23 Fla. L. Weekly Supp. 145a
Online Reference: FLWSUPP 2302NORTInsurance — Personal injury protection — Coverage — Medical expenses — Declaratory action — Bona fide dispute — Amended class action complaint seeking declaration that insurer’s decision to limit reimbursement under its PIP policies according to permissive statutory fee schedule without electing that methodology in its policies is improper does not state cause of action for declaratory relief where there is no bona fide dispute since requested relief has been determined by Florida Supreme Court in Virtual Imaging case
NORTHWEST CENTER FOR INTEGRATIVE MEDICINE & REHABILITATION, INC., and RANDY ROSENBERG, D.C., P.A., Plaintiffs, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 08-017031 CACE (07). June 1, 2015. Jack Tuter, Judge.FINAL ORDER ON DEFENDANT’S MOTION TO DISMISSFIFTH AMENDED CLASS ACTION COMPLAINT
THIS CAUSE came before the court upon defendant’s motion to dismiss the fifth amended class action complaint. The court having considered the motion, having heard arguments of counsel, having reviewed the record and applicable law, and being otherwise duly advised in the premises, finds and decides as follows:
On September 9, 2014, plaintiffs, Northwest Center for Integrative Medicine & Rehabilitation, Inc. (“Northwest”) and Randy Rosenberg, D.C., P.A. (“Rosenberg”) (collectively “Plaintiffs”), filed a one-count class action complaint for declaratory relief against defendant, State Farm Mutual Automobile Insurance Company. Specifically, Plaintiffs allege that between January 1, 2008 and June 30, 2012, Defendant “routinely and systematically calculated and limited reimbursements” under its insurance policies according to the permissive fee schedules in section 627.736(5)(a) 2, Florida Statutes, without expressly electing such reimbursement method in its policies. Plaintiffs seek class action treatment1 and request the court enter a declaratory judgment that Defendant’s decision to “routinely and systematically” calculate and limit reimbursements under its insurance policies according to the permissive fee schedules without electing such methodology in its policies as improper.
On October 24, 2014, Defendant filed the instant motion to dismiss. In support thereof, Defendant argues, inter alia, that Plaintiffs’ fifth amended complaint fails to state a cause of action for declaratory relief because there is no “live controversy” between the parties. Specifically, Defendant argues that the Florida Supreme Court has already determined the issues presented in Plaintiffs’ fifth amended complaint. Additionally, Defendant argues that the policies relied upon by Plaintiffs do not specifically elect the alternative payment methodology, but rather, provide that Defendant will reimburse for “reasonable” medical expenses, pursuant to section 627.735(5)(a)1., Florida Statutes. As such, Defendant argues that there is no bona fide dispute between the parties, and thus, no need for a declaration. The Plaintiffs did not file a written response. A hearing was held before the court on April 22, 2015.
“A motion to dismiss a complaint for declaratory judgment is not a motion on the merits. Rather it is a motion only to determine whether the Petitioner is entitled to a declaration of its rights, not to whether it is entitled to a declaration in its favor.” Royal Selections, Inc. v. Florida Dep’t of Revenue, 687 So. 2d 893, 894 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D298a] (citations omitted). As with any motion to dismiss, the court must accept as true all well pleaded allegations contained within the complaint. See Lutz v. Protective Life Ins. Comp., 951 So. 2d 884, 888 (Fla. 4th DCA 2007) [32 Fla. L. Weekly D160a]
(“ ‘Upon a motion to dismiss, predicated upon insufficiency of the complaint to state a cause of action entitling the pleader to declaratory relief, all well pleaded allegations must be taken as true.’ ”) (quoting Hialeah Race Course, Inc. v. Gulfrtream Park Racing Ass’n, 210 So. 2d 750, 752 (Fla. 4th DCA 1968)”).
In determining whether a complaint seeking a declaratory judgment states a cause of action, the court “inquires whether or not the party seeking a declaration shows that [it] is in doubt or is uncertain as to [the] existence or non-existence of some right, status, immunity, power or privilege and has an actual, practical and present need for a declaration.” Id. (internal quotations omitted). Moreover, “[t]here must be a bona fide controversy, justiciable in the sense that it flows out of some definite and concrete assertion of right, and there should be involved the legal or equitable relations of parties having adverse interests with respect to which the declaration is sought.” Id. at 752-53 (internal quotations omitted). Furthermore,
it is well settled that, Florida courts will not render, in the form of a declaratory judgment, what amounts to an advisory opinion at the instance of parties who show merely the possibility of legal injury on the basis of a hypothetical state of facts which have not arisen and are only contingent, uncertain, [and] rest in the future.
Santa Rosa Cnty. v. Admin. Comm’n Div. of Admin. Hearings, 661 So. 2d 1190, 1193 (Fla. 1995) [20 Fla. L. Weekly S333a] (citations and internal quotations omitted) (alteration and emphasis in original).
Under Florida’s No-Fault Act, insurers are required to provide personal injury protection (“PIP”):
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.
§ 627.736(1)(a), Fla. Stat. Section 627.736, Florida Statutes, further provides that:
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.
Id. § 627.736(5)(a)1. Notwithstanding,
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, 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.
Id. § 627.736(5)(a)2. However, under settled Florida law, “a PIP insurer cannot take advantage of the fee schedules [in section 627.736(5)(a)2., Florida Statutes,] to limit reimbursements without notifying its insured by electing those fee schedules in its policy.” Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So. 3d 147, 160 (Fla. 2013) [38 Fla. L. Weekly S517a] (“Virtual Imaging”).
A review of the insurance policies attached to the fifth amended complaint reveal Defendant did not specifically elect the “fee schedules” to limit reimbursement, but rather, agreed to pay “80% of all reasonable charges.” Additionally, the policies provide:
To determine whether a charge is reasonable we may consider usual and customary charges and payments accepted by provider, 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.
After a careful review, the court determines the allegations of the fifth amended complaint do not state a cause of action for declaratory relief based on the insurance policies attached thereto, and binding Florida Supreme Court precedent in Virtual Imaging. Specifically, the court determines the relief requested by Plaintiffs has been determined by the Florida Supreme Court in Virtual Imaging. Accordingly, the court determines the Plaintiffs do not adequately allege the existence of a bona fide dispute which is appropriate for declaratory relief. As such, Defendant’s motion to dismiss is granted.2
Accordingly, it is hereby:
ORDERED that Defendant’s Motion to Dismiss the Fifth Amended Class Action Complaint is GRANTED and Plaintiffs’ Fifth Amended Class Action Complaint is DISMISSED WITH PREJUDICE.
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1According to the fifth amended complaint, the putative class is defined as:
Those health care providers who submitted claims for no-fault benefits under Defendant’s Policy version in effect January 1, 2008, through June 30, 2012, where the STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY utilized a fee schedule incorporated in by §627.736(5)(a)2 (2008) to limit payment of the claim.
(Pl.’s Fifth Am. Compl. ¶ 26).
2At the hearing, counsel for Plaintiffs conceded that leave to amend to file a sixth amended complaint would be futile. See Apr. 22, 2015 Hearing Trans. pg. 22.
