22 Fla. L. Weekly Supp. 816a
Online Reference: FLWSUPP 2207PROGInsurance — Personal injury protection — Deductible — Class action alleging insurer improperly applied deductible to bills of proposed class of medical providers — Necessary and individualized determinations of reasonableness of bills of each medical provider in proposed class and each provider’s compliance with pre-suit demand letter requirement renders action inappropriate for class action treatment — Motion to dismiss is granted as to class allegations but denied as to individual claims
PROGRESSIVE HEALTH SERVICES, INC., Plaintiff, v. SECURITY NATIONAL INSURANCE COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami Dade County, Civil Division. Case No. 11-09765 CA 22. September 17, 2013. Darrin P. Gayles, Judge. Counsel: Majid Vossoughi, Majid Vossoughi, P.A.; and Stuart L. Koenigsberg, A Able Advocates-Stuart L. Koenigsberg, P.A., for Plaintiff. Marcy Levine Aldrich and Gideon Reitblat, Akerman LLP, Miami, for Defendant.
ORDER ON DEFENDANT’S REVISED MOTIONTO DISMISS THE CLASS ACTION COMPLAINT
On August 21, 2013, the Court Conducted a hearing on Defendant’s Revised Motion to Dismiss the 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 Motion is GRANTED with the respect to the class allegations of the Complaint. Plaintiff’s class allegations are hereby dismissed with prejudice.
2. The proposed class in this Action is defined as:
. . . all those similarly situated medical providers within the State of Florida who, after providing medical services to persons injured in motor vehicle accidents that were insured under or otherwise entitled to PIP benefits under insurance policies with Defendant, and submitting claims for payment of said services, did not receive the full allowable amount of the PIP benefits due under the applicable policies and Fla. Stat. 627.736 due to Defendant’s improper application of the PIP deductible in violation of Fla. Stat. 627.739(2) within five (5) years of the filing of this action.
(Compl. at ¶ 32). On behalf of itself and this putative class, the Plaintiff brings counts for declaratory relief (Count I), injunctive relief (Count II), and breach of contract (Count III).
3. The Court finds that the individual members of the proposed class must comply with the pre-suit demand letter requirement of Fla. Stat. § 627.746(10) (2007-2012) (the “PIP Statute”), which provides:
As a condition precedent to filing any actions 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 pursuant to paragraph (4)(b).
The Court also finds that the issue of whether the class members’ medical bills at issue in the proposed class are reasonable pursuant to the PIP Statute and the applicable insurance policies must be considered by the Court in determining entitlement to relief. The Court finds that these necessary and individualized determinations of reasonableness and/or compliance with the pre-suit demand letter requirement render this Action inappropriate for class action treatment as a matter of law. The Court finds that a class action would not provide a superior or efficient method for the adjudication of the issues raised in this Action.
4. The Motion is DENIED with respect to the Plaintiff’s individual claims for declaratory relief, injunctive relief, and breach of contract.
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