19 Fla. L. Weekly Supp. 1098b

Online Reference: FLWSUPP 1913MCKIInsurance — Personal injury protection — Action by medical provider against PIP insurer alleging underpayment of PIP benefits is dismissed for lack of jurisdiction where provider was included in settlement class of class action involving same claims that resulted in final order and judgment in which insurer is among released parties and which established class action court’s exclusive and continuing jurisdiction of all matters relating to class action

TOTAL HEALTH CARE OF FLORIDA, INC. as assignee of Anthony McKinzy, Plaintiff, vs. HARTFORD UNDERWRITERS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County, Civil Division. Case No. 2011-SC-014977. September 4, 2012. Honorable John D. Fry, Judge. Counsel: Brian Pabian, Boyar & Freeman, Margate, for Plaintiff. Peter S. Nayrouz, Banker Lopez Gassler P.A., St. Petersburg, for Defendant.

ORDER ON DEFENDANT’S MOTION TO DISMISSAND/OR STAY FOR LACK OF JURISDICTION

THIS CAUSE came before the Court on August 7, 2012, on Defendant’s Motion to Dismiss and or Stay for Lack of Jurisdiction, and the Court having reviewed the pleadings, heard arguments from counsel, and being otherwise fully advised in the premises, it is hereby,

ORDERED AND ADJUDGED as follows:

BACKGROUND

1. Plaintiff filed its Complaint in this action on December 15, 2011.

2. Plaintiff’s Complaint attempts to bring an action for personal injury protection (“PIP”) benefits. Plaintiff alleges that it is a health care provider which provided imaging services to one of Defendant’s PIP insureds on or about December 21, 2009 through April 22, 2010. Plaintiff alleges that it obtained an assignment of benefits from Defendant’s insured, a copy of which is attached as an exhibit to the Complaint.

3. Plaintiff alleges that it submitted charges to Defendant for the subject services pursuant to the assignment of benefits, and that Defendant paid the charges in an amount less than billed in violation of the operative PIP insurance policy and the Florida Motor Vehicle No-Fault Law (the “No-Fault Law”).

4. Plaintiff attempts to assert a cause of action for breach of contract.

LEGAL DISCUSSION

5. Defendant argues that Plaintiff is a class member bound by the Final Order and Judgment entered on November 2, 2011, by the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida (the “Class Action Court”) in MRI Associates of St. Pete d/b/a Saint Pete MRI v. Property and Casualty Insurance Company of Hartford, Case No.: 10-03925; Div. B.

6. Plaintiff’s Complaint in this case attempts to assert the same claims that are the subject of the Final Order and Judgment.

7. The Final Order and Judgment reaffirmed certification of a settlement class that was originally certified by the Class Action Court on July 13, 2011.

8. With respect to all settlement class members, the Final Order and Judgment: (i) releases and dismisses with prejudice claims regarding alleged underpayment of no-fault benefits such as those asserted in the Complaint in this action; (ii) enjoins settlement class members from filing or prosecuting any actions asserting the claims such as those asserted in the Complaint in this action; and (iii) retains exclusive jurisdiction in the Class Action Court to address all matters relating to the Final Order and Judgment and the dismissed claims.

9. Under the “principle of priority,” as adopted by the Florida Supreme Court, “where courts under one sovereignty (i.e., Florida) have concurrent jurisdiction, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed.” Siegel v. Siegel, 575 So. 2d 1267, 1272 (Fla. 1991) (quoting Bedingfield v. Bedingfield, 417 So. 2d 1047, 1050 (Fla. 4th DCA 1982); see In re Guardianship of Morrison, 972 So. 2d 905, 908 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2811a] (quoting and applying above standard from Siegel).

10. The Class Action was filed, served, certified as a class action, and resolved pursuant to the Final Order and Judgment prior to this case even being filed. The Class Action Court therefore obtained exclusive jurisdiction over the claims and issues Plaintiff attempts to assert in this case. The Class Action Court expressly retained that exclusive jurisdiction, including over matters to determine class membership and violations of its injunction.

11. On July 13, 2011, the Class Action Court entered an Order Certifying Settlement Class and Preliminarily Approving Class Action Settlement (“Preliminary Approval Order”). The Preliminary Approval Order certified a class in the Class Action for settlement purposes, preliminarily approved a proposed class-wide settlement, and scheduled a final fairness hearing regarding the proposed settlement. It also approved and directed notice to class members advising them of the terms of the settlement and their legal rights and options in the settlement, including the right to request exclusion from the settlement class, object to the terms of the settlement, and/or submit a claim for settlement relief.

12. On August 12, 2011, the court appointed class administrator mailed the court approved Notice of Proposed Class Action Settlement and Fairness Hearing (the “Class Notice”) to settlement class members. On October 31, 2011, an affidavit of the class administrator was filed in which the class administrator confirms mailing of the Class Notice to settlement class members and specifically identifies those class members who were sent the Class Notice. It further identifies which settlement class members requested exclusion from the settlement class, and which such requests were accepted as valid.

13. Plaintiff is specifically identified in that affidavit as a settlement class member who was sent the Class Notice. Plaintiff is not identified as a settlement class member who requested exclusion from the settlement class.

14. The Class Action Court held a fairness hearing on November 2, 2011, to determine whether to finally approve the proposed settlement. At the conclusion of the hearing, the Class Action Court approved the settlement and entered the Final Order and Judgment.

15. The Final Order and Judgment accepted the Class Notice mailing list (the “Initial Mailing List”) submitted to the Class Action Court by the court appointed class administrator as Exhibit “B” to the Affidavit of Lisa J. Smuckler.

16. The Initial Mailing List identified the persons and entities to whom the court appointed settlement administrator mailed the Class Notice. Plaintiff’s name appears on page 123 of the Initial Mailing List.¹

17. The Final Order and Judgment further identified in its Appendix “C” the “persons or entities who timely and validly excluded themselves from the settlement class (i.e., “Opt Outs”) and who therefore are not bound as settlement class members by [the] Final Order and Judgment.” Exhibit 1 at ¶ 4. Plaintiff’s name does not appear on the “Opt Out” list.

18. The Final Order and Judgment identified Hartford Underwriters Insurance Company as one of the “Released Parties” entitled to the protections of the Final Order and Judgment, including the Release and injunction.

19. The Final Order and Judgment further established that exclusive and continuing jurisdiction remains with the Class Action Court over any and all matters relating to the Class Action. Specifically, the Final Order and Judgment provides that:

[T]he [Circuit] Court shall have exclusive and continuing jurisdiction over the implementation, interpretation, execution, and enforcement of the Settlement Agreement; of any orders and this Final Order and Judgment entered by the Court; and/or the conduct or the policies and procedures described herein, with respect to all parties hereto and all beneficiaries hereof, including all Settlement Class Members.

20. This Court finds that, Plaintiff is bound by the Final Order and Judgment vis-à-vis its claims asserted against Defendant in this action.

21. Apart from the substantive dismissal and release of Plaintiff’s claims, the Class Action Court has exclusive jurisdiction over Plaintiff for all matters relating to those claims. Specifically, the “principle of priority” originally vested the Class Action Court with exclusive jurisdiction. As the Florida Supreme Court has held:

In general, where courts within one sovereignty have concurrent jurisdiction, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that case. This is called the “principle of priority.” Admittedly, this principle is not applicable between sovereign jurisdictions as a matter of duty. As a matter of comity, however, a court of one state may, in its discretion, stay a proceeding pending before it on the grounds that a case involving the same subject matter and parties is pending in the court of another state.

Siegel v. Siegel, 575 So. 2d 1267, 1272 (Fla. 1991) (quoting Bedingfield v. Bedingfield, 417 So. 2d 1047, 1050 (Fla. 4th DCA1982); see In re Guardianship of Morrison, 972 So. 2d 905, 908 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D2811a] (quoting and applying above standard from Siegel).

22. Moreover, after having obtained exclusive jurisdiction, the Class Action Court expressly retained that jurisdiction for all matters related to the claims addressed in that action. Plaintiff therefore cannot proceed with this action. Likewise, any relief from the judgment, release, bar of collateral actions, and injunction must be addressed and provided by the Class Action Court.

23. As such, this Court Grants Defendant’s Motion to Dismiss and or Stay for Lack of Jurisdiction.

24. This matter is dismissed with prejudice, each party to bear its own costs.

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¹Although Plaintiff argues it never received the notice, this court must follow the notice and mailing process adopted by the Class Action Court

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