          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                   CAREFIRST OF MARYLAND, INC.,
                            Appellant,

                                     v.

            RECOVERY VILLAGE AT UMATILLA, LLC., et al.,
                           Appellees.

                              No. 4D17-2247

                              [May 23, 2018]


  Appeal of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Jack B. Tuter, Judge; L.T. Case No. 15
008975 CACE (07).

  Daniel L. Wallach of Becker & Poliakoff, Fort Lauderdale, Patrick de
Gravelles, Washington, DC, and Anthony F. Shelley of Miller & Chevalier
Chartered, Washington, DC, for appellant.

   Glenn J. Waldman of Waldman Trigoboff Hildebrandt & Calnan, P.A.,
Fort Lauderdale, for appellees.

MAY, J.

    Personal jurisdiction is contested in this appeal from an order denying
a motion to dismiss a second amended complaint. Appellant Carefirst
(“the defendant”) argues the trial court erred in finding specific personal
jurisdiction over it. We agree and reverse.

    The defendant is a Maryland-based insurance company that sells
health insurance policies to Maryland residents and Maryland companies
that may have employees outside of Maryland. It is a licensee of Blue
Cross and participates in the Blue Card Program, which allows members
to receive treatment nationwide while allowing the defendant to charge the
in-state discounted rates that Blue Cross uses in that state. See St. Luke’s
Episcopal Hosp. v. La. Health Serv. & Indem. Co., No. H-08-1870, 2009 WL
47125, *7 (S.D. Tex. Jan. 6, 2009). It also offers plans with out-of-network
benefits at higher premiums.
    The defendant does not own property in Florida, maintains no office in
Florida, and does not advertise in the state. But, its customers can access
a list of Florida providers on their website that directs them to Blue Cross’s
National Doctor and Hospital Finder through a link to the defendant as a
licensee.

   The defendant contracts with Florida Blue for Florida Blue to pay the
health care providers, such as the plaintiff, a scheduled price determined
by Florida Blue through the Blue Card program. The defendant then
reimburses Florida Blue for paying the provider on its behalf. Appellee
Recovery Village (“the plaintiff”) is unable to contract directly with the
defendant; it must contract with Florida Blue. The plaintiff is not in the
Florida Blue network and allegedly did not agree to accept anything less
than the full price for its services.

    Between January 2014 and the present, eight of the defendant’s
members (all residents of Maryland) received treatment from the plaintiff,
a Florida-based substance abuse and eating disorder facility. The plaintiff
alleges that before providing services to the defendant’s members, it
contacted the defendant to verify their eligibility under their respective
insurance policies. The defendant, or its agent, Magellan Healthcare,
preauthorized treatment for three members.

   The parties disagree about how the contact happened. The defendant
argues the system is almost completely automated, and it is unlikely that
any “person” approved the treatment. The plaintiff claims that it called
the defendant multiple times for each member to get approval at various
stages of treatment. The plaintiff also alleges the defendant initiated
phone calls to it on several occasions.

   In May 2015, the plaintiff filed suit against numerous defendants
participating in the Blue Card Program, including the defendant, for
underpayment on contracts. In February 2016, the plaintiff filed its first
amended complaint for: (1) breach of express contract; (2) breach of
implied-in-fact contract; (3) breach of implied-in-law contract; and (4) civil
conspiracy.

   The defendant moved to dismiss, arguing the first amended complaint
did not allege sufficient grounds for specific personal jurisdiction. The trial
court granted the defendant’s motion. The court indicated the motion and
appended affidavit were sufficient to rebut the plaintiff’s prima facie
jurisdictional claim.

   The plaintiff then filed a second amended complaint, adding a

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description of the relationship between the defendant and Florida Blue
that allegedly constituted minimum contacts sufficient to establish
specific jurisdiction. The added allegations outlined the above-described
relationship. It also alleged the defendant determined the amount of
Florida Blue’s payment to providers.

   The defendant again moved to dismiss. It attached affidavits refuting
that it intentionally advertised in Florida through its website and that it
had control over what Florida Blue pays the plaintiff. The plaintiff
responded and appended affidavits to rebut the defendant’s affidavits.

    The plaintiff’s affiant attested that the defendant contracts with the
plaintiff by preauthorizing treatment either directly or through its agent,
Magellan. The plaintiff contacts the defendant for approval at each stage
of patient care. He attested that treatment would not have been possible
if the defendant had not preauthorized and approved treatment. He also
attested the defendant advertised in Florida through its website, which
links to Blue Cross’s National Doctor and Hospital Finder website.

   After a limited evidentiary hearing on the conflicting affidavits, the trial
court denied the defendant’s motion.          It found the plaintiff had
successfully established specific jurisdiction.        The defendant now
appeals. 1

   It argues: (1) the trial court used the wrong analysis for personal
jurisdiction; (2) it was the plaintiff, not the defendant, that intentionally
established contact; and (3) it would be unreasonable to exercise
jurisdiction over the defendant for its insured’s “fortuitous” choice to
obtain services in Florida.

   We have de novo review of an order denying a motion to dismiss for lack
of personal jurisdiction. Hamilton v. Hamilton, 142 So. 3d 969, 971 (Fla.
4th DCA 2014).

   To find that an out-of-state defendant is subject to specific personal
jurisdiction, a court must determine that the defendant is subject to
Florida’s long-arm statute and has sufficient minimum contacts with the
state to satisfy the Fourteenth Amendment’s due process requirements.
Kitroser v. Hurt, 85 So. 3d 1084, 1087 (Fla. 2012). Here, the defendant
concedes application of the long-arm statute, and restricts its argument to

1 The defendant challenged long-arm jurisdiction for the conspiracy claim, but
the plaintiff indicated in its answer brief that it would be dismissing the
conspiracy claim, mooting that portion of the appeal.

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the defendant’s lack of minimum contacts to satisfy due process.

    First, the defendant argues the trial court used the wrong test in
evaluating the existence of minimum contacts. It suggests the trial court
relied on whether the defendant could “foresee” being hauled into court in
Florida, rather than whether it purposefully availed itself of the benefits of
Florida law through action directed at the forum state. Next, it argues that
even if the trial court had applied the correct test, it incorrectly found the
defendant had sufficient minimum contacts with Florida based on the
facts of the case. 2

   The plaintiff responds that the trial court used the correct test in
evaluating minimum contacts. It maintains that, using that test, the trial
court correctly found sufficient minimum contacts to allow Florida to have
specific jurisdiction over the defendant.

   The foreseeability test has consistently been rejected by the United
States Supreme Court. See, e.g., Bristol-Myers Squibb Co. v. Superior Court
of Cal., San Francisco Cty., 137 S. Ct. 1773 (2017); Walden v. Fiore, 134 S.
Ct. 1115 (2014); J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011).
And, both parties seem to agree on one thing: purposeful availment of the
benefits of Florida law through action directed at Florida is the correct test
to apply. That being said, they do not agree on whether the facts support
the existence of minimum contacts under that test.

   Our supreme court has held there is no specific jurisdiction where an
insurer—offering national coverage—and an insured are residents of a
foreign state and the insurer’s only contact with Florida is a result of the
insured’s unilateral actions—getting into an accident in Florida. Meyer v.
Auto Club Ins. Ass’n, 492 So. 2d 1314, 1315 (Fla. 1986).

   In Meyer, the insurer offered national coverage to its customers, but
did not directly reach out to Florida nor did it direct its customers to
Florida. Id.; cf. Dollar Sys., Inc. v. Elvia, 863 So. 2d 378, 380-81 (Fla. 4th
DCA 2003) (distinguishing Meyer from a foreign insurance company that
provided insurance for tourists vacationing in Florida, and finding specific
jurisdiction in the latter).

2 The defendant also argues the trial court found personal jurisdiction because it
advertised as a national network. While the court discussed the defendant’s
national scope, it ultimately decided “[the defendant] could reasonably anticipate
being [hauled] into a Florida court . . . as a result of its members receiving
treatment from [the plaintiff] that was preauthorized by [the defendant].”


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   Here, the defendant’s website linked to Blue Cross’s website, which
directed patients to Florida providers. But, the plaintiff was not a listed
provider in Blue Cross’s network. And, neither the defendant nor anyone
on its behalf directed the patient to the plaintiff provider.

   “The unilateral activity of those who claim a relationship with a
nonresident defendant cannot satisfy the requirement of [the
nonresident’s] contact with the forum state.” Hanson v. Denckla, 357 U.S.
235, 253 (1958). There must “be some act by which the defendant
purposefully avail[ed] itself of the privilege of conducting activities within
the forum State[.]” Id. “This ‘purposeful availment’ requirement ensures
that a defendant will not be haled into a jurisdiction solely as a result of
‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts, or of the ‘unilateral activity
of another party or third person.’” Burger King Corp. v. Rudzewicz, 471
U.S. 462, 475 (1985) (citations omitted).

   Here, the defendant’s contact with the plaintiff was based on its
customers’ unilateral decision to seek treatment in Florida.
Correspondence with out-of-state providers resulting from a customer’s
unilateral move is not enough to establish specific jurisdiction over a
foreign defendant-insurer. See, e.g., Whittaker v. Med. Mut. of Ohio, 96 F.
Supp. 2d 1197, 1201 (D. Kan. 2000) (“[An Ohio insurance company]
sending payment, notice of nonpayment, and other communications into
Kansas, as a result of plaintiff’s move to Kansas, are not legally sufficient
to establish specific jurisdiction.”).

   The trial court relied on Blue Cross and Blue Shield of Del. v. Nat’l
Alcoholism Programs/Cooper City, Fla., Inc., 648 So. 2d 231 (Fla. 4th DCA
1994) (“Blue Cross”), in discussing the defendant’s pre-certification and
payments to the plaintiff as a basis for finding minimum contacts.
Significantly, the holding in Blue Cross was limited to the need for an
evidentiary hearing when conflicting affidavits are filed. Id. at 234. And,
in that case, the out-of-state patient’s in-network doctor “referred the
patient” to the Florida provider, and Blue Cross directed a Florida
corporation to pre-certify the patient’s treatment. Id. at 232-33. The
provider in Blue Cross was an in-network provider. Id.

   Here, the trial court conducted the requisite evidentiary hearing.
Neither the defendant nor anyone connected to the defendant referred the
patient to the plaintiff, and the defendant did not direct the plaintiff to get
pre-certification from a Florida corporation. Unlike the provider in Blue
Cross, the plaintiff does not participate in Blue Cross’s network.


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   Nevertheless, the plaintiff depicts Florida Blue as the defendant’s
Florida agent and claims their relationship is enough to support personal
jurisdiction. But, the defendant’s relationship is closer to that of the
insurer in Whittaker, 96 F. Supp. 2d at 1201 (providing that the Ohio
insurer used Blue Cross of Kansas to process claims of one of its Ohio
customers who had moved to Kansas). There, the court held the foreign
jurisdiction lacked jurisdiction over the out-of-state insurer.

   The trial court erred in finding specific personal jurisdiction over the
defendant under the facts of this case. We therefore reverse and remand
to the trial court to dismiss the case against the defendant for lack of
personal jurisdiction.

   Reversed and remanded.

WARNER and FORST, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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