           Case: 17-14406   Date Filed: 03/20/2018   Page: 1 of 23


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14406
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:15-cv-01997-MSS-TBM



BARBARA J. HARVEY,

                                              Plaintiff-Appellant,

                                  versus

FLORIDA HEALTH SCIENCES CENTER, INC.,
doing business as Tampa General Hospital,

                                              Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (March 20, 2018)

Before MARTIN, JILL PRYOR and HULL, Circuit Judges.

PER CURIAM:
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      Plaintiff Barbara Harvey (“Mrs. Harvey”) appeals the district court’s final

judgment in favor of the defendant, Florida Health Sciences Center, Inc., d/b/a

Tampa General Hospital (“the Hospital”). After the close of the evidence at trial,

the district court granted the Hospital’s renewed motion for judgment as a matter

of law.

      In doing so, the district court determined that the Hospital did not have a

legal obligation to pay Mr. Harvey’s medical expenses or to repay Medicare the

medical expenses already paid on Mr. Harvey’s behalf. The district court also

determined that Mrs. Harvey’s unjust enrichment claim under Florida law failed

and was otherwise barred by res judicata. After thorough review, we affirm.

                               I.      BACKGROUND

      This case involves the medical expenses that Medicare paid for the treatment

of Perry Harvey, a Medicare beneficiary, who later died from complications. The

procedural history starts with a binding arbitration and then transitions to several

lawsuits in state court. While at certain points Mrs. Harvey was the personal

representative of Mr. Harvey’s estate (the “Harvey Estate”), Mrs. Harvey

individually brought this action against the Hospital.

A.    The Estate’s Malpractice Claim

      On March 12, 2012, Mr. Harvey was admitted to the Hospital for severe

pain. Mr. Harvey’s condition worsened, and it was later determined that he had a


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perforated bowel and had developed pressure sores and sepsis. On September 12,

2012, Mr. Harvey passed away at another healthcare facility.

      Medicare paid $186,232.95 to the Hospital for its medical services to

Mr. Harvey. Medicare also paid $432,882.87 to other healthcare providers. Thus,

Medicare paid a total of $619,115.82 for Mr. Harvey’s treatment.

      On September 21, 2012, counsel for the Harvey Estate, Nathaniel Tindall,

served the Hospital with a notice of intent to sue for medical malpractice under

Florida law, which alleged that the Hospital was responsible for the development

of Mr. Harvey’s pressure sores. There was no malpractice claim as to treatment of

the perforated bowel.

      Ultimately, the Hospital and the Harvey Estate agreed to binding arbitration

as to the amount of damages in the malpractice claim about the pressure sores.

The Chief Arbitrator framed the damages issue this way:

      Whether or not a pressure sore caused the death of Mr. Harvey is not
      at issue in this proceeding. Rather, the sole issue for determination by
      this panel is the amount of damages to be awarded as a result of Mr.
      Harvey’s wrongful death. Accordingly, evidence relating to causation
      is irrelevant in this proceeding, and will be excluded if offered by
      either party.

B.   Denial of the Estate’s Motion to Add a Private Cause of Action under
the Medicare Secondary Payer Statute

      On July 20, 2013, Tindall, as counsel for the Harvey Estate, filed a motion

for the arbitration panel to add another claim to the medical malpractice arbitration.


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The Harvey Estate sought to add a private cause of action under the Medicare

Secondary Payer (“MSP”) statute to recover and to reimburse Medicare the

$619,115.82 in medical expenses Medicare had already paid to the Hospital and

other health care providers for the treatment of Mr. Harvey. Tindall argued that

the Hospital’s admission of liability in the arbitration proceedings created its legal

responsibility to reimburse Medicare under federal law.

       To the extent that a primary plan1 or other entity (such as a tortfeasor) is

legally responsible to pay for a Medicare beneficiary’s medical expenses, the MSP

statute requires that primary plan or other entity to reimburse Medicare for

payments made on behalf of the beneficiary. See Glover v. Liggett Grp., 459 F.3d

1304, 1306–07 (11th Cir. 2006); Cochran v. U.S. Health Care Fin. Admin., 291

F.3d 775, 777–78 (11th Cir. 2002). This is the basis of the “secondary payer”

system, which subordinates Medicare’s payment duties to any other entity that

“has or had a responsibility” to pay for a medical “item or service” on behalf of a

Medicare beneficiary and thus makes that other entity the “primary” payer over

Medicare. See 42 U.S.C. § 1395y(b)(2)(B)(ii).




       1
          The MSP statute defines a “primary plan” as “a group health plan or large group health
plan, . . . a workmen’s compensation law or plan, an automobile or liability insurance policy or
plan (including a self-insured plan) or no fault insurance . . . .” and states that “[a]n entity that
engages in a business, trade, or profession shall be deemed to have a self-insured plan if it carries
its own risk (whether by failure to obtain insurance, or otherwise) in whole or in part.”
42 U.S.C. § 1395y(b)(2)(A).
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      Yet, to accommodate its beneficiaries, Medicare typically pays medical

expenses up front, which is known as a “conditional payment.” See 42 U.S.C.

§ 1395y(b)(2)(B). This payment is “conditional” because Medicare has a right to

reimbursement—and thus asserts a statutory lien—where it is discovered that a

primary plan or other entity was or is legally responsible to pay that Medicare

beneficiary’s medical expenses. See id. The MSP reimbursement statute allows

Medicare to recover double its conditional payment by filing suit against the

primary plan or other entity, but it also creates a similar private cause of action to

encourage those aware of non-payment by a primary plan or other entity to enforce

Medicare’s rights. Id. § 1395y(b)(2)(B)(iii), (b)(3)(A).

      In the arbitration proceedings, the Hospital opposed the Harvey Estate’s

motion to add a private MSP claim for reimbursement of medical expenses to

Medicare, arguing:

      In short, no [MSP] claim has accrued, nor will one accrue unless and
      until there is a legally binding resolution of this proceeding and a
      subsequent failure to repay the Medicare program. Thus, Petitioner’s
      analysis of whether the doctrine of res judicata might preclude him
      from pursuing an appropriate [MSP] claim after the conclusion of this
      proceeding is an exercise in pure speculation. [The Hospital] intends
      to ensure that full repayment is made to the Medicare program at the
      conclusion of this proceeding, and therefore expects that neither this
      tribunal nor any other ever will be required to hear such a claim.




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On August 26, 2013, the arbitration panel denied without prejudice the Harvey

Estate’s motion to the extent that the arbitration panel lacked jurisdiction to

determine the accrual of claims under federal law.

      On September 11, 2013, counsel Tindall separately notified the United

States government that the arbitration panel would not consider a private cause of

action under the MSP statute and thus urged the government to exercise its

statutory rights to Medicare reimbursement and subrogation under 42 U.S.C.

§ 1395y(b)(2)(B). Thereafter, in its pre-hearing statement filed September 23,

2013, the Harvey Estate indicated that “[m]edical expenses are not at issue [in this

proceeding] since [the Harvey Estate] . . . has deferred recovery right to the United

States Government.”

C.    Arbitration Award

      Subsequently, the arbitration proceeded, and the Harvey Estate did not claim

or present evidence of Mr. Harvey’s medical expenses.

        Accordingly, the arbitration panel issued an award of $700,050.73 for only

these items, with a line item of zero for medical expenses:

      1. Funeral and probate                         4. Past and future
         expenses:                                      medical expenses
      2. Present value of loss                          (by stipulation of the
         of net estate                                  parties):
         accumulations:                              5. Non-economic
      3. Loss of household                              damages, awarded to
         services:                                      Barbara J. Harvey for


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           a 100% loss of
           capacity to enjoy life:

                                                        $0
      $18,687.73


      $307,663.00
                                                        $250,000.00
      $123,700.00
The arbitration award expressly provided that no part of the award was for the

payment or reimbursement of medical expenses to the Harvey Estate or to

Medicare, stating:

      The parties have stipulated and the panel agrees that the Claimant
      having withdrawn her claim having to do with Medicare conditional
      payments and no evidence having been presented as to any medical
      expenses of any nature whatsoever, that no portion of this award
      reflects payment or reimbursement or consideration of any medical
      expenses. The matter of subrogation has not been raised nor
      considered by this panel.

      After the arbitration proceeding, the Hospital’s counsel sent an email to

Tindall requesting payee information for the settlement checks. Tindall responded

that the Hospital’s counsel should make the checks out to his law firm’s trust

account.

D.    Settlement Checks

      On November 13, 2013, the Hospital’s counsel sent Tindall three separate

settlement checks and a letter explaining each amount. As explained below, the

settlement amount of $700,050.73 was paid by separate checks for $619,115.82


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and $80,934.91, and Tindall’s attorney’s fees were paid by a third check for

$105,008.00.

      The first check, in the amount of $619,115.82, was made payable to the trust

account of Tindall’s law firm and to Medicare. Although the Harvey Estate had

not sought to recover medical expenses in the malpractice claim in the arbitration,

the fact remained that Medicare had paid $619,115.82 in medical expenses for

Mr. Harvey and could potentially assert a lien on the Harvey Estate’s recovery

from any tortfeasor causing those expenses. Accordingly, counsel for the

Hospital’s transmittal letter stated that this first check signified the amount of the

arbitration award “potentially subject to Medicare’s lien” and that it included

Medicare as an additional payee “to comply with [the Hospital’s] responsibility to

protect Medicare’s interests.” The Hospital’s counsel noted that: (1) the Estate was

“free to negotiate with Medicare to reduce or eliminate the repayment obligation”;

and (2) “[i]n light of the fact that no portion of the award represents payment for

medical expenses, you may be successful in that regard.”

      The second check, in the amount of $80,934.91, was made payable to the

trust account of Tindall’s law firm and represented the portion of the award that

“exceed[ed] the amount of Medicare’s lien.”




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       The third check, in the amount of $105,008.00, was also made payable to the

trust account of Tindall’s law firm and represented attorney’s fees at 15% of the

total award.

       The letter from the Hospital’s counsel concluded, “[P]lease feel free to

contact me with any questions or should you wish to discuss this matter in more

detail.”

E.     Tindall’s Tender to Medicare

       Upon receipt of the checks, on November 15, 2013, counsel Tindall

endorsed the first check of $619,115.82 and mailed it to Medicare, along with a

letter. In that November 15 letter, Tindall represented to Medicare that the

Hospital “vehemently denied liability [for Medicare conditional payments] in the

arbitration proceeding,” that only “after the filing of claim[s] for fraud” and the

like had the Hospital “decided it would be in its best interest to pay the Medicare

lien,” and that “this is equivalent to a confession of judgment against [the

Hospital]’s interest in that it has decided to no longer defend its position that it was

not responsible for the Medicare Conditional payments.”

       Of course, as explained above, the arbitration award itself did not cover any

medical expenses or any repayments due to Medicare under the MSP statute. Yet

Tindall did not object or return the check to the Hospital’s counsel or request a

different payee. Rather, Tindall endorsed the check and sent it to Medicare.


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Notably, Tindall did not tell Medicare that the arbitration proceedings had not

involved and did not cover Mr. Harvey’s medical expenses.

      On December 9, 2013, the Medicare Secondary Payer Recovery Contractor

(“MSPRC”) sent a letter addressed to the Harvey Estate, copying Tindall and

explaining: (1) Medicare had accepted $217, 893.49 of the $619,115.82 check that

was sent; (2) it had applied this $217,893.49 amount to “the outstanding debt due

to Medicare”; (3) the principal amount of the debt and interest were reduced to

zero; and (4) the file was being closed.

      Medicare later sent the $401,222.33 remainder of the $619,115.82 check to

the trust account of Tindall’s law firm as a procurement cost. When a private

party’s recovery of medical expenses triggers Medicare’s reimbursement rights,

Medicare reduces the amount it seeks to take account of the private party’s “cost of

procuring judgment or settlement.” 42 C.F.R. § 411.37. Thus, rather than keeping

the full $619,115.82, Medicare sent back to Tindall $401,222.33 for the cost of

procuring the settlement.

F.    State Litigation by the Harvey Estate

      Before and around the time Tindall presented the $619,115.82 check to

Medicare, he began filing a series of lawsuits in Florida circuit court on behalf of

the Harvey Estate and against the Hospital. These state lawsuits asserted numerous




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legal claims and sought damages, including repayment of the entire $619,115.82

amount that Tindall had presented to Medicare, plus interest and attorney’s fees. 2

       On November 13, 2013, the Harvey Estate filed an action against the

Hospital asserting breach of contract, unfair trade practices, fraud, breach of

fiduciary duty, and equitable subrogation (Case No. 13-CA-5301). It later

voluntarily dismissed this action on November 21, 2013.

       On November 26, 2013, the Harvey Estate filed a petition and amended

petition in the Florida circuit court (Case No. 13-CA-12484), accompanied by a

motion to compel payment for an unspecified amount from the Hospital’s bank

account and a motion for entry of final judgment. The Hospital opposed this relief

on the ground that it had already paid the arbitration award in full. On June 19,

2014, the Florida circuit court in case number 13-CA-12484 entered an order

confirming the arbitration award and granting partial final judgment as to its

enforceability, but reserved, until consideration on the merits, the question of the

extent to which the Hospital had already paid the award to the Harvey Estate.

On November 14, 2014, the Harvey Estate voluntarily dismissed the petition “since

no further relief, and/or enforcement of the arbitration award is being sought or

will be sought in the future.”


       2
        The Hospital’s brief on appeal mentions these cases seriatim, which appear to have
numbered seven in total. We address only those discussed at trial in this case and the documents
admitted into evidence.
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      On January 31, 2014, the Harvey Estate filed another complaint against the

Hospital asserting breach of contract, which it later amended to include civil

conspiracy, indemnity, civil theft, and conversion (Case No. 14-CA-1147). On

July 27, 2016, nearly a year after the complaint was filed in this federal lawsuit

against the Hospital, the Florida circuit court in case number 14-CA-1147 granted

summary judgment for the Hospital, citing res judicata, binding arbitration, and

Florida’s “two dismissal” rule. In short, at least three lawsuits by the Harvey

Estate against the Hospital for recovery of medical expenses (paid by Medicare)

have not succeeded.

G.    Mrs. Harvey’s Federal Lawsuit

      On August 27, 2015, represented by Tindall, Mrs. Harvey individually

brought the current action for unjust enrichment against the Hospital in Florida

circuit court. Specifically, Mrs. Harvey alleged that she paid $619,115.82 to

satisfy Medicare’s lien, which she claimed the Hospital had a legal responsibility

to pay and reimburse Medicare, and thus she had conferred a benefit on the

Hospital. In response, the Hospital removed the case to federal court and filed a

motion to dismiss.

      On September 22, 2015, Mrs. Harvey amended her complaint to add a

Medicare private cause of action under 42 U.S.C. § 1395y(b)(3)(A), including




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allegations that, during the original arbitration proceeding, the Hospital made

representations that it would “reimburse Medicare without delay.”

      Each party then filed a motion for summary judgment, both of which the

district court denied. In its order denying these motions, the district court ruled

that, as to the Medicare private cause of action, there were triable issues of fact

“whether [the Hospital] is a primary payer in light of its representation to the

arbitration panel” and “what [the Hospital] meant by stating its intention to ensure

that full repayment is made to the Medicare Program.” As to the unjust enrichment

claim, the district court found there were triable issues of fact “whether [the

Hospital] is a primary payer” and “whether [Mrs. Harvey] conferred a benefit on

the Hospital when she satisfied the Medicare Lien.” Thereafter, Mrs. Harvey

retained new counsel in this action.

H.    Trial

      This case was tried before a jury on September 25 and 26, 2017. Mrs.

Harvey called only two witnesses—herself and counsel for the Hospital.

      First, Mrs. Harvey testified that she agreed to binding voluntary arbitration

after her husband’s death and that the arbitration panel awarded around $700,000,

not including any medical expenses. According to Mrs. Harvey, both parties

agreed not to include medical expenses in the arbitration award. Mrs. Harvey also

testified that she did not abandon the Harvey Estate’s claim against the Hospital for


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medical expenses, but rather Medicare had not billed the Harvey Estate, and thus

she did not make the claim in the arbitration.

       Mrs. Harvey directed her former attorney, Tindall, to send the $619,115.82

settlement check to Medicare because she did not want to “mess with the

government,” believed that amount to be due to Medicare, and saw no other

option. Mrs. Harvey acknowledged that Medicare refunded around $400,000 of

the tendered $619,115.82 check as “procurement costs” for her pursuing the

malpractice claim against the Hospital. Mrs. Harvey also admitted that she

authorized Tindall to file subsequent lawsuits on behalf of the Harvey Estate

against the Hospital, and that Tindall kept the Medicare refund in his law firm’s

trust account to “finish up all of this litigation.” On cross-examination, Mrs.

Harvey conceded that the only basis for her opinion about an agreement not to

address medical expenses in the arbitration proceeding was what Tindall had told

her.

       Second, counsel for the Hospital testified that there was no agreement during

the arbitration as to Mr. Harvey’s medical bills or medical expenses. Counsel for

the Hospital admitted that he included Medicare as a payee on the $619,115.82

settlement check solely to protect the Hospital’s interests as to a potential Medicare

lien. As to representations of “full repayment to Medicare” made during the

arbitration proceeding, counsel for the Hospital testified: (1) any statements he


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made were before the Harvey Estate later withdrew its claim for medical expenses

against the Hospital; and (2) at that time, before the withdrawal of the Harvey

Estate’s medical expense claim, the Hospital had expected to be a primary payer.

      At the close of Mrs. Harvey’s case-in-chief, the Hospital moved for

judgment as a matter of law because, it claimed, Mrs. Harvey presented no

evidence that the Hospital was legally obligated to pay medical expenses to the

plaintiff Mrs. Harvey, or that the Hospital had become a primary payer, and that

res judicata otherwise precluded her claim for unjust enrichment. The district court

then took the motion under advisement.

      On the second day of trial, the Hospital declined to call any witnesses and

renewed its motion for judgment as a matter of law. Mrs. Harvey moved for a

directed verdict. The district court ultimately granted the Hospital’s renewed

motion for judgment as a matter of law.

      As to the Medicare private cause of action, the district court found there was

insufficient evidence to establish that the Hospital was a payer “or primary plan by

way of a settlement or other means” or that it had “accepted responsibility to

reimburse Medicare.” Specifically, it indicated that, since “there was no judgment

establishing [the Hospital] as a primary plan” or payer, Mrs. Harvey had to

establish the Hospital had assumed such a status “by way of a settlement or by

other means.” In this regard, the district court found that Mrs. Harvey’s


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testimony—i.e., that Tindall told her about an oral agreement with the Hospital—

was not competent evidence of the Hospital’s assuming payer status by

“settlement, judgment or other means,” and thus did not give rise to liability under

the MSP statute.

      As to Mrs. Harvey’s unjust enrichment claim, the district court found there

was likewise insufficient evidence to establish that the Hospital had a legal

obligation to repay Medicare and that the claim was otherwise barred by res

judicata. The district court entered judgment in favor of the Hospital. This appeal

followed.

                               II.    DISCUSSION

      We review de novo a district court’s ruling on a renewed motion for

judgment as a matter of law. Myers v. TooJay’s Mgmt. Corp., 640 F.3d 1278,

1287 (11th Cir. 2011); Aronowitz v. Health-Chem Corp., 513 F.3d 1229, 1236–37

(11th Cir. 2008). Judgment is appropriate where the district court finds there is no

legally sufficient evidentiary basis for a reasonable jury to find for the non-moving

party. Fed. R. Civ. P. 50(a). In this analysis, we examine all evidence in the light

most favorable to the non-moving party. Aronowitz, 513 F.3d at 1236–37. The

district court entered judgment as a matter of law in favor of the Hospital on

Mrs. Harvey’s two claims. We discuss them in turn.

A.    Private Cause of Action under the MSP Statute


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       On appeal, Mrs. Harvey argues that, in agreeing to arbitrate the wrongful

death claim, the Hospital implicitly admitted liability for the medical expenses

already paid by Medicare and therefore assumed a legal responsibility to repay

Medicare. We first review the Medicare reimbursement statute and then why the

district court did not err.

       As mentioned in the background of the case, the MSP statute ensures that

Medicare does not pay for items and services that are covered by a primary plan or

other entity. Humana Med. Plan, Inc. v. W. Heritage Ins. Co., 832 F.3d 1229,

1234 (11th Cir. 2016); see 42 U.S.C. § 1395y(b)(2). Although Medicare typically

pays first, the MSP statute, in effect, makes Medicare the payer of “last resort” for

covered treatment. Humana Med. Plan, Inc., 832 F.3d at 1234.

       The statute allows Medicare to make conditional payments on behalf of a

covered patient, subject to certain mandatory reimbursement by a primary plan or

certain entities:

       a primary plan, and an entity that receives payment from a primary
       plan, shall reimburse [Medicare] for any payment made by [Medicare]
       under this subchapter with respect to an item or service if it is
       demonstrated that such primary plan has or had a responsibility to
       make payment with respect to such item or service.

42 U.S.C. § 1395y(b)(2)(B)(ii) (emphasis added). A primary plan or entity’s

responsibility for such payment may be demonstrated by “a judgment, a payment

conditioned upon the recipient’s compromise, waiver, or release . . . of payment for


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items or services included in a claim against the primary plan or the primary plan’s

insured, or by other means.” Id.

      To enforce these reimbursement rights, the MSP statute gives the federal

government, Medicare, an independent cause of action to recover double damages

in the amount of its conditional payment “against any or all entities that are or were

required or responsible . . . to make payment with respect to the same item or

service (or any portion thereof) under a primary plan,” as well as subrogation

rights for any individual or entity’s right to payment for these services under a

primary plan. Id. § 1395y(b)(2)(iii)–(iv).

      The MSP statute also grants a similar, private cause of action for double

damages where “a primary plan . . . fails to provide for primary payment.” See id.

§ 1395y(b)(3)(A). Aside from private insurers, such a failure typically occurs in

the personal injury context where a Medicare beneficiary receives a judgment or

settlement against a tortfeasor, which, when inclusive of medical expenses, triggers

a reimbursement right for Medicare to the extent of its prior conditional payment

of medical expenses. See Glover v. Liggett Grp., 459 F.3d 1304, 1309–1310 (11th

Cir. 2006). Under these circumstances, the Medicare beneficiary may then sue the

primary payer, or tortfeasor, for failing “to pay Medicare its share.” Id.; see 42

U.S.C. § 1395y(b)(3)(A). However, this claim requires the plaintiff to establish the




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“alleged tortfeasor’s responsibility for payment of a Medicare beneficiary’s

medical costs.” Glover, 459 F.3d at 1309.

      In this case, the district court correctly concluded that there was insufficient

evidence to establish the Hospital was a primary payer for purposes of the MSP

reimbursement statute. Had the Harvey Estate recovered from the Hospital

medical expenses as a part of the arbitration award, the Hospital then would have

become the primary payer for purposes of the MSP statute. See 42 U.S.C.

§ 1395y(b)(2)(B)(ii) (noting payment responsibility is demonstrable by a judgment

ordering payment for the cost of medical services); Glover, 459 F.3d at 1309–1310

(explaining how a defendant’s responsibility to pay for a Medicare beneficiary’s

medical expenses may be demonstrated by a judgment against the defendant).

The responsibility to repay Medicare was contingent upon the Harvey Estate’s

receiving a damages award against the Hospital for the medical expenses of

Mr. Harvey. But the Harvey Estate never did that.

      Indeed, the Harvey Estate agreed that the arbitration award did not cover the

medical expenses of Mr. Harvey. Notably, Medicare had paid not just $186,232.95

to the Hospital but also paid $432,882.87 to other health care providers, for a total

of $619,115.82. There has never been a judgment entered against the Hospital for

any of those medical expenses of Mr. Harvey.




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      In the absence of that, Mrs. Harvey was required to prove that the Hospital

(1) voluntarily assumed legal responsibility as the primary payer for Mr. Harvey’s

medical expenses or (2) agreed to be liable for medical expenses and sought to

address the amount in another forum. However, the trial evidence shows the

Hospital never assumed that payment obligation.

      First, counsel for the Hospital explicitly testified that there was no such

agreement or promise.

      Second, even Mrs. Harvey could testify only that Tindall told her about an

oral agreement with the Hospital that medical expenses would not be included in

the arbitration proceeding, but would be addressed in a separate action. On cross-

examination, Mrs. Harvey admitted that her only basis for this opinion was what

Tindall told her. In any event, Tindall filed several separate lawsuits against the

Hospital but prevailed in none of them. Mrs. Harvey presented no evidence of an

agreement with the Hospital to pay Mr. Harvey’s medical expenses or any state

court or other judgment against the Hospital for Mr. Harvey’s medical expenses.

      At trial, Mrs. Harvey’s counsel was left to point to the Hospital’s statement

in an opposition brief before the arbitration panel that it intended “to ensure that

full repayment is made to the Medicare program at the conclusion of this

proceeding.” However, at trial, counsel for the Hospital testified that this

statement was made before the Harvey Estate withdrew from the arbitration its


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claim for medical expenses. This testimony by counsel was never contradicted.

In any event, at the conclusion of the proceeding, the arbitration award noted that

the Harvey Estate had withdrawn its claim seeking Medicare reimbursement and

that neither party presented evidence “as to any medical expenses of any nature

whatsoever.” At bottom, based on the evidence at trial, Mrs. Harvey has shown no

error in the district court’s entry of judgment in favor of the Hospital on her

Medicare private cause of action.3

B.     Unjust Enrichment under Florida Law

       Mrs. Harvey similarly contends that her tendering the $619,115.82

settlement check to Medicare unjustly enriched the Hospital. For the following

reasons, we disagree.

       To state a claim for unjust enrichment under Florida law, a plaintiff must

show: (1) it has conferred a benefit on the defendant; (2) the defendant voluntarily

accepted and retained that benefit; and (3) the circumstances are such that it would

be inequitable for the defendants to retain the benefit without paying the value

thereof. Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1337 (11th Cir. 2012)

(citations omitted); see Am. Safety Ins. Serv., Inc. v. Griggs, 959 So. 2d 322, 331

(Fla. Dist. Ct. App. 2007) (separating “knowledge of the benefit” as a separate

       3
        While the parties do not raise this issue, we note that the Harvey Estate, not Mrs.
Harvey, had the claim for the medical expenses of Mr. Harvey. Thus, there seems to be a
threshold issue of whether Mrs. Harvey or the Harvey Estate is the proper plaintiff in any event.
Because the parties do not raise or address that issue, neither do we.
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legal element and noting that “unjust enrichment is an action at law, not in

equity”). As to the first element, the plaintiff must show it “directly conferred” a

benefit on the defendant. Griggs, 959 So. 2d at 331; see Extraordinary Title Servs.,

LLC v. Fla. Power & Light Co., 1 So. 3d 400, 404 (Fla. Dist. Ct. App. 2009).

      Here, the district court properly concluded that Mrs. Harvey failed to present

sufficient evidence for a jury to conclude that she conferred a “direct” benefit on

the Hospital. As discussed above, the record evidence did not establish any

agreement by the Hospital to pay Mr. Harvey’s medical expenses. Without

demonstrating that the Hospital had a legal responsibility to pay Mr. Harvey’s

medical expenses, Mrs. Harvey cannot show that she conferred a benefit on the

Hospital by her reimbursing Medicare for those expenses. See also Virgilio, 680

F.3d at 1337 (finding no benefit conferred where the defendant was not a party to

the plaintiffs’ service contract with an intermediary); Extraordinary Title Servs.,

LLC, 1 So. 3d at 404 (finding no direct benefit was conferred on parent company

where the plaintiff contracted with and paid a subsidiary). As it stands, Medicare

was the only beneficiary of this transaction. For the same reasons the Hospital did

not assume responsibility under the MSP statute, it had no payment obligation

upon which Mrs. Harvey could confer a benefit. Thus, we affirm the district

court’s judgment on this ground as well.




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       Because we affirm the district court’s conclusion on the merits, we need not

decide whether the doctrine of res judicata applied to Mrs. Harvey’s claim for

unjust enrichment. See Rowe v. Schreiber, 139 F.3d 1381, 1382 n.2 (11th Cir.

1998) (“We may affirm a decision on any adequate grounds . . . .”). 4

                                 III.   CONCLUSION

       In conclusion, we affirm the district court’s grant of judgment as a matter of

law on behalf of the Hospital as to both Mrs. Harvey’s private cause of action

under the MSP statute and her unjust enrichment claim under Florida law.

       AFFIRMED.




       4
        We reject Mrs. Harvey’s argument that the Hospital was required to exhaust
administrative remedies with the Department of Health and Human Services (“H&HS”) before it
could even defend itself in this case. Administrative exhaustion requirements of the Social
Security Act may apply when a party brings a lawsuit against Medicare through H&HS. See
Cochran, 291 F.3d at 779 (affirming district court’s dismissal of an action against Medicare
where the claimant failed to exhaust administrative remedies). Here, however, Mrs. Harvey is
not suing Medicare or challenging a determination by Medicare, nor is the Hospital.
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