         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-4097
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MEGHAN HOTCHKISS,

    Appellant,

    v.

BLUE CROSS AND BLUE SHIELD
OF FLORIDA, INC., a Florida
profit insurance corporation,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Thomas M. Beverly, Judge.

                         August 13, 2019


PER CURIAM.

     In this appeal, Ms. Hotchkiss challenges the trial court’s
dismissal of her claims for breach of contract and violation of the
Florida Deceptive and Unfair Trade Practices Act (FDUTPA). We
find the trial court properly dismissed the claims and affirm.

     In the first claim, Ms. Hotchkiss alleged that Blue Cross and
Blue Shield of Florida, Inc. (BCBSF) breached a contract between
the parties. Ms. Hotchkiss sought full payment for her medical
procedure even though it was performed by an out-of-network
provider. This breach of contract claim had already been brought
before an administrative law judge (ALJ) who had denied that a
breach of contract occurred. Because this issue had already been
adjudicated on the merits, the trial court properly dismissed the
claim.

     In the second claim, Ms. Hotchkiss alleged that BCBSF
violated FDUTPA by the way it provided a statewide network of
providers in accordance with the contract. One of the ways BCBSF
sought to dismiss this claim was through collateral estoppel, also
known as issue preclusion, and res judicata, also known as claim
preclusion. Ms. Hotchkiss’s FDUTPA claim could not have been
dismissed under these doctrines because the issues that were
presented to the ALJ were not identical to the issues before the
trial court. See Hetrick v. Ideal Image Dev. Corp., 372 F.App’x 985,
991-92 (11th Cir. 2010) (generally the issues are not the same
when the legal standard governing the evaluation of facts are
different). In the case before the ALJ, the ALJ was asked to decide
if the in-network provider list was sufficient. In the case before the
trial court, the trier of fact was asked to determine if BCBSF
engaged in deceptive and unfair practices in the way it fulfilled its
obligation to provide a comprehensive provider network. This
Court has described an “unfair action under FDUTPA [as] an act
that offends established public policy and one that is substantially
injurious to consumer, unscrupulous, oppressive, unethical, or
immoral” and deception as “a representation, omission, or practice
that is likely to mislead consumers acting reasonably in the
circumstances, to the consumers’ detriment.” State v. Beach Blvd.
Auto Inc., 139 So. 3d 380, 386-87 (Fla. 1st DCA 2014) (citing PNR,
Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003)).
Because a FDUTPA violation encompasses a broader range of
actions, the issues before the trial court were different from the
issues that had been adjudicated by the ALJ. And because the
issues were not identical, the trial court erred when it dismissed
Ms. Hotchkiss’s FDUTPA claim under the doctrines of collateral
estoppel and res judicata.

     The trial court also dismissed Ms. Hotchkiss’s FDUTPA claim
based on its finding that FDUTPA did not apply to BCBSF. The
trial court correctly concluded that the statutory language
contained in FDUTPA precluded Ms. Hotchkiss’s FDUTPA claim.
Section 501.212(4)(a), Florida Statutes (2009), states that
FDUTPA does not apply to any person or activity regulated by the

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Office of Insurance Regulation (OIR). In determining whether
FDUTPA applies, courts must look to the alleged activities in the
lawsuit and determine if that activity is subject to regulation by
OIR. Beach Blvd. Auto., Inc., 139 So. 3d at 387-88 (citing State
Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr., 427
F.App’x 714, 723 (11th Cir. 2011)). Ms. Hotchkiss alleged that
BCBS violated FDUTPA based on the provider network, failure to
provide in-network coverage for her procedure, and claiming her
procedure was not medically necessary. Since all the alleged
activities are regulated by OIR, FDUTPA does not apply. See §§
626.8805, 627.6471, Fla. Stat. (2009). As a result, the trial court
properly dismissed Ms. Hotchkiss’s FDUTPA claims.

    AFFIRMED.

RAY, C.J., and ROBERTS and JAY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Carl Scott Schuler and Brian J. Lee of Schuler & Lee, P.A.,
Jacksonville, for Appellant.

Timothy J. Conner and Jennifer Mansfield of Holland & Knight,
Jacksonville, for Appellee.




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