A & M Gerber Chiropractic LLC v. GEICO Gen. Ins. Co.

• Decision Date: 17 November 2017
• Docket Number: Case No. 16–cv–62610–BLOOM/Valle
• Citation: 291 F.Supp.3d 1318
• Parties: A & M GERBER CHIROPRACTIC LLC, a/a/o Conor Carruthers, on behalf of itself and all others similarly situated, Plaintiff, v. GEICO GENERAL INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Florida

291 F.Supp.3d 1318

A & M GERBER CHIROPRACTIC LLC, a/a/o Conor Carruthers, on behalf of itself and all others similarly situated, Plaintiff,

v.GEICO GENERAL INSURANCE COMPANY, Defendant.

Case No. 16–cv–62610–BLOOM/Valle

United States District Court, S.D. Florida.

Signed November 17, 2017

Entered November 20, 2017

Edward Herbert Zebersky, Michael Trent Lewenz, Todd S. Payne, Mark S. Fistos, Zebersky Payne, LLP, Steven R. Jaffe, Steven R. Jaffe, P.A., Fort Lauderdale, FL, Gary Michael Farmer, Jr., Gary M. Farmer, Jr., P.A., Lighthouse Point, FL, for Plaintiff.

Omar Andres Giraldo, Thomas Lee Hunker, Peter David Weinstein, Cole, Scott & Kissane, P.A., Plantation, FL, for Defendant.

OMNIBUS ORDER

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Plaintiff A & M Gerber Chiropractic LLC's ("Plaintiff") Motion for Partial Summary Judgment, ECF No. [59] ("Plaintiff's Motion for Summary Judgment"), Defendant GEICO General Insurance Company's ("GEICO") Motion for Summary Judgment, ECF No. [80] ("GEICO's Motion for Summary Judgment"), and GEICO's Motion to Disqualify Class Representative, ECF No. [161] ("Motion to Disqualify"), (collectively the "Motions"). The Court has carefully considered the Motions, all supporting and opposing filings, the relevant authorities, has heard oral argument by the parties, and is otherwise duly advised. For the reasons that follow, the Motion to Disqualify is denied, Plaintiff's Motion for Summary Judgment is granted, and GEICO's Motion for Summary Judgment is denied.

I. BACKGROUND¹

A. The Policy

This class action lawsuit seeks a declaration as to the meaning of a single sentence contained within a GEICO insurance policy as explained below. Plaintiff is a health care provider that rendered health care services to Conor Carruthers ("Carruthers") for injuries he sustained in an automobile accident in March of 2015. See ECF No. [59] at ¶ 11. Carruthers was insured under a policy with GEICO that provided personal injury protection ("PIP") motor vehicle insurance benefits (the "Policy"). See ECF No. [81] at ¶ 1. The Policy provides coverage for PIP claims pursuant to Florida Statute § 626.736. See ECF No. [59] at ¶ 5. The Policy also contains an endorsement to the PIP coverage identified as FLPIP (01–13) (the "FLPIP (01–13) Endorsement"), which became effective January 1, 2013. See ECF No. [67–1]. The FLPIP (01–13) Endorsement states, in pertinent part, as follows:

PAYMENTS WE WILL MAKE

The Company will pay in accordance with the Florida Motor Vehicle No Fault Law (as enacted, amended, or newly enacted), and where applicable in accordance with all fee schedules contained in the Florida Motor Vehicle No Fault Law, to or for the benefit of the injured person:

(A) Eighty percent (80%) of medical benefits which are medically necessary , pursuant to the following schedule of maximum charges contained in the Florida Statutes § 627.736(5)(a) 1., (a)2., and (a)3.:

...

6. For all other medical services, supplies, and care, 200 percent of the allowable amount under:

(I.) The participating physicians fee schedule of Medicare Part B...

However, if such services, supplies, or care is not reimbursable under Medicare Part B (as provided in section (A)6. above), we will limit reimbursement to eighty percent (80%) of the maximum reimbursable allowance under workers' compensation, as determined under Florida Statutes, § 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided.

...

A charge submitted by a provider, for an amount less than the amount allowed above, shall be paid in the amount of the charge submitted.

...

ECF No. [67–1] at 31 (emphasis in original). The terms of the FLPIP (01–13) Endorsement quoted above have not changed since they went into effect on January 1, 2013. See ECF No. [59] at ¶ 8. The dispute in this case centers on the meaning of one sentence: "A charge submitted by a provider, for an amount less than the amount allowed above, shall be paid in the amount of the charge submitted." ECF No. [67–1] at 31.

In addition to the FLPIP (01–13) Endorsement, the Policy contains a document identified as M608 (01–13). See ECF No. [94] at ¶ 23. Although the parties dispute whether this document is a notice or an endorsement and whether its language has any effect on FLPIP (01–13), neither party disputes the content or authenticity of the document. In addition, the parties are in agreement that this document was mailed to policyholders for all new policies effective on or after January 1, 2013 and all renewal policies effective on or after January 1, 2013. Moreover, the parties agree that and that it was mailed in an effort to comply with § 627.736(5)(a) 5. and House Bill 119, which are further discussed below. See ECF No. [81] at ¶ 4; ECF No. [89] at ¶ 4. The M608 (01–13) document states as follows:

IMPORTANT NOTICE

FEE SCHEDULE ENDORSEMENT

USE OF MEDICAL FEE SCHEDULE FOR PERSONAL INJURY PROTECTION CLAIMS THIS NOTICE IS ENCLOSED IN COMPLIANCE WITH FLORIDA STATUTE 627.736

Effective January 1, 2013

The Company will limit reimbursement of medical expenses to 80 percent of a properly billed reasonable charge, but in no event will the Company pay more than 80 percent of the following schedule of maximum charges:

...

6. For all other medical services, supplies, and care, 200 percent of the allowable amount under:

(I.) The participating physicians fee schedule of Medicare Part B...

However, if such services, supplies, or care is not reimbursable under Medicare Part B (as provided in section 6. above), we will limit reimbursement to eighty percent (80%) of the maximum reimbursable allowance under workers' compensation, as determined under Florida Statutes, § 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided ...

ECF No. [67–1] at 51.

Within the Policy, GEICO also elected the fee schedules referred to in Florida Statute § 627.736(5)(a) 1.a-f. See ECF No. [59] at ¶ 5. As it relates to the election of fee schedules, in 2012, the Florida Legislature amended § 617.736(5)(a)5. to state the following:

Effective July 1, 2012, an insurer may limit payment as authorized by this paragraph only if the insurance policy includes a notice at the time of issuance or renewal that the insurer may limit payment pursuant to the schedule of charges specified in this paragraph. A policy form approved by the office satisfies this requirement. If a provider submits a charge for an amount less than the amount allowed under subparagraph 1., the insurer may pay the amount of the charge submitted.

Fla. Stat. § 617.736(5)(a)5. Pursuant to this new statutory requirement, the Florida Office of Insurance Regulation issued Informational Memorandum OIR–12–02M (the "Informational Memorandum"). See ECF No. [67–4]. The Informational Memorandum explains that its "purpose is to assist insurers with the filings necessary to implement the notice requirement in Section 627.736(5)(a) 5., Florida Statutes, resulting from the passage of House Bill 119." Id. Among the requirements of House Bill 119 was "a new statutory requirement that insurers provide a notice of the schedule of medical charges or ‘fee schedule’ to insureds if the insurer is limiting reimbursement."Id. Along with the Informational Memorandum, the Florida Office of Insurance Regulation supplied "sample endorsement language for inclusion of the schedule of charges specified in Section 627.736(5)(a), Florida Statutes." Id. However, it cautioned that "it is the insurer's responsibility to develop its own language after researching the law, reviewing its contract forms, and conferring with its legal staff." Id.

When GEICO submitted the FLPIP (01–13) Endorsement to the Florida Office of Insurance Regulation for its review and approval, GEICO represented that the FLPIP (01–13) Endorsement was submitted as a revision to its Automobile Casualty Forms and that three other forms consisting of A313 (10–97), CRA209 (10–97) and CC1134 (10–97) were withdrawn. See ECF No. [70–2] at 3. In contrast, when GEICO subsequently submitted the M608 (01–13) form to the Florida Office of Insurance Regulation in compliance with House Bill 119, GEICO did not state that this form would replace or modify the FLPIP (01–13) Endorsement. See ECF No. [70–3] at 3. Instead, the submission indicates that upon the approval, form M608 (04–12) would be withdrawn. Id.

B. The Disputed Charges

Plaintiff accepted an assignment of insurance benefits under the Policy signed by Carruthers. See ECF No. [59] at ¶ 12. Pursuant to Carruthers's assignment of benefits, Plaintiff submitted HCFA 1500 forms to GEICO showing charges for the treatment rendered to Carruthers in the amount of $60 for CPT code 97110 and $45 for CPT Code 97140. See ECF No. [59] at ¶ 13. Both charges were less than the elected 2015 Medicare Part B Fee Schedule, which provides the fee for CPT Code 97110 was $33.52 and the fee for CPT Code 97140 was $30.72. See ECF No. [60]. At 200% of the Medicare Fee Schedule, this totals $67.04 and $61.44 respectively.

Id. ; see ECF No. [59] at ¶ 18. GEICO paid Plaintiff 80% of the billed amount, resulting in payments of $48 and $36 respectively. See ECF No. [59] at ¶ 19. The code "BA" was listed on the Explanation of Review and stands for "Billed Amount." Id. This code is an explanation code generated on Explanation of Review forms after a particular claim line meeting certain criteria is processed. See ECF No. [94] at ¶ 15. In the case of FLPIP (01–13), for example, GEICO issues a check representing 80% of the billed amount² and then adds the "BA" reason code for that particular line item charge on the Explanation of Review. Id. In total, Plaintiff alleges that GEICO paid it $57.00 less than the Policy required. See ECF No. [81] at ¶ 8.

C. The Emergency Medical Condition Clause

The FLPIP (01–13) Endorsement also limits medical benefits for a PIP claim as follows:

Medical benefits are subject to the following

...