23 Fla. L. Weekly Supp. 1003a
Online Reference: FLWSUPP 2310GREEInsurance — Personal injury protection — Class action — Plaintiff’s theory that she was improperly billed by medical providers for balance of bills that were only partially paid by PIP insurer due to its election to limit reimbursement to statutory fee schedule without notification of insured fails to state cognizable claim for relief — Where insurer did not make election in policy to limit reimbursement to statutory schedule there was no prohibition against balance-billing pursuant to section 627.736(4)(a)5 — Moreover, any balance-billed payments made by plaintiff are extra-contractual payments that insurer cannot forbid provider from billing — Individualized determinations of proposed class members’ compliance with demand letter requirement and reasonableness and coverage of each member’s medical bills render action inappropriate for class action treatment — Claim for declaratory relief is improper because declaratory relief is not primary relief sought and plaintiff has adequate remedy at law
RENA GREEN, Plaintiff(s) v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant(s). Circuit Court, 15th Judicial Circuit in and for Palm Beach County, Circuit Civil Division. Case No. 50-2015-CA-002899-XXXX-MB, Division AN. February 22, 2016. Cheryl A. Caracuzzo, Judge.
ORDER ON DEFENDANT’S MOTION TO DISMISS THEAMENDED CLASS ACTION COMPLAINT
On January 29, 2016, the Court conducted a hearing on Defendant’s Motion to Dismiss the 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 Motion is GRANTED. Plaintiff’s Amended Complaint is dismissed with prejudice.
2. The proposed class in this Action is defined as (Am. Compl. ¶ 20):
[A]ll Floridians who, after being injured in a motor vehicle collision, sought personal injury protection benefits under a State Farm Policy of Insurance from 2010 through the present, where the policy did not disclose that State Farm had elected to utilize 200% Medicare Part B fee schedule as the basis for calculating reimbursements for medical services rendered to a PIP insured injured in a collision(s) occurring between January 1, 2008 through the present.
On behalf of herself and this putative class, Plaintiff Rena Green (“Plaintiff”) brings a single count for Declaratory Judgment (Count I) against Defendant State Farm Mutual Automobile Insurance Company (“State Farm”). Plaintiff claims that she was improperly “balance-billed” for medical bills based on State Farm’s failure to notify her of its election to limit medical bill reimbursements pursuant to the Florida No-Fault (“PIP”) Statute, Fla. Stat. §627.736(5)” (Am. Compl. ¶¶ 7, 8, 11, 13). The Court notes that Plaintiff fails to allege any specific facts about her own accident, medical treatment, and medical bills.
2. In her prayer for relief, Plaintiff seeks a declaration that (Am. Compl., Prayer for Relief at (B)):
State Farm, by virtue of its failure to notify its insureds of such election [of the PIP Fee Schedule] by amending its insurance policy forms to inform its insureds of its decision to change in [sic] the method of determining the reimbursement amount, did not properly implement its election to limit reimbursements pursuant to § 627.736(5);
She also requests damages in form of reimbursements to herself and the putative class members (Am. Compl., Prayer for Relief at (C)):
That State Farm be required to reimburse its insureds who have made PIP claims for all amounts, in excess of any deductible or co-pay, that they have paid to medical providers who have balance billed them after being partially reimbursed by State Farm utilizing 200% of the Medicare Part B fee schedule as the basis for calculating reimbursements.
4. Plaintiff’s claim is based on the premise that State Farm made an “election to limit reimbursements pursuant to the Florida No-Fault (“PIP”) Statute, Fla. Stat. §627.736(5)” (Am. Compl. ¶¶ 7, 8, 11, 13). In Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., 141 So. 3d 147, 150 (Fla. 2013) [38 Fla. L. Weekly S517a] (emphasis added), the Florida Supreme Court found that such an election must be made in an insured’s policy:
For the reasons expressed above, we hold that under the 2008 amendments to the PIP statute, a PIP insurer cannot take advantage of the Medicare fee schedules to limit reimbursements without notifying its insured by electing those fee schedules in its policy.
A review of the language of State Farm’s policy and the PIP Statute reveals that State Farm did not elect to limit reimbursement pursuant to the schedule of maximum charges set forth in Fla. Stat. § 627.736(5)(a)2. (2008-2012). A review of the Green policy attached as Exhibit 7 to State Farm’s Motion to Dismiss reveals that State Farm did not specifically elect the schedule of maximum charges to limit reimbursement, but rather, agreed to pay “80% of all reasonable expenses.” (Green Policy, Am. Endorsement 6910.3, at 3-4). Additionally, the Green Policy provides (Id.):
b. . . . . To determine whether a charge is reasonable we may consider usual and customary charges and payments accepted by the 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.
5. Because it is clear that State Farm did not make a policy election to limit reimbursements pursuant to the schedule of maximum charges set forth in Fla. Stat. § 627.736(5)(a)2. (2008-2012) in the Policy, Plaintiff’s theory — which is based on such an election — fails to state a cognizable claim for relief. See, e.g., Northwest Ctr. for Integrative Med. & Rehab, Inc. v. State Farm Mut. Auto. Ins. Co., Case No. 08-017031 CACE (07) (17th Jud’l Cir. June 1, 2015) [23 Fla. L. Weekly Supp. 145a] (State Farm did not make a policy election to limit reimbursement pursuant to the schedule of maximum charges set forth in Fla. Stat. § 627.736(5)(a)2. (2008-2012)); All Family Clinic of Daytona Beach Inc. v. State Farm Mut. Auto. Ins. Co., 280 F.R.D. 688, 693 (S.D. Fla. 2012) (same); MRI Assocs. of St. Pete, Inc. v. State Farm Mut. Auto. Ins. Co., 755 F. Supp. 2d 1205 (M.D. Fla. 2010) (same); DWFII Corp. v. State Farm Mut. Auto. Ins. Co., 271 F.R.D. 676 (S.D. Fla. 2010), aff’d, 469 Fed. App’x 762 (11th Cir. 2012) (same); Coastal Neurology, Inc. v. State Farm Mut. Auto. Ins. Co., 271 F.R.D. 538 (S.D. Fla. 2010), aff’d, 458 Fed. App’x 793 (11th Cir. 2012) (same). Because State Farm did not make an election to limit reimbursements pursuant to the schedule of maximum charges set forth in Fla. Stat. § 627.736(5)(a)2. (2008-2012), there was no prohibition against balance billing pursuant to Fla. Stat. § 627.736(4)(a)5.
6. The “balance billing” issue identified by Plaintiff fails to present a justiciable controversy between State Farm and the Plaintiff and class members. According to Fla. Stat. § 627.736(5)(A)5. (2007-2012):
If an insurer limits payment as authorized by subparagraph 2., [the schedule of maximum charges] 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.
Because State Farm did not make an election to limit payments pursuant to the schedule of maximum charges, this provision does not apply. Moreover, such “balance-billed” payments made by the Plaintiff are extra-contractual payments not covered by Plaintiff’s contract with State Farm. State Farm cannot prohibit medical providers from such billing. Amounts that may or may not be due from State Farm’s insureds — other than benefits payable under a policy — are not an issue between State Farm and the Plaintiff and class members. Oglesby v. State Farm Mut. Auto. Ins. Co., 781 So. 2d 469, 470 (Fla. 5th DCA 2001) [26 Fla. L. Weekly D702a] (where a medical provider accepts an assignment of benefits, “the patient will be ultimately responsible for any medical bills either not covered by the policy or simply not paid by the insurer.”).
7. The Court finds that the individual members of the proposed class must individually comply with the pre-suit demand letter requirement of Fla. Stat. § 627.736(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).
Plaintiff’s claim for declaratory relief seeks such PIP benefits. Plaintiff requests that “State Farm be required to reimburse its insureds who have made PIP claims for all amounts, in excess of any deductible or co-pay, that they have paid to medical providers who have balance billed them after being partially reimbursed by State Farm utilizing 200% of the Medicare Part B fee schedule as the basis for calculating reimbursements.” (Prayer for Relief at (C)). The Court finds that the necessary and individualized determinations of compliance with the pre-suit demand letter requirement render this Action inappropriate for class action treatment as a matter of law.
8. The Court also finds that the issue of whether the class members’ medical bills at issue in the proposed class are covered and/or 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 a class action or declaratory action would not provide a superior, sufficient or appropriate method for the adjudication of the issues raised in this Action as a matter of law. See, e.g., Herrera v. JFK Medical Ctr. Ltd. P’ship, 87 F. Supp. 3d 1299 (M.D. Fla. 2015); Vandenbrink v. State Farm Mut. Auto. Ins. Co., 2012 WL 3156596, at *3 (M.D. Fla. Aug. 3, 2012); MRI Assocs. of St. Pete, Inc. v. State Farm Mut. Auto. Ins. Co., 755 F. Supp. 2d 1205 (M.D. Fla. 2010); Shenandoah Chiro., P.A. v. Nat’l Specialty Ins. Co., 526 F. Supp. 2d 1283 (S.D. Fla. 2007); State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 2d 1244 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D1757a]; Accumed Chiro. & Wellness Ctr., Inc. v. Progressive Select Ins. Co., 22 Fla. L. Weekly Supp. 349a (Fla., 11th Jud’l Cir. 2014); Pan Am Diag. Servs., Inc. v. Equity Ins. Co., 22 Fla. L. Weekly Supp. 814a (Fla., 11th Jud’l Cir. 2014); Progressive Health Servs., Inc. v. Security Nat’l Ins. Co., 22 Fla. L. Weekly Supp. 816a (Fla., 11th Jud’l Cir. 2013).
9. Plaintiff’s claim for declaratory relief is improper because: (a) declaratory relief is not the primary relief sought; and (b) Plaintiff has an adequate remedy at law. As set forth above, Plaintiff’s primary purpose is to recover damages in form of reimbursements to herself and the putative class members (Am. Compl., Prayer for Relief at (C)).
