A&M Gerber Chiropractic LLC v. Geico Gen. Ins. Co., 17-15606

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Citation925 F.3d 1205
Docket NumberNo. 17-15606,17-15606
Parties A&M GERBER CHIROPRACTIC LLC, as assignee of Conor Carruthers, on behalf of itself and all others similarly situated, Plaintiff - Appellee, v. GEICO GENERAL INSURANCE COMPANY, Defendant - Appellant.
Decision Date30 May 2019

Mark S. Fistos, Edward H. Zebersky, Gary M. Farmer, Sr., Steven R. Jaffe, Michael Trent Lewenz, Todd S. Payne, Zebersky & Payne, LLP, Fort Lauderdale, FL, Bryan Scott Gowdy, Creed & Gowdy, Jacksonville, FL, for Plaintiff-Appellee.

Thomas L. Hunker, Cole Scott & Kissane, PA, Plantation, FL, Peter D. Weinstein, Cole Scott & Kissane, PA, Plantation, FL, for Defendant-Appellant.


Before WILSON and BRANCH, Circuit Judges, and VINSON,* District Judge.

VINSON, District Judge:

Upon consideration, we grant the Appellee’s petition for panel rehearing. We vacate our prior opinion in this case, issued on April 19, 2019, and published at 921 F.3d 1273 (11th Cir. 2019), and hereby substitute the following opinion in its place.

Conor Carruthers was involved in a car accident on March 18, 2015, after which he sought medical services from A&M Gerber Chiropractic LLC. At the time, Carruthers was covered under an automobile insurance policy issued by GEICO General Insurance Company. Pursuant to Florida’s Motor Vehicle No-Fault Law, the policy provided him with $ 10,000 in personal injury protection (PIP) benefits. See Fla. Stat. § 627.736(1) (mandating that automobile insurers provide PIP benefits "to a limit of $ 10,000"). To be entitled to the full $ 10,000, however, the statute required that Carruthers—like all PIP beneficiaries—be diagnosed by an authorized health care provider with an "emergency medical condition" (EMC

); without such a diagnosis, he was limited to $ 2,500 in benefits. See

id. at § 627.736(1)(a)(3) - (4) ; Robbins v. Garrison Prop. & Cas. Ins. Co. , 809 F.3d 583, 587-88 (11th Cir. 2015) (holding in consolidated appeal that "[b]ecause neither Robbins’ nor Enivert’s claim was supported by [an EMC determination], neither Garrison nor Progressive violated Fla. Stat. § 627.736 by limiting benefits to $ 2,500"); accord, e.g.,

Progressive Am. Ins. Co. v. Eduardo J. Garrido D.C., P.A. , 211 So.3d 1086, 1093 (Fla. 3d DCA 2017) ; Medical Ctr. of Palm Beaches v. USAA Cas. Ins. Co. , 202 So.3d 88, 92-93 (Fla. 4th DCA 2016) ; McCarty v. Myers , 125 So.3d 333, 335 (Fla. 1st DCA 2013).

It is undisputed that Carruthers was not diagnosed with an EMC

at the time this case was filed. It is also undisputed that, despite the lack of an EMC finding, GEICO paid Carruthers/Gerber $ 7,311 in PIP benefits pre-suit, well in excess of the $ 2,500 cap. Even though Carruthers received almost triple the amount in PIP benefits that he was entitled to, Gerber believed that GEICO had misinterpreted certain language in its automobile policies and that this misinterpretation resulted in GEICO consistently underpaying PIP benefits as a "general business practice."

Specifically, the policy contains an endorsement identified as FLPIP (01-13), and that endorsement (under the heading "PAYMENTS WE WILL MAKE") references fee schedules pursuant to which GEICO will pay 80% of benefits that are medically necessary. The endorsement goes on to state: "For all other medical services, supplies, and care [GEICO will pay] 200 percent of the allowable amount under [a Medicare Part B fee schedule]," subject to a limitation of 80% of the "maximum reimbursable allowance under workers’ compensation ...." Below that statement, GEICO added the following: "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." The underlying dispute in this case hinges on whether this single sentence is the operative language of the policy for health care provider bills of less than 200% of the fee schedule.

GEICO has taken the position that the policy is an "80/20 policy" pursuant to which it was required to pay the lower of 80% of the fee schedule amount or 80% of the charged amount, while insureds are required to pay the remaining 20% as co-insurance. To supports its position, GEICO relied, inter alia , on a document mailed or provided to its PIP policyholders effective on or after January 1, 2013, and identified as M608 (01-13). This document was titled


and it provides in relevant part that "in no event will the Company pay more than 80 percent" of properly billed medical expenses. GEICO asserts that M608 (01-13) is an endorsement and, thus, part of the policy. Gerber has argued that M608 (01-13) is not an endorsement/part of the policy, and it further argues that FLPIP (01-13) provides that when a health care provider bills for services at an amount less than 200% of the fee schedule, GEICO must pay the charge as billed (that is, "in the amount of the charge submitted") without the 20% reduction.

Carruthers assigned his rights to his treating chiropractic clinic, Gerber, which later filed a declaratory judgment class action suit in Florida state court in September 2016. The complaint sought certification of a class (with Gerber as the class representative) along with a declaration (a) that GEICO’s interpretation of its policy language was wrong, and (b) that the misinterpretation "constitutes a breach of the insurance Policy." Although the complaint sought a declaration that GEICO had breached the policy, the complaint stated that "there is no claim for monetary relief" in the case.

GEICO removed the case to the United States District Court for the Southern District of Florida in November 2016, pursuant to the Class Action Fairness Act, and Gerber filed an unsuccessful motion to remand the case for lack of Article III standing. The District Court appointed Gerber as class representative, and it certified the class to include:

All health care providers that received an assignment of benefits from a claimant and thereafter, pursuant to that assignment, submitted claims for no-fault benefits under GEICO PIP policies to which Endorsement FLPIP (01–13) applies, and any subsequent policies with substantially similar language that were in effect since January 1, 2013, where GEICO utilized the Code BA [billed amount] with respect to the payment of any claims.

Shortly after the action was removed to federal court, and while its motion to remand was pending, Gerber filed an amended complaint. The amended complaint was largely the same as the original complaint, but it added another sentence to re-emphasize that "this action does not assert a claim for any monetary relief," and it deleted the request for a declaration that GEICO’s misinterpretation of the disputed policy language "constitutes a breach of the insurance Policy." Thus, as amended, the complaint clarified that it only sought declaratory relief and that there was no claim for breach of contract or request for money damages related thereto. In July 2017—more than two years after the underlying car accident, and ten months after the litigation was filed—Carruthers obtained an EMC medical diagnosis.

On cross motions for summary judgment, GEICO argued, inter alia , that Gerber lacked standing at the outset of the lawsuit because it was undisputed that GEICO had paid Gerber more than $ 2,500 before the case was filed, even though he had not been diagnosed with an EMC at that time. By order dated November 17, 2017, the District Court disagreed with GEICO and found there was standing. It also ruled that M608 (01-13) was not an endorsement (but rather was merely a notice) and, thus, it was not part of the policy. Applying a textual interpretation of the FLPIP (01-13) endorsement, the District Court granted summary judgment for Gerber and held that, "under the disputed provision, when a health care provider bills for covered services in an amount less than 200% of the fee schedule, GEICO is required to pay the charge as billed without any reduction."

GEICO now appeals, arguing that Gerber lacked standing to bring this case. It further argues that the District Court erred in certifying the class; in limiting the documents that comprise the policy (that is, in failing to treat M608 (01-13) as an endorsement); and in ruling for Gerber on the merits as to the policy interpretation question.


We must begin with the question of standing. See Kondrat’yev v. City of Pensacola, Fla., 903 F.3d 1169, 1172 (11th Cir. 2018). If there is no standing, we must end there, too. University of S. Ala. v. American Tobacco Co. , 168 F.3d 405, 410 (11th Cir. 1999) ("Simply put, once a federal court determines that [the plaintiff has no standing], the court is powerless to continue.").

We review standing determinations de novo . See, e.g., SEC v. Quest Energy Mgmt. Group, Inc. , 768 F.3d 1106, 1108 (11th Cir. 2014) (citing CAMP Legal Def. Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1268 (11th Cir. 2006) ). After de novo review—and with the benefit of oral argument—we conclude that Gerber lacks standing.


Article III of the Constitution limits federal courts to adjudicating actual "cases" and "controversies." See, e.g., Allen v. Wright , 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components,Inc. , 572 U.S. 118, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014). The case-or-controversy requirement sets fundamental limits on federal judicial power. Id. "Perhaps the most important of the Article III doctrines grounded in the case-or-controversy requirement is that of standing." Wooden v. Bd. of Regents of the Univ. Sys. of Ga. , 247 F.3d 1262, 1273 (11th Cir. 2001). Standing cannot be waived or conceded by the parties, and it may be raised (even by the court sua sponte ) at any stage of the case. See Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ; Harris v. Evans , 20 F.3d 1118, 1121 n.4 (11th Cir. 1994).

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