State Farm Mut. Auto. Ins. Co. v. Filenger

362 F. Supp. 3d 1246
CourtDistrict Court, S.D. Florida
DecidedDecember 19, 2018
DocketCase No.: 1:17-cv-21737-UU
StatusPublished
Cited by2 cases

This text of 362 F. Supp. 3d 1246 (State Farm Mut. Auto. Ins. Co. v. Filenger) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Farm Mut. Auto. Ins. Co. v. Filenger, 362 F. Supp. 3d 1246 (S.D. Fla. 2018).

Opinion

URSULA UNGARO, UNITED STATES DISTRICT JUDGE

*1248THIS CAUSE is before the Court upon Defendant's Motion for Summary Judgment (the "Motion"). D.E. 137. The Court has reviewed the Motion, the pertinent portions of the record and is otherwise fully advised of the premises. For the reasons discussed below, the Motion is GRANTED.

I. Procedural Background

Plaintiffs are Illinois corporations engaged in the business of offering and issuing automobile insurance policies in Florida to provide personal injury protection ("PIP") and/or medical payments coverage ("MPC") under Florida's Motor Vehicle No-Fault Law. Defendants, Felix Filenger ("Filenger"), Andrew Rubinshteyn ("Rubinshteyn"), Linda D. Varisco ("Varisco"), Olga Spivak ("Spivak") and David Greydinger ("Greydinger"), are chiropractors that provided medical services at-and had ownership over and control over various medical clinics in Florida, as described Infra.

Plaintiffs filed their complaint with this Court on May 10, 2017, asserting that between November 2009 and May 2017, the Defendants, acting in their capacity as owners and employees of the Defendant Clinics, provided medical services to individuals involved in automobile accidents, who were insured under Plaintiffs' PIP or MPC policies, thereby receiving more than $ 1.8 million in payments from Plaintiffs. Id. ¶ 14. Plaintiffs allege claims for: (1) unjust enrichment against all Defendants (Count II): and (2) declaratory judgment against the Defendant Clinics (Count II). D.E. 1. Before Plaintiffs filed their Complaint, Greydinger had been indicted and pleaded guilty to one count of Preparing and Presenting False and Fraudulent Insurance Claims of less than $ 20,000.00. D.E. 1 ¶ 22. After Plaintiffs filed their complaint, Varisco, Filenger, Rubinshteyn, Spivak and Greydinger, were indicted by the United States Government on charges including, racketeering, wire fraud, and presenting false and fraudulent insurance claims. D.E. 1; D.E. 68; D.E. 69; D.E. 75. Accordingly, on November 20, 2017, the Court stayed the proceedings until the criminal prosecutions as participation in discovery could implicate the Defendants' Fifth Amendment rights. D.E. 88. The Court ordered the parties to file a status report every sixty days advising the Court as to the status of the prosecutions. On July 11, 2018, the parties filed their Fourth Joint Status Report, explaining that the pending criminal prosecutions had concluded and the Court reopened the case. D.E. 93. The Court then held a status conference on August 10, 2018, requiring certain Defendants to appear for deposition.

The Court subsequently entered an amended Scheduling Order for Pretrial Conference and Trial, D.E. 103, setting a Motion deadline of November 16, 2018. D.E. 103. On October 23, 2018, the Court entered final default judgment against Defendants: Olga Spivak, D.C., Accumed Wellness and Rehabilitation Center, Inc., and Medwell Wellness and Rehabilitation Center, Inc. D.E. 124. As to the remaining Defendants, Plaintiff moved for final default judgment as to Advance Medical Associates and Hollywood Wellness and Rehabilitation Center, Inc., on November 16, 2018, D.E. 137, and on the same date Plaintiff moved for summary judgment as to Defendants Filenger, Rubinshteyn, Varisco, Greydinger, and Total Rehabilitation & Wellness Center ("Total"). As such, the remaining Defendants were required to respond by November 30, 2018, but as of the date of this Order, no response to either *1249Motion has been filed with the Court. Defendants Greydinger and Total do not oppose this Motion for Summary Judgment against them. D.E. 136 at 11.

II. Factual Background

The Court cannot grant summary judgment solely by virtue of a party's default. United States v. One Piece of Property, 5800 S.W. 74th Ave., Miami, Florida , 363 F.3d 1099, 1101 (11th Cir. 2004) ("[t]he district court cannot base the entry of summary judgment on the mere fact that the motion was unopposed but, rather, must consider the merits of the motion."). However, the Court may take the moving party's statement of material facts as admitted pursuant to Local Rule 56.1(b):

Effect of Failure to Controvert Statement of Undisputed Facts. All material facts set forth in the movant's statement filed and supported as required above will be deemed admitted unless controverted by the opposing party's statement, provided that the Court finds that the movant's statement is supported by evidence in the record.

Local Rule 56.1(b). Accordingly, as Plaintiffs' statement of material facts is supported by facts in the record, see D.E. 135, and as Defendants have not responded to the Motion or the statement of material facts, the Court deems Plaintiffs' statement of material facts as admitted. See id. As the facts are uncontroverted the Court does not recite them in full here, but a brief summary of the facts, as taken from Plaintiffs' statement of material facts, D.E. 135, is as follows.

A. The Parties

I. Defendant Clinics

Plaintiffs are Illinois corporations engaged in the business of offering and issuing automobile insurance policies in Florida to provide personal injury protection ("PIP") and/or medical payments coverage ("MPC") under Florida's Motor Vehicle No-Fault Law.

Defendant Advance Medical Associates and Forme Rehab, Inc. ("Advance"), and Defendant Hollywood Wellness and Rehabilitation Center, Inc. ("Hollywood"), were Florida corporations that operated as unlawful health care clinics providing medical services to State Farm Mutual and State Farm Fire Insureds involved in automobile accidents. Defendant Varisco was the sole President and Vice President of both Advance and Hollywood.

Defendant Medwell Wellness and Rehabilitation Center, Inc. ("Medwell") was a Florida corporation that also unlawfully provided medical services to State Farm Mutual and State Farm Fire Insureds involved in automobile accidents. The true owners and operators of Medwell were Filenger and Rubinshteyn.

Defendant Accumed Wellness and Rehabilitation Center, Inc. ("Accumed") was a Florida corporation Accumed that also unlawfully provided medical services to State Farm Mutual and State Farm Fire Insureds involved in automobile accidents. Accumed's true owners were Filenger and Rubinshteyn.

Total Rehabilitation & Wellness Center, P.A. ("Total") was a Florida corporation that also unlawfully providing medical services to State Farm Mutual and State Farm Fire Insureds at the same location as Accumed.

II. Defendant Chiropractors

Defendant Varisco was a licensed Florida chiropractic physician and resident of Broward County, Florida. At times material, Varisco falsely purported to wholly own Advance and Hollywood.

*1250

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362 F. Supp. 3d 1246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-farm-mut-auto-ins-co-v-filenger-flsd-2018.