State Farm Mutual Automobile Insurance Company v. Beatriz Muse

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13319
____________________
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY,
Foreign Corporation,
STATE FARM FIRE & CASUALTY COMPANY,
Foreign Corporation,
Plaintiffs-Appellees,
versus
BEATRIZ MUSE, et al.,
Defendants-Appellants.
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2 Opinion of the Court 20-13319
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-cv-23125-RNS
____________________
Before BRANCH, GRANT, and BRASHER, Circuit Judges.
PER CURIAM:
This appeal is about a scheme in which three healthcare clin-
ics, individuals who owned or controlled those clinics, and the clin-
ics’ respective medical directors billed insurance companies for mil-
lions of dollars in services that were unlawfully rendered and non-
compensable. Two entities—State Farm Mutual Automobile In-
surance Company and State Farm Fire and Casualty Company—
sued the defendants, alleging common law fraud, violations of the
Florida’s Deceptive and Unfair Trade Practices Act, and unjust en-
richment. The district court granted summary judgment in favor
of State Farm on its FDUTPA and unjust enrichment claims,
awarding $2.9 million in damages for which the defendants were
jointly and severally liable. Two sets of defendants appealed.
The first set of defendants includes several members of the
Muse family and one of the clinics, Medical Wellness Services, Inc.
They raise three issues: (1) whether the district court abused its dis-
cretion by considering only the portions of the record that they spe-
cifically cited; (2) whether genuine issues of material fact preclude
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20-13319 Opinion of the Court 3
summary judgment; and (3) whether the district court erred in
awarding damages to State Farm. Dr. Lorites, a medical director at
one of the clinics, raises an additional issue. He argues that the dis-
trict court erred in granting summary judgment because State
Farm’s claims against him are untimely.
We disagree with the first set of defendants and affirm the
district court’s summary judgment in favor of State Farm against
the Muses and Medical Wellness Services, Inc. But we agree with
Lorites that the district court should not have granted summary
judgment against him. Accordingly, with the benefit of oral argu-
ment, we affirm in part and reverse in part.
I. BACKGROUND
Around two decades ago, Lazaro Muse went into business
operating a healthcare clinic focused on treating individuals injured
in automobile accidents. His business model involved billing insur-
ers like State Farm under Florida’s Personal Injury Protection
(“PIP”) Statute, which, prior to its repeal, required automobile in-
surers to provide PIP coverage to victims of car accidents without
regard to fault. Lazaro later co-owned an office building that he
rented to multiple “PIP clinics.” One such PIP clinic hired him to
serve as its administrator. In this role, Lazaro hired his sister, Beat-
riz, and trained her to operate a PIP clinic.
Years later, in 2007, Lazaro gave Beatriz seed money and a
tenancy in his office building to form her own PIP clinic, Health &
Wellness Services, Inc. (“H&W”). In 2009, with financial support
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4 Opinion of the Court 20-13319
and guidance from Beatriz, Beatriz’s husband, Noel Santos, formed
another PIP clinic called Medical Wellness Services, Inc., (“MW”).
In 2010, another associate of Lazaro formed another PIP clinic,
Pain Relief Clinic of Homestead Corp. (“PR”). All three PIP clin-
ics—H&W, MW, and PR—were Florida-licensed health care clin-
ics that provided rehabilitative services to individuals injured in car
accidents, for which they sought reimbursement from the individ-
uals’ insurers under Florida’s PIP statute.
Though not an owner, Lazaro was deeply involved in the
business of running the clinics. He served as a business consultant
at all three clinics. He convinced Beatriz to hire Dr. Goldstraj as
medical director at H&W. When Beatriz sold her ownership of
H&W and transitioned to handling H&W’s billing through a bill-
ing company she started herself, one of Lazaro’s companies served
as the billing company’s registered agent. Lazaro’s company also
served as PR’s registered agent. All three clinics used the account-
ant and healthcare consultant Lazaro recommended. Finally,
Lazaro and Beatriz co-owned a massage therapy school that certi-
fied licensed massage therapists (“LMTs”) to work at the PIP clin-
ics. The only treatment providers employed by the clinics were
LMTs.
Each clinic employed a medical director who supervised the
treatment administered at the clinics. Under Florida’s Medical Di-
rector Statute, clinics are required to appoint medical directors
who are then legally responsible for ensuring that treatments are
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20-13319 Opinion of the Court 5
administered lawfully, that record-keeping obligations are met, and
that billings are not fraudulent or unlawful. Fla. Stat. § 400.9935(1).
State Farm sued three sets of defendants. First, State Farm
sued H&W, MW, and PR over payments for thousands of claims
made to State Farm between 2007 and 2018. State Farm also alleged
that the clinics unlawfully rendered services and provided services
that were medically unnecessary. Second, State Farm sued mem-
bers of the Muse family—Lazaro, Beatriz, and Noel Santos—whom
it alleged owned, controlled, or did business with the clinics during
the relevant period. Third, State Farm sued the current and former
medical directors: Drs. Goldstraj and Franco at H&W; Drs. Car-
rasco and Coll at MW; and Drs. Lorites and Gomez-Cortes at PR.
The complaint included claims of common law fraud, violations of
the Florida Deceptive and Unfair Trade Practices Act, unjust en-
richment, and a declaratory judgment claim regarding bills that had
been submitted to State Farm by the clinics but not yet paid out.
State Farm moved for summary judgment against all de-
fendants on its FDUTPA claims, its unjust enrichment claims, and
its claim for declaratory relief, on the grounds that services ren-
dered at the clinics were unlawful and non-compensable under the
PIP statute. State Farm did not seek summary judgment on its com-
mon law fraud claims.
The district court granted State Farm’s motion for summary
judgment. As an initial matter, the district court found that many
of State Farm’s factual assertions stood unrebutted because the
Muses and Lorites failed to cite record evidence that created a
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6 Opinion of the Court 20-13319
genuine issue of material fact—including the report and testimony
of the Muses’ expert, Dr. Nicholas Suite. To the extent the defend-
ants presented and properly cited record evidence, however, the
district court considered it.
The district court then found that State Farm had presented
sufficient undisputed evidence showing that services rendered at
the clinics and billed to State Farm were unlawful and non-com-
pensable. Specifically, the district court found that the defendants:
(1) employed LMTs that performed services outside the scope of
their license, (2) failed to comply with Florida record-keeping re-
quirements, (3) gave invalid prescriptions, (4) and made insufficient
efforts to collect co-payments and deductibles. The district court
also found that Lorites failed to comply with his statutory duties to
ensure services were lawfully rendered and billed. It awarded State
Farm $2.9 million in damages for which the defendants shared lia-
bility—the court found each defendant jointly and severally liable
for damages with which they were associated. It also granted de-
claratory relief, holding that the outstanding bills submitted to
State Farm were non-compensable.
Lorites raised a statute of limitations defense, but the district
court rejected it. Though more than five years had passed since
Lorites had left his job as PR’s medical director, the district court
concluded that State Farm produced evidence proving that its
claim against Lorites did not accrue until 2018—well within the
statute of limitations. The district court therefore ruled that State
Farm’s claims against Lorites were timely.
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The Muses (Lazaro, Beatriz, Noel Santos, and MW) and
Lorites each filed motions for reconsideration. The district court
denied them. The Muses and Lorites timely appealed.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo. Hill v. Emp. Benefits Admin. Comm. of Mueller Grp. LLC,
971 F.3d 1321, 1325 (11th Cir. 2020). Summary judgment is proper
if there are no genuine disputes of material fact and the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All
evidence is viewed in the light most favorable to the non-movant.
Eres v. Progressive Am. Ins. Co., 998 F.3d 1273, 1278 n. 3 (11th Cir.
2021).
To survive summary judgment, the non-movant must rebut
the movant’s evidence with evidence sufficient to allow a reasona-
ble jury to find facts in their favor. See Amy v. Carnival Corp., 961
F.3d 1303, 1308 (11th Cir. 2020). They must carry their burden with
something “more than speculation or a mere scintilla of evidence.”
Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1122 (11th Cir.
2014).
Finally, a district court’s application of its own local rules is
reviewed for abuse of discretion. Mann v. Taser Int’l, Inc., 588 F.3d
1291, 1302 (11th Cir. 2009).
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8 Opinion of the Court 20-13319
III. DISCUSSION
We divide our discussion into four parts. First, we discuss
whether the district court abused its discretion by considering only
the portions of Dr. Suite’s report and deposition that were cited
with precision. Second, we discuss whether genuine issues of ma-
terial fact preclude summary judgment in favor of State Farm
against the Muses. Third, we discuss whether the district court
erred in awarding State Farm $2.9 million in damages. Finally, we
discuss whether the district court erred in concluding that State
Farm’s claims against Lorites were timely.
When the relevant events of this case occurred, Florida law
required automobile insurers like State Farm to provide PIP cover-
age to victims of car accidents “for reasonable, necessary, related
and lawful treatment, without regard to fault.” State Farm Mut.
Auto. Ins. Co. & State Farm Fire & Cas. Co. v. B & A Diagnostic,
Inc., 145 F. Supp. 3d 1154, 1163 (S.D. Fla. 2015) (citing Fla. Stat. §§
627.730–627.7405). Covered medical benefits include “services and
care that are lawfully provided, supervised, ordered or prescribed.”
Fla. Stat. § 627.736(1)(a)(1). An insurer “is not required to pay a
claim or charges . . . [f]or any service or treatment that was not
lawful at the time rendered.” Id. § 627.736(5)(b)(1)(b). Further-
more, a “statement of medical services may not include charges for
medical services of a person or entity that performed such services
without possessing the valid licenses required to perform such ser-
vices.” Id. § 627.736(5)(d). An insurer is not required to pay a claim
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20-13319 Opinion of the Court 9
that is “not substantially” compliant with this requirement. Id. §
627.736(5)(b)(1)(d).
A. The District Court Properly Applied Rule 56
The Muses hired Dr. Nicholas Suite to review samples of
medical records kept at MW. The district court disregarded por-
tions of Dr. Suite’s report and testimony on the grounds that the
Muses’ briefing in opposition contained insufficiently precise cita-
tions to his materials. The Muses argue that the district court
abused its discretion by “discarding” Dr. Suite’s report and testi-
mony and by failing to give them leave to amend their filings to
provide more precise citations. We disagree.
We give “‘great deference to a district court’s interpretation
of its local rules’ and review a district court’s application of local
rules for an abuse of discretion.” Mann, 588 F.3d at 1302. “A district
court abuses its discretion if it applies an incorrect legal standard,
applies the law in an unreasonable or incorrect manner, follows
improper procedures in making a determination, or makes findings
of fact that are clearly erroneous.” Winthrop-Redin v. United
States, 767 F.3d 1210, 1215 (11th Cir. 2014) (quoting Citizens for
Police Accountability Political Comm. v. Browning, 572 F.3d 1213,
1216–17 (11th Cir. 2009)).
The rule in question is Southern District of Florida Local
Rule 56.1. The version of that rule in effect when State Farm filed
its motion for summary judgment required that a statement of ma-
terial facts “[b]e supported by specific references to pleadings,
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10 Opinion of the Court 20-13319
depositions, answers to interrogatories, admissions, and affidavits
on file with the Court.” S.D. Fla. L.R. 56.1(a)(2) (Oct. 2019); see,
e.g., Lugo v. Carnival Corp., 154 F. Supp. 3d 1341, 1343 (S.D. Fla.
2015). The requirement for “specific references” applied to state-
ments of material facts accompanying both motions for summary
judgment and any oppositions. S.D. Fla. L.R. 56.1(a). The Rule also
stated that “[a]ll material facts set forth in the movant’s statement
filed and supported as required above will be deemed admitted un-
less controverted by the opposing party’s statement, provided that
the Court finds that movant’s statement is supported by evidence
in the record.” S.D. Fla. L.R. 56.1(b) (Oct. 2019); Lugo, F. Supp. 3d
at 1343. We have held that “failure to comply with local rule 56.1
is not a mere technicality. The rule is designed to help the court
identify and organize the issues in the case.” Mann, 588 F.3d at
1303.
The district court did not abuse its discretion in applying Lo-
cal Rule 56.1. The Muses, in their opposition to State Farm’s state-
ment of material facts, failed to provide specific references to the
record. Instead, they cited generally to Dr. Suite’s entire report and
deposition, which encompassed hundreds of pages of record mate-
rial. In its order granting State Farm’s motion for partial summary
judgment, the district court explained that the “Muse Family De-
fendants’ attempts to dispute State Farm’s allegations either failed
to cite to the record at all or cited to lengthy documents in their
entirety.” Furthermore, the district court considered the portions
of Dr. Suite’s report and testimony that the Muses cited with
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precision. Accordingly, the district court did not abuse its discretion
in handling Dr. Suite’s evidence.
The Muses also argue that the district court should have sua
sponte given them leave to amend their citations to comply with
Rule 56.1. We disagree. When they filed their opposition brief in
district court, the version of Rule 56.1 then in force did not provide
time to cure a non-compliant filing. The Muses never sought leave
to file a corrected opposition, even though State Farm raised the
issue of imprecise citations in its reply briefing. For our part, we
have never held that a district court must sua sponte give a non-
compliant counseled party an extra opportunity to comply with a
local rule. In other words, nothing required the district court to sua
sponte give the Muses leave to amend their summary judgment
briefs.
Where the Muses rebutted State Farm’s statement of facts
with imprecise references to Dr. Suite’s entire report and deposi-
tion, the court was within its discretion to conclude that those facts
were effectively “admitted” under its Local Rule 56.1.
B. The District Court Properly Granted Summary Judgment
in Favor of State Farm against the Muses
The Muses argue that, even without Dr. Suite’s testimony,
other evidence creates genuine issues of material fact that should
defeat summary judgment. We disagree and affirm summary judg-
ment in favor of State Farm. We address each of the Muses’ argu-
ments in turn.
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1. Summary judgment against Lazaro as a non-owner
The district court found that the Muse family members, in-
cluding Lazaro, were direct participants in the PIP clinic scheme.
In their opening brief, the Muses argue that Lazaro’s affidavit and
testimony establish that “he did not own any of the clinics,” that he
was “never an owner, part owner or silent owner of the three de-
fendant clinics,” and that he “merely ‘provided consulting ser-
vices’” to the clinics. State Farm responds that these assertions do
not exculpate Lazaro from liability because FDUTPA liability
hinges on participation, not formal ownership. We agree.
Based on Florida courts’ interpretation of FDUTPA, State
Farm need not show that Lazaro owned a clinic to prevail against
him. The standard for liability under FDUTPA is whether someone
is a “direct participant” in the deceptive acts. See KC Leisure, Inc.
v. Haber, 972 So. 2d 1069, 1074 (Fla. Dist. Ct. App. 2008). Here, the
evidence establishes that, although nominally titled a “consultant,”
Lazaro was deeply involved in the deceptive scheme and the man-
agement and operation of all three clinics. After spending years
learning the PIP clinic business himself, he hired Beatriz and
trained her to run a PIP clinic. He provided the seed money for
Beatriz’s clinic, H&W, and served as its landlord. He testified that
he convinced Beatriz to hire Dr. Goldstraj as medical director at
H&W. All three clinics used the accountant and healthcare consult-
ant recommended by Lazaro. Lazaro’s company served as the reg-
istered agent for Beatriz’s billing company and for PR. Along with
Beatriz, he co-owned the massage therapy school that placed LMTs
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in the clinics. Finally, Lazaro testified that his consulting duties at
the clinics encompassed “all aspects of the business.” Under these
unique facts, State Farm has shown that Lazaro was a direct partic-
ipant in the scheme, despite his lack of a formal title. Accordingly,
we affirm the district court’s grant of summary judgment against
Lazaro.
2. Services provided by LMTs outside the scope of their license
The district court found that LMTs at all three clinics per-
formed treatments involving the use of physical devices that were
outside the scope of their licenses, including mechanical traction,
gait training, neuromuscular reeducation, and therapeutic exer-
cises. The district court concluded that such treatments were un-
lawful and non-compensable. The Muses make several arguments
on appeal, which all fail.
First, the Muses argue that the use of any physical devices
“in aid of massage” falls within the scope of an LMT’s license. They
are incorrect. Florida law defines “massage” as “the manipulation
of the soft tissues of the human body with the hand, foot, arm, or
elbow, whether or not such manipulation is aided by . . . any elec-
trical or mechanical device.” Fla. Stat. § 480.033(3). Massage thera-
pists may perform more advanced physical therapies involving the
use of physical devices, provided that those devices are “a part of”
or “incidental to” a massage. Id. at § 486.161(1); see also State Farm
Mut. Auto. Ins. Co. v. Universal Med. Ctr. of S. Fla., Inc., 881 So.
2d 557, 560 (Fla. Dist. Ct. App. 2004). The therapies at issue here
involved the use of physical devices—for example, a treadmill for
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14 Opinion of the Court 20-13319
gait training—not incidental to a massage and more akin to ad-
vanced physical therapy. The district court thus correctly deter-
mined that the LMTs operated outside the scope of their licenses.
Second, the Muses argue that the treatment provided by
LMTs was compensable because, prior to a 2013 amendment, Flor-
ida’s PIP statute did not require LMTs to be directly supervised by
a medical doctor. They further contend that supervision was not
actually required until 2020 when a Florida court ratified that inter-
pretation of the statute in Geico General Insurance Co. v. Beacon
Healthcare Center. Inc., 298 So. 3d 1235 (Fla. Dist. Ct. App. 2020).
Even if true, the point is irrelevant. The district court did not con-
clude that services rendered by the LMTs were unlawful or non-
compensable due to lack of supervision. In fact, LMTs do not re-
quire supervision to perform services within the scope of their li-
cense. See Fla. Stat. §§ 480.031-0535, 480.033(8). The district court
based its ruling on the fact that LMTs at the clinics performed ther-
apies outside the scope of their license. Even if the services per-
formed by LMTs were legal, the PIP statute flatly precludes reim-
bursement for LMTs providing advanced physical therapy ser-
vices—which is what occurred here. Geico General Insurance Co.,
298 So. 3d at 1238.
Finally, the Muses argue that a jury could have found that,
regarding the need for LMT supervision, Beatriz and Noel Santos
“were operating [MW and H&W] under a misapprehension of the
law, and while that might establish some type of liability . . . it is
not equivalent to fraud as a matter of law.” Again, even if true, this
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20-13319 Opinion of the Court 15
is irrelevant. State Farm’s fraud claims are not on appeal, and nei-
ther FDUTPA nor an unjust enrichment theory require proof of
fraudulent intent for liability to attach. See, Davis v. Powertel, Inc.,
776 So. 2d 971, 974 (Fla. Dist. Ct. App. 2000) (identifying whether
a practice is deceptive under FDUTPA is an “objective test” and a
“plaintiff need not prove the elements of fraud to sustain an action
under the statute”); Golden v. Woodward, 15 So. 3d 664, 670 (Fla.
Dist. Ct. App. 2009) (plaintiff alleging unjust enrichment claim
need not establish defendant’s fraud or misconduct).
3. Non-compliance with record-keeping requirements
The district court held that “the undisputed facts show the
medical directors and the Clinics failed to comply with many of
[Florida’s record-keeping] requirements.” The Muses challenge the
district court’s findings in several ways, all of which fail.
First, the Muses try several versions of the same argument:
because they were not personally aware that the clinics’ employees
failed to keep adequate records, they are not liable for violating
Florida’s record-keeping laws. But again, the standard for liability
under FDUTPA is not whether the Muses were engaged in fraud-
ulent misconduct, but whether they directly participated in the
dealings giving rise to the deceptive acts. KC Leisure, 972 So. 2d at
1073-74. If the clinics violated Florida record-keeping laws, then the
treatments they provided were non-compensable, and they vio-
lated FDUTPA by representing otherwise to State Farm. The
Muses are liable under FDUTPA if they participated directly in that
scheme. And as we have already discussed, the record is replete
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16 Opinion of the Court 20-13319
with unrebutted evidence of the Muses’ participation in the scheme
that supports the court’s summary judgment.
Second, the Muses argue that the district court erred in hold-
ing Lazaro liable for record-keeping violations. The district court
determined that Lazaro viewed patient records despite a lack of
“any evidence or indication from the record that he was in any way
authorized to do so: he is not a healthcare practitioner or involved
in the patient’s care or treatment.” The Muses concede that Lazaro
reviewed patient records without authorization, but argue that his
actions do not expose him to liability because “[a] consultant taking
a ‘peek’ at medical records at a clinic is not fraud.” Again, State
Farm’s fraud claims are not on appeal. The Muses’ argument con-
cedes the point—Lazaro accessed patient records without authori-
zation, violating the Florida statute. See Fla. Stat. § 456.057(7)(a),
(c) (“[S]uch records may not be furnished to . . . any person other
than the patient, the patient's legal representative, or other health
care practitioners and providers involved in the patient's care or
treatment, except upon written authorization from the patient.”).
Finally, the Muses contend that there is a genuine issue of
fact as to whether MW violated Florida’s record-keeping require-
ments by failing to retain patient files for five years as required by
Florida Administrative Code Rule 64B8-10.002(2). Even assuming
the Muses are correct, MW’s alleged failure to maintain records for
five years was only one of the many ways it failed to comply with
Florida’s record-keeping requirements. State Farm presented unre-
butted evidence of numerous other record-keeping failures,
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including treatment plans that did not justify the treatment admin-
istered, treatment plans not including the amount of time or num-
ber of units for the services prescribed, x-ray results having no doc-
umented impact on patient treatment, and, of course, Lazaro’s un-
authorized accessing of patient records. This evidence amply sup-
ports the district court’s conclusion that MW failed to adhere to its
statutory record keeping obligations.
4. The defendants’ failure to make good-faith efforts to collect co-
payments and deductibles
The district court concluded that “the Clinics here, under
the direction of the medical director defendants . . . failed to make
any real effort to collect co-payments and deductibles.” The Muses
rely on testimony from both Beatriz Muse and Noel Santos to ar-
gue that they personally made efforts to collect co-payments and
deductibles at H&W and MW, respectively. State Farm responds
that the testimony from Beatriz and Noel is mostly consistent with
their allegations and that overwhelming record evidence estab-
lished that co-payments and deductibles were not collected. We
agree.
Regarding the failure to collect payments at MW, the evi-
dence marshalled by State Farm in support of summary judgment
was overwhelming. State Farm offered affidavit testimony from
MW’s medical directors who never saw a patient pay a co-payment
or deductible; Lazaro’s admission that when he served as MW’s
business consultant he was unaware of any effort to collect co-pay-
ments or deductibles; Noel’s admission that he did not know the
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18 Opinion of the Court 20-13319
difference between a co-payment and a deductible; Noel’s admis-
sion that MW never sent a bill to patients; and the fact that MW
had no policies instructing staff on how to collect co-payments and
deductibles. The Muses have failed to rebut State Farm’s evidence
with substantial evidence of their own. The only rebuttal they offer
is Noel’s testimony that he alone sought co-payments and deduct-
ibles from MW patients but had no records of any payments.
The Muses cite Beatriz’s testimony as evidence that good
faith collection efforts were made at H&W, but her testimony of-
fers little support for that proposition. Beatriz testified that clinic
patients owed a 20 percent co-payment for services rendered at
H&W, but that she would only tell patients what they owed if they
asked, and that she never mailed bills to patients’ home addresses.
She testified that she attempted to collect co-payments over the
phone, but that patients would often avoid her calls, and that she
had thrown out the call logs showing which patients she had called.
She later testified that H&W did not “take any actions to collect
deductibles.” Lazaro also testified that he was unaware of any effort
by any of the clinics to collect co-payments and deductibles. The
medical director at H&W, Dr. Goldstraj, testified that he never saw
co-payments and deductibles being collected and never heard them
discussed.
On this issue, there is no genuine issue of material fact. The
defendants failed to carry the burden of rebutting State Farm with
something “more than speculation or a mere scintilla of evidence.”
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20-13319 Opinion of the Court 19
Paylor, 748 F.3d at 1122. Accordingly, the district court’s grant of
summary judgment for State Farm on this issue is affirmed.
C. The District Court did not Err in Awarding Damages
The Muses argue that no damages should be assessed
against Lazaro at all, or against Beatriz for her conduct after she
sold H&W in 2010. In support, their brief contains three short sen-
tences of argument with no citations to law or facts. Because they
have not supported their argument on this point, the Muses have
abandoned the issue. See Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant
abandons a claim when he . . . raises it in a perfunctory manner
without supporting arguments and authority.”). Furthermore, the
Muses’ argument—again—appears to be based on their mistaken
belief that liability to State Farm hinges on ownership of the clinics.
As explained above, this is not the case. FDUTPA only requires di-
rect participation in the scheme.
D. State Farm is not Entitled to Summary Judgment in its Fa-
vor against Lorites
Lorites served as medical director at PR from 2010 to 2013.
In his motion for summary judgment, Lorites argued that State
Farm’s FDUTPA and unjust enrichment claims against him were
brought outside the applicable four-year statute of limitations. The
district court held that State Farm provided sufficient evidence to
invoke the doctrine of fraudulent concealment, concluding that
Lorites made affirmative representations that services rendered at
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20 Opinion of the Court 20-13319
PR were lawful and compensable in the invoices submitted to State
Farm, when in fact they were not. The court held that State Farm
was therefore not on notice of the defendants’ scheme until July
2018, and that the claims it brought against Lorites were timely. On
appeal, Lorites argues that State Farm’s claims against him are un-
timely because there is insufficient evidence to support the district
court’s conclusion that he made affirmative misrepresentations to
State Farm, or that State Farm could not have discovered its cause
of action by exercising reasonable diligence. For the following rea-
sons, we agree with Lorites in part and reverse the district court’s
grant of summary judgment against him in favor of State Farm.
For fraudulent concealment to toll the limitations period, a
plaintiff must first show that a defendant “engage[d] in the willful
concealment of the cause of action using fraudulent means to
achieve that concealment.” Raie v. Cheminova, Inc., 336 F.3d 1278,
1282 n.1 (11th Cir. 2003) (citing Berisford v. Jack Eckerd Corp., 667
So. 2d 809, 811 (Fla. Dist. Ct. App. 1995)). “As a general rule, a plain-
tiff relying on the doctrine of fraudulent concealment must show
affirmative actions by the defendant constituting concealment.”
Hill v. Texaco, Inc., 825 F.2d 333, 335 (11th Cir. 1987). The plaintiff
must also prove that the concealed facts could not have been dis-
covered with reasonable diligence. See Berisford, 667 So. 2d at 812(“[A] party seeking to avail itself of the doctrine of fraudulent con-
cealment must have exercised reasonable care and diligence in
seeking to learn the facts which would disclose the fraud.”); see also
Hill v. Texaco, Inc., 825 F.2d 333, 335 (11th Cir. 1987) (a party
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20-13319 Opinion of the Court 21
relying on fraudulent concealment “must also show that he exer-
cised diligence to discover his cause of action within the limitations
period”).
State Farm produced substantial evidence of affirmative mis-
representations by Lorites sufficient to survive Lorites’s own mo-
tion for summary judgment: the clinics, including PR, where
Lorites served as medical director, repeatedly submitted paper-
work to State Farm representing that services performed were law-
ful and medically necessary; Lorites signed medical director agree-
ments affirming his responsibility to ensure that billing was not un-
lawful, even though it was; and State Farm was unaware that
LMTs were performing unlawful and non-compensable services
because the forms submitted by the clinics were signed by either
the treating physicians or the medical directors at the clinics, not
LMTs. In denying Lorites’s motion for summary judgment, the dis-
trict court correctly concluded that “State Farm has presented facts
establishing that Pain Relief and Dr. Lorites made affirmative mis-
representations” that were “intended to conceal the actual facts
from State Farm.”
But the district court failed to consider whether State Farm
exercised reasonable diligence. State Farm contends that the clinics
repeatedly submitted CMS 1500 forms and accompanying medical
records representing that services performed at the clinics were
both lawful and medically necessary, and that it “did not and could
not know of the underlying scheme” based on the paperwork sub-
mitted by the clinics. But State Farm also conceded that it
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22 Opinion of the Court 20-13319
“presume[d]” that the bills submitted by PR contained lawfully ren-
dered services and “relied on the bills submitted by Pain Relief”
when issuing payments. And it admitted that the ongoing threat of
litigation over delayed payments compelled it to “rely on the rep-
resentation of the CMS 1500 form [that] the services were medi-
cally necessary and lawfully rendered.” State Farm, then, has not
established as a matter of law that the paperwork submitted by
PR—especially the medical records submitted along with PR’s
CMS forms—would not have exposed the relevant facts had it ex-
ercised reasonable diligence and examined them earlier. Berisford,
667 So. 2d at 812 (“Knowledge of information contained in accessi-
ble medical reports is imputed to the party.”).
Accordingly, we conclude that the district court correctly
denied Lorites’s own motion for summary judgment but erred
when it granted State Farm’s motion. As to Lorites’s motion, view-
ing the record in the light most favorable to State Farm, genuine
issues of material fact exist as to whether fraudulent concealment
tolled the statute of limitations, precluding judgment as a matter of
law in favor of Lorites. But when reviewing State Farm’s motion,
we are required to view the facts in the light most favorable to
Lorites. See Greater Birmingham Ministries v. Sec’y of State for
State of Ala., 992 F.3d 1299, 1317 (11th Cir. 2021) (when reviewing
rulings on cross-motions for summary judgment, we view the facts
“in the light most favorable to the non-moving party on each mo-
tion”) (quoting Chavez v. Mercantil Commercebank, N.A., 701
F.3d 896, 899 (11th Cir. 2012)). Applying that standard to State
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20-13319 Opinion of the Court 23
Farm’s motion, material issues of fact also exist, which require that
we reverse the district court’s grant of summary judgment in State
Farm’s favor.
IV. CONCLUSION
For the foregoing reasons, the district court’s summary
judgment in favor of State Farm is AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.