State v. Mark Marks, P.A.
| Decision Date | 29 March 1995 |
| Docket Number | 94-0339 and 93-3308,Nos. 93-3259,s. 93-3259 |
| Parties | 20 Fla. L. Weekly D770 STATE of Florida, Appellant, v. MARK MARKS, P.A., et al., Appellees. STATE of Florida, Appellant/Cross-Appellee, v. MARK MARKS, P.A., Marvin Mark Marks, a/k/a Mark Marks, and Gary Marks, Appellees/Cross-Appellants. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Atty. Gen., Tallahassee, Richard L. Polin, Asst. Atty. Gen., Miami, T. Don Tenbrook, Asst. State Atty., Fort Lauderdale, for appellant/cross-appellee.
H. Dohn Williams, Jr., of H. Dohn Williams, Jr., P.A., Fort Lauderdale, for appellee/cross-appellant-Mark Marks, P.A.
Mark Hicks of Hicks, Anderson & Blum, P.A., and Neal Sonnett, Miami, for appellee/cross-appellant-Marvin Mark Marks a/k/a Mark Marks.
Archibald J. Thomas, III, of Archibald J. Thomas, III, P.A., Jacksonville, for appellee/cross-appellant-Gary Marks.
Edward A. Carhart of Edward A. Carhart, P.A., Coral Gables, for appellee-Irene Porter f/k/a Irene Raddatz.
Ronald S. Guralnick of Ronald S. Guralnick, P.A., Miami, for appellees-Denise Beloff and Noreen Roberts.
J. David Bogenschutz of Bogenschutz & Dutko, P.A., Fort Lauderdale, for appellee-Ronald J. Centrone.
Edward Shohat, Miami, for appellee-Carl Borgan.
Following oral argument, we sua sponte consolidated all three of the subject cases arising out of the trial court's three orders of dismissal being appealed, as there is a common constitutional issue among all three; namely, whether section 817.234(1), Florida Statutes (1987), is unconstitutionally vague as applied to attorneys in the representation of their clients. We conclude that the legislature intended the insurance fraud statute to apply to third party claims; and that prosecution is appropriate in this case for all counts except for those which rise or fall solely and completely upon the charge of incompleteness, as will be discussed hereinafter.
There are two informations involved in this appeal. The first was an amended information, filed in 1992, against eight defendants, containing thirty-five counts, the style of which was as follows:
STATE OF FLORIDA, CASE NO. 90-6433CF10
AMENDED INFORMATION FOR
Plaintiff, COUNT 1: RACKETEER INFLUENCED
vs. AND CORRUPT ORGANIZATION
ACT (R.I.C.O.)
MARVIN MARK MARKS COUNT 2: CONSPIRACY R.I.C.O
a/k/a Mark Marks, COUNT 3: SCHEME TO DEFRAUD
GARY MARKS, COUNT 4-13: PERJURY
CARL BORGAN, COUNT 14: GRAND THEFT
IRENE RADDATZ COUNT 15: INSURANCE FRAUD
a/k/a Irene Porter, COUNT 18: GRAND THEFT
NOREEN ROBERTS, COUNT 19: INSURANCE FRAUD
DENISE BELOFF, COUNT 20: GRAND THEFT
RONALD J. CENTRONE, and COUNT 22-23: INSURANCE FRAUD
MARK MARKS, P.A., COUNT 29-30: GRAND THEFT
a Florida Professional COUNT 31-33: INSURANCE FRAUD
Corporation, COUNT 34: GRAND THEFT
COUNT 35: INSURANCE FRAUD
Defendants
The second information contained 11 counts against four of the eight defendants, the style of which was as follows:
STATE OF FLORIDA, INFORMATION FOR
Plaintiff, Count 1-2: Insurance Fraud 3 F
Count 3: Grant Theft 2 F
vs. Count 4-5: Insurance Fraud 3 F
Count 6-7: Grant Theft 3 F
MARVIN MARK MARKS, Count 8: Insurance Fraud 3 F
a/k/a MARK MARKS, Count 9: Grant Theft 3 F
GARY MARKS, Count 10: Insurance Fraud 3 F
RONALD J. CENTRONE, Count 11: Grand Theft 3 F
and MARK MARKS, P.A
Defendants.
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Two appeals, consolidated by a prior order of the motion panel in Case Nos. 93-3259 and 93-3308, involved two orders entered by the trial court in October, 1993. One order dismissed counts 15, 18, 19, 22, 23, 29, 30, 31, 32, 33, 34 and 35, as well as predicate acts M, P, Q, T, U, AA, BB, CC, DD, EE, FF and GG of the RICO count in the 1992 amended information. The second order dismissed counts 1, 2, 3, 5, 7, 8, 9, 10, and 11 of the second information in this case. The underlined counts and predicate acts were dismissed because of the trial court's view that section 817.234(1) was unconstitutional, or did not apply in a third party context 1; the remaining counts and predicate acts, apparently because of its view that section 817.234(3) was also unconstitutional or did not apply in a third party context. 2
On January 27, 1994, the trial court entered a subsequent order, dismissing predicate acts R and S of Count 1, and Counts 20 and 21 of the 1992 amended information, saying:
In the case at bar, this court concludes that unconstitutional vagueness lies only in the fraudulent omission as applied to attorneys The trial court's errors can be summarized as too draconian. It was unnecessary to dismiss all of the counts, given the trial court's limited, but justified constitutional concern for the word "incomplete" as it applies to attorneys in their representation of clients. Specifically, there was no legitimate reason to invalidate section 817.234(3), constitutionally or otherwise, to impair the prosecution based on that section. Further, it was error to dismiss the grand theft charges, or to dismiss any charge based on a third party claim not solely dependent on the allegation of incompleteness.
engaged in the representation of their clients. The Court does not address the constitutionality of the term "incomplete" in any other context. Accordingly, the counts charging the Defendant with presenting an incomplete statement in support of a claim along with the corresponding count in grand theft should be dismissed.
We, therefore, reverse all of the orders of dismissal and remand with direction to reinstate all of the counts and predicate acts except those which are totally and exclusively dependent upon alleged incomplete statements tendered by the attorneys in representation of their clients. Only to this extent do we affirm the trial court's actions, since we find that its application of "vagueness" beyond that to be erroneous.
In the instant case, appellees were charged pursuant to section 817.234(1) with submitting "incomplete" insurance claims to insurers. Appellees allegedly sent demand letters to insurance companies which omitted medical records or statements that would not be favorable to their claim. The trial court found the term "incomplete" made the statute vague as applied to attorneys.
Section 817.234 does not define "incomplete." The uniqueness of an attorney's obligations in an adversarial context makes the lack of guidance as to what constitutes an incomplete claim problematic. As the trial court stated in its January 27, 1994 order:
Attorneys are guided by numerous different rules, laws, and cases dealing with the atypical obligations of an attorney in an advocate role. Attorneys and their clients enjoy a confidential relationship, which includes constraints upon information that can be disclosed to others. See Sec. 90.502, Fla.Stat. (1993); R. Regulating Fla. Bar 4-1.6. Once a suit is initiated, rules of discovery provide for an exchange of information between adversaries. Even then, some items do not have to be disclosed to an adversary absent special findings by a trial court. Fla.R.Civ.P. 1.280(b). Specifically, the identities and/or opinions of a non-witness work product expert are not discoverable absent a showing of exceptional circumstances under rule 1.280(b)(4)(B). Myron v. Doctors Gen., Ltd., 573 So.2d 34 (Fla. 4th DCA 1990). Medical reports based on an examination requested by a party do not need to be delivered absent a request for such. Fla.R.Civ.P. 1.360(b); Smiles v. Young, 271 So.2d 798 (Fla. 3d DCA), cert. denied, 279 So.2d 305 (Fla.1973). In personal injury protection claims, a party must turn over all medical records concerning a specific condition only after requesting and receiving a copy of medical reports from a medical examination requested by the insurer. Sec. 627.736(7)(b), Fla.Stat. (1993). Finally, the confidentiality of medical records is statutorily protected from disclosure in most circumstances until a proper subpoena has been issued. See, e.g., Sec. 455.241(2), Fla.Stat. (1993). 3
As evidenced above, attorneys must be aware of various statutes, rules of procedure, and professional regulations when determining what information to disclose to other parties. These ethical and professional standards may be considered in construing a statute. See State ex. rel. Escambia County v. Behr, 354 So.2d 974 (Fla. 1st DCA 1978), affirmed, 384 So.2d 147 (Fla.1980). The legal education courses suggest that the common practice among plaintiffs' attorneys in Florida is to provide less than complete disclosure. In an adversarial context, an attorney would rightfully be confused as to what conduct would subject him or her to punishment for filing an "incomplete" claim under Florida's insurance fraud statute.
The state repeatedly argues, as it did below, that the specific intent required under section 817.234(1) saves the statute from being vague. It also asserts that the statute does not require complete disclosure: "Nondisclosure is proscribed [by the statute] only when there is an intent to defraud, deceive or injure the insurer." According to the state, the statute provides sufficient notice to attorneys of what behavior is proscribed by it because of the scienter requirement. 4
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