Document for Ambitrans Medical Transport Inc Plaintiff vs. Sunshine State Health Plan Inc Defendant

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                                Filing # 110239479 E-Filed 07/14/2020 05:33:51 PM

IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA

AMBITRANS MEDICAL TRANSPORT, INC.,
a Florida Corporation,

Plaintiff,
v. CASE NO.: CACE-20-001199 (12)

SUNSHINE STATE HEALTH PLAN, INC.,
a Florida corporation, d/b/a SUNSHINE HEALTH,

Defendant.
/

DEFENDANT SUNSHINE STATE HEALTH PLAN, INC.’S MOTION TO DISMISS
AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM

Defendant Sunshine State Health Plan, Inc. (“Sunshine Health”), through undersigned
counsel and pursuant to Florida Rule of Civil Procedure 1.140(b)(3), moves to dismiss Count III
(open account) and Count IV (declaratory judgment) of the Amended Complaint filed by
Plaintiff Ambitrans Medical Transport, Inc. (“Plaintiff”) for failure to state a claim.'

INTRODUCTION

On May 20, 2020, the Court held a hearing on Sunshine Health’s Motion to Dismiss and

entered an order dismissing Plaintiff's Complaint, holding that Count III for Open Account and

Count IV for Declaratory Judgment failed to state a cause of action. See May 20, 2020 Hrg. Tr.

7 While this motion does not seek dismissal of the Counts I and II, Sunshine Health

reserves the right to challenge those claims and any other claim that may survive the instant
motion at the appropriate time. Fla. R. Civ. P. 1.140(a)(3) (stating that “service of a motion
under this rule” postpones the deadline for responsive pleading to 10 days after the motion is
resolved); see also Guice v. Brennan, 8:15-CV-2846-T-MAP, 2017 WL 11459500, at *2 (M.D.
Fla. Jan. 19, 2017) (collecting cases holding that defendant’s timely motion to dismiss an
amended complaint suspends the defendant’s obligation to answer until that motion is resolved);
Ferk v. Mitchell, 14-CV-21916, 2014 WL 7369646, at *1 (S.D. Fla. Dec. 29, 2014); Beaulieu v.
Bd. Of Trustees of Univ. of W. Fla., Case No. 3:07—-cv—30, 2007 WL 2020161, *2 (N.D. Fla. July
9, 2007).

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/14/2020 05:33:51 PM.****attached hereto as Exhibit 1. Yet, on June 9, 2020, Plaintiff filed an Amended Complaint re-
asserting Counts III and IV as the very same claims for Open Account and Declaratory Judgment
that the Court had just dismissed. See redline comparison of Amended Complaint attached
hereto as Exhibit 2. These counts should be dismissed once again because Plaintiff's amendment
has not remedied the deficiencies that led the Court to dismiss them just weeks ago for failure to
state a cause of action. Plaintiff's Count III for open account still fails because Plaintiff fails to
allege that it had a contract or agreement with Sunshine Health to pay its charges at the rates
Plaintiff billed. Plaintiff's Count IV likewise should be dismissed again because it remains
impermissibly duplicative of Plaintiff's remaining claims. For all these reasons, Counts III and
IV of Plaintiff's Amended Complaint should be dismissed.
MEMORANDUM OF LAW

I. Plaintiff’s Claim for Open Account Should Be Dismissed

Count III of Plaintiff's Complaint alleges a claim for “open account.” In Florida, an
“open account” should “refer to an unsettled debt, arising from items of work or labor, goods
sold and other open transactions not reduced to writing... .” H & H Design Builders, Inc. v.
Travelers’ Indem. Co., 639 So. 2d 697, 700 (Fla. 5th DCA 1994). To state a claim for open
account, Plaintiff must allege: “(1) a sales [or services] contract between a creditor and debtor;
(2) where the amount claimed by the creditor represents either the reasonable value of the goods
delivered or an agreed upon sales price; and (3) the goods [or services] were actually
delivered.” Alpina Productos Alimenticios, S.A. v. Logistic All., Inc., 12-23549-CIV, 2013 WL
12120519, at *4 (S.D. Fla. Apr. 16, 2013), report and recommendation adopted, 12-23549-CIV,
2013 WL 12121510 (S.D. Fla. May 8, 2013) (citing Evans v. Delro Indus., Inc., 509 So. 2d 1262,

1263 (Fla. Ist DCA 1987)).Plaintiff has not remedied the deficiencies identified in the May 20, 2020 hearing.
Plaintiff fails to allege the first element in a claim for Open Account, which is a contract between
the parties. Plaintiff's Amended Complaint still does not dispute that there is no contract
between these parties, and Plaintiff's own spreadsheet appended to the Amended Complaint
shows there was never any agreement between the parties as to the rate of reimbursement that
Plaintiff billed and that it demands in this lawsuit. Plaintiff's cosmetic changes to this count do
not cure the problems that resulted in this Court dismissing the count just weeks ago. For these
reasons, Count III for open account should again be dismissed.

I. Plaintiff’s Claim for Declaratory Judgment Should Be Dismissed

Count IV of Plaintiff's Amended Complaint seeks a declaratory judgment regarding the
“methodology for calculating claims for mileage”, for ambulance services claimed by Plaintiff.
Compl. {J 48-57. This claim remains impermissibly duplicative of the other three counts in
Plaintiff's Amended Complaint. Each of the other counts in Plaintiff's Complaint, including
Count I (for quantum meruit), Count II (unjust enrichment), and Count III (open account), all
raise the same issues and would require the Court to answer the same questions regarding, if
Sunshine Health is found liable for such claims, then in what amount is it liable. Compl. fff 1-
47. Plaintiffs count for declaratory judgment is thus wholly duplicative of its other counts, and
should be dismissed. See, e.g., Regency of Palm Beach, Inc. v. QBE Ins. Corp., No. 08-81442-
CIV, 2009 WL 2729954 (S.D. Fla. Aug. 25, 2009) (dismissing request for relief under Florida
Declaratory Judgments Act as “duplicitous [sic] of the relief sought in Regency’s breach of
contract counts” because “asking the Court to determine whether the Contract has been breached
and if so, to judicially declare the amount of damages” is “an inappropriate prayer for relief in a
cause for declaratory relief”); see also Fernando Grinberg Trust Success Int. Props. LLC v.
Scottsdale Ins. Co., No. 10-20448-CIV, 2010 WL 2510662, at *1 (S.D. Fla. June 21, 2010) (“[A]

3trial court should not entertain an action for declaratory judgment on issues which are properly
raised in other counts of the pleadings and already before the court, through which the plaintiff
will be able to secure full, adequate and complete relief.”) (quoting Mclntosh v. Harbour Club
Villas, 468 So. 2d 1075, 1080-81 (Fla. DCA 1985) (Nesbitt, J., specially concurring)).
CONCLUSION

For the foregoing reasons, the Court should enter an Order dismissing this action for
Counts III and IV of Plaintiff's Complaint for failure to state a claim.
Dated: July 14, 2020 Respectfully submitted,

HOGAN LOVELLS, US LLP
600 Brickell Ave., Suite 2700
Miami, FL 33131

Telephone: (305) 459-6500
Facsimile: (305) 459-6550

Allen P. Pegg, Esq.

Florida Bar Number: 597821

Allen. Pegg@hoganlovells.com

Craig H. Smith, Esq.

Florida Bar Number: 96598
Craig.Smith@hoganlovells.com

Florida Bar Board Certified — Health Law
James L. VanLandingham, Esq.

Florida Bar Number: 106761

James. Vanlandingham@hoganlovells.com
Gladys.Cata@hoganlovells.com

By-/s/_ Craig H. Smith
Craig H. Smith

Counsel for Sunshine State Health Plan, Inc.CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
this 14th day of July, 2020, via Florida’s E-portal electronic filing system to:

David T. Oliver, Esq.
MCCRORY LAW FIRM, PL
309 Tamiami Trail

Punta Gorda, Florida 33950
Telephone: (941) 205-1122
David@mcecrorylaw.com
Susan@mcecrorylaw.com

/s/ Craig H. SmithEXHIBIT 1Page 1

1 IN THE CIRCUIT COURT
OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO. CACE20001199
AMBITRANS MEDICAL TRANSPORT, INC.,
a Florida corporation,

Plaintiff,

vs.

SUNSHINE STATE HEALTH PLAN, INC.
8 a Florida corporation,
d/b/a SUNSHINE HEALTH,

Defendant.
10 /
11 Virtual Hearing
Wednesday, 11:47 a.m. - 12:11 p.m.
12 May 20th, 2020
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22 This cause came on for hearing before the Honorable
23 Keathan Frink, Circuit Court Judge, via videoconference,
24 pursuant to notice.
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APPEARANCES:
ATTORNEY FOR PLAINTIFF

DAVID T. OLIVER, ESQUIRE

david@mecrorylaw.com

MCCRORY LAW FIRM, PL

309 Tamiami Trail

Punta Gorda, Florida 33950.

(941)205-1122

(Appearing via videoconference)

ATTORNEY FOR DEFENDANT
JAMES LEO VANLANDINGHAM, ESQUIRE
james. vanlandingham@hoganlovells.com
HOGAN LOVELLS US, LLP.

600 Brickell Avenue

Suite 2700

Miami, Florida 33131
(305)459-6658

(Appearing via videoconference)

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Thereupon:

THE COURT: Ambitrans Medical Transport versus
Sunshine State Health,

MR. OLIVER: Good moming, Your Honor.

MR. VANLANDINGHAM: Good morning, Your Honor.

THE COURT: Good moming.

This is CACE20001199, Ambitrans versus,
Sunshine State Health Plan.

Counsel for plaintiff please state your
appearance.

MR. OLIVER: I'm sorry, your Honor. David
Oliver on behalf of the plaintiff, Ambitrans
Medical Transport, Inc.

THE COURT: And Defense.

MR. VANLANDINGHAM: James Vanlandingham on
behalf of defendant, Sunshine State Health Plan,

THE COURT: Spell your last name for me.

MR. VANLANDINGHAM: Yes, Your Honor.
V-A-N-L-A-N-D-I-N-G-H-A-M. It's long, but it's
spelled just Vanlandingham.

THE COURT: Okay. You guys brought this ease
over to -- had this case sent to Broward County.

MR. VANLANDINGHAM: Yes, Your Honor. It had
previously been filed in Charlotte County where the
court dismissed for venue and transferred here.

 

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So with respect defendant's motion to dismiss
today, out argument is limited only to the
challenges to plaintiff's four counts for whether
they state a claim,

THE COURT: Yes, sir. All right. I've read
the motion and the Complaint. Go ahead.

MR. VANLANDINGHAM: Yes, Your Honor.

So defendant Sunshine is a Medicaid managed
care plan, and Sunshine has a managed care contract
with the State of Florida, the Agency for
Healthcare Administration, to arrange for the
provision of Medicaid covered services for enrolled
Florida Medicaid recipients.

Plaintiff here operates a medical
transportation service and it alleges that Sunshine
is liable for certain emergency services as opposed
to nonemergency services. Plaintiff doesn't
dispute that it actually was paid by Sunshine for
virtually all of these trips, but it's seeking to
recover additional amounts to recover its
full-billed charges for these services in the
amount of around $115,000.

Now, to be clear, Your Honor, there is no
contract between plaintiff and Sunshine at all, let
alone one that would entitle the plaintiff to its

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full-billed charges. So what plaintiff has done
here is put together four quasi contractual claims
for quantum meruit, unjust enrichment, for account
and declaratory judgment.

And one problem common to all these counts,
Your Honor, is that the Florida Statutes expressly
set what is the appropriate reimbursement amount
for Medicaid claims such as the plaintiffs, and
this is that such services should be reimbursed at
arate no greater than the Medicaid rates set by
the State.

There is the Florida Statute Section
409.9128(5) which provides that reimbursement for
emergency services provided to an enrollee in a
Medicaid managed care plan by a provider who has no
contract with the plan shall not exceed the
Medicaid rate.

I don't think the plaintiff intends to dispute
that that provision applies here, but I'll let
Plaintiff's counsel address that in his response.

But one issue common to all of these accounts is
that nowhere in the Complaint does plaintiff
specifically allege that its billed charges as
reflected in the Exhibit A spreadsheet don't exceed.
the Medicaid rate. Plaintiff simply demands its

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full-billed charges.

So at a minimum we have that the plaintiff be
required to amend to allege that its charges it's
seeking to recover do not exceed the amount allowed
by the Medicaid program.

To briefly address each of the four counts,
plaintiff's first count is for quantum meruit. And
in the Tooltrend case cited in our motion, Your
Honor, the 11th Circuit Court of Appeals described
quantum meruit under Florida law, "As an implied in
fact contract in which the parties have in fact
entered into an agreement but without sufficient
clarity, so a fact finder must examine and
interpret the parties’ conduct to give definition
to the unspoken agreement."

And there's three problems with count one,
Your Honor. First of all, the allegations are
conclusory and don't describe the conduct creating
any alleged agreement. The relevant paragraphs
allege the plaintiff billed for the services and
Sunshine did not pay plaintiff's full-billed
charges.

And, second, those allegations establish that
the parties never had any noncontractual
understanding that Sunshine Health would pay

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plaintiff's full-billed charges. There's no
agreement as to the rate of the payment alleged;
that the claims at issue -- according to
paragraph 21 of the Complaint, the claims at issue
span from October 2nd, 2015 through July 31st,
2019.

But there is no allegation there that Sunshine
Health ever changed its claims processing practices
in an unexpected manner or that it was previously
paying Sunshine -- or for the plaintiffs
full-billed charges and had some kind of implicit
understanding that it would do so and then changed
to stop paying that. There's no allegation like
that in the Complaint, Your Honor.

And, third, nowhere in this count does
plaintiff allege that its charges do not exceed the
Medicaid rate. Instead at paragraphs 22 and 23 and
25, the plaintiffs allegation is that the billed
charges simply are "reasonable compensation."

Moving on to count two, unjust enrichment, our
motion cited three cases in which the U.S. district
judges in Florida dismissed similar claims in 2004,
2013 and 2015 by ruling that a provider of medical
services to an insured does not confer a direct
benefit to the insurer.

 

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In its Response plaintiff cites a case from
the Fourth District Court of Appeal, the Merkle
case, in which the Fourth DCA did allow such a
claim to proceed past a motion to dismiss, although
the allegations that the provided services directly
benefit the insurer are obviously still subject to
evidence and proof.

Your Honor, the Merkle case was not a Medicaid
case. Here, in contrast, plaintiff's allegation
that it's owed its full-billed charges is
necessarily limited by statute subject to the
limitation that it does not -- that the charges
don't exceed the Florida Medicaid rate. And,
again, here in paragraphs 33 and 34, this count
simply alleges that the billed charges were
reasonable compensation.

So if the unjust enrichment claim is allowed
to proceed, we'd ask that Your Honor order the
plaintiffs to allege that its billed charges do not
exceed the state Medicaid rate.

THE COURT: Well, in paragraph 36 he has the
amount that he claims to Sunshine has been unjustly
enriched.

MR. VANLANDINGHAM: Yes, that's the
allegation, Your Honor, and that's the amount

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that’s reflected in the Exhibit A spreadsheet. But
that is based on plaintiff's full-billed charges.
and there's just not an allegation in this count
that that amount that he's being unjustly enriched
by is no greater than the Florida Medicaid rate
which would control what this statutory
reimbursement is for these services.

THE COURT: Okay.

MR. VANLANDINGHAM: Okay. Moving on quickly
to plaintiff's claim for account. If Your Honor
looks at count three of the Complaint, there is
virtually no allegations here other than that the
defendant owes the amount due in the Exhibit A
spreadsheet.

Now, to state a claim for open account,
plaintiff must allege as element one: A contract
between a creditor and a debtor;

Two, where the amount claimed represents
either the reasonable value of the goods delivered
or an agreed-upon sales price;

And three, that the goods or services were
actually delivered.

That's from the Alpina Productos case that we
cited in our brief, Your Honor, as the elements for
this count.

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But count three doesn't state a cause of
action because there is no contract between these
parties. Again, the first element of this claim is
that there must be a contract between the creditor
and debtor. Plaintiffs Complaint does not dispute
that there is no contract between these parties.
Secondly, plaintiff's own spreadsheet shows that
there was never any agreement between the parties
as to the rate of reimbursement here.

The Exhibit shows that for this whole
four-year period, Sunshine was continuously
disputing plaintiff's billed rate of payments on
its claims and was reimbursing them at a lesser
amount than what they had demanded.

In that same Merkle case that plaintiff's
opposition cited, the Fourth DCA affirmed the trial
court's dismissal of the plaintiff's claim for
account for precisely that reason in which the
courts had held, "As the HMOs, the defendant had
argued the documents attached to each of the
plaintiff's Complaints illustrated that the parties
failed to reach an agreement on what was owed to
plaintiff in those cases." And therefore it said
that the trial court had not erred in dismissing
that claim.

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So, again, Your Honor, we'd ask that count
three be dismissed.

And then finally with respect to count four,
plaintiff seeks a declaratory judgment that
Sunshine Health is liable for payment of ambulance
services claimed by the plaintiff as well as unpaid
interest for those. But each of the other accounts
in plaintiff's Complaint, including count one for
quantum meruit, count two for unjust enrichment,
and count three for account, all those raise the
same issues and require the court to answer the
same questions regarding whether the defendant is
liable for such claims, and if so, in what amount.

So, in other words, the issues on which
plaintiff seeks a declaration are all subsumed
within the issues raised in plaintiff's other
counts, and that's why it's a wholly duplicative
request for declaratory relief along with those
other counts that should be dismissed.

In support, Your Honor, we cited Regency Of
Palm Beach, Inc. vs. QBE Insurance Corp. in which
the court dismissed a claim under the Florida
Declaratory Judgment Act as duplicative because the}
relief sought in plaintiff's other counts asked the
court to determine whether the contract had been

 

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breached, and if so, to judicially declare the
amount of damages, and that was inappropriate for a
prayer of relief for declaratory judgment.

We also cited the Fernando Grinberg Trust
Success case in which the court held that the trial
court should not entertain an action for
declaratory judgment on issues properly raised in
other counts of the pleadings and already before
the court in which plaintiff would be able to
secure relief.

And for that reason, Your Honor, we'd ask that
the plaintiff's Complaint be dismissed.

THE COURT: Thank you.

Mr. Oliver.

MR. OLIVER: Thank you, Your Honor. David
Oliver for the plaintiff Ambitrans. I submitted a
memorandum in opposition earlier last week.

This case is about privatization (inaudible).

THE COURT: Hello?

THE COURT REPORTER: I'm sorry. Mr. Oliver,
you went out there for a couple seconds and you
need to say that again please. None of us heard
you.

MR. OLIVER: Oh, I'm sorry.

THE COURT REPORTER: That's okay. You didn't

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know.

MR. OLIVER: So this is about the
privatization of Medicaid in Florida. The State
has privatized some aspects of the Medicaid
program. And with regards to this case, the State
contracts with private insurers to manage the care
of its patients which is a role that the State has
traditionally taken. This is a public program
managed and administered by private entities. The
providers, which was my client, are an essential
pieces of this public program.

Ambitrans, as alleged in the Complaint, is
prohibited from denying care for Medicaid
recipients Kents under certain circumstances. So
you can only look to these managed care
organizations now for payment. So Ambitrans is
transporting Medicaid recipients like they've been
doing for decades. And now those Medicaid
recipients are members of defendant and defendant
has taken on the role of the State in paying
Ambitrans and the other noncontract providers.

I will note Mr. Vanlandingham just argued that
we were only seeking claims for emergency services
which we're actually seeking claims for emergency
and non-emergency services actually.

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On the quantum meruit count, both parties
cited to the Commerce Partnership case. That is
the standard case for this. And that court again
cited and said that, Where services for another
without his expressed request, but with his
knowledge, and under circumstances fairly raising
the presumption that the parties understood and
intended that the compensation was to be paid.

And that's exactly what's at issue here. At
paragraph 7 of the Complaint, we have the
allegation that Ambitrans is required to bill
Sunshine and is actually prohibited from seeking
payment for Medicaid recipient.

At paragraph 6 of the Complaint, we have an
allegation that Ambitrans is prohibited from.
denying certain care for Medicaid recipients.

We cite at paragraphs 8 and 9 the statutes
that require payment from Sunshine to noncontract
providers like Ambitrans.

At paragraph 20, we have an allegation that
Sunshine requested and knowingly permitted
Ambitrans to perform services for their members.

I understand that the defendant has argued
that this is simply 6a bare legal conclusion, but
it's not. It's an ultimate fact. And what the

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defendant is seeking in their motion and today at
this hearing are evidentiary facts. They're not
proper at this stage, not a proper basis for a
dismissal.

So the entire crux of this statutory scheme is
that Sunshine is required to pay noncontract
providers, and by taking part in this statutory
scheme by contracting with the State, both
Ambitrans and Sunshine operate under the
presumption that the parties understood and
intended that compensation and be paid, essentially
tracking the language of that Commerce Partnership
case.

On the unjust enrichment count, the only
allegation that defendant I suppose argues that
we're missing is an allegation that there was no
benefit to Sunshine. In effect, that a benefit to
the members of an insurer are not the benefit -- is
not a benefit to the insured.

But it's not applicable to the Medicaid
management care system scheme. In this case,
Sunshine is not an indemnity insurer. They are
responsible for providing care and ensuring that
their members get care.

Again, this is a public program. I cited to

 

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the Air Evac case out of the Eastern District of
Arkansas. It's in dicta, but it's a fantastic
description of the difference between indemnity
insurers and the Medicaid managed care system.

Unlike indemnity insurers, MCO's do not cover
the cost of health care services incurred by their
patients. They're actually responsible for
providing health care services to their members
directly or through a network of contractor
providers. The courts that have considered
Medicaid managed care -- and there's none in
Florida as far as I know of, and I'm assuming that
Sunshine has not found any either -- they come to
the opposite conclusion.

And I've cited to the El Paso Hospital case
out of the Western District of Texas from 2010
where we had a managed care organization making the
same argument that Sunshine is making here. And in
that case, again the court said that, "If these
obligations are not deemed material and central to
the Medicaid managed care system, how is such a
system supposed to function? The discharges were
furnished for the benefit of Molina which enjoyed
and accepted them and Molina acknowledged as much
and rendered payment for them at a rate it deemed

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to be proper,” which is the argument being made now
by Sunshine.

The Merkle case that was argued earlier
referenced earlier by defendant's counsel, it's not
a Medicaid managed care case, but it is a managed
care case in the arena of HMOs. And it involves
similar statues, very similar statutes, and they
make clear in that case, the Fourth District did,
that the intent of these statutes are to ensure
that non-participating providers are adequately
paid for their services and that they're required
to make — required to perform.

I've all cited to the New City Health and
Hospital case from New York in 2011 that runs
through various sister State cases discussing the
difference between Medicaid managed care and why
these types of claims are allowed. The bottom line
is that Medicaid managed care is different. It is
not an indemnity insurance situation.

By contracting with the State, Sunshine is
required to provide care to its members. They
received a benefit when my client, an ambulance
transport company, discharged that duty on their
behalf. They have a duty to pay my client.

On the open account claim, Your Honor, I will

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note that now defendant is arguing that I did not
allege that there was a contract between the
parties. In their motion to dismiss, the only
allegation they that claim was faulty was that we
did not claim that the amount was a reasonable
value for services. I believe Mr. Vanlandingham in
his argument actually pointed to paragraphs that
actually state that the reasonable value of the
services was alleged at paragraphs 24 and 25,
reasonable compensation, reasonable unpaid value of
their services.

I don't think -- first of all, I believe we
complied with that by arguing that this is what the
statue provides. ‘This is our charges. Here's our
statement of account. We are arguing that these
are the reasonable charges, in fact.
And I cited to the Farley vs. Chase Bank case
out the Fourth District that essentially states
that an element of open account is attached to the
statement of the account, which we've done here.
THE COURT REPORTER: Can you say that cite
name again please. I'm sorry. You got mumbled
MR. OLIVER: Yes, ma'am. Farley vs. Chase
Bank, Fourth District 2010.
THE COURT REPORTER: Thank you. Go ahead.

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MR. OLIVER: On the declaratory relief claim,
Ambitrans is not asking for a declaration that
Sunshine breached its obligations. It is not a
rehash of the other counts in this case. It is not
the same question that we are asking the court in
the other one.

We are asking the court to interpret the
statute of what is the rate of mileage under
applicable Florida law? All of the elements are
pled. There doesn't seem to be an argument the
elements haven't been pled.

Going forward, these entities are going to
have to work together. If we don't get a
declaration of how this statute is interpreted,
then we're going to be here every year, Your Honor.

Section 86.101 requires that the -- provides
that the Declaratory Relief Act will be liberally
construed. 86.111 states that the existence of
another adequate remedy of law does not bar
declaratory relief.

The parties need this declaration, Your Honor.
It does have some affect on the claims that are
before you, but we have to know what the rate is as
we move forward. So we ask that you deny the
motion to dismiss. Reviewing the four corners of

 

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the claim, we state a cause of action for the
counts, Your Honor.

THE COURT: Mr, Vanlandingham, just two
minutes on the dec action.

MR. VANLANDINGHAM: Yes, Your Honor.

If T could address a couple additional things
that Mr. Oliver said earlier on.

THE COURT: I don't need you to.

MR. VANLANDINGHAM: Okay. Your Honor, with
respect to the declaratory judgment action, it
simply appears that plaintiff wants a declaration
that it is owed the same amount that it's claiming
in the Exhibit A spreadsheet.

The crux of this dispute is not whether those
claims — whether plaintiff should be compensated
at all for those claims. It's what is the amount
that’s appropriate to be paid?

Mr. Oliver did not address as to whether the
statutory rate of Medicaid reimbursement should be
construed as cap on the services it's demanding
here. There is no agreement between the parties as
to how much -- as to whether plaintiffs should be
paid its full-billed charges. There's no course of
conduct that would lead plaintiffs to believe that
the defendant would pay the full-billed charges.

Page 21
And Mr. Oliver did not address that the Merkle
case affirmed dismissal of the plaintiff's claim
for account and that the plaintifi’s Complaint
doesn't allege that the parties have a contract
here.
Your Honor, we think that the declaratory
judgment count is duplicative and should be
dismissed because it's seeking an amount that’s
consumed within plaintiff's other counts.
THE COURT: Thank you.
Allright, I'm going to deny the motion as to
counts 1 and 2, grant the motion as to counts 3 and
4, and give you 20 days leave to amend.
MR. OLIVER: Thank you, Your Honor.
MR. VANLANDINGHAM: Thank you, Your Honor,
THE COURT: Mr. Vanlandingham, please prepare
the order and please put the motion was heard on
today’s date.
MR. VANLANDINGHAM: Yes, Your Honor.
THE COURT: Thank you, sir.
MR. VANLANDINGHAM: Thank you very much for
your time, Your Honor,
MR. OLIVER: Thank you, Your Honor.
THE COURT: Okay.
(The hearing was concluded at 12:11 p.m.)

6 (Pages 18 - 21)

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800-726-7007

305-376-8800Page 22
HEARING CERTIFICATE.

1
2
3 I. AMBER CHEEK, Court Reporter, certify that I was
4 authorized and did stenographically report the foregoing
5 proceedings and that this transcript, pages 1 through ?

6 22, isa true record of the proceedings before the

7 Court.

8

9

I further certify that I am not a relative,
10 employee, attomey, or counsel for any of the parties

11 noram La relative or employee of any of the parties’

12 attorneys or counsel connected with the action, nor am I
13 financially interested in the action.

15 Dated this 6th day of July, 2020.

pb Cake

18, Amber Cheek
Notary Public, State of Florida at Large
19
20
21
22
23
24
25

 

7 (Page 22)
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1 4 adequate 19:19 9:18 10:14 11:13
1 21:12 22:5 4 21:13 adequately 17:10 12:2 18:5 20:12,16
115,000 4:22 409.9128 5:13 adnpmistered sae
11:47 1:11 459-6658 2:12 administration amounts 4:20
lth 6:9 5 4:11 answer 11:11
12:11. 1-:1121:25 affect 19:22 appeal 8:2
1th 11 5 5:13 affirmed 10:16 appeals 6:9
2 6 21:2 appearance 3:10
6 14:14 agency 4:10 appearances 2:1
2 21:12 600 2:10 agreed 9:20 appearing 2:6,12
20 14:20 21:13 6a 14:24 agreement 6:12,15 appears 20:11
2004 7:22 6th 22:15 6:19 7:2 10:8,22 applicable 15:20
2010 16:16 18:24 7 20:21 19:9
2011 17:14 ahead 4:6 18:25 applies 5:19
2013 7:23 7 14:10 air 16:1 appropriate 5:7
2015 7:5,23 8 allegation 7:7,13 20:17
2019 7:6 8 14:17 7:18 8:9,25 9:3 arena 17:6
2020 1:12 22:15 86.101 19:16 14:11,15,20 15:15 argued 10:20 13:22
205-1122 2:5 86.111 19:18 15:16 18:4 14:23 17:3
20th 1:12 9 allegations 6:17.23 argues 15:15
21 7:4 8:5 9:12 arguing 18:1,13,15
22 7:17 22:6 9 14:17 allege 5:236:3,20 argument 4:2
237:17 cael 7:16 8:19 9:16 18:2 16:18 17:1 18:7
24 18:9 7 21:4 19:10
25 7:18 18:9 am, 1:11 alleged 6:19 7:2 arkansas 16:2
2700 2:11 able 12:9 13:12 18:9 arrange 4:11
2nd_ 7:5 accepted 16:24 alleges 4:15 8:15 asked 11:24
3 account 5:3 9:10,15 | allow 8:3 asking 19:2,5,7
3 21:12 10:18 11:10 17:25 | allowed 6:4 8:17 aspects 13:4
305 2:12 18:15,19,20 21:3 17:17 assuming 16:12
309 2:4 accounts 5:21 11:7 | alpina 9:23 attached 10:20
31st 7:5 acknowledged amber 22:3,18 18:19
3276 22:17 16:24 ambitrans 1:43:2 attorney 2:2,8
33 8:14 act 11:23 19:17 3:7,12 12:16 13:12 22:10
33131 2:11 action 10:2 12:6 13:16,21 14:11,15 attorneys 22:12
33950 2:5 20:1,4,10 22:12,13 14:19,22 15:919:2 authorized 22:4
34 8:14 additional 4:20 ambulance 11:5 avenue 2:10
36 8:21 20:6 17:22 b
address 5:20 6:6 amend 6:3 21:13 b 18
20:6,18 21:1 amount 4:22 5:7

 

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bar 19:19
bare 14:24
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basis 15:3
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behalf 3:12,16
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believe 18:6,12
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benefit 7:25 8:6
15:17,17,18,19
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bill 14:11
billed § 4:21 5:1,23
6:1,20,21 7:1,11,18
8:10,15,19 9:2
10:12 20:23,25
bottom 17:17
breached 12:1 19:3
brickell 2:10
brief 9:24
briefly 6:6
brought 3:21
broward = 1:2 3:22

c

cace20001199 1:3

3:7

cap 20:20

care 4:9,9 5:15
13:6,13,15 14:16
15:21,23,24 16:4,6
16:8,11,17,21 17:5
17:6,16,18,21

case 1:3 3:21,22 6:8
8:1,3,8,9 9:23
10:15 12:5,18 13:5
14:2,3 15:13,21
16:1,15,19 17:3,5,6
17:8,14 18:17 19:4
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cause 1:22 10:1
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central 16:20

certain 4:16 13:14
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certificate 22:1

certify 22:3,9

challenges 4:3

changed 7:8,12

charges 4:21 5:1,23
6:1,3,22 7:1,11,16
7:19 8:10,12,15,19
9:2 18:14,16 20:23
20:25

charlotte 3:24

chase 18:17,23

cheek 22:3,18

circuit 1:1,1,23 6:9

circumstances
13:14 14:6

cite 14:17 18:21

cited 6:8 7:21 9:24
10:16 11:20 12:4
14:2,4 15:25 16:15
17:13 18:17

cites 8:1

city 17:13

claim 4:4 8:4,17
9:10,15 10:3,17,25
11:22 17:25 18:4,5
19:1 20:1 21:2

claimed 9:18 11:6

claiming 20:12

claims 5:2,8 7:3,4,8
7:22 8:22 10:13
11:13 13:23,24
17:17 19:22 20:15
20:16

 

clarity 6:13
clear 4:23 17:8
client 13:10 17:22
17:24
come 16:13
commerce 14:2
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common 5:5,21
company 17:23
compensated 20:15
compensation 7:19
8:16 14:8 15:11
18:10
complaint 4:6 5:22
7:4,14 9:11 10:5
11:8 12:12 13:12
14:10,14 21:3
complaints 10:21
complied 18:13
concluded 21:25
conclusion 14:24
16:14
conclusory 6:18
conduct 6:14,18
20:24
confer 7:24
connected 22:12
considered 16:10
construed 19:18
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consumed 21:9
continuously 10:11
contract 4:9,24
5:16 6:11 9:16 10:2
10:4,6 11:25 18:2
21:4
contracting 15:8
17:20
contractor 16:9
contracts 13:6

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contractual 5:2
contrast 8:9
control 9:6
corners 19:25
corp 11:21
corporation 1:4,8
cost 16:6
counsel 3:95:20
17:4 22:10,12
count 6:7,16 7:15
7:20 8:14 9:3,11,25
10:1 11:1,3,8,9,10
14:1 15:14 21:7
counts 4:3 5:5 6:6
11:17,19,24 12:8
19:4 20:2 21:9,12
21:12
county 1:2 3:22,24
couple 12:21 20:6
course 20:23
court 1:1,23 3:2,6
3:14,17,21,25 4:5
6:9 8:2,21 9:8
10:24 11:11,22,25
12:5,6,9,13,19,20
12:25 14:3 16:19
18:21,25 19:5,7
20:3,8 21:10,16,20
21:24 22:3,7
court's 10:17
courts 10:19 16:10
cover 16:5
covered 4:12
creating 6:18
creditor 9:17 10:4

erux 15:5 20:14

d

d 1:83:19
damages 12:2
date 21:18

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dated 22:15
david 2:3,3 3:11
12:15
day 22:15
days 21:13
dea 8:3 10:16
debtor 9:17 10:5
dec 20:4
decades 13:18
declaration 11:15
19:2,14,21 20:11
declaratory 5:4
11:4,18,23 12:3,7
19:1,17,20 20:10
21:6
declare 12:1
deemed 16:20,25
defendant 1:9 2:8
3:16 4:8 9:13 10:19
11:12 13:19,19
14:23 15:1,15 18:1
20:25
defendant's 4:1
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defense 3:14
definition 6:14
delivered 9:19,22
demanded 10:14
demanding 20:20
demands 5:25
deny 19:24 21:11
denying 13:13
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description 16:3
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direct 7:24
directly 8:5 16:9
discharged 17:23
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discussing 17:15
dismiss 4:1 8:4
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dismissal 10:17
15:4 21:2
dismissed 3:25 7:22
11:2,19,22 12:12
21:8
dismissing 10:24
dispute 4:18 5:18
10:5 20:14
disputing 10:12
district 7:21 8:2
16:1,16 17:8 18:18
18:24
documents 10:20
doing 13:18
due 9:13
duplicative 11:17
11:23 21:7

duty 17:23,24

e

earlier 12:17 17:3,4

20:7
eastern 16:1
effect 15:17
either 9:19 16:13
el 16:15
element 9:16 10:3
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elements 9:24 19:9
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emergency 4:16
5:14 13:23,24,25
employee 22:10,11

 

enjoyed 16:23
enriched 8:23 9:4
enrichment 5:3
7:20 8:17 11:9
15:14
enrolled 4:12
enrollee 5:14
ensure 17:9
ensuring 15:23
entered 6:12
entertain 12:6
entire 15:5
entities 13:9 19:12
entitle 4:25
erred 10:24
esquire 2:3,9
essential 13:10
essentially 15:11
18:18
establish 6:23
evac 16:1
evidence 8:7
evidentiary 15:2
exactly 14:9
examine 6:13
exceed 5:16,24 6:4
7:16 8:13,20
exhibit 5:24 9:1,13
10:10 20:13
existence 19:18
expressed 14:5
expressly 5:6

f

fact 6:11,11,13

14:25 18:16
facts 15:2
failed 10:22
fairly 14:6
fantastic 16:2
far 16:12

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farley 18:17,23
faulty 18:4
fernando 12:4
filed 3:24
finally 11:3
financially 22:13
finder 6:13
firm 2:4
first 6:7,17 10:3
18:12
florida 1:2,4,8 2:5
2:11 4:10,13 5:6,12
6:10 7:22 8:13 9:5
11:22 13:3 16:12
19:9 22:18
foregoing 22:4
forward 19:12,24
found 16:13
four 4:3 5:2 6:6
10:11 11:3 19:25
fourth 8:2,3 10:16
17:8 18:18,24
frink = 1:23
full 4:21 5:1 6:1,21
7:1,11 8:10 9:2
20:23,25
function 16:22
furnished 16:23
further 22:9

g
g 3:19
give 6:14 21:13
go 4:6 18:25
going 19:12,12,15
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good 3:4,5,6
goods 9:19,21
gorda 2:5
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grinberg 12:4
guys 3:21
h

h 3:19

health = 1:7,8 3:3,8
3:16 6:25 7:8 11:5
16:6,8 17:13
healthcare 4:11
heard 12:22 21:17
hearing 1:11,22
15:2 21:25 22:1
held 10:19 12:5
hello 12:19
hmos_ 10:19 17:6
hogan 2:10
hoganlovells.com
2:9

honor 3:4,5,11,18
3:23 4:7,23 5:6 6:9
6:17 7:14 8:8,18,25
9:10,24 11:1,20
12:11,15 17:25
19:15,21 20:2,5,9
21:6,14,15,19,22
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honorable 1:22
hospital 16:15
17:14

i

illustrated 10:21
implicit 7:11
implied 6:10
inappropriate 12:2
inaudible 12:18
including 11:8
incurred 16:6
indemnity 15:22
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insurance 11:21
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insurers
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intends 5:18
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interest 11:7
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interpret 6:14 19:7
interpreted 19:14
involves 17:6
issue 5:21 7:3,4
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issues 11:11,14,16
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13:6 16:4

J
james 2:93:15
james.vanlanding...
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judge 1:23
judges 7:22
judgment 5:4 11:4
11:23 12:3,7 20:10
21:7
judicial 1:1
judicially 12:1

july 7:5 22:15

k

keathan = 1:23
kents 13:14
kind 7:11
know 13:1 16:12
19:23
knowingly 14:21
knowledge 14:6

 

1 3:19

language 15:12
large 22:18

law 2:46:10 19:9
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lead 20:24
leave 21:13
legal 14:24

leo 2:9

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liable 4:16 11:5,13

liberally 19:17

limitation 8:12

limited 4:2 8:11

line 17:17

ip 2:10

long 3:19

look 13:15

looks 9:11

lovells 2:10

m

m 3:19
ma'am 18:23
making 16:17,18
manage 13:6
managed 4:8,9
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16:11,17,21 17:5,5
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management 15:21
manner 7:9
material 16:20
mecrory 2:4
mccrorylaw.com
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medicaid 4:8,12,13
5:8,10,15,17,25 6:5
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medical 1:4 3:2,13
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members 13:19
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memorandum
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merkle 8:2,8 10:15
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meruit 5:3 6:7,10
11:9 14:1
miami 2:11
mileage 19:8
minimum 6:2
minutes 20:4
missing 15:16
molina 16:23,24
morning 3:4,5,6
motion 4:1,6 6:8
7:21 8:4 15:1 18:3
19:25 21:11,12,17
move 19:24
moving 7:20 9:9

mumbled 18:22

n 3:19,19,19
name 3:17 18:22
necessarily 8:11
need 12:22 19:21
20:8

network 16:9
never 6:24 10:8
new 17:13,14
non 13:25 17:10
noncontract 13:21
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305-376-880012:14,15,16,20,24
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organizations
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owed 8:10 10:22
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paid 4:18 14:8
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pay 6:21,25 15:6
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payments 10:12

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period 10:11

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pl 2:4

plaintiff 1:5 2:2 3:9
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plaintiff's 4:3 5:20
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8:9 9:2,10 10:5,7
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previously 3:24 7:9
price 9:20
private 13:6,9
privatization 12:18
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problem 5:5
problems 6:16
proceed 8:4,18
proceedings 22:5,6
processing 7:8
productos 9:23
program 6:5 13:5,8
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6:24 paragraph 7:4 8:21 21:2,3,9 provides 5:13
nonemergency 14:10,14,20 plaintiffs 5:8 8:19 18:14 19:16

4:17 paragraphs 6:19 20:22,24 providing 15:23
notary 22:18 TAT 8:14 14:17 plan = 1:7 3:8,16 4:9 16:8

note 13:22 18:1 18:7,9 5:15,16 provision 4:12 5:19
notice 1:24 part 15:7 pleadings 12:8 public 13:8,11

0 participating 17:10 | please 3:9 12:22 15:25 22:18

Pe eo, —Cparties 6:11,14,24 18:22 21:16,17 punta 2:5
See ee 10:3,6,8,21 14:1,7 | pled 19:10,11 pursuant 1:24
obviously 8:6 15:10 18:3 19:21 pointed 18:7 put 5:2 21:17
october 7:5 20:21 21:4 22:10 practices 7:8 q

oh 12:24 ey prayer 12:3 qbe 11:21

okay 3:21 9:8,9 partnership 14:2 precisely 10:18 quantum 5:3 6:7

12:25 20:921:24 ‘15:12 Prepare 21:16 6:10 11:9 14:1
oliver 2:33:4,11,12 Paso 16:15 presumption 14:7 Quasi 5:2

question 19:5
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r

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requested 14:21
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required 6:3 14:11
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simply 5:25 7:19
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sir 4:5 21:20
sister 17:15
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sorry 3:11 12:20,24
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statute 5:12 8:11
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statutes 5:6 14:17
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stenographically
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third 7:15
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time 21:22
today 4:2 15:1
today's 21:18
tooltrend 6:8
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traditionally 13:8
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transcript 22:5
transferred 3:25
transport 1:4 3:2
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transportation
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transporting 13:17
trial 10:16,24 12:5
trips 4:19
true 22:6
trust 12:4
two 7:20 9:18 11:9
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ultimate 14:25
understand 14:23
understanding
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understood 14:7
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305-376-8800[unexpected - york]

unexpected 7:9
unjust 5:3 7:20
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unjustly 8:22 9:4
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unspoken 6:15

Vv

v 3:19
value 9:19 18:6,8
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2:9 3:5,15,15,18,20
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Page 29

305-376-8800EXHIBIT 2FIRST AMENDED COMPLAINT

 

Plaintiff, Case No. 19000969CA vs.
SUNSHINE STATE HEALTH PLAN AMBITRANS MEDICAL TRANSPORT, INC
Defendant.
SOMPLAINT
Plaintiff-. (“AMBITRANS-MEDICAL-TRANSPORE INC-CAMBIFRANS");”),
sues

Defendant, SUNSHINE STATE HEALTH PLAN, INC., a Florida corporation, d/b/a SUNSHINE
HEALTH (“SUNSHINE”) and alleges:
GENERAL ALLEGATIONS

1. AMBITRANS is a Florida corporation with its principle place of business in
Charlotte County, Florida.

2. SUNSHINE is a Florida corporation with its principle place of business in St.
Louis, Missouri.

3. Venue is proper in Charlotte County, Florida, pursuant to § 47.051, Fla. Stat., as
the causes of action accrued in Charlotte County, Florida.

4. AMBITRANS is licensed to provide both emergency and non-emergency ground
ambulance services pursuant to Chapter 401, Fla. Stat.

5. SUNSHINE administers a Medicaid managed care plan pursuant to a contract
with the State of Florida Agency for Health Care Administration ((AHCA”).

6. Pursuant to § 401.45, Fla. Stat, AMBITRANS is prohibited from denying a

person needing pre-hospital treatment or transport for an emergency medical condition.

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Condensed by7. AMBITRANS is required to bill SUNSHINE for services rendered to
SUNSHINE’s members and is prohibited from seeking payment from SUNSHINE’s members
pursuant to Chapter 409, Fla. Stat.

8. SUNSHINE is required to pay AMBITRANS and other non-contracted providers
for emergency service provided to its Medicaid beneficiary members. Pursuant to § 409.967, Fla.
Stat., reimbursement for services to AMBITRANS is the lesser of:

a. AMBITRANS’ charges;

b. The usual and customary provider charges for similar services in the
community where the services were provided:

c The charge mutually agreed to by SUNSHINE and AMBITRANS within
sixty (60) days after submittal of the claims;

d. The Medicaid Rate, effective July 1, 2016; or

e. Effective until July 1, 2016, the rate AHCA would have paid on the most
recent October Ist.

9. SUNSHINE is required to make prompt payment of claims pursuant to § 641.3155,
Fla. Stat.

10. On the October Ist prior to the implementation of SUNSHINE’S managed care
plan, AHCA paid AMBITRANS a rate of $8.00 per mile for out of county transports and $8.00
per mile for all in county transports over 30 miles. These mileage rates were in addition to the
base rates paid to AMBITRANS for ambulance transports.

11. SUNSHINE has improperly denied AMBITRANS? claims for:

a emergency advanced life support ground ambulance transportation;
b. _ emergency basic life support ground ambulance transportation;

c. specialty care ground ambulance transportation;

da. out of county and in county mileage; and

e Medicare cross-over claims.

12. Through Jul 31, 2019, SUNSHINE owes to AMBITRANS the total sum of
$158,145.27 for services provided by AMBITRANS.13. AMBITRANS?’ unpaid claims accrue interest at a rate of 12% pursuant to §
641.3155, Fla. Stat.

14. AMBITRANS has complied with all billing procedures mandated by applicable
Florida law and Medicaid guidelines.

15. AMBITRANS has made demand to SUNSHINE for repayment of the balance
owed, but SUNSHINE has failed to make payment.

16. All conditions precedent have been performed or have occurred.

17. | AMBITRANS has retained the undersigned attomneys to represent it in this matter
and is obligated to pay its attorneys a reasonable fee for their services.

COUNT I- QUANTUM MERUIT

18. This is an action for damages in excess of $15,000.00.

19. AMBITRANS tealleges all of the allegations contained in paragraphs | through
17 above as if fully set forth herein.

20. | SUNSHINE requested and knowingly permitted AMBITRANS to perform
services on behalf of SUNSHINE’s members.

21. | AMBITRANS performed all services on behalf of SUNSHINE with the knowledge
and acquiescence of SUNSHINE during the period from October 2, 2015 through July 31, 2019.

22. SUNSHINE expected to pay to AMBITRANS a reasonable compensation for the
value of AMBITRANS’ services rendered to SUNSHINE’s members.

23. AMBITRANS has a reasonable expectation of compensation from SUNSHINE
for the services rendered by it to SUNSHINE’s members.

24. | SUNSHINE is required pursuant to applicable Florida law and its contract with
AHCA to pay a reasonable compensation for the value of AMBITRANS’ services rendered to
SUNSHINE’s members.

25. The reasonable unpaid value of AMBITRANS services rendered on behalf of
SUNSHINE’s members through July 31, 2019 is $158,145.27.

26. AMBITRANS has made demand to SUNSHINE for payment of the reasonable
unpaid compensation, but SUNSHINE has failed and refuse