.C. § 300gg-

112 authorizes the use of state law to determine the amount owed in disputes

between out-of-network providers and insurers. Dkt. 14 at 8. Plaintiff contends this

Court must “harmonize” the NSA and ADA to allow Jet ICU to bring its state law

claims. Id. However, Plaintiff fails to cite a single case holding the NSA bars the

ADA’s preemption of certain state laws.3

3 This lack of legal support is unsurprising since Plaintiff is raising a totally novel argument.

Neither of the parties’ pleadings nor independent research has revealed any legal authority

discussing the interaction between the NSA and the ADA’s preemption provision.

In its reply, Cigna points to the text of the NSA and contends Plaintiff’s state

law claims of theft of service and quantum meruit are not the types of “specified

state laws” that the NSA allows a provider to rely on for reimbursement. Dkt. 17 at

6. Instead, Plaintiff should have gone through the independent dispute resolution

(“IDR”) process outlined in the NSA if Jet ICU wanted to be reimbursed for its

services. Id. For the reasons discussed below, the Court agrees with Cigna and finds

the NSA does not prevent Plaintiff’s state law claims from being preempted by the

ADA.

During a medical emergency, there is little choice in how a patient will get to

a hospital. In some cases, the patient receives expensive transportation from a

provider—like an air ambulance—who is outside the patient’s insurance network.

When the bill comes due, the patient’s insurance and out-of-network provider may

not agree on a fair reimbursement for the cost of services. In 2020, Congress

attempted to resolve this problem with the No Surprises Act, which created a

uniform reimbursement process, including binding arbitration. See 42 U.S.C. §

300gg-111. As it pertains to air ambulances, one district court further explained:

[NSA’s] main purpose was to end surprise medical billing by ensuring

that certain out-of-network providers—such as air ambulances—are

treated the same as in-network providers. See § 300gg-112(a)(1). To this

end, the NSA created a standardized process for the presentation and

payment of air ambulance transport claims. § 300gg-112(a)(3). After

receiving a bill from an air ambulance provider, the insurance company

either makes or refuses to make an initial payment. Id. If the air ambulance

company disagrees with the insurance company's decision, it can initiate

open negotiations. § 300gg-112(b)(1)(A).

If these negotiations fail, the dispute goes to Independent Dispute

Resolution (“IDR”) for “baseball style” arbitration. § 300gg-112(b)(1)(B).

IDR entities must be qualified by the governing executive agency. §

300gg-111(c)(4). If the parties cannot agree to a specific IDR entity, one

is randomly assigned to the case. Id. The parties submit their best offers

to the IDR entity, which analyzes several factors to pick a winner. §

300gg-112(b)(5). . . . The IDR decision is binding “in the absence of a

fraudulent claim or evidence of misrepresentation of facts” and “not . . .

subject to judicial review. . .”

Med-Trans Corp. v. Cap. Health Plan, Inc., 700 F. Supp. 3d 1076, 1079–80 (M.D.

Fla. 2023), appeal dismissed, 2024 WL 3402119 (11th Cir. May 30, 2024).

However, some states have their own IDR processes to remedy “surprise”

billing. The NSA has an exception that makes claims ineligible for the federal IDR

when there is a “specified state law” that meets certain criteria regarding the

provision of an alternative IDR process. 42 U.S.C. §§ 300gg-111(a)(3)(H)(i), 300gg-

111(a)(3)(I). The NSA defines a “specified state law” as:

a State law that provides for a method for determining the total amount

payable under such a plan, coverage, or issuer, respectively (to the extent

such State law applies to such plan, coverage, or issuer, subject to section

1144 of Title 29) in the case of a participant, beneficiary, or enrollee

covered under such plan or coverage and receiving such item or service

from such a nonparticipating provider or nonparticipating emergency

facility.

42 U.S.C. § 300gg-111(a)(3)(I). In states without a “specified state law,” the out-of-

network rate is either the amount agreed to by the insurer and the out-of-network

provider or an amount determined through the IDR process. See 42 U.S.C. § 300gg-

111(a)(3)(K).

Here, Plaintiff’s civil theft and quantum meruit claims plainly fall outside the

“specified state laws” that the NSA allows insurers and providers to use instead of

the federal IDR process. Quantum meruit is a common law rule, so it cannot possibly

be a state-created method to resolve out-of-network rates between insurance

companies and healthcare providers. As for Florida Statute § 772.11(1), the civil

theft statute neither outlines a method for calculating healthcare reimbursement rates

nor provides for a binding IDR process.

Moreover, the Court finds the NSA and ADA are already “harmonized.” The

comprehensive IDR process outlined in the NSA for air ambulances provides an

adequate remedy for Plaintiff’s preempted state law claims. See 42 U.S.C. § 300gg-

112(a). 42 U.S.C. § 300gg-112, titled “Ending Surprise Air Ambulance Bills,”

specifically outlines an IDR process air ambulance providers and insurers can

participate in to resolve reimbursement disputes. Id. § 300gg-112(b). Indeed, the

facts of the instant case are a textbook example of the problem Congress is

attempting to remedy with the NSA—an insurance company and out-of-network air

ambulance provider disputing the reimbursement amount for services rendered. See

Med-Trans Corp., 700 F. Supp. 3d at 1079. As a matter of first impression, the Court

finds the NSA does not bar the ADA’s preemption of Plaintiff’s civil theft and

quantum meruit claims.

CONCLUSION

Accordingly, it is hereby ORDERED and ADJUDGED that:

1. The Motion to Dismiss, Dkt. 13, is GRANTED. Count I is DISMISSED

with prejudice.

2. Plaintiff may file an amended complaint within 14 days in order to reassert

Count II. The Court cautions Plaintiff that the NSA appears to address its

likely remedy in light of the ADA’s broad preemption. If Plaintiff fails to

file an amended complaint within the specified period, the Court will close

this case without further notice and enter judgment.

DONE AND ORDERED at Tampa, Florida, on September 16, 2024.

/s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE