CONSUMER LAW: CLASS ACTIONS: FLORIDA DECEPTIVE AND UNFAIR TRADE PRACTICES ACT (FDUTPA): FILING A HOSPITAL LIEN DOES NOT CONSTITUTE TRADE OR COMMERCE

Baker v. Baptist Hospital, Inc., ___ So. 3d ___, 38 Fla. L. Weekly D1488 (Fla. 1st DCA July 5, 2013)

The plaintiff filed a class action against a hospital, which filed hospital liens in one county for services rendered in another county.  The trial court, on motion for summary judgment, ruled that the practice was unlawful under “a special law specific to [the county in which the liens were filed],” ordered the hospital “to lift” the liens, and enjoined hospital from filing liens of this kind in the future; however, the trial court rejected the plaintiff’s claim for relief under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA) based on its conclusion that the hospital did not engage in trade or commerce by filing liens.  The appellate court affirmed.  FDUTPA is designed to curtail misconduct in trade or commerce.  Debt collection may involve trade or commerce, but the mere act of filing a lien does not.  Although filing a lien “may certainly be a step in eventually obtaining payment on a debt, the filing of the lien does not itself make a demand for payment.”  The court analogized filing a lien to filing a note and mortgage, which furnishes notice of a security interest.  In addition, the court “agree[d] with the Fourth District Court of Appeal that the pursuit of legal remedies does not fall within the definition of ‘trade or commerce.’”  The court explained that “a bill is a mere claim of a right to be paid and a lien is a securing of the right to be paid.  A securing of the legal right to be paid is not essential to the trade or commercial relationship – as evidenced by the myriad of daily commercial transactions the bills for which are paid in the absence of a lien.”