18 Fla. L. Weekly Supp. 526a
Online Reference: FLWSUPP 1806CLEA
Insurance — Personal injury protection — Coverage — Magnetic Resonance Imaging — Class action — Motion for certification of class in action against PIP insurer that reduced MRI providers’ charges by applying fee schedule associated with Medicare hospital Outpatient Prospective Payment System or other methodology not authorized by 2008 PIP statute is granted — Class is defined as providers who provided MRI services, hold assignment of benefits from insureds, submitted bills to insurer, and received payment from insurer, and subclass is defined as class members who submitted presuit demand letters to insurer — Numerosity, commonality, typicality and adequacy of representation requirements of rule 1.220(a) are met — Providers seek actual declaratory and injunctive relief, and are not seeking relief as roundabout method of requiring disgorgement of illegal profits and class satisfies cohesiveness test — Accordingly, rule 1.220(b)(2) requirements to certify class for declaratory and injunctive relief are met — Predominance and superiority tests of rule 1.220(b)(3) are likewise satisfied
CLEARVIEW IMAGING L.L.C., d/b/a “Clear-View Diagnostic Imaging,” d/b/a “Clearview Open MRI,” as assignee, individually, and on behalf of all those similarly situated, Plaintiff, vs. METROPOLITAN CASUALTY INSURANCE COMPANY, Defendant. Circuit Court, 13th Judicial Circuit in and for in and for Hillsborough County, Civil Division. Case No. 09-CA-10950. Division F. April 21, 2011. Honorable Charles E. Bergmann, Judge. Counsel: David M. Caldevilla, and Michael R. Bray, de la Parte & Gilbert, P.A., Tampa; J. Daniel Clark, Tampa; Christopher P. Calkin and Michael Reiss, Tampa, for Plaintiff. Frank Zacherl, Miami, and Suzanne Labrit, Tampa, for Defendant.
ORDER GRANTING PLAINTIFF’S MOTIONFOR CLASS CERTIFICATION
THIS CAUSE came before the Court on January 31, 2011 concerning the “Motion for Class Certification” filed by Plaintiff, Clearview Imaging L.L.C., d/b/a “Clear-View Diagnostic Imaging,” d/b/a “Clearview Open MRI,” (the “MRI Provider”) as assignee, individually, and on behalf of all those similarly situated. After considering the motion, the parties’ memoranda of law, the pleadings and other papers filed of record, the evidence presented, and the arguments of counsel, and being otherwise advised, this Court hereby makes the following findings of fact and conclusions of law:
I. Introduction
1. The MRI Provider seeks to certify a class pursuant to Florida Rule of Civil Procedure 1.220(b)(2) and/or (3), concerning its claims against Defendant Metropolitan Casualty Insurance Company (the “Insurance Company”), filed on the behalf of magnetic resonance imaging (“MRI”) providers whose charges for MRI services provided to insured patients from January 1, 2008 to the present, were reduced and/or rejected based on the Insurance Company’s allegedly erroneous interpretation and application of Section 627.736(5)(a)2-5, Florida Statutes (2007-2009).1
2. The MRI Provider has filed a three-count amended complaint against the Insurance Company. Count I seeks declaratory relief, Count II seeks injunctive relief, and Count III seeks damages. At the heart of these claims is the MRI Provider’s contention that the Insurance Company routinely applies the OPD fee schedule associated with Medicare’s hospital Outpatient Prospective Payment System (“OPPS”)2 and/or some other methodology not authorized by Sections 627.736(5)(a)2-5, Florida Statutes (2007-2009), and thereby underpays the amount of personal injury protection (“PIP”) benefits due for MRI services.3
3. The MRI Provider served a motion for class certification on February 15, 2010 and a supporting memorandum of law on January 11, 2011. The Insurance Company served a response in opposition to that motion on January 21, 2011.
4. On January 31, 2011, this Court conducted an evidentiary hearing on the motion for class certification. At that time, the parties presented evidence which included exhibits, affidavits, depositions, and discovery responses.4 This Court has carefully weighed that evidence in reaching the factual determinations contained in this order.
II. Statutory framework applicable to the claims
5. The core issues in this case involve the proper interpretation of the new Florida PIP statute (i.e., §627.736, Fla. Stat.) that has been in effect since January 1, 2008.5 Before discussing the new PIP statute, a historical review of the prior versions of the PIP statute is helpful.
6. Before June 19, 2001, there was no specific statutory methodology for determining the amount that PIP insurers were required to pay for MRI services provided to insured patients. Instead, the pre-2001 version of Section 627.736, Florida Statutes, applied the same “reasonableness” methodology generally applicable to other types of medical services provided to PIP insureds.
7. In pertinent part, the pre-2001 version of the PIP statute provided the following general “reasonableness” methodology for paying charges by most health care providers (including MRI providers) for services rendered to a PIP insured:
627.736 Required personal injury protection benefits; exclusions; priority; claims. —
(1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to the provisions of subsection (2) and paragraph (4)(d), to a limit of $10,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:
(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. Such benefits shall also include necessary remedial treatment and services recognized and permitted under the laws of the state for an injured person who relies upon spiritual means through prayer alone for healing, in accordance with his or her religious beliefs; however, this sentence does not affect the determination of what other services or procedures are medically necessary.
. . . . .
(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
(a) Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the properly completed invoice, bill, or claim form approved by the Department of Insurance upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. In no event, however, may such a charge be in excess of the amount the person or institution customarily charges . . . .
(Emph. added).
8. As of June 19, 2001, the Legislature enacted Section 627.736(5)(b)5, Florida Statutes (2001), which began imposing a new statutory fee schedule methodology for determining the amount of MRI fees to be paid by PIP insurers. See, Ch. 2001-271, Laws of Fla. (2001). The fee schedule provisions were clarified in 2003. See, Ch. 2003-411, Laws of Fla. (2003). As clarified in 2003, Section 627.736(5)(b)5 required PIP insurers to pay for MRI services based on “the allowable amount under the participating physician fee schedule of Medicare Part B for year 2001” as annually adjusted by the consumer price index. See, e.g., Millennium Diagnostic Imaging Center, Inc. v. Security Nat’l Ins. Co., 882 So.2d 1027 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D1817b] (Section 627.736(5)(b)5 required payment based on the Medicare participating physician fee schedule); Fair v. State Farm Mut. Auto. Ins. Co., 11 Fla. L. Weekly Supp. 863c (Fla.7th Jud. Cir. Jul. 15, 2004) (§627.736(5)(b)5 is “to set the standard by which the authorized payments were to be adjusted”); Premier Open MRI, LLC v. Progressive Express Ins. Co., 2005 WL 1077722 (Fla.13th Jud. Cir. Apr. 18, 2005) (amount of PIP benefits recoverable for MRI services is governed by the method for calculating MRI fees set forth in Section 627.736(5)(b)5); Clearview Imaging, LLC v. Progressive Consumers Insurance Company, 14 Fla. L. Weekly Supp. 372a (Fla. 13th Jud. Cir. Ct. 2006) (MRI providers are entitled to annual CPI adjustments to the fee schedule in Section 627.736(5)(b)5).
9. In Millennium, the trial court ruled that Section 627.736(5)(b)5, required payment based on the Medicare participating physician fee schedule. The Third District affirmed, stating:
[T]he legislature amended Section 627.736(5)(b)5 [in 2003] to explicitly provide that “the participating physician fee schedule” controls the amounts payable to MRI service providers. See Ch. 03-411, § 8, at 3833, Laws of Fla. Given the cavalcade of litigation regarding this issue, we believe that the amendment was enacted as a clarification of the legislature’s intent on what an “allowable amount” would be.
Millennium, 882 So. 2d at 1029-30 (emph. added). The Third District also relied on the legislative staff analysis of the 2003 amendment to Section 627.736(5):
. . . The 2003 amendment began as Committee Substitute for Senate Bill 32-A (2003). The Senate Staff Analysis and Economic Impact Statement dated May 15, 2003 provides that:
The bill clarifies that the allowable amounts for medically necessary nerve conduction tests, under specified conditions, will be under the “participating physician fee schedule” of the Medicare Part B fee schedule and adjusted annually on August 1 to reflect the prior calendar year’s changes in the Medical Care Item of the Consumer Price Index (CPI) for All Urban Consumers in the South Region as determined by the Bureau of Labor Statistics. The CPI provisions also pertain to MRI services.
Millennium, 882 So. 2d at 1030 (emph. added). This legislative staff analysis clearly demonstrates the Legislature’s intent to clarify that the “allowable amounts” for MRI services would be determined based on Medicare’s participating physician fee schedule and the applicable consumer price index, and not based on ad hoc determinations of what amount is “reasonable” or “customary.” See, also, Advanced Diagnostics Testing v. Allstate Ins. Co., 888 So. 2d 663 (Fla. 3d DCA 2004) [29 Fla. L. Weekly D2342c] (relying on Millennium Diagnostics and holding same); Progressive Auto Pro Ins. Co., 985 So. 2d at 12 (price of MRI set according to Section 627.736(5)(b)5).
10. The legislative intent portion of the 2003 session law confirms that the fee schedule methodology was enacted because some health care providers were overcharging the PIP insurers and some PIP insurers were underpaying the health care providers:
(2) The Legislature finds and declares that:
. . . . .
(d) Motor vehicle insurance fraud and abuse, other than in the hospital setting, whether in the form of inappropriate medical treatments, inflated claims, staged accidents, solicitation of accident victims, falsification of records, or in any other form, has increased premiums for consumers and must be uncovered and vigorously prosecuted. The problem of inappropriate medical treatment and inflated claims for PIP have generally not occurred in the hospital setting.
(e) The no-fault system has been weakened in part due to certain insurers not adequately or timely compensating injured accident victims or health care providers. In addition, the system has become increasingly litigious with attorneys obtaining large fees by litigating, in certain instances, over relatively small amounts that are in dispute.
(f) It is a matter of great public importance that, in order to provide a healthy and competitive automobile insurance market, consumers be able to obtain affordable coverage, insurers be entitled to earn an adequate rate of return, and providers of services be compensated fairly.
Ch. 2003-411, §1, Laws of Fla. (2003) (emph. added). Thus, it is clear that the Legislature went to considerable lengths to establish a clear, concrete fee schedule method for determining the “allowable amount” that PIP insurers would pay to MRI providers, thereby ending the constant battle between PIP insurers and MRI providers as to what constitutes a “reasonable” fee for an MRI.
11. In Clearview Imaging, LLC v. State Farm Mutual Auto. Ins. Co., 932 So. 2d 423, 424 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1120a], the Second DCA found that as of the 2001 amendment, the amount of PIP benefits recoverable for MRI services was governed by the fee schedule method set forth in Section 627.736(5)(b)5. The Second DCA court recognized that the fee schedule method (which included annual consumer price index adjustments) in the 2001 version of Section 627.736(5)(b)5 was intended to replace the “reasonableness” test with respect to MRI services:
[W]e note that the trial court’s decision to enforce the cap on fees for MRI services while declaring the inflationary cost adjustment to be unconstitutionally vague would have been troublesome. . . . [G]iven the legislature’s obvious intent to control the cost of MRI services with a method fair to both the providers and the insurance companies, we are inclined to believe that the statutory [fee schedule] method could not have been enforced [without the consumer price index adjustments] after November 1, 2001, and that MRI services would have been subject to the same rules of reasonableness that existed prior to the statutory amendment in 2001.
Clearview, 932 So. 2d at 426, fn.3 (emph. added; citations omitted).
12. The MRI fee schedule methodology remained in Section 627.736(5)(b)5 until October 1, 2007, when that subsection and the entire PIP statute, along with the rest of the statutes which comprise the “Florida Motor Vehicle No-Fault Law,”6 were all automatically repealed by a “sunset” provision. See Ch. 2003-411, §19, Laws of Fla. (2003).
13. A new set of Florida Motor Vehicle No-Fault Law statutes was passed on October 11, 2007, with an effective date of January 1, 2008. See, Ch. 2007-324, Laws of Fla. (2007). See also, Geico Indemnity, 47 So.3d at 356 (“On January 1, 2008, the new Florida Motor Vehicle No-Fault Law, including a new PIP statute, went into effect”). The new version of Section 627.736(5) now includes a new statutory methodology for determining reimbursement of all health care providers’ charges for treatment of PIP insureds. Effective January 1, 2008, the pertinent parts of the new Section 627.736(5), Florida Statutes (2007) stated:
627.736 Required personal injury protection benefits; exclusions; priority; claims. —
(1) REQUIRED BENEFITS. — Every insurance policy complying with the security requirements of s. 627.733 shall provide personal injury protection to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, subject to the provisions of subsection (2) and paragraph (4)(e), to a limit of $10,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle as follows:
(a) Medical benefits. — Eighty percent of all reasonable expenses for medically necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices, and medically necessary ambulance, hospital, and nursing services. However, the medical benefits shall provide reimbursement only for such services and care that are lawfully provided, supervised, ordered, or prescribed by a physician licensed under chapter 458 or chapter 459, a dentist licensed under chapter 466, or a chiropractic physician licensed under chapter 460 or that are provided by any of the . . . persons or entities [listed in subparts 1 through 5]. . . .
. . . . .
(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
(a)1. Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered, and the insurer providing such coverage may pay for such charges directly to such person or institution lawfully rendering such treatment, if the insured receiving such treatment or his or her guardian has countersigned the properly completed invoice, bill, or claim form approved by the office upon which such charges are to be paid for as having actually been rendered, to the best knowledge of the insured or his or her guardian. In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies. With respect to a determination of whether a charge for a particular service, treatment, or otherwise is reasonable, consideration may be given to evidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state medical fee schedules applicable to automobile and other insurance coverages, and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
a. For emergency transport and treatment by providers licensed under chapter 401, 200 percent of Medicare.
b. For emergency services and care provided by a hospital licensed under chapter 395, 75 percent of the hospital’s usual and customary charges.
c. For emergency services and care as defined by s. 395.002(9) provided in a facility licensed under chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.
d. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.
e. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.
f. For all other medical services, supplies, and care,[7] 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.
3. For purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care was rendered and for the area in which such services were rendered, except that it may not be less than the allowable amount under the participating physicians schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.
4. Subparagraph 2. does not allow the insurer to apply any limitation on the number of treatments or other utilization limits that apply under Medicare or workers’ compensation. An insurer that applies the allowable payment limitations of subparagraph 2. must reimburse a provider who lawfully provided care or treatment under the scope of his or her license, regardless of whether such provider would be entitled to reimbursement under Medicare due to restrictions or limitations on the types or discipline of health care providers who may be reimbursed for particular procedures or procedure codes.
5. If an insurer limits payment as authorized by subparagraph 2., the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s personal injury protection coverage due to the coinsurance amount or maximum policy limits.
Ch. 2007-324, §20, Laws of Fla. (emph. added).
14. On July 1, 2008, Section 627.736(5)(a)2.f and 3 were clarified to identify the applicable fee schedule provision, as follows:
(5) CHARGES FOR TREATMENT OF INJURED PERSONS. —
. . . . .
[(a)2.]f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of applicable
Medicare Part B fee schedule
. However, if such services, supplies, or care are not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care are provided. Services, supplies, or care that are not reimbursable under Medicare or workers’ compensation are not required to be reimbursed by the insurer.
3. For purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care were rendered and for the area in which such services were rendered, except that it may not be less than the allowable amount under the participating physicians schedule applicable 2007
Medicare Part B for 2007 fee schedule
for medical services, supplies, and care subject to Medicare Part B.
Ch. 2008-220, Laws of Fla. (2008) (underline and strike-through in original). The foregoing amendment was a clarifying amendment, much like the 2003 amendment to the PIP statute. See Millennium, 882 So. 2d 1027; Clearview Imaging L.L.C., 932 So. 2d 423. Accordingly, the “2007 Medicare Part B fee schedule” referenced in the 2007 version of Section 627.736(5)(a) means “the participating physician schedule of Medicare Part B” as provided in the current version of the statute. In other words, the 2008 clarifying legislation did not enact a substantive change to the 2007 version of Section 627.736(5)(a) and both versions of the statute must be interpreted to mean the same thing. See, AFO Imaging, Inc. v. Peak, 17 Fla. L. Weekly Supp. 368a at ¶¶ 14-20; AFO Imaging, Inc. v. Alpha Property, 16 Fla. L. Weekly Supp. 533a at ¶¶ 6-8.
III. The parties’ differing interpretations of the new PIP statute
15. In this case, the MRI Provider asks this Court to interpret and apply the new fee schedule provisions of Section 627.736(5)(a)2-5, and decide the legal question of whether those provisions ever authorize a PIP insurer to utilize the “Special rule for imaging services” of 42 USC §1395w-4(b)(4), the “OPPS” amount, or any other Medicare restrictions or limitations not expressly described by Section 627.736(5)(a)2-5, when determining the amounts due for MRI services provided to a PIP insured. The MRI Provider contends that such Medicare restrictions and limitations do not apply under the PIP statute.8 In contrast, the Insurance Company contends that, at most, an MRI provider is merely entitled to recover 80% of 200% of what it would be entitled to recover from the federal Medicare program for the same service in that same area. According to this interpretation, the Insurance Company contends that it is lawfully authorized by Sections 627.736(5)(a)2-5 to pay the lower OPPS amount to MRI providers.9
16. At the same time, however, the Insurance Company also interjects the additional legal issue of whether the “reasonableness” provisions described in Section 627.736(1)(a) and/or 5(a)1, and the “fee schedule” provisions described in Section 627.736(5)(a)2-5, establish a single unified payment methodology, or whether those subsections establish two separate and distinct payment methodologies. The Insurance Company suggests that those subsections combined establish a single payment methodology, which requires a health care provider’s charges to be reasonable without ever exceeding the fee schedule amount. The Insurance Company cites as authority for this proposition a dismissal order issued in the case of MRI Assoc. of St. Pete, Inc. v. State Farm Mut. Auto Ins. Co., No. 8:10-cv-713-T-30AEP, 2010 WL 5184064 (M.D.Fla. December 8, 2010).10 MRI Assoc. of St. Pete failed to take note of several contrary Florida state court rulings,11 and is currently pending on appeal at the U.S. Eleventh Circuit Court of Appeals.12 That federal decision has been stayed pending the outcome of the appeal, and in any event, is not binding on this Court. Further, the order in MRI Assoc. of St. Pete goes to the merits of certain legal issues, which this Court should not reach at this juncture of the case. See, e.g., Rollins v. Butland, 951 So. 2d 860, 868 (Fla. 2d DCA 2007) [31 Fla. L. Weekly D3148a] (in ruling on a motion for class certification, “the trial court’s proper focus is on whether the requirements of rule 1.220 have been met and not on whether the moving party will prevail on the merits.”)
17. In contrast, the MRI Provider contends that Section 627.736(1)(a) and 5(a)1 establish a reasonable amount methodology, and that Section 627.736(5)(a)2-5 establish a separate, distinct and alternative fee schedule methodology.13 Under the Insurance Company’s interpretation, payments by PIP insurers for MRI services can never rise above the fee schedule amount. Under the MRI Provider’s interpretation, payments by PIP insurers for MRI services can never fall below the fee schedule amount.
18. Based on the foregoing discussion, the Court finds that there is an ongoing bona fide controversy between the MRI Provider and the Insurance Company regarding the proper interplay, interpretation, and application of the various subsections of the PIP statute, and the proper methodology established by those subsections for determining the amount of PIP benefits that are payable to MRI providers by PIP insurers.
IV. Class certification
A. Introduction and requirements for class certification
19. The MRI Provider seeks class certification pursuant to Florida Rule of Civil Procedure 1.220. Rule 1.220 is patterned after Federal Rule of Civil Procedure 23. As a result, the Court may look to federal cases as persuasive authority on the interpretation of the Florida Rule. See, e.g., Powell v. River Ranch Property Owners Ass’n, Inc., 522 So. 2d 69, 70 (Fla. 2d DCA), rev. den., 531 So. 2d 1354 (Fla. 1988).
20. The purpose of a class action lawsuit “is to save a multiplicity of suits, to reduce the expense of litigation, to make legal processes more effective and expeditious, and to make available a remedy that would not otherwise exist.” Tenney v. City of Miami Beach, 11 So. 2d 188, 189 (Fla. 1942). Stated another way, class actions facilitate judicial economy by avoiding multiple suits on the same subject matter, provide a feasible means for asserting the rights of those who would have no realistic day in court if a class action were not available, and deter inconsistent results, assuring a uniform, singular determination of rights and liabilities. American Pipe & Constr., Co. v. Utah, 414 U.S. 538 (1974).
21. The decision on a motion for class certification is a matter within the trial court’s broad discretion. Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981); Pinellas County School Bd. v. Crowley, 911 So. 2d 881, 882 (Fla.2d DCA 2005) [30 Fla. L. Weekly D2320a]. Execu-Tech Bus. Sys., Inc. v. Appleton Papers, Inc., 743 So. 2d 19, 20, n.1 (Fla.4th DCA 1999) [24 Fla. L. Weekly D126b].
22. Like the federal rule, Rule 1.220 establishes a two-step process for class certification. First, pursuant to Rule 1.220(a), the Court must first conclude that:
(1) the members are so numerous that separate joinder of each member is impracticable;
(2) the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class;
(3) the claim or defense of the representative party is typical of the claim or defense of each member of the class; and
(4) the representative party can fairly and adequately protect and represent the interests of each member of the class.
(Emphasis added). The foregoing factors are often referred to as numerosity, commonality, typicality, and adequacy.
23. Second, if the requirements of Rule 1.220(a) are satisfied, at least one of the three requirements of Rule 1.220(b) must also be met. Florida Dept. of Agr. & Consumer Services v. City of Pompano Beach, 829 So. 2d 928, 930 (Fla.4th DCA 2002) [27 Fla. L. Weekly D2110a]. The three parts of Rule 1.220(b) are as follows:
(1) the prosecution of separate claims or defenses by or against individual members of the class would create a risk of either:
(A) inconsistent or varying adjudications concerning individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or
(b) adjudications concerning individual members of the class which would, as a practical matter, be dispositive of the interest of other members of the class who are not parties to the adjudications, or substantially impair or impede the ability of other members of the class who are not parties to the adjudications to protect their interests; or
(2) the party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class, thereby making final injunctive relief or declaratory relief concerning the class as a whole appropriate; or
(3) the claim or defense is not maintainable under either subdivision (b)(1) or (b)(2), but the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy. The conclusions shall be derived from consideration of all relevant facts and circumstances, including (A) the respective interest of each member of the class in individually controlling the prosecution of separate claims or defenses, (B) the nature and extent of any pending litigation to which any member of the class is a party and in which any question of law or fact controverted in the subject action is to be adjudicated, (C) the desirability or undesirability of concentrating the litigation in the forum where the subject action is instituted, and (D) the difficulties likely to be encountered in the management of the claim or defense on behalf of the class.
(Emph. added). In this case, the MRI Provider seeks class certification concerning its declaratory and injunctive relief claims pursuant to Rule 1.220(b)(2), and seeks class certification concerning its damages claim pursuant to Rule 1.220(b)(3).
24. When the nonmoving party contests class certification and it is not clear from the pleadings that a lawsuit qualifies for class action status, there must be an evidentiary basis to support an order certifying a class See, Fla. Health Scis. Ctr., Inc. v. Elsenheimer, 952 So. 2d 575, 581 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D624b]; Ernie Haire Ford, Inc. v. Gilley, 903 So. 2d 956, 959 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D1055a].
25. In this regard, the Court is required to conduct a “rigorous analysis” and “it is insufficient for the trial court to accept the allegations in the Plaintiffs’ complaint as true for purposes of the class certification.” See, Florida Health Sciences, 952 So. 2d at 581. The Court must also disregard the merits of the Insurance Company’s potential defenses. See, e.g., Johnson v. Steven Sims Subaru, Inc., 1993 WL 761231 (N.D. Ill. 1993) (defendants cannot erect a defense lacking arguable validity solely to create a specter that such defense will destroy typicality of class representative’s claim). In conducting the evidentiary hearing to determine whether to certify a class, the trial court’s proper focus is on whether the requirements of Rule 1.220 have been met, and not whether the moving party will ultimately prevail on the merits. See, Océ Printing Systems USA, Inc. v. Mailers Data Services, Inc., 760 So. 2d 1037, 1045 (Fla. 2d DCA 2000) [25 Fla. L. Weekly D1454c]; Samples v. Hernando Taxpayers Ass’n, 682 So. 2d 184, 185 (Fla. 5th DCA 1996) [21 Fla. L. Weekly D2168b]; Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). Accordingly, nothing in this order should be construed as a determination of the merits of any claims or defenses.
26. Under Rule 1.220(d)(1), the Court’s class certification order “may be conditional. . .” Further, Rule 1.220(d)(4)(A) states that “a claim or defense may be brought or maintained on behalf of a class concerning particular issues.” See also, Engle v. Liggett Group, Inc., 945 So. 2d 1246, 1268-71 (Fla. 2006) [32 Fla. L. Weekly S1a]. Engle is a landmark class action decision by the Florida Supreme Court, which authorizes the trial court to adopt a phased approach to litigating class action cases. As thoroughly explained in Engle, this Court is permitted to separately certify a class for purposes of deciding particular issues such as liability, causation, and damages. Thus, a trial court can place conditions upon class certification, and can separately certify a class for purposes of deciding particular issues such as liability, causation, and damages.
27. Moreover, Rule 1.220(d)(1) also gives this Court continuing jurisdiction to modify or revoke the class certification to address new evidence, issues, claims, or defenses, if and when they actually arise. Therefore, this order is subject to the Court’s continuing jurisdiction to modify or revoke the class certification pursuant to Rule 1.220(d)(1).
B. Definitions of the proposed class and sub-class
28. Rule 1.220(c)(2)(D)(ii) requires “a definition of the alleged class.” Therefore, before considering whether a class satisfies the two-part test of Rule 1.220(a) and (b), it is first necessary to define the class.
29. Rule 1.220 contains no particular requirements for a class definition, but Florida case law requires that the class be “described with some degree of certainty.” Harrell v. Hess Oil and Chemical Corp., 287 So. 2d 291, 294 (Fla. 1973); Paradise Shores Apartments, Inc. v. Practical Maintenance Co., Inc., 344 So. 2d 299, 302 (Fla. 2d DCA 1977). Federal cases explain the class definition should be “readily ascertainable by reference to objective criteria”. Garrish v. United Auto., Aerospace & Agric. Implement Worker, 149 F.Supp. 2d 326, 331 (E.D. Mich.2001). See also, Edwards v. McCormick, 196 F.R.D. 487, 493 (S.D. Ohio 2000); 5 Moore’s Federal Practice § 23.21[1] (3d ed.1997).
30. In this case, the MRI Provider requests this Court to approve the following definition of the “Class”:
(i) healthcare providers as described by the Florida Motor Vehicle No-Fault Act; (ii) who, from January 1, 2008 to the present, provided MRI services (whether technical services associated with the taking of the MRI, professional services associated with reading the MRI or other MRI services) to persons insured by the Defendant under Florida No-Fault coverage; (iii) who received and hold an assignment of benefits from an insured of the Defendant; (iv) who submitted bills for payment for those MRI services to the Defendant; and (v) which bills were paid by the Defendant according to the Defendant’s determination of the allowable amount under Section 627.736(5)(a)2.f, Florida Statutes (2007-2009), and otherwise applicable law.
31. Included within the Class, is the alternative “Pre-Suit Notice Sub-Class,” which consists of and is defined as all persons and/or entities who: (a) are a member of the Class, and (b) submitted a pre-suit demand letter to the Insurance Company pursuant to Section 627.736(10), Florida Statutes. All references herein to the “Class” include the “Pre-Suit Notice Sub-Class,” unless otherwise stated.14
32. The definition of the Class excludes healthcare provider claims which: (a) were not paid because PIP benefits were terminated prior to the date of service; (b) were not paid because PIP benefits were exhausted prior to the date of service; (c) were not paid in full because PIP benefits were exhausted by partial payment to the provider; (d) were not paid because the deductible was entirely applicable to the bill; (e) were not paid for violation for the clinic registration requirements of Section 456.0375, Florida Statutes; (f) rendered MRI services for inpatient and emergency services and care as defined in Chapter 395, Florida Statutes by facilities licensed under Chapter 395; (g) were not otherwise paid because the Insurance Company was not required to pay the claim or charge pursuant to Section 627.736 or the policy of insurance, and for which no payment is due by the Insurance Company or an injured party; or (h) have reached an accord and satisfaction resolving any claim that the Insurance Company did not pay them the full amount to which they were entitled, whether by settlement of an individual claim, voluntary payment in response to a demand, or otherwise, whether or not such claimant has executed a full release. Also excluded from the Class are the Insurance Company, any parent, subsidiary, affiliated or controlled person of the Insurance Company, as well as officers, directors, agents, servants and employees of the Insurance Company, and immediate family members of such persons.
33. The Court finds that the foregoing class definitions provide a sufficient degree of certainty and objective criteria to readily ascertain the identities of potential class and sub-class members, and otherwise satisfy the requirements of Rule 1.220(c)(2)(D)(ii). See, e.g., Harrell, 287 So. 2d at 294; Paradise Shores, 344 So. 2d at 302. Although the foregoing class definitions are sufficient, this Court retains jurisdiction to modify them during the course of this case. Cliff v. Payco Gen. American Credits, Inc., 363 F. 3d 1113 (11th Cir. 2004) [17 Fla. L. Weekly Fed. C337a].
34. Moreover, the pleadings and evidence demonstrate that the MRI Provider is a member of the Class and the Pre-Suit Notice Sub-Class. Among other things, the insured patient assigned his/her claims to the MRI Provider, and the MRI Provider submitted a pre-suit demand letter to the Insurance Company before this lawsuit was filed. Both the written assignment and the pre-suit demand letter are attached to the MRI Provider’s complaint, and for purposes of class certification only, the Court finds that both documents appear to be in order and sufficient to confer standing on the MRI Provider to assert the subject causes of actions and demonstrate that the MRI Provider is a member of the class and sub-class as defined herein.
C. Statutory pre-suit demand letter requirements
35. With respect to the definition of the Pre-Suit Notice Sub-Class, it should be noted that the MRI Provider’s declaratory relief claim in Count I, and the injunctive relief claim in Count II are brought on behalf of the entire Class, or in the alternative, on behalf of the Pre-Suit Notice Sub-Class. In contrast, the MRI Provider’s damages claim in Count III is limited to the Pre-Suit Notice Sub-Class. Accordingly, at this juncture, a discussion concerning the PIP statute’s pre-suit demand letter requirements is appropriate.
36. The pre-suit demand letter requirements of the PIP statute are found in Section 627.736(10), Florida Statutes (2007-2009), which, in pertinent part, states:
. . . DEMAND LETTER. —
(a) As a condition precedent to filing any action for benefits under this section, the insurer must be provided with written notice of an intent to initiate litigation. Such notice may not be sent until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b).
(Emph. added). This provision was previously found in former subsection (11) but was renumbered as subsection (10) in 2007. See, Ch. 2007-324, §13, Laws of Fla. (2007).
37. In its eleventh and twelfth affirmative defenses, the Insurance Company contends that the MRI Provider has failed to satisfy the pre-suit demand letter requirements of Section 627.736(10). In its complaint, and in its reply and amended reply to the eleventh and twelfth affirmative defenses, the MRI Provider contends that the pre-suit demand letter requirements of Section 627.736(10), Florida Statutes, apply only to an “action for benefits under [Section 627.736],” and do not apply to an action for declaratory relief under Chapter 86, Florida Statutes or an action for injunctive relief under the common law.15 The Insurance Company contends that the pre-suit demand letter requirements of Section 627.736(10) apply to all of the MRI Provider’s claims, and denies that it violated Section 627.736(10)(f).
38. Notably, the MRI Provider itself submitted a pre-suit demand letter on or about September 23, 200816 and all of the MRI Provider’s claims have been brought (at least in the alternative) on behalf of the Pre-Suit Notice Sub-Class, and by definition, all sub-class members have submitted their own separate pre-suit demand letters. Based on the case law cited in footnote 15 herein, it appears that the Insurance Company’s argument has been rejected by various published appellate decisions. In any event, the issues of whether the pre-suit demand letter requirements of Section 627.736(10) apply to the types of claims asserted by the MRI Provider in this case are common issues which apply to the claims of all class members and which pertain to the merits of those claims. Accordingly, those common issues will not be decided in this class certification order. Rather, if this Court ultimately decides the pre-suit demand letter requirements of Section 627.736(10) apply or do not apply to some or all of the MRI Provider’s claims, this Court may modify the class definition, to narrow or expand the membership of the class, or if appropriate, decertify the class or the sub-class.
D. Whether the proposed class satisfies Rule 1.220(a)
1. Rule 1.220(a)(1) — Numerosity
39. The first element of Rule 1.220(a) — numerosity — requires only that joinder be impracticable.
40. In establishing “numerosity,” proof of exact class size is unnecessary and estimates are sufficient. Fuller v. Becker & Poliakoff, P.A., 197 F.R.D. 697, 698 (M.D. Fla.2000). Where “general knowledge and common sense” indicate the class is large, the moving party need not demonstrate its exact size. See, e.g., Orantes-Hernandez v. Smith, 541 F. Supp. 351, 370 (C.D. Cal. 1982). “The Court is given discretion to make assumptions when determining the numerosity of a class.” Fuller at 699, citing, Evans v. U.S. Pipe & Foundry, 696 F. 2d 925 (11th Cir. 1983).
41. Rule 1.220 (a)(1) itself states the members must be “so numerous that separate joinder of each member is impracticable[.]” Case law holds that the impracticability of joinder can be proven by a presumption. If the moving party establishes there are at least 40 to 50 class members, a presumption arises that separate joinder of each member is impracticable. See, e.g., Terry L. Braun, P.A. v. Campbell, 827 So.2d 261, 266 (Fla.5th DCA 2002) [27 Fla. L. Weekly D1712a] (50 class members is sufficient to establish impracticability of joinder); Consolidated Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2nd Cir. 1995)(numerosity is presumed at 40 class members); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir.), cert. den., 479 U.S. 883 (1986) (while there is no fixed numerosity rule, generally less than 21 is inadequate, more than 40 is adequate, with numbers between varying according to other factors).17 Once the moving party satisfies the presumption, it is then incumbent on the non-moving party to overcome it. This is particularly true in cases such as this one, where the defendant alone has access to the class size data. See, e.g., Jackson v. Foley, 156 F.R.D. 538, 542 (E.D.N.Y. 1994).
42. The Insurance Company has stipulated that the numerosity requirement is satisfied in this case. Moreover, at a January 25, 2011 deposition, the Insurance Company’s corporate representative testified that there are hundreds, if not thousands, of class members.
43. Based on this testimony and the Insurance Company’s stipulation to numerosity, this Court finds that the requirements of Rule 1.220(a)(1) are satisfied in this case, with respect to the Class and the Pre-Suit Notice Sub-Class.18 Cf., Canal Insurance Co. v. Gibraltar Budget Plan, Inc., 41 So. 3d 375 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1690b].
2. Rule 1.220(a)(2) — Commonality
44. The next inquiry is whether there is “a common question of law or fact among the members of the class.” Fla. R. Civ. P. 1.220(a)(2).
45. Rule 1.220 does not require denial of class certification “merely because the claim of one or more class representatives arises in a factual context that varies somewhat from that of other plaintiffs.” Powell v. River Ranch Property Owners Ass’n, Inc., 522 So. 2d 69, 70 (Fla. 2d DCA), rev. den., 531 So. 2d 1354 (Fla. 1988).
46. Furthermore, a plaintiff is not required to present “carbon copy” claims. “Not all factual or legal questions raised in the litigation need be common as long as at least one issue is common to all class members.” Fuller, 197 F.R.D. at 699. “A sufficient nexus is established if the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.” Kornberg v. Carnival Cruise Lines, Inc., 741 F. 2d 1332, 1337 (11th Cir. 1984), cert. denied, 470 U.S. 1004 (1985). “Where a common scheme of deceptive conduct is alleged, common questions of law and/or fact will exist.” Powers v. Government Employees Ins. Co., 192 F.R.D. 313, 317 (S.D. Fla. 1998). See Singer v. AT&T Corp., 185 F.R.D. 681, 688 (S.D. Fla. 1998). See also Powers v. Stuart-James Co., Inc., 707 F. Supp. 499, 502 (M.D. Fla. 1989).
47. In Powell, supra, the appellate court recognized that the primary concern in considering the typicality and commonality of claims should be whether the class representative’s claim arises from the same course of conduct that gave rise to the other claims and whether the claims are based on the same legal theory.
48. In Colonial Penn Ins. Co. v. Magnetic Imaging Systems I, Ltd., 694 So. 2d 852 (Fla. 3d DCA 1997) [22 Fla. L. Weekly D1370a], an MRI provider brought a class action for PIP benefits due to the insurance company’s failure to pay additional statutory interest. In addressing the common issues of law and fact to that PIP class action, the court held:
Commonality requires that ‘the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class. Here, [Plaintiff] . . . raises the same law and fact questions as the class members: whether statutory interest was due on tardy payments.
Id. at 853. The Colonial Penn court went further, and held:
A class suit is maintainable where the subject of the action presents a question of common or general interest, and where all members of the class have a similar interest in obtaining the relief sought. The common or general interest must be in the object of the action, in the result sought to be accomplished in the proceedings, or the question involved in the action. There must be a common right of recovery based on the same essential facts.
Id. (emph. added); quoting, Imperial Towers Condominium, Inc. v. Brown, 338 So. 2d 1081, 1084 (Fla. 4th DCA 1976).
49. In this case, the proposed class is comprised only of those MRI providers to whom the Insurance Company has already tendered payment, but the amount paid was reduced based on OPPS, according to the Insurance Company’s interpretation of Section 627.736(5)(a)2.f. Thus, as in Colonial Penn, this case involves the situation where the MRI Provider contends that the Insurance Company’s payment methodology uniformly resulted in the same type of alleged underpayments to all other MRI providers in the class.
50. In this case, the questions of law and fact common to the class include but are not limited to the following:
(a) Do the pre-suit demand letter requirements of Section 627.736(10) apply to Count I, an action for declaratory relief under Chapter 86?
(b) Do the pre-suit demand letter requirements of Section 627.736(10) apply to Count II, an action for injunctive relief under common law?
(c) Do the “reasonableness” provisions of Section 627.736(1)(a) and/or 5(a)1, and the “fee schedule” provisions of Section 627.736(5)(a)2-5, establish a single unified payment methodology, or do those provisions establish two separate and distinct payment methodologies?
(d) What is “the participating physicians schedule of Medicare Part B” as referenced in Section 627.736(5)(a)2.f and (a)3, Florida Statutes?
(e) Whether a Florida PIP insurer may lawfully reduce the amount it pays for MRI fees by using OPPS or some other pricing system not expressly authorized by Section 627.736(5)(a)2-5, Florida Statutes?
(f) Whether the Insurance Company violated Section 627.736(5)(a)2-5, Florida Statutes, by routinely failing and/or refusing to pay PIP benefits for MRI services in an amount based on 200% of the allowed amount under the participating physicians schedule Medicare Part B for 2007, or the fee schedule in effect at the time that the services were rendered, whichever is greater?
(g) Whether the MRI Provider and the class members are entitled to declaratory relief to determine the parties’ respective rights and obligations concerning Section 627.736(5)(a)2-5, Florida Statutes, and otherwise applicable law?
(h) Whether the MRI Provider and the class members are entitled to injunctive relief to stop the Insurance Company from continuing in the future to underpay PIP claims based upon an allegedly erroneous interpretation of Section 627.736(5)(a)2-5, Florida Statutes?
(i) Whether the MRI Provider and the class members are entitled to damages as a result of the Insurance Company’s allegedly erroneous interpretation of Section 627.736(5)(a)2-5, Florida Statutes and/or alleged underpayment of PIP claims, and if so, what is the proper methodology for determining the amount of such damages?
51. Although the Insurance Company contends that the submission of separate pre-suit demand letters by each class member may lead to individualized issues concerning the sufficiency of each particular demand letter, this Court has no basis to agree with that contention, at least not at this juncture of the proceedings.
52. Assuming that the class members’ pre-suit demand letters are presented by the Insurance Company, this Court must then determine as a matter of law the common legal issue of whether the pre-suit demand letter requirements of Section 627.736(10) apply to Count I for declaratory relief or Count II for injunctive relief.
53. The Insurance Company also suggests that the commonality requirement is defeated because the “reasonableness” provisions of Section 627.736(1)(a) and/or 5(a)1, and the “fee schedule” provisions of Section 627.736(5)(a)2-5, establish a single unified payment methodology. This Court disagrees that this argument defeats the commonality requirement. Rather, this argument presents a “core” legal issue that is common to Counts I, II, and III, and can easily be determined within the MRI Provider’s declaratory and injunctive relief claims in Counts I and II, before the Court considers the MRI Provider’s claim for damages in Count III. If this Court ultimately agrees with the Insurance Company’s interpretation that those provisions of the PIP statute establish a single unified payment methodology, then Count III will involve highly individualized issues relating to damages and the reasonableness of each class member’s charges that probably cannot be decided on a class-wide basis. In that event, this Court will have jurisdiction to modify or revoke the class certification pursuant to Rule 1.220(d)(1), if appropriate. On the other hand, if the Court determines as a matter of law that the “fee schedule” provisions of Section 627.736(5)(a)2-5 establish a separate and distinct payment methodology, the “reasonableness” provisions of Section 627.736(1)(a) and/or 5(a)1 will be irrelevant and will not present any individualized issues. See, Commonwealth Land & Title Ins. Co. v. Higgins, ____So.3d____, 2011 WL 362415, 36 Fla. L. Weekly D287a (Fla. 1st DCA Feb. 7, 2011) (class certification was appropriate, where the plaintiff presented a legal theory that, if correct, will result in common issues predominating, and if trial court later interprets Florida law in a manner that results in individualized issues becoming predominant, trial court could modify or decertify the class).
54. Thus, at this juncture, this Court finds that the commonality requirements of Rule 1.220(a)(2) have been satisfied, without prejudice to the Court’s continuing jurisdiction to modify or revoke the class certification pursuant to Rule 1.220(d)(1), if or when it appears that highly individualized issues arise concerning the pre-suit demand letter requirements of Section 627.736(10) or the “reasonableness” provisions of Section 627.736(1)(a) and/or 5(a)1.
3. Rule 1.220(a)(3) — Typicality
55. The “typicality” requirement of Rule 1.220(a)(3) examines whether “the claim or defense of the representative party is typical of the claim or defense of each member of the class[.]”
56. A class representative’s claim is typical of the claims of the class, if his claims and those of the class arise from the same event, pattern, or practice, and are based on the same legal theory. See, e.g., Singer v. AT&T Corp., 185 F.R.D. 681, 689 (S.D. Fla.1998); Walco Investments, Inc. v. Thenen, 168 F.R.D. 315, 326-327 (S.D. Fla.1996). The focus is not the plaintiff’s behavior, but the defendant’s behavior, and if the defendant’s course of conduct gives rise to the claims of all class members, and the defendant has not taken any action unique to the named plaintiff, then the class representative’s claim is typical. Deutschman v. Beneficial Corp., 132 F.R.D. 359, 373 (D. Del. 1990).
57. “In essence, a plaintiff and each member of the represented group must have an interest in prevailing on similar legal claims. Assuming such interest, particular factual differences, differences in the amount of damages claimed, or even the availability of certain defenses against a class representative may not render his or her claims atypical.” Singer, 185 F.R.D. at 689.
58. Accordingly, the mere presence of factual differences will not defeat typicality. Colonial Penn, at 854; Broin, at 892; Pottinger v. City of Miami, 720 F. Supp. 955 (S.D. Fla. 1989). If “the same unlawful conduct was directed at or affected both the class representatives and the class itself, the typicality requirement is usually met irrespective of varying fact patterns which underlie the individual claims.” Davis v. Southern Bell Tel. & Tel. Co., 1993 WL 593999, at *4 (S.D. Fla. 1993).
59. Indeed, the typicality requirement may be satisfied despite the existence of relatively pronounced factual distinctions between the claims of the named plaintiffs and those the proposed class members, if there is a strong similarity of legal theories. See, e.g., Baby Neal v. Casy, 43 F.3d 48, 57-58 (3rd Cir. 1994). Any atypicality or conflict between the named plaintiff’s claims and those of the class “must be clear and must be such that the interests of the class are placed in significant jeopardy.” Walco Investments, 168 F.R.D. at 326.
60. Moreover, a defendant should not be able to defeat the typicality requirement merely by suggesting the existence of a unique defense that could conceivably apply to certain hypothetical class members, without at least: (a) establishing that the defense is a legally valid one, and (b) producing evidence that the defense is inapplicable to the class representative, and (c) producing evidence of the existence of class members to whom that defense actually applies. Absent such a demonstration, a class representative can (and should be permitted to) fend off a meritless argument or defense just as easily as any other class member. See, e.g., Johnson v. Steven Sims Subaru, Inc., 1993 WL 761231 (N.D. Ill. 1993) (defendants cannot erect a defense lacking arguable validity solely to create a specter that such defense will destroy the typicality of the class representative’s claim).
61. In this case, the MRI Provider’s claims are essentially identical to the claims of other class members, and the Insurance Company’s defenses to those claims are likewise identical. All class members’ claims arise from the same routine conduct by the Insurance Company of allegedly underpaying for MRI services using the OPPS prices instead of the higher non-facility prices.19 Moreover, the named plaintiff and the class members will all seek the same remedies, and each will be bound in the same manner by this Court’s interpretation and application of the applicable statute.
62. Consequently, the class representative’s and class members’ claims are not antagonistic. As in Colonial Penn, the focus is on the identical claim for PIP benefits by the MRI Provider, individually, and the putative class members. In this case, the named plaintiff seeks the exact same remedies as the class members — declaratory relief concerning the proper interpretation of the controlling statutes, injunctive relief governing the parties’ future course of conduct, and damages and interest associated with alleged prior underpayments. Likewise, the Insurance Company seeks an adjudication vindicating its interpretation of subject statutory provisions (including the pre-suit demand letter and reasonableness provisions) that would also apply identically to each class member.
63. Thus, the Court finds that the MRI Provider has established compliance with the typicality requirements of Rule 1.220(a)(3).
4. Rule 1.220(a)(4) — Adequacy
64. Rule 1.220(a)(4) has two requirements concerning the question whether the class representatives are adequate to represent the class: (a) the plaintiff and class members must have common interests; and (b) the class representatives will properly prosecute the class action.
65. This Court has broad discretion to determine whether a class representative is fit to serve, and its decision will not be disturbed absent a showing of abuse of discretion. Tampa Service Co., Inc. v. Hartigan, 966 So. 2d 465, 468 (Fla. 4th DCA 2007).
66. The threshold of “adequacy” is relatively low. See, e.g., Lerner v. Haimsohn, 126 F.R.D. 64, 67 (D. Colo. 1989)(must “know something about the case” and not show a complete lack of personal knowledge); Heastie v. Community Bank, 125 F.R.D. 669, 676 (N.D. Ill. 1989)(need not be sophisticated); Biben v. Card, 1986 WL 1199 at *6-7 (W.D. Mo. 1986); Brown v. Cameron-Brown Co., 92 F.R.D. 32, 41 (E.D. Va. 1981)(provide minimal assistance to counsel); In re Data Access Sys. Sec. Litig., 103 F.R.D. 130, 140 (D.N.J. 1984)(need not know facts); In re Diasonics Sec. Litig., 599 F. Supp. 447, 453 (N.D. Cal. 1984)(familiar with general outlines of the case); Peil v. Speiser, 97 F.R.D. 657, 660 (E.D. Pa. 1983)(need not have personal knowledge of facts). See also Surowitz v. Hilton Hotels Corp., 383 U.S. 363 (1966).
67. “The adequacy of representation requirement is met if the named representatives have interests in common with the proposed class members and the representatives and their qualified attorneys will properly prosecute the class action.” Broin, 641 So. 2d at 892. Some courts hold that the defendant bears the burden of establishing inadequacy of the counsel or the representative. See, e.g. Dujanovic v. MortgageAmerica, Inc., 185 F.R.D. 660, 668 (N.D. Ala. 1999). In any event, regardless of which party bears the ultimate burden of proof, the adequacy requirement is clearly satisfied in this case.
68. “It is well-settled that it is not necessary for named class representatives to be knowledgeable, intelligent or have a firm understanding of the legal or factual basis on which the case rests in order to maintain a class action.” Powers, 192 F.R.D. at 317, citing Surowtiz v. Hilton Hotels, 383 U.S. 363 (1966)(class certified even though named representative did not understand her complaint, could not explain statements contained therein, had little knowledge of the nature of the lawsuit and did not know defendant’s name). “This is especially true in cases involving complex areas of the law.” Id. The attorney-competence prong involves questions of whether representatives’ lawyers are qualified, experienced, and generally able to conduct the proposed litigation.
69. In this action, the MRI Provider has submitted supporting affidavits of its corporate representative and its attorneys. These affidavits, together with other evidence concerning the nature of this dispute, sufficiently demonstrate that the plaintiff and the class members have common interests, and that the class representatives and their counsel will properly prosecute the class action.
70. The evidence demonstrates that the MRI Provider is sufficiently familiar with the complaint and the claims in this case, regularly confers with counsel, is committed and able to represent the interests of the Class, and is willing to participate as necessary in the future.
71. The evidence also demonstrates that the MRI Provider’s counsel are very knowledgeable and possess extensive experience in complex multi-party and class action litigation, at both the trial court and appellate court levels.
72. The Insurance Company has presented no countervailing evidence on this issue and does not dispute that the adequacy requirements are satisfied.
73. Consequently, this Court finds that the MRI Provider and its attorneys have satisfied the adequacy requirements of Rule 1.220(a)(4).
E. Whether the proposed class satisfies Rule 1.220(b)(2) concerning declaratory and injunctive relief claims
74. To comply with Rule 1.220(b)(2), the MRI Provider must demonstrate that the Insurance Company “acted or refused to act on grounds generally applicable to all the members of the class, thereby making final injunctive relief or declaratory relief concerning the class as a whole appropriate.”
75. The January 25, 2011 deposition of the Insurance Company’s corporate representative confirms that the Insurance Company applied the same interpretation of the PIP statutes and applied the OPPS rates to all class members. Therefore, the pleadings and the evidence and the reasonable inferences that can be derived therefrom, are sufficient at this juncture to demonstrate, for purposes of class certification, that the Insurance Company acted or refused to act on grounds generally applicable to all class members.
76. The Second DCA has held that certification under Rule 1.220(b)(2) is not proper in “cases in which the appropriate final relief relates exclusively or predominantly to money damages.” See, Rollins, Inc. v. Butland, 951 So. 2d 860, 881 (Fla.2d DCA 2006) [31 Fla. L. Weekly D3148a] (emph. added). At the same time, however, appellate courts (including the Second DCA) have also repeatedly held that certification of a class under both Rules 1.220(b)(2) and (b)(3) is not improper simply because the plaintiff is seeking both monetary damages and injunctive relief. See, e.g., Seven Hills, Inc. v. Bentley, 848 So. 2d 345, 347 (Fla. 1st DCA 2003) [28 Fla. L. Weekly D485a]; Davis v. Powertel, Inc., 776 So. 2d 971, 974-75 (Fla. 1st DCA 2000) [26 Fla. L. Weekly D146a]; Océ Printing, 760 So. 2d at 1044; City of Tampa v. Addison, 979 So. 2d 246 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D1866a]; Tampa Service Co., Inc. v. Hartigan, 966 So. 2d 465, 467 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D2422a].
77. In Butland, the Second DCA cited Océ Printing with approval. Butland, 951 So. 2d at 881. In Océ Printing, the Second DCA considered a class action where the plaintiffs sought monetary damages in five out of six counts, and injunctive relief in a sixth count. In concluding that the trial court acted within its discretion by granting class certification under Rule 1.220(b)(2), the Second DCA explained:
. . . the Defendants contend that the trial court abused its discretion in certifying the class under rule 1.220(b)(2) because the predominant relief requested is monetary. It is true that five of the six counts in the Plaintiffs’ first amended complaint seek monetary relief. The remaining count seeks an injunction permanently enjoining the Defendants from engaging in anticompetitive conduct. Unlike the situations in the cases cited by the Defendants, the Plaintiffs’ injunction count does not seek monetary damages through the roundabout method of an injunction requiring the disgorgement of illegal profits. Rather, the Plaintiffs seek actual injunctive relief. Therefore, the trial court did not abuse its discretion in certifying the class under rule 1.220(b)(2).
Océ Printing, 760 So. 2d at 1044 (emph. added).
78. More recently, in Addison, the Second DCA again affirmed a trial court’s order granting class certification under both Rule 1.220(b)(2) and (b)(3). As in the case at bar, the core dispute in Addison is the issue of whether the defendant was applying a law in an improper manner. The plaintiffs were attorneys who challenged the city’s occupational license tax ordinance on the grounds that it operates as an unconstitutional precondition to, or regulation of, the practice of law in violation of the Florida Supreme Court’s exclusive authority. As in this case, the complaint in Addison alleged claims for damages, and declaratory and injunctive relief. The plaintiffs “requested (1) a declaration that the City’s tax and similar taxes . . . are an unconstitutional regulation of the practice of law, (2) . . . a refund of all taxes paid under such ordinances for the four years preceding the filing of the complaint, (3) an injunction against the City . . . prohibiting the enforcement of the City’s ordinance and similar ordinances against attorneys.” The trial court certified the plaintiff class under Rule 1.220(b)(3) with regard to the monetary claims and under Rule 1.220(b)(2) with regard to the declaratory and injunctive relief claims, and the Second DCA affirmed. Notably, Judge Wallace was the author of both the Butland decision and the Addison decision.
79. As in Océ Printing, the MRI Provider is seeking actual declaratory and injunctive relief in this case, and that relief is not being sought as a “roundabout method of . . . requiring the disgorgement of illegal profits.” Regardless of the outcome of the claim for damages in Count III, the declaratory and injunctive relief claims in Counts I and II will greatly benefit all class members with respect to any MRI services provided to the Insurance Company’s PIP insureds in the future. The MRI Provider also contends that, irrespective of any claims for past damages, the declaratory and injunctive relief claims are the most important claims in this case, because if sustained, those claims will in the future put a stop to an allegedly improper application of the PIP statute. Even if the MRI Provider’s interpretation of the statute fails and the Court adopts the Insurance Company’s interpretation, the declaratory relief claim will, at the very least, clarify the class members’ rights concerning MRI services that they render in the future. For example, if the declaratory judgment claim results in a judgment sustaining the Insurance Company’s interpretation of the PIP statute, then that declaration may lead some class members to discontinue providing MRI services to PIP insureds as too unprofitable. A declaratory judgment that is binding on all parties and class members will also eliminate future PIP litigation concerning this issue. Thus, this Court concludes that this is not a case like Butland, where “the appropriate final relief relates exclusively or predominantly to money damages.”
80. As in Addison, the core issue in this case is whether the Insurance Company is unlawfully applying a statute. Moreover, the class members and the Insurance Company have an ongoing and continuing relationship, because automotive accidents happen with great frequency, every day, all over the entire State of Florida, and result in numerous injuries requiring MRI services, and obviously, this situation will continue to occur into the foreseeable future. Therefore, regardless of any damages already incurred by the class members, it is imperative that the parties obtain a uniform declaration of their respective legal rights and obligations which will govern their future conduct. Accordingly, the MRI Provider’s claims for declaratory and injunctive relief comprise the heart of this case, and are probably the most important forms of relief sought by the MRI Provider and are needed by all of the class members.
81. Although an order awarding damages would address the Insurance Company’s prior wrongful conduct, an order awarding damages would not stop or prevent the Insurance Company from engaging in the same wrongful conduct in the future. As confirmed by the numerous PIP decisions published in the Florida Law Weekly Supplement, health care providers and the PIP insurance companies alike are often undaunted by county court orders issued against them on individual claims, and the same issues are frequently litigated over and over again by the same parties in different county courts across the state, often yielding inconsistent decisions. Such piecemeal litigation by individual class members on a case-by-case basis is not an efficient or reliable way to resolve the predominating common issues in this case.
82. Thus, regardless of whether this Court ultimately awards any damages in this case, the MRI Provider and the class members should be permitted to seek: (a) a class-wide declaratory judgment determining their rights and the Insurance Company’s obligations the PIP statute concerning MRI services provided to PIP insureds in the future, and (b) if the Court determines that the Insurance Company is improperly applying the OPPS rates, a class-wide injunction prospectively ordering the Insurance Company to cease and desist from continuing to apply OPPS in the future.
83. Rule 1.220(b)(2) also requires that the class claims be “cohesive.” See, Wyeth, Inc. v. Gottlieb, 930 So. 2d 635, 639 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D475a]. In Chase Manhattan Mortg. Corp. v. Porcher, 898 So. 2d 153, 158 -159 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D684a], the appellate court explained that “cohesiveness” contemplates that members of a Rule 1.220(b)(2) class are generally bound together through pre-existing or continuing legal relationships or by some significant common trait that transcends the specific set of facts giving rise to the litigation.
84. In this case, the MRI Provider and the class members satisfy the cohesiveness test. For example, the class members all share the significant common trait of being MRI providers in the State of Florida. In addition, the class members are all bound together by Florida Motor Vehicle No-Fault Law.
85. Accordingly, this Court finds that the requirements of Rule 1.220(b)(2) are satisfied, such that it is appropriate to certify the proposed class and subclass for purposes of determining the MRI Provider’s claims for declaratory and injunctive relief.
F. Rule 1.220(b)(3) – Predominance
86. Under Rule 1.220(b)(3), this Court must next determine whether questions of law or fact common to the class predominate over questions affecting only individual class members, and whether a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
87. The requirement of having common questions of law or fact that predominate over individualized questions, simply means that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole, must predominate over those issues that are subject only to individualized proof. Rule 1.220(b)(3) “does not require a complete absence of individual issues.” Singer, 185 F.R.D. at 688 (S.D. Fla. 1998), citing Cox v. American Case Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir.), cert. den., 479 U.S. 883 (1986).
88. Further, the predominance inquiry focuses on liability, not damages. See, e.g. Océ Printing, 760 So. 2d at 1043 (certifying class action based on common proof); In re Revco Sec. Litig., 142 F.R.D. 659, 668 (N.D. Ohio 1992)(certifying class action); Deutschman, 132 F.R.D. at 377 (certifying class action). If the liability issue is common to the class, common questions are held to predominate over individual questions.
89. Thus, the courts take a practical view and identifies those issues, which, in separate actions, “would necessarily be relitigated over and over, and the same evidence would be presented in each case.” Joseph v. General Motors Corp., 109 F.R.D. 635, 642 (D. Colo. 1986)(certifying class action). See Access Now, Inc. v. Ambulatory Surgery Center Group, Ltd., 197 F.R.D. 522 (S.D. Fla. 2000)(certifying class action), citing Joseph, supra. See also Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968); Deutschman, 132 F.R.D. at 377-78; Sollenbarger v. Mountain States Tel. & Tel. Co., 121 F.R.D. 417, 433 (D. N.M. 1988).
90. As explained in Joseph, 109 F.R.D. at 641, “the determination of predominance must be in keeping with the basic objectives of the Rule 23(b)(3) class action. ‘Thus, when common questions represent a significant aspect of the case and they can be resolved for all members of the class in a single adjudication, there is clear justification for handling the dispute on a representative rather than on an individual basis.’ ”
91. To determine whether common issues predominate, the courts look for a “common nucleus of operative facts and law,” Walsh v. Ford Motor Co., 106 F.R.D. 378, 392-393 (D.D.C. 1985)(certifying class action), or “core” of the case. Joseph, 109 F.R.D. at 642.
92. A complete absence of individual issues is not necessary. Cox v. American Case Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir.), cert. denied, 479 U.S. 883 (1986).
93. As discussed in Colonial Penn, entitlement to different amounts of damages is not fatal to a class action. Id. at 852, citing Broin, 641 So. 2d 891. “Claims which arise out of the same course of conduct by a defendant but in differing factual contexts may be pled as a class action if they present a question of common interest.” Id., quoting, McFadden v. Staley, 687 So. 2d 357, 359 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D392c].
94. The common issues in this class action which are subject to generalized proof, and thus applicable to the class as a whole, as listed in Section IV.D.2 above, will clearly predominate over any issues that are subject only to individualized proof. Once again, the Insurance Company contends that this case will involve individualized issues arising from the pre-suit demand letter requirements of Section 627.736(10), the reasonableness requirements of Section 627.736(1)(a) and (5)(a)1, and other minor issues. However, for much the same reasons as explained in Section IV.D.2 above, the legal interpretation and effect of those statutory provisions are common issues that predominate. Moreover, the Insurance Company’s reasonableness arguments appear to relate exclusively to the amount of damages, and would, therefore, not necessarily violate the predominance test. In any event, if this Court ultimately agrees with the Insurance Company’s arguments concerning the applicability of the pre-suit demand letter requirements of Section 627.736(10) and the reasonableness requirements of Section 627.736(1)(a) and (5)(a)1, or if it appears that highly individualized issues will arise concerning the pre-suit demand letter requirements of Section 627.736(10), or concerning the “reasonableness” provisions of Section 627.736(1)(a) and/or 5(a)1 or concerning other issues raised by the Insurance Company, this Court has continuing jurisdiction to modify or revoke the class certification pursuant to Rule 1.220(d)(1). See, Higgins, ____So.3d____, 2011 WL 362415, 36 Fla. L. Weekly D287a.
95. Accordingly, this class action satisfies the predominance test for certification under Rule 1.220(b)(3), subject to this Court’s continuing jurisdiction to modify or revoke the class certification pursuant to Rule 1.220(d)(1).
G. Rule 1.220(b)(3) – Superiority
96. Next, Rule 1.220(b)(3) lists four factors to consider in determining whether a class action is the superior method of adjudicating the dispute: (a) the respective interest of each member of the class in individually controlling the prosecution of separate claims or defenses; (b) the nature and extent of any pending litigation to which any member of the class is a party and in which any question of law or fact controverted in the subject action is to be adjudicated; (c) the desirability or undesirability of concentrating the litigation in the forum where the subject action is instituted; and (d) the difficulties likely to be encountered in the management of the claim or defense on behalf of the class. In this case, these factors establish that a class action is superior for resolution of the present claims.
97. The superiority inquiry is a “comparative analysis between judicial remedies and does not contemplate the possibility that no action at all might be superior to a class action in a given case.” Brown v. Cameron-Brown Co., 92 F.R.D. 32, 49 (E.D. Va. 1981); duPont Glore Forgan Inc. v. American Tel. & Tel. Co., 69 F.R.D. 481, 488 (S.D.N.Y. 1975). Thus, a class action is superior to an alternative that would leave the class without any redress. Lai v. Anthony, 1991 WL 208443 *8 (D. Haw. 1991).
98. This case involves claims for a relatively small reduction for each MRI, amounting to a few hundred dollars per scan. Such PIP claims normally fall within the subject matter jurisdiction of the county courts.20 As such, compared to the cost of litigating, this case involves a relatively small amount for each individual claim. Thus, the respective interest of each class member in controlling the prosecution of separate claims is negligible.
99. Moreover, the superiority of proceeding on a class basis is further supported by the core issues concerning the proper interpretation and application of a statutory scheme that affects many health care providers across the State of Florida. Class certification of the claims will permit a large number of similarly situated health care providers to prosecute their common claims in a single forum simultaneously, efficiently, and without the unnecessary duplication of evidence, effort, and expense that numerous individual actions would engender. The parties’ respective claims and defenses will be uniformly and efficiently controlled by one court’s interpretation and application of the PIP statute, and this Court’s decision will be appealable to a single district court of appeal, whose decision will be binding on all circuit and county courts on a state-wide basis.21 In contrast, the prosecution of hundreds of separate individual claims by the class members in various different county courts across the state will create a needless duplication of judicial efforts and risk of inconsistent adjudications, which will establish incompatible standards of conduct for the parties, and which will overburden the county courts at the trial-level and the circuit courts that must preside over any appeals generated from the county court’s decisions. Although the circuit courts have appellate jurisdiction over county courts within the same circuit, those circuit court appellate decisions lack state-wide precedential value.22 Consequently, class certification provides a superior opportunity for all affected parties to obtain a prompt, uniform, state-wide resolution of the issues presented in this case with the availability of district court appellate review.23
100. Moreover, this Court does not anticipate any significant difficulty will be encountered in the management of this action that would prevent it from being maintained as a class action. To be certain, some manageability issues are inherent in any class action. However, as discussed above, the MRI Provider’s claims address issues of fact and law common to all class members and will employ class-wide proof of the core issues. Neither class size nor the issues for determination are unusually large or unmanageable. The Hillsborough County Circuit Court has previously certified much larger classes than this one. For example, the Addison case arose in this circuit court, and involves a plaintiff class of “more than fifty thousand members of The Florida Bar located throughout the state of Florida” and a defendant class “of at least 200 Florida cities and approximately 35 Florida counties.” Id., 979 So. 2d at 251.
101. Thus, the factors listed in Rule 1.220(b)(3)(A)-(D) reveal that a class action is the superior method of adjudicating this controversy and there are no insurmountable difficulties with managing this case as a class action. “The purpose of the class action is to provide litigants who share common questions of law and fact with an economically viable means of addressing their needs in court.” Colonial Penn at 852; quoting, Johnson v. Plantation Gen. Hosp. Ltd. Partnership, 641 So. 2d 58, 60 (Fla. 1994). In this case, there are potentially hundreds of class members, the majority of which will not, in all likelihood, pursue individual lawsuits each and every time the Insurance Company allegedly underpays them based on OPPS. The amount in controversy for each individual potential class member is minimal in comparison to the vast amount of litigation costs and attorneys’ fees required to prosecute and defend against their individual claims.
102. Accordingly, this Court finds that class action treatment of the claims presented in this case is superior to other methods for adjudicating this controversy and is probably the most economically feasible mechanism for presenting these claims. Therefore, class certification is compelled by both the letter and spirit of Rule 1.220.
V. Conclusion
For all of the foregoing reasons, and based upon the parties’ arguments and submissions, all filings to date, and the evidence presented,
IT IS HEREBY ORDERED AND ADJUDGED that:
A. The MRI Provider’s Motion for Class Certification is hereby GRANTED.
B. The class and subclass defined in Section IV.B above are hereby CERTIFIED.
C. The MRI Provider shall be the class representative for the class and subclass. The law firms of Clark & Martino, P.A., the Law Offices of Christopher P. Calkin, P.A., and de la Parte & Gilbert, P.A. shall serve as class counsel.
D. Within thirty (30) days of the date of this Order, or if this Order is appealed, within thirty (30) days after the exhaustion of all applicable appellate review, class counsel shall submit a proposed class notice for the Court’s approval pursuant to Rule 1.220(d)(2).
E. Notwithstanding any provision to the contrary herein, the findings of fact and conclusions of law contained in this Order are: (1) limited to the context of the MRI Provider’s Motion for Class Certification, (2) without prejudice to the parties’ presentation of the merits of their claims and defenses, and (3) without prejudice to this Court’s authority to modify or revoke this Order as may be appropriate pursuant to Rule 1.220(d)(1).
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1As used herein, all citations to the “2007-2009” versions of Section 627.736, Florida Statutes and all subsections thereof, refer to the versions in effect since January 1, 2008, as adopted in Chapter 2007-324, Laws of Florida (2007), Chapter 2008-220, Laws of Florida (2008) and Chapter 2009-21, §86, Laws of Florida (2009).
2As recently explained by the Florida Second District Court of Appeal, the “OPPS cap” is “used by Medicare to restrict or limit payments to certain types of health care providers for particular procedures.” Cotton States Mutual Insurance Co. v. AFO Imaging, Inc., 46 So.3d 140, 141 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2343a].
3It appears that no appellate court has yet addressed this issue. However, this issue has been decided in several published trial-level decisions issued by various county and circuit courts, and one federal district court. The following decisions hold that a PIP insurer is not authorized to rely on the OPPS cap. See, AFO Imaging, Inc. v. Alpha Property & Casualty Ins. Co., 16 Fla. L. Weekly Supp. 533a (Fla. 13th Jud. Cir. Ct. Apr. 13, 2009); AFO Imaging Inc. v. Peak Property and Casualty Insurance Corp., 17 Fla. L. Weekly Supp. 368a (Fla. 13th Jud. Cir. Ct. Jan. 25, 2010); AFO Imaging Inc. v. Peak Property and Casualty Insurance Corp., 17 Fla. L. Weekly Supp. 458b (Fla. 13th Jud. Cir. Ct. May 5, 2010); Advantage Open MRI, Inc. v. State Farm Mut. Auto. Ins. Co., 17 Fla. L. Weekly Supp. 660a (Fla. 13th Jud. Cir. Ct. June 1, 2010); V&T Investment Partners, LLC v. State Farm Fire & Cas. Co., 17 Fla. L. Weekly Supp. 1110a (Fla. Orange County Ct. June 4, 2010); Central Imaging Open MRI, Inc. v. State Farm Mut. Auto. Ins. Co., 18 Fla. L. Weekly Supp. 80b (Fla. Pinellas County Ct. Aug. 5, 2010); High Definition Mobile MRI, Inc. v. State Farm Mut. Auto. Ins. Co., 18 Fla. L. Weekly Supp. 102b (Fla. Broward County Ct. Sept. 22, 2010); All Family Clinic of Daytona Beach, Inc. v. State Farm Mutual Automobile Ins. Co., 685 F.Supp. 2d 1297 (S.D. Fla. 2010). The following cases hold that a PIP insurer is authorized to rely on the OPPS cap. MRI Services, I, LLC v. Mercury Insurance Company of Florida, 17 Fla. L. Weekly Supp. 46a (Fla. Broward County Ct. Nov. 4, 2009); Bravo v. Altamonte Springs Diagnostic Imaging, Inc. v. State Farm Fire & Casualty Co., 17 Fla. L. Weekly Supp. 194b (Fla. Orange County Ct. Jan. 14, 2010).
4At the end of class certification hearing, the parties were granted leave to conduct additional discovery and present additional evidence concerning the adequacy factor of Florida Rule of Civil Procedure 1.220(a)(4). At a status conference conducted on March 16, 2011, the parties indicated that the discovery was completed and that the presentation of additional evidence was not necessary.
5See, Geico Indemnity Co. v. Physicians Group, LLC, 47 So.3d 354, 356 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2448a] (“On January 1, 2008, the new Florida Motor Vehicle No-Fault Law, including a new PIP statute, went into effect”) (emph. added).
6Sections 627.730 through 627.7405, Florida Statutes are known as the “Florida Motor Vehicle No-Fault Law.” See §627.730, Fla. Stat. (1971-2009).
7The MRI services at issue in this case were provided in a non-emergency, non-hospital setting, and therefore, fall within the type of “other medical services, supplies, and care” governed by Section 627.736(5)(a)2.f. See, AFO Imaging, Inc. v. Peak, 17 Fla. L. Weekly Supp. 368a at ¶16; AFO Imaging, Inc. v. Alpha Property, 16 Fla. L. Weekly Supp. 533a at ¶4.
8In support of this position, the MRI Provider relies on decisions such as AFO Imaging, Inc. v. Alpha Property & Casualty Ins. Co., 16 Fla. L. Weekly Supp. 533a (Fla. 13th Jud. Cir. Ct. Apr. 13, 2009); AFO Imaging Inc. v. Peak Property and Casualty Insurance Corp., 17 Fla. L. Weekly Supp. 368a (Fla. 13th Jud. Cir. Ct. Jan. 25, 2010), AFO Imaging Inc. v. Peak Property and Casualty Insurance Corp., 17 Fla. L. Weekly Supp. 458b (Fla. 13th Jud. Cir. Ct. May 5, 2010), Advantage Open MRI, Inc. v. State Farm Mut. Auto. Ins. Co., 17 Fla. L. Weekly Supp. 660a (Fla. 13th Jud. Cir. Ct. June 1, 2010), V&T Investment Partners, LLC v. State Farm Fire & Cas. Co., 17 Fla. L. Weekly Supp. 1110a (Fla. Orange County Ct. June 4, 2010); Central Imaging Open MRI, Inc. v. State Farm Mut. Auto. Ins. Co., 18 Fla. L. Weekly Supp. 80b (Fla. Pinellas County Ct. Aug. 5, 2010), High Definition Mobile MRI, Inc. v. State Farm Mut. Auto. Ins. Co., 18 Fla. L. Weekly Supp. 102b (Fla. Broward County Ct. Sept. 22, 2010), and All Family Clinic of Daytona Beach, Inc. v. State Farm Mutual Automobile Ins. Co., 685 F.Supp. 2d 1297 (S.D. Fla. 2010).
9The Insurance Company’s interpretation is supported by cases such as MRI Services, I, LLC v. Mercury Insurance Company of Florida, 17 Fla. L. Weekly Supp. 46a (Fla. Broward County Ct. Nov. 4, 2009), and Bravo v. Altamonte Springs Diagnostic Imaging, Inc. v. State Farm Fire & Casualty Co., 17 Fla. L. Weekly Supp. 194b (Fla. Orange County Ct. Jan. 14, 2010).
10In support of this interpretation of the statute, the Insurance Company also cites to cases such as State Farm Mutual Automobile Ins. Co. v. Sestile, Shenandoah Chiropractic, P.A. v. Nat’l Spec. Ins. Co., 526 F. Supp. 2d 1283 (S.D. Fla 2007).
11See, Geico Indemnity Co. v. Physicians Group, LLC, 47 So.3d 354 (Fla. 2d DCA 2010) [35 Fla. L. Weekly D2448a] (explaining that insurance company retroactively applied the new PIP statute’s fee schedule methodology, instead of the reasonable amount methodology expressly identified in the former PIP statute and in the insurance policy); MRI Associates of St. Pete, d/b/a St. Pete MRI, a/a/o Craig Volpe v. Safeco Ins. Co. of Illinois, 17 Fla. L. Weekly Supp. 686a, ¶8 (Hillsborough County Ct. May 20, 2010) (“the new version of Section 627.736 that became effective as of January 1, 2008, identifies two alternative methodologies for paying medical benefits claims”); Id., 17 Fla. L. Weekly Supp. 686a, ¶19 (the “reasonable” amount test of former Section 627.736(5)(a) is not replaced, substituted, clarified, or defined by the permissive fee schedule of the new version of Section 627.736(5)(a)2.a-f); Explorer Insurance Company v. Physicians Group, LLC, 16 Fla. L. Weekly Supp. 317a (Hillsborough Cir. Ct., Jan. 21, 2009) (“reasonable” amount may be proved through the elements described in §627.736(5)(a)(1), and the insurance company’s position that the fee schedule clarified the reasonable amount to be charged by a medical provider was erroneous); The Personal Injury Clinic (a/a/o Montero) v. Mercury Ins. Co. of Fla., 17 Fla. L. Weekly Supp. 470a (Miami-Dade County Ct., March 2, 2010) (fee schedule in §627.736(5)(a)2 “leave[s] no room for interpretation, and sets forth fixed payment schedules for services provided. It does not take into account the ‘reasonableness’ of the fee.”).
12U.S. 11th Cir. Case No. 10-90028.
13In support of this interpretation of the statute, the MRI Provider cites to the cases cited in footnote 11 herein.
14In Shenandoah Chiropractic, P.A. v. National Specialty Insurance Co., 526 F.Supp. 2d 1283 (S.D. Fla. 2007), the plaintiff attempted to file a single pre-suit demand letter on behalf of all putative class members. The court rejected this attempt and held that “as a matter of law, no notice letter sent on behalf of the putative class. . .could be legally sufficient.” Id. at 1290. Similarly, in Arrowsmith v. Broward County, 633 So. 2d 21, 22 (Fla. 4th DCA 1993), class certification was denied where the plaintiff did not allege that each putative class member had submitted its own pre-suit notice required by the sovereign immunity statute. In the case at bar, however, the definition of the Pre-Suit Notice Sub-Class expressly requires that each member of the subclass must have submitted its own separate and independent pre-suit demand letter. Consequently, the problems identified in Shenandoah and Arrowsmith are not present in the case at bar.
15See, Bristol West Ins. Co. v. MD Readers, Inc., 52 So. 3d. 48, 51 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2832a]; New Hampshire Indemnity Ins. Co. v. Rural Metro Ambulance, a/a/o William Zaniboni, 13 Fla. L. Weekly Supp. 573a (Fla. 18th Jud. Cir. Ct. App. Div. Nov. 18, 2005); Acosta v. Mercury Insurance Company of Florida, 15 Fla. L. Weekly Supp. 868a (Fla. 9th Jud. Cir. Ct. App. Div. May 7, 2008).
16See, First Amended Complaint at Exh. C.
17See also, Weiss v. York Hosp., 745 F.2d 786, 808 (3rd Cir. 1984), cert. den., 470 U.S. 1060 (1985) (40 members is sufficient, citing Moore’s Federal Practice); Alberts v. Nash Finch Co., 245 F.R.D. 399, 409 (D. Minn. 2007)(class exceeding 40 members is generally sufficiently large to make joinder impracticable); Bafus v. Aspen Realty, Inc., 236 F.R.D. 652, 655 (D. Idaho 2006) (as few as 40 class members should raise presumption that joinder is impracticable, and class which is “that large or larger should meet the test. . .on that fact alone”, citing Newberg on Class Actions); In re WorldCom, Inc. Securities Litigation, 219 F.R.D. 267 (S.D.N.Y. 2003)(numerosity is presumed at 40 or more class members).
18At the January 25, 2011 deposition, the Insurance Company’s corporate representative testified that the Insurance Company has recently began paying potential class members the non-OPPS amount, but very little details were provided. Moreover, the Insurance Company has presented no evidence that all claims asserted by the MRI Provider and all putative class members have been satisfied. Therefore, based on the Insurance Company’s stipulation to numerosity, the Court must assume that there are still sufficient unsatisfied claims to meet the requirements of Rule 1.220(a)(1).
19The MRI Provider contends that Medicare’s “non-facility price” constitutes the “allowable amount under the participating physicians schedule of Medicare Part B.” In contrast, the Insurance Company contends that the OPPS price constitutes the “allowable amount under the participating physicians schedule of Medicare Part B.”
20See, State v. Wilson, 690 So. 2d 1361, 1365 (Fla. 2d DCA 1997) [22 Fla. L. Weekly D853a] (Altenbernd, J., dissenting) (noting that county courts are now resolving almost all PIP claims).
21A trial court is obligated to follow decisions of other district courts of appeal in this state in the absence of conflicting authority and where the appellate court in its own district has not decided the issue. See, Chapman v. Pinellas County, 423 So. 2d 578, 580 (Fla. 2d DCA 1982). The decisions of the district courts of appeal represent the law of Florida, unless and until they are overruled by the Florida Supreme Court. Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980). Thus, in the absence of interdistrict conflict, district court of appeal decisions bind all Florida trial courts. Weiman v. McHaffie, 470 So. 2d 682, 684 (Fla. 1985).
22A circuit court’s appellate decision is only binding on the county courts within that same circuit. Fieselman v. State, 566 So. 2d 768, 770 (Fla. 1990).
23In this regard, it is important to consider the nature and extent of other pending litigation involving the same issues. Because these types of PIP cases are normally litigated in the county courts and rarely reach the district court of appeal level, pursuing this single class action in circuit court provides a superior opportunity to obtain a district court appellate decision with state-wide precedential value, than individually litigating the same types of claims in multiple county courts across the State of Florida.
