Aztec Medical Services, Inc. v. Burger

• Decision Date: 22 August 2001
• Docket Number: No. 4D01-421.,4D01-421.
• Citation: 792 So.2d 617
• Parties: AZTEC MEDICAL SERVICES, INC., f/k/a Urology Care, Inc., Appellant, v. Robert BURGER, M.D., Jerry H. Singer, M.D., Ross A. Cohen, M.D., and Urologic Specialists, P.A., Appellees.
• Court: Florida District Court of Appeals

792 So.2d 617

AZTEC MEDICAL SERVICES, INC., f/k/a Urology Care, Inc., Appellant, v. Robert BURGER, M.D., Jerry H. Singer, M.D., Ross A. Cohen, M.D., and Urologic Specialists, P.A., Appellees.

No. 4D01-421.

District Court of Appeal of Florida, Fourth District.

August 22, 2001.

Edith G. Osman and K. Renee Schimkat of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Miami, for appellant.

Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, L.L.P., West Palm Beach, for appellees.

HAZOURI, J.

Aztec Medical Services, Inc., f/k/a Urology Care, Inc. (Aztec) appeals from the trial court's non-final order denying its motion to compel arbitration of Robert Burger, M.D., Jeffrey H. Singer, M.D., Ross A. Cohen, M.D. and Urologic Specialists, P.A.'s claims alleging violations of the Florida Deceptive and Unfair Trade Practices Act (FDUTPA). We reverse.

Aztec is a medical management company engaged in the business of reviewing medical claims submitted by physicians and paying those physicians for medical services performed pursuant to applicable contractual and medical guidelines. Robert Burger, M.D., Jeffrey H. Singer, M.D., Ross A. Cohen, M.D. (collectively, the Physicians) are physicians with a practice specializing in urology and are principals of plaintiff Urologic Specialists, P.A. (Urologic Specialists). Aztec and United Healthcare of Florida, Inc. (United Healthcare) reviewed medical claims submitted by the Physicians when they were members of United Healthcare's Florida healthcare network, pursuant to a Specialty Physician Managed Care Agreement (Physician Agreement) entered into between Aztec and the Physicians and a Medical Group Participation Agreement (Participation Agreement), a related agreement entered into between United Healthcare and the Physicians and Urologic Specialists.

Attached to both the Participation Agreement and the Physician Agreement is a Corporation Provider Participation Addendum (Addendum) entered into between the Physicians, United Healthcare and Aztec. The Addendum, coupled with the Physician Agreement and the Participation Agreement, set forth the terms and conditions under which the Physicians shall render healthcare services to individuals covered under the United Healthcare benefit contract and how the Physicians would be compensated for such services.

By complaint dated March 6, 2000, the Physicians and Urologic Specialists (collectively, Appellees) brought the underlying action against Aztec, United Healthcare, Gary L. Schultz, and Jonathan B. Gavras, M.D.¹ Of the six counts initially alleged in the complaint, only two were directed against Aztec. Count I, alleging breach of contract, claims that Aztec down-coded bills submitted by plaintiffs; unilaterally underpaid plaintiffs for their services; and ignored or denied claims submitted for payment, in purported violation of the Physician Agreement. Count V alleges violations of the FDUTPA. Though couched as a statutory violation, the allegations in Count V are identical to those supporting plaintiffs' breach of contract claim-namely, that Aztec purportedly failed to pay claims timely and down-coded bills submitted by the Physicians.

Aztec moved to dismiss both counts of the complaint alleged against it. In that motion, Aztec invoked the parties' contractual arbitration provision and sought to compel arbitration of plaintiffs' breach of contract claim and statutory FDUTPA claim. Similarly, United Healthcare sought to dismiss the litigation against it and also sought to compel arbitration.

The arbitration provision is set forth in the Participation Agreement and provides:

Plan or Payer and Medical Group will work together in good faith to resolve any dispute about their business relationship. If the parties are unable to resolve the dispute within 30 days following the date one party sent written notice of the dispute to the other party, the dispute is not resolved, and if any party wishes to pursue the dispute, it shall be submitted to binding arbitration in accordance with the rules of the American Arbitration Association. In no event may arbitration be initiated more than one year following the sending of written notice of the dispute. Any arbitration proceeding under this Agreement shall be conducted in Dade County, Florida.

(Emphasis added).

The Addendum incorporated into the Physician Agreement the arbitration provision set forth in the Participation Agreement and specifically provides that: "This Agreement contains a binding arbitration provision that may be enforced by the parties."

The trial court heard United Healthcare's motion first and by order dated June 19, 2000, granted that part of United Healthcare's motion seeking dismissal of the breach of contract claim asserted against it on the ground that plaintiffs were contractually bound to submit that claim to binding arbitration.²

Pursuant to the parties' contractual arbitration provision, the plaintiffs thereafter filed Demands for Arbitration, dated August 22, 2000, asserting their breach of contract claims against both United Healthcare and Aztec. The trial court then scheduled Aztec's Motion to Dismiss to be heard on December 8, 2000.³ Thereafter, in its order of January 2, 2001, the trial court dismissed the breach of contract claim alleged against Aztec, as it was already pending in the arbitration proceeding initiated by the plaintiffs, but denied Aztec's motion to dismiss the FDUTPA claim, specifically denying enforcement of the arbitration provision to that statutory count. In the order denying enforcement of the arbitration provision, the trial court stated:

3. The Court also extrapolates from the Management Computer Controls, Inc.⁴ case that the broad language of the arbitration provision, purportedly covering "any dispute about [the parties'] business relationship" does not cover a statutory claim for unfair trade practices. An unfair trade practices claim is unique and not simply a part of the contract.

(Emphasis added).

Aztec argues that the trial court ignored state and national policy in favor of enforcing contractual arbitration and also ignored Florida case law holding that claims under the FDUTPA are subject to arbitration. We agree.

In Value Car Sales, Inc. v. Bouton, 608 So.2d 860 (Fla. 5th DCA 1992), there was an agreement between a car seller and a purchaser which contained an arbitration clause. The purchaser filed claims for inter alia breach of contract and unfair trade practices under the FDUTPA. The trial court denied the seller's motion to enforce arbitration "finding that while there was no issue but that the purchaser had signed the contract containing the arbitration provision, the arbitration provision unlawfully restricted the purchaser's access to the courts and lacked mutuality of obligation...." Id. at 861. The district court reversed and held:

Section 682.02, Florida Statutes, provides that parties may agree in a written contract to settle by arbitration any controversy thereafter arising between them relating to such contract or the failure or refusal to perform the whole, or any part thereof. Such arbitration agreements do not deny access to the courts because the parties agreeing to arbitration have waived that right by agreeing to arbitration in lieu of litigation... We find no Florida cases specifically holding that claims under the Florida Deceptive and Unfair Trade Practices Act (§ 501.201, et seq., Fla. Stat.) are not subject to arbitration. The First District Court of Appeal in Physicians Weight Loss Centers v. Payne, 461 So.2d 977 (Fla. 1st DCA 1984), implied that claims under the Florida Deceptive and Unfair Trade Practices Act are subject to arbitration. But see contrary dicta from the Third District in Consolidated Labor Union Trust v. Clark, 498 So.2d 547 (Fla. 3d DCA 1986)(considering beneficiary's right to attorney's fees under Employee Retirement Income Security Act).

Id. In Payne, there was a claim that the contract containing the arbitration clause was obtained by fraud and the case was remanded for a factual determination of whether the contract was fraudulently induced. The decision implied that if there was no fraud, then the FDUTPA claim was arbitrable.

In Clark, the court discussed the decision in Cuevas v. Potamkin Dodge, 455 So.2d 398 (Fla. 3d DCA 1984), in which the court interpreted section 501.2105(1)-(3), Florida Statutes (1981), of the FDUPTA which provided:

In any civil litigation ... the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, shall receive his reasonable attorney's fees and costs ... [The award shall be made by] the trial judge who presided over the civil case.

Clark, 498 So.2d at 549 (emphasis added). The court said "the very language of the Act considered in Cuevas excludes the notion of arbitration." Clark, 498 So.2d at 550. We agree with the fifth district in Bouton that this is dicta and not controlling on the issue of whether a claim pursuant to the FDUTPA is subject to arbitration.

In Sharpe v. Lytal & Reiter, Clark, Sharpe, Roca, Fountain, Williams, 702 So.2d 622 (Fla. 4th DCA 1997), this court considered whether the court had exclusive jurisdiction over a partnership dissolution under section 620.715(1), Florida Statutes, which provides that "[t]he court shall adjudge a dissolution ... [o]n application by or for a partner...." There is nothing else in the Florida Partnership Act which grants exclusive jurisdiction to the courts and excludes arbitration. This court held:

In order to find a legislative intent to preclude the submission of a class of claims to arbitration, we held that the legislature would have to state such a requirement in unambiguous text.

* * *

Here the FPA merely hints that a judge is required for dissolution claims, while the FAC [Florida Arbitration Code] explicitly states that the court should enforce agreements to arbitrate properly made under the FAC. Because the FPA

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