       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 02, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-983
                         Lower Tribunal No. 14-17569
                             ________________


         La Ley Recovery Systems-OB, Inc., a/a/o Dr. Olivio
                           Blanco, Jr.,
                                    Appellant,

                                        vs.

                United Healthcare Insurance Company,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Bronwyn C.
Miller, Judge.

      Law Offices of La Ley con John H. Ruiz, P.A., and John H. Ruiz, Timothy
J. Van Name, and Christine M. Lugo, for appellant.

     GrayRobinson, P.A., and Daniel Alter, Shari Gerson, Jeffrey T. Kuntz, Evan
D. Appell, and Shayna Freyman (Fort Lauderdale), for appellee.


Before ROTHENBERG, EMAS, and FERNANDEZ, JJ.

      ROTHENBERG, J.
      The plaintiff, La Ley Recovery Systems-OB, Inc., a/a/o Dr. Olivio Blanco,

Jr. (“La Ley”), appeals an order dismissing with prejudice its amended complaint

filed against United Healthcare Insurance Company (“United”).            We affirm

because (1) the health plan clearly provides that United will not reimburse third

parties, such as La Ley, that have been assigned benefits by a provider, and (2) La

Ley’s state-law claims, which “relate to” a health plan governed by the Employee

Retirement Income Security Act of 1974 (“ERISA”), are defensively preempted

under section 514(a) of ERISA.

      La Ley filed an amended complaint against United asserting that Dr. Olivio

Blanco, Jr. (“Dr. Olivio”) provided services to a patient insured under United’s

health plan. Prior to providing services to the patient, Dr. Blanco contacted United

to verify coverage, and United expressly and impliedly represented to Dr. Blanco

that the services were covered and that United would fully compensate Dr. Blanco

for the services according to the pre-established rate of payment. After treating the

patient, Dr. Blanco submitted the claims to United, but United failed to fully

compensate Dr. Blanco. Thereafter, Dr. Blanco assigned his claims to La Ley.

Based on these allegations, La Ley asserted six state-law claims against United—

negligent misrepresentation, fraudulent misrepresentation, fraud in the inducement,

breach of oral agreement, breach of implied contract in fact, promissory estoppel,

and unjust enrichment.



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      United moved to dismiss La Ley’s amended complaint on two primary

grounds. First, United argued that La Ley does not have standing to bring the

action because the health plan does not permit assignments to third parties based

on the following provision:

      Payment of Benefits
      If a Subscriber provides written authorization to allow this, all or a
      portion of any Eligible Expenses due to a provider may be paid
      directly to the provider instead of being paid to the Subscriber. But
      we will not reimburse third parties that have purchased or been
      assigned benefits by Physicians or other providers.

(Emphasis added) (hereinafter referred to as “the payment of benefits provision”).

Second, United argued that even if La Ley had standing, La Ley’s state-law claims

are defensively preempted under section 514(a) of ERISA because all of La Ley’s

claims “relate to” an ERISA-governed health plan.

      Following a hearing on United’s motion to dismiss La Ley’s amended

complaint, the trial court granted the motion to dismiss with prejudice based on the

payment of benefits provision in the health plan and defensive preemption. This

appeal followed.

      In the instant case, Dr. Blanco allegedly assigned his rights to collect any

unpaid benefits due from United to La Ley. Although the health plan specifically

states that United “will not reimburse third parties that have purchased or been

assigned benefits by Physicians or other providers,” La Ley contends that the



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payment of benefits provision in the health plan is ambiguous, and therefore, not

enforceable. We disagree. The payment of benefits provision is not ambiguous

because it is not “susceptible to more than one reasonable interpretation.” State

Farm Mut. Auto. Ins. Co. v. Menendez, 70 So. 3d 566, 570 (Fla. 2011) (internal

quotations omitted).   Although the payment of benefits provision permits a

subscriber to assign benefits to the provider upon written authorization, the

provision specifically precludes the physician or other provider from further

assigning the benefits to third parties, such as La Ley. Therefore, the trial court

correctly dismissed with prejudice La Ley’s amended complaint. See Kohl v. Blue

Cross & Blue Shield of Fla., Inc., 955 So. 2d 1140, 1143 (Fla. 4th DCA 2007)

(holding that a court may enforce insurance policy provisions that clearly and

unambiguously preclude assignment).

      Although the order dismissing the amended complaint with prejudice can be

affirmed based solely on the application of the payment of benefits provision, we

briefly address and reject La Ley’s contention that its state-law claims are not

defensively preempted by ERISA.           “[D]efensive preemption provides an

affirmative defense to certain state law claims and calls for their dismissal where

the state claim ‘relates’ to an ERISA plan.” Bertoni v. Stock Bldg. Supply, 989

So. 2d 670, 674 (Fla. 4th DCA 2008); see also Villazon v. Prudential Health Care

Plan, Inc., 843 So. 2d 842 (Fla. 2003) (holding that “[i]f a claim relates to the



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manner in which the ERISA plan is administered, ERISA preempts the claim”)

(quoting Villazon v. Prudential Health Care Plan, Inc., 794 So. 2d 625, 627 (Fla.

3d DCA 2001)). “This defensive preemption doctrine and its ‘relates to’ standard

originate from ERISA’s express preemption provision, 29 U.S.C. § 1144(a).”1

Bertoni, 989 So. 2d at 674.

      In the instant case, La Ley does not dispute that the health plan involved in

this case is an ERISA-governed plan. Further, a review of La Ley’s amended

complaint clearly reflects that the state-law claims “relate to” an ERISA-governed

plan. In the amended complaint, La Ley alleges that Dr. Blanco’s patient was

covered under United’s health plan; prior to providing services to the patient, Dr.

Blanco contacted United to verify coverage; United informed Dr. Blanco that the

patient was covered under the health plan; and United represented to Dr. Blanco

that United would fully compensate Dr. Blanco, but United failed to do so. Based

on these allegations, there is no doubt that La Ley’s state-law claims “relate to” the

ERISA-governed health plan because Dr. Blanco’s act of confirming coverage and
1 29 U.S.C. § 1144(a) provides:



      (a) Supersedure; effective date

      Except as provided in subsection (b) of this section, the provisions of
      this subchapter and subchapter III of this chapter shall supersede any
      and all State laws insofar as they may now or hereafter relate to any
      employee benefit plan described in section 1003(a) of this title and not
      exempt under section 1003(b) of this title. This section shall take
      effect on January 1, 1975.


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seeking payment under the plan is a by-product of the plan and its provisions.

Accordingly, we conclude that the trial court properly determined that La Ley’s

state-law claims are defensively preempted.

      Based on our determinations as to these issues, we find it unnecessary to

address the third ground the trial court relied on in dismissing the amended

complaint with prejudice.

      Affirmed.




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