22 Fla. L. Weekly Supp. 349a
Online Reference: FLWSUPP 2203ACCUInsurance — Personal injury protection — Med Pay — Individual and class action complaint against insurer for declaratory relief and breach of contract arising out of denial of payment based on assertion that emergency medical condition was not established for the injured insured and denial of payment for massage therapy and/or acupuncture — Action inappropriate for class action treatment where necessary and individualized questions associated with underlying claims will predominate — Class allegations stricken from amended complaint — Individual claims dismissed without prejudice to filing amended complaint — Claim for MedPay benefits cannot be asserted in any future amended complaint given plaintiff’s stipulation that it did not have standing to sue for these benefits
ACCUMED CHIROPRACTIC & WELLNESS CENTER, INC., Plaintiff, v. PROGRESSIVE SELECT INSURANCE COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County, Circuit Civil Division. Case No. 13-CA-029396 (21). July 31, 2014. Antonio Arzola, Judge. Counsel: Edward H. Zebersky, Rami Shmuely, Steven R. Jaffe, and Mark S. Fistos, for Plaintiff. Marcy Levine Aldrich, for Defendant.
ORDER ON DEFENDANT’S MOTIONTO DISMISS THE FIRST AMENDEDCLASS ACTION COMPLAINT
On July 28, 2014, the Court Conducted a hearing on Defendant’s Motion to Dismiss the First Amended Class Action Complaint (the “Motion”). The Court heard argument of counsel, reviewed the file, and was otherwise fully advised. It is therefore ORDERED and ADJUDGED as follows:
1. The proposed classes in this Action are defined as:
All persons who have submitted claims to PROGRESSIVE under PIP and/or MedPay insurance coverage for services or care, where PROGRESSIVE has denied payment either in whole or in part based on an assertion that an Emergency Medical Condition was not established for the injured insured. This class specifically does not include any person who is an employee of PROGRESSIVE or any person whose claim was denied in total, where the claim was applied in total to the deductible or where the claim was not paid because benefits were exhausted.
All persons who have submitted claims to PROGRESSIVE under PIP and/or MedPay insurance coverage for services or care, where PROGRESSIVE has denied payment because the health care service was for massage therapy and/or acupuncture. This class specifically does not include any person who is an employee of PROGRESSIVE or any person whose claim was denied in total, where the claim was applied in total to the deductible or where the claim was not paid because benefits were exhausted.”
(Am. Compl. at ¶¶48-49). On behalf of itself and these putative classes, the Plaintiff brings counts for declaratory relief (Count I) and breach of contract (Count II).
2. The Court finds that the necessary and individualized questions associated with the underlying PIP claims of the class will predominate in this Action and render this Action inappropriate for class action treatment as a matter of law. Plaintiff’s class allegations are therefore stricken from the Amended Complaint.
3. Plaintiff’s individual claims for declaratory relief and/or breach of contract are dismissed without prejudice. Plaintiff shall have thirty (30) days from the date of this Order to file an amended complaint consistent with the Court’s ruling.
4. Plaintiff stipulated at the hearing that it did not have standing to sue for medical payments (“MedPay”) benefits. Accordingly, Plaintiff cannot assert any claim for the recovery of MedPay benefits in any amended complaint.
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