Inservices Inc v. Aguilera
| Decision Date | 31 October 2001 |
| Docket Number | 3,01-867 |
| Parties | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. INSERVICES, INC. f/k/a MANAGED CARE USA SERVICES, INC., a North Carolina corporation, and MIPPY HEATH, individually, Appellants, vs. RODRIGO AGUILERA and PATRICIA AGUILERA, his wife, Appellees. CASE NO. 3D01-867 JULY TERM, A.D. 2001 IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT Opinion filed |
| Court | Florida District Court of Appeals |
A Non-Final Appeal from the Circuit Court for Dade County, Barbara S. Levenson, Judge.
Rumberger, Kirk & Caldwell and Joshua D. Lerner and David J. Pyper, for appellants.
Friedman & Friedman; Lauri Waldman Ross, for appellees.
Before GERSTEN and SHEVIN, JJ., and NESBITT, Senior Judge.
Inservices, Inc., and Mippy Heath, appeal an order denying a motion to dismiss the Aguileras's amended complaint.1 We reverse the denial as to the bad faith, breach of contract and declaratory judgment counts. However, we affirm the denial as to the intentional infliction of emotional distress count.
The facts in this case are fully set out in the Aguileras's amended complaint:
FACTS COMMON TO ALL COUNTS
8. On April 21, 1999, plaintiff Aguilera was injured at a Publix warehouse on NE 183rd Street when an electric fork lift operated by a Publix employee struck him and pushed him against a pallet. Plaintiff suffered immediate injuries to his back and right leg and was transported to Palmetto Hospital Emergency room. Palmetto medical records reflected, that at the time, that plaintiff simply had blood in his urine. An emergency room physician diagnosed an infection and gave the Plaintiff a prescription for necessary medication.
9. Immediately following his injuries, Plaintiff received medical care supervised and controlled by Managed Care USA Services, Inc., n/k/a Inservices, Inc. defendant here, and its employees and agents. On instructions of the Defendant, Plaintiff was referred to a workers compensation clinic and, on May 12, 1999, was discharged to return to work with restrictions.
10. Subsequently Plaintiff began to complain of kidney and/or bladder pain. On May 24, 1999, plaintiff's workers compensation attorney filed an initial "request for assistance," requesting inter alia Inservices' authorization for a board certified urologist to examine and treat the Plaintiff. From that point forward, the defendants did everything in their power to block medical treatment that it had actual notice Plaintiff needed, and by doing so recklessly endangered plaintiff's life, and engaged in a pattern of action substantially certain to bring about his death.
11. Inservices first denied Plaintiff any authorization for urologist treatment, ostensibly because it was not "work related."
12. On June 17, 1999, Inservices was notified that Plaintiff's urological care was now an "emergency" because the Plaintiff's urine had begun to smell like feces.
13. On June 21, 1999, Plaintiff was advised that his workers compensation benefits were being terminated as of July 9, 1999, notwithstanding the report of two doctors, including Defendant's own doctor that he should not return to work.
14. On June 25, 1999, Inservices blocked Plaintiff's receipt of the prescription medication prescribed to him by the hospital emergency physician, for his urinary tract infection.
15. On June 30, 1999, the defendant denied Plaintiff's emergency request for the care of a urologist, this time on the ostensible basis that it was not "medically necessary." At this time defendant had within its possession medical care information showing directly the opposite.
16. On July 7, 1999, Inservices was advised by Plaintiff's treating physician that his need for a urological consult was now "urgent," and that his condition was "deteriorating."
17. On July 9, 1999, Defendant's own doctor, Alan Dansky, gave Plaintiff prescriptions for various urinary tests to take place, and the appointments were scheduled by Defendant's own nurse.
18. On July 29, 1999, Defendant's adjuster unilaterally canceled some of this medical testing. Testing which was performed (a retrograde urethrogram) reflected that Plaintiff had a fistula or a hole in his bladder.
19. On August 6, 1999, Defendant Mippy Heath introduced herself as defendant's new "case manager." She was specifically advised not to deal with Plaintiff directly and agreed not to perform on site case management services directly, or to interfere with plaintiff's care.
20. On August 19, 1999, Plaintiff's counsel alerted Defendant's adjuster that he needed a general surgeon to perform emergency surgery on the fistula. Defendant's new nurse consultant/case manager Mippy Heath refused to authorize the emergency surgery, and insisted on a second opinion.
21. On August 25, 1999, notwithstanding her agreement with Plaintiff's counsel, Mippy Heath showed up for the Plaintiff's urology appointment with Dr. Campeatore, the defendant's IME urologist. Ms. Heath then advised the Plaintiff to lie to his workers compensation lawyer, and tell his lawyer that she was not at the doctor's office.
22. Defendant insisted on the administration of tests that were painful to Plaintiff and contraindicated by his then-present medical condition. Defendant then used Plaintiff's refusal to submit to these painful tests as a further excuse to refuse Plaintiff's now critical, surgical treatment.
23. By November 4, 1999, defendant's own case manager and nurse practitioner agreed that plaintiff needed immediate hospitalization for surgery. Defendant's adjuster overruled its nurse because it ostensibly wanted a second opinion from a general surgeon. However, Defendant did not authorize plaintiff's consult with a "general surgeon," but instead sent him to a gastroenterologist. At this point in time, Plaintiff had been urinating feces and blood for over six months.
Based on these allegations, the Aguileras sued the workers compensation carrier/administrator, Inservices, Inc., and Mippy Heath, the case manager [collectively "defendants"]. The complaint asserted causes of action for common law bad faith, breach of contract, declaratory judgment and intentional infliction of emotional distress. Defendants filed a motion to dismiss the complaint asserting workers' compensation immunity. The trial court denied the motion finding that the acts alleged fell outside the scope of the immunity. We agree, in part.
A motion to dismiss tests whether the plaintiff has stated a cause of action. Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is reviewable on appeal by the de novo standard of review. When determining the merits of a motion to dismiss, the trial court's consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party.
Bell v. Indian River Memorial Hospital, 778 So. 2d 1030 (Fla. 4th DCA 2001)(citations omitted). The allegations in the amended complaint, as set out above, sufficiently demonstrate that the Aguileras have stated a cognizable action for intentional infliction of emotional distress that survives dismissal on workers' compensation immunity grounds.
Florida's workers' compensation scheme was designed "to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker's return to gainful reemployment at a reasonable cost to the employer." § 440.015, Fla. Stat. (1999). In exchange for affording employees these benefits, an employer is shielded by statutory immunity from suit. § 440.11, Fla. Stat. (1999). Nevertheless, that immunity does not shield an employer from lawsuits alleging intentional torts. Turner v. PCR, Inc., 754 So. 2d 683, 684 (Fla. 2000); Eller v. Shova, 630 So. 2d 537, 539 (Fla. 1993).
The defendants accurately represent the well-accepted proposition that absent an act independent of handling a claim, no tort action can be brought against a workers' compensation insurance carrier. Old Republic Ins. Co. v. Whitworth, 442 So. 2d 1078 (Fla. 3d DCA 1983); Montes de Oca v. Orkin Exterminating Co., 692 So. 2d 257 (Fla. 3d DCA), review denied, 699 So. 2d 1374 (Fla. 1997). However, a review of the facts pled in the amended complaint, which must be accepted as true, demonstrate that this case goes beyond mere claims-mishandling allegations and asserts independent acts that rise to the level of an actionable intentional tort.
In Turner v. PCR, Inc., 754 So. 2d 683, 684 (Fla. 2000), the Florida Supreme Court "reaffirm[ed] the existence of an intentional tort exception to an employer's immunity, and h[e]ld that the conduct of the employer must be evaluated under an objective standard." Aguileras' facts, evaluated under the Turner standard, demonstrate that Aguilera has stated a cause of action for intentional infliction of emotional distress, that divests the carrier of workers' compensation immunity.
The facts alleged in the amended complaint do not describe a carrier who "makes the intentional decision to terminate benefits or takes some other intended action to adjust a claim[.]" Rather, Aguilera's amended complaint asserts intentional tortious behavior by Inservices and by the case manager - who went so far as to show up at Aguilera's urologist appointment and suggest that he lie to his attorney and say she was never there. The allegations here go beyond mere assertions of willful delays in payment, see Old Republic, or assertions that injuries were exacerbated because of payment or service delays. Sheraton Key Largo v. Roca, 710 So. 2d 1016 (Fla. 3d DCA), review denied, 728 So. 2d 204 (Fla. 1998); Sullivan v. Liberty Mut. Ins. Co., 367 So. 2d 658 (Fla. 4th DCA), cert. denied, 378 So. 2d 350 (Fla. 1979). Instead, these allegations of intentional torts by the defendants constitute conduct not shielded by the workers' compensation immunity. See Turner; ...
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