A & M Gerber Chiropractic LLC v. Geico General Insurance Co.
A & M Gerber Chiropractic LLC v. Geico General Insurance Co.
Opinion of the Court
ORDER ON MOTION FOR CLASS CERTIFICATION
THIS CAUSE is before the Court upon Plaintiffs Motion and Memorandum in Support of Class Certification, ECF No. [53] (“Motion”). The Court has carefully considered the Motion, all supporting and opposing filings, the relevant authority, and is otherwise duly advised in the premises. For the reasons that follow, the Motion is granted.
I. BACKGROUND
Plaintiff A & M Gerber Chiropractic LLC (“Plaintiff’) filed a Complaint, since amended, in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, which GEICO then removed to this Court. Plaintiff is a legal entity that provided medical treatment to an individual named Conor Carruthers (“Carruthers”) for injuries Carruthers sustained in an automobile accident. See EOF No. [23] (“Amended Complaint”) ¶ 13. Carruthers is a “contracting party and/or named insured” on an insurance policy issued by GEICO (“Policy”), and in exchange for treatment, Carruthers “assigned all benefits under the subject policy to Plaintiff." Id
According to Plaintiff, GEICO pays Policy claims pursuant to the fee schedule permit
Plaintiff now asks the Court to certify this action as a class action pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2), appoint class counsel under Rule 23(g), and appoint Plaintiff as a class representative. See EOF No. [63]. In response, Defendant argues that Plaintiff has failed to demonstrate that class certification is proper, requiring the dismissal of this action for lack of subject matter jurisdiction. See EOF No. [57]. Plaintiffs timely reply followed. See ECF No. [58].
II. LEGAL STANDARD
District courts have broad discretion in deciding whether to certify a class. Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1569 (11th Cir. 1992). To certify a class action, the named plaintiffs must have standing, and the putative classes must “satisfy an implicit ascertainability requirement, the four requirements listed in Rule 23(a), and the requirements listed in any of Rule 23(b)(1), (2), or (3).” Karhu v. Vital Pharm., Inc., 621 Fed.Appx. 945, 946 (11th Cir. 2015) (citing Little v. T-Mobile USA Inc., 691 F.3d 1302, 1304 (11th Cir. 2012)); see Fitzpatrick v. General Mills, Inc., 635 F.3d 1279, 1282 (11th Cir. 2011) (“[T]he putative class must meet each of the four requirements specified in [Rule] 23(a), as well as at least one of the three requirements set forth in [Rule] 23(b).”); Rutstein v. Avis Rent-A-Car Sys., Inc., 211 F.3d 1228, 1233 (11th Cir. 2000) (“A class action may be maintained only when it satisfies all of the requirements of Fed. R. Civ. P. 23(a) and at least one of the alternative requirements of Rule 23(b).”). “Under Rule 23(a), every putative class first must satisfy the prerequisites of numerosity, commonality, typicality, and adequacy of representation.” Vega v. T-Mobile USA Inc., 564 F.3d 1256, 1265 (11th Cir. 2009) (citing Fed. R. Civ. P. 23(a); Valley Drug Co. v. Geneva Pharms., Inc., 350 F.3d 1181, 1187-88 (11th Cir. 2003)). Plaintiff has chosen to proceed under Rule 23(b)(2), pursuant to which a class action may be maintained if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
“The burden of establishing these requirements is on the plaintiff who seeks to certify the suit as a class action.” Heaven v. Trust Co. Bank, 118 F.3d 735, 737 (11th Cir. 1997); see also Rutstein, 211 F.3d at 1233. The moving party “must affirmatively demonstrate his compliance” with the class certification requirements. Comcast Corp. v. Behrend 569 U.S. 27, 133 S.Ct. 1426, 1432, 186 L.Ed.2d 515 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011)). That is,
III. DISCUSSION
A. Individual Standing
“It is well-settled in the Eleventh Circuit that prior to the certification of a class, and before undertaking an analysis under Rule 23, the district court must determine that at least one named class representative has Article III standing to raise each class claim.” In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 679 (S.D. Fla. 2004) (citing Wolf Prado-Steiman v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000)); Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir. 1987) (“[A]ny analysis of class certification must begin with the issue of standing.”). Indeed, “[o]nly after the court determines the issues for which the named plaintiffs have standing should it address the question whether the named plaintiffs have representative capacity, as defined by Rule 23(a), to assert the rights of others.” Griffin, 823 F.2d at 1482. “To have standing, a plaintiff must show (1) he has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to conduct of the defendant; and (3) it is likely, not just merely speculative, that the injury will be redressed by a favorable decision.” Kelly v. Harris, 331 F.3d 817, 819-20 (11th Cir. 2003).
GEICO does not challenge Plaintiffs individual standing. However, Article III standing is a threshold jurisdictional issue, which the Court must itself address at the onset. Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (citing Dillard v. Baldwin County Comm’rs, 225 F.3d 1271, 1275 (11th Cir. 2000)). Here, the named Plaintiff, as an assignee of Carruthers, alleges it suffered cognizable injuries in the form of reduced payments when it submitted claims to GEICO seeking reimbursement for medical services, which were billed at a rate lower than the elected fee schedule, and GEICO, in turn, reduced the reimbursement rate using the explanation code BA. Plaintiffs individual standing requirement is, therefore, satisfied.
B. Ascertainability
“Before a district court may grant a motion for class certification, a plaintiff seeking to represent a proposed class must establish that the proposed class is ‘adequately defined and cleariy ascertainable.’ ” Randolph v. J.M. Smucker Co., 303 F.R.D. 679, 684 (S.D. Fla. 2014) (quoting Little, 691 F.3d at 1304 (citing DeBremaecker v. Short, 433 F.2d 733, 734 (5th Cir. 1970))). “An identifiable class exists if its members can be ascertained by reference to objective criteria.” Bussey v. Macon Cnty. Greyhound Park, Inc., 562 Fed.Appx. 782, 787 (11th Cir. 2014) (citing Fogarazzo v. Lehman Bros., Inc., 263 F.R.D. 90, 97 (S.D.N.Y. 2009)). These “objective criteria” should be “administratively feasible,” meaning that the identification of class members should be “a manageable process that does not require much, if any, individual inquiries.” Id. (citation omitted) (reversing district court decision finding ascertainability satisfied where class could be identified by reference to the defendant’s records). If a plaintiff fails to demonstrate that the putative class is clearly ascertainable, then class certification is properly denied. See Walewski v. Zenimax Media, Inc., 502 Fed.Appx. 857, 861 (11th Cir. 2012) (affirming denial of class certification because class was not adequately defined or clearly ascertainable); Perez v. Metabolife Int'l, Inc., 218 F.R.D. 262, 269 (S.D. Fla. 2003) (“A court should deny class certification where
In the Motion and the Amended Complaint, Plaintiff identified the proposed class as follows:
All health care providers who submitted claims for no-fault benefits under PIP policies to which Endorsement FLPIP (01-13), and any subsequent policies with substantially similar language that were in effect since January 1, 2013, where GEICO utilized the Code BA with respect to the payment of any claim.
ECP No. [53] at 1; ECF No. [23] at ¶ 22. In support of the identifiability and aseertaina-bility of the proposed class, Plaintiff states that GEICO maintains searchable electronic records demonstrating it can track and generate reports on insurance claims. Id. at 11. These reports, in turn, indicate the name of the claimant and the policy, the underlying insureds, the amount billed by the provider, whether the reimbursement was reduced to 80% using code BA, and the difference between the amount billed and the amount paid using code BA. Id. In support of these statements, Plaintiff cites to the declaration and deposition testimony of David Antonacci, a Technical Supervisor III at GEICO. Id. at 11, n. 18. Plaintiff also submitted copies of reports that GEICO prepared and produced in this litigation, which identify claims adjusted using code BA. See ECF No. [53-2] at 62-74. GEICO does not dispute Plaintiffs characterization of these documents or Plaintiffs argument that the members of the class can be easily identified within GEICO’s records by using this methodology.
Instead, GEICO takes issue with the scope of the proposed class, arguing that it is overly broad because (1) it includes health care providers regardless of whether they have assignments from the insureds, which raises a question of standing, and (2) it includes all health care providers that submitted claims adjusted with code BA regardless of whether their claims are ultimately compensable under the Policy. As discussed above and as the Court already ruled in the Order on the Motion to Dismiss, Plaintiff, individually, has standing to sue GEICO in this action. See ECF No. 51. GEICO’s first objection, however, requires a deeper analysis of standing. It raises a question as to whether all individual members of a class must have standing to certify the class. In support of this argument, Defendant fails to direct the Court to any binding precedent requiring that a district court speculatively determine whether every putative class member has Article III standing, and the Court is unable to locate any such precedent. Some courts have found that the class should be defined in such a manner that anyone -within it has standing. See Fine v. ConAgra Foods, Inc., No. CV 10-01848 SJO CFOX, 2010 WL 3632469, at *3 (C.D. Cal. Aug. 26, 2010) (quoting Burdick v. Union Sec. Ins. Co., No. CV 07-4028 ABC (JCX), 2009 WL 4798873, at *4 (C.D. Cal. Dec. 9, 2009) (noting that “other courts have held that class definitions should be tailored to exclude putative class members who lack standing” and that “a class must be defined in such a way that anyone within it would have standing”). The Second Circuit, as well as other district courts within the Ninth Circuit, have agreed with this construction. See Denney v. Deutsche Bank AG, 443 F.3d 253, 264 (2d Cir. 2006) (“[N]o class may be certified that contains members lacking Article III standing.”); Sanders v. Apple Inc., 672 F.Supp.2d 978, 991 (N.D. Cal. 2009) (citing Denney, 443 F.3d at 264); see also Fine, 2010 WL 3632469, at *3. While the Eleventh Circuit has not directly tackled this issue, it has indicated that a district court must, at a minimum, be satisfied that at least one named plaintiff has Article III standing. See Veal v. Crown Auto Dealerships, Inc., 236 F.R.D. 572, 577 (M.D. Fla. 2006) (citing Prado-Steiman, 221 F.3d at 1279) (“Prior to the certification of a class and before undertaking any analysis under Rule 23, the Court must determine that at least one named class representative has Article III standing to raise each class claim.”).
To resolve Plaintiffs Motion, the Court need not decide whether all putative
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 with respect to the payment of any claims.
Having narrowed the definition of the proposed class to ensure that all putative class members have standing, it is now necessary to address GEICO’s second objection to the aseertainability of the class. GEICO argues that the class is overly broad because it includes all health care providers that submitted claims regardless of whether the claim is compensable. GEICO fears that, if the Court certifies this class and later interprets the Policy in favor of the class, it may require compensation of insurance claims not subject to reimbursement for reasons unrelated to code BA. In such an event, GEICO argues it would be precluded from availing itself of numerous defenses available under Florida Statute § 627.736. Specifically, GEI-CO states it is entitled to raise PIP defenses, such as the necessity of medical treatment, the relatedness of the treatment to the motor vehicle accident, as well as other unbundling and set-off defenses. According to GEICO, a declaration in Plaintiffs favor would effectively deprive it of those defenses. Similarly, GEICO contends that such an outcome would relieve putative class members of their burden to prove entitlement to reimbursement for disputed charges, including proof of proper billing, non-exhaustion of benefits under the Policy, valid insurance coverage, and performance of the services billed. GEICO’s objection, however, is based upon a misunderstanding of the issues as framed by the pleadings.
In the Amended Complaint, Plaintiff asked the Court to interpret Florida Statute § 627.736 in conjunction with the Endorsement to determine whether the Policy requires payment of 80% of the billed amount in all instances or payment of 100% of the billed amount for any charges submitted below the fee schedule amount. See EOF No. [23]. In this lawsuit, the Court will ultimately decide nothing more and nothing less than this very narrow issue of contract interpretation. Such a declaration will not, as GEICO fears, deprive it of any defenses available under the Policy, the Endorsement, or Florida law. Even if Plaintiff ultimately prevails in this action, nothing in the Court’s declaration will alleviate the putative class members from satisfying their burden to prove their
As a preliminary matter, the Court concludes that the proposed class, as refined above, is both adequately defined and clearly ascertainable. Therefore, Plaintiff satisfies the threshold issue for class-action certification. The Court next turns to analyze each of the four factors under Rule 23(a) to determine whether Plaintiff has satisfied its burden to obtain certification.
C. Rule 23(a) Factors
Under Rule 23(a), Plaintiff is required to demonstrate each of the four factors:
numerosity, commonality, typicality and adequacy. GEICO only challenges one of these four factors — typicality. Nonetheless, the Court is required to conduct a rigorous analysis of all four factors when deciding matters of class certification, so it will go through each factor to determine whether Plaintiff has satisfied its burden.
a. Numerosity
Under the first prong of the Rule 23(a) analysis, a plaintiff must demonstrate that the class is “so numerous that joinder of all members is impracticable.” Ruderman v. Washington Nat’l Ins. Co., 263 F.R.D. 670, 678 (S.D. Fla. 2010) (quoting Fed. R. Civ. P. 23(a)(1)). “The focus of the numerosity inquiry is not whether the number of the proposed class members is ‘too few' to satisfy the Rule, but ‘whether joinder of proposed class members is impractical.’” Id. at 679 (quoting Armstead v. Pingree, 629 F.Supp. 273, 279 (M.D. Fla. 1986)). Generally speaking, the Eleventh Circuit has concluded that less than twenty-one class members is inadequate to satisfy the numerosity requirement but more than forty is adequate. Id. (quoting Cheney v. Cyberguard Corp., 213 F.R.D. 484, 490 (S.D. Fla. 2003)). Here, Plaintiff easily satisfies the numerosity requirement and GEICO does not dispute this. Plaintiff presented evidence that, from 2013 to September of 2016, GEICO processed approximately 77,000 claims belonging to 70,000 claimants wherein it reduced the payments using code BA. Given the estimated size of the class, the Court finds that it would be impractical to join such a large number of plaintiffs to this lawsuit, thereby satisfying the first factor.
b. Commonality
Much like the numerosity requirement, GEICO does not dispute that Plaintiff has satisfied the commonality factor. The commonality requirement of Rule 23(a)(2) requires that there be “questions of law or fact common to the class,” Fed. R. Civ. P. 23(a)(2); Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1355 (11th Cir. 2009) (quoting Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001)) (“Under the Rule 23(a)(2) commonality requirement, a class action must involve issues that are susceptible to class-wide proof.”). Plaintiff faces a “low hurdle” in bearing this “light” burden, as commonality “does not require that all questions of law and fact raised be common.” Williams, 568 F.3d at 1356; Vega, 564 F.3d at 1268. “In short, the commonality requirement requires proof the court can resolve the questions of law or fact in ‘one stroke.’” Randolph, 303 F.R.D. at 693. That said, “[w]hat matters to class certification is not the raising of common ‘questions’ — even in droves — but, rather the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (quotation omitted). Commonality requires a common question capable of common resolution. See, e.g., Manno v. Healthcare Revenue Recovery Grp., LLC, 289 F.R.D. 674, 685 (S.D. Fla. 2013).
c. Typicality
Rule 23(a) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). “[T]he typicality requirement is permissive: representative claims are ‘typical’ if they are reasonably co-extensive with those of absent class members; they need not be substantially identical.” In re Checking Account Overdraft, 275 F.R.D. 666, 674 (S.D. Fla. 2011) (citing Brown v. SCI Funeral Servs. of Fla., Inc., 212 F.R.D. 602, 605 (S.D. Fla. 2003)). In order to demonstrate typicality, the plaintiff must generally demonstrate that a “sufficient nexus exists between the legal claims of the named class representatives and those of individual class members to warrant class certification.” Piazza v. Ebsco Indus., Inc., 273 F.3d 1341, 1346 (11th Cir. 2001) (citing Washington, 959 F.2d at 1569 n. 8). Stated differently, “[t]he claim of a class representative is typical if ‘the claims or defenses of the class and the class representative arise from the same event or pattern or practice and are based on the same legal theory.’ ” Williams, 568 F.3d at 1356-57 (quoting Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984)). “It is not enough that a named plaintiff can establish a case or controversy between himself and the defendant by virtue of having standing as to one of many claims he wishes to assert. Rather, each claim must be analyzed separately, and a claim cannot be asserted on behalf of a class unless at least one named plaintiff has suffered the injury that gives rise to that claim.” Prado-Steiman, 221 F.3d at 1280. “If proof of the representatives’ claims would not necessarily prove all the proposed class members’ claims, the representatives’ claims are not typical of the proposed members’ claims.” Conigliaro v. Norwegian Cruise Line Ltd., No. 05-21584-CIV, 2006 WL 7346844, at *7 (S.D. Fla. Sept. 1, 2006) (quoting Brooks v. S. Bell Tel. & Tel. Co., 133 F.R.D. 54, 58 (S.D. Fla. 1990)).
Plaintiff argues that the typicality requirement is satisfied here because it has sustained the same injury as all other putative class members — namely, that GEICO applied the BA code to its claim for reimbursement and to the claims of the putative class members. By uniformly following this practice when adjusting claims, Plaintiff argues that GEICO only paid 80% of each putative class member’s claim, including its own. Given this class-wide pattern and practice of reimbursing 80% even when the billed amount is less than the fee schedule, Plaintiff argues that all putative class members, including Plaintiff, share the same legal injury, consisting of GEICO’s allegedly erroneous interpretation of the Policy.
GEICO, on the other hand, argues that the typicality factor has not been satisfied be
There is no claim for monetary damages asserted in this case. Not only does Plaintiffs Amended Complaint stipulate to the lack of monetary damages in the first paragraph, see ECF No. [23] ¶ 1, but GEICO acknowledged in its Answer that there is no claim for monetary damages, see ECF No. [52], Moreover, this Court previously recognized that Plaintiff is not seeking damages and the Court intends to hold Plaintiff to that representation. See ECF No. [51] at 5, n. 1 (“As did the Fourth District Court of Appeals, the Court holds Plaintiff to ‘its representations ... that no damages whatsoever will be sought in this action.’ ”). As explained above, the issue in this case is limited to one very narrow legal question involving the appropriate interpretation of the Policy as modified by the Endorsement. Once the Court answers that legal question and determines the issue of class-wide notice, this litigation will conclude. Even if Plaintiff prevails in obtaining the requested declaratory relief, class members will not be permitted to advance their individual claims in this case. See AA Suncoast Chiropractic Clinic, P.A. v. Progressive Am. Ins. Co., No. 8:15-cv-2543-T-26MAP, 321 F.R.D. 677, 685, 2017 WL 2123467, *6 (M.D. Fla. May 16, 2017) (“Defendants’ argument that liability in this case is dependent on individualized proof ranging from different insureds, accidents, medical providers, injuries, and EMC providers, to different claims adjusting decisions, damages, and defenses, does not change the fact that it is unnecessary to resolve all of these factual differences to resolve the single issue at hand.”). Given that the class-wide claim revolves around GEICO’s alleged pattern and practice of reimbursing 80% even when the billed amount is less than the fee schedule and that there is no claim for monetary damages, the Court finds that Plaintiffs claim is typical of the putative class’s claims. Plaintiff has, therefore, satisfied the typicality requirement of Rule 23(a)(3).
d. Adequacy
Rule 23(a)(4) requires a showing that “the representative parties will fairly
In this case, the Court finds no conflict of interest between Plaintiff and the members of the putative class. GEICO does not suggest that a conflict exists or that Plaintiff is otherwise an unsuitable class representative. Plaintiffs interests appear to be aligned with those of the class in that GEICO’s use of the BA code to adjust claims applied across the board to Plaintiff and the putative class. Likewise, no conflict between Plaintiffs counsel and the putative class members is apparent here and GEICO does not suggest anything to the contrary. In support of the Motion, Plaintiffs counsel submitted declarations wherein they outline their litigation experience, including extensive experience in class-action litigation. The Court, therefore, finds that Plaintiffs counsel can adequately prosecute this action on behalf of the entire class. Plaintiff has, therefore, satisfied the adequacy requirement of Rule 23. Having-met all four requirements of Rule 23(a), the Court will determine whether Plaintiff satisfied the criteria of Rule 23(b).
D. Rule 23(b)(2)
To obtain class certification, Plaintiff must satisfy one of the three requirements enumerated in Rule 23(b), Because Plaintiff seeks to certify the class solely under Rule 23(b)(2), the Court limits its analysis to this subsection. Certification under Rule 23(b)(2) requires a showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2) (emphasis added). The Advisory Committee Notes explain that “[declaratory relief ‘corresponds’ to injunctive relief when as a practical matter it affords injunctive relief or serves as a basis for later injunctive relief.” Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment (emphasis added). “A declaratory or injunctive relief class pursuant to Rule 23(b)(2) is appropriate only if ‘the predominant relief sought is injunctive or declaratory.’ ” DWFII, 469 Fed.Appx. at 765.
Plaintiff argues that GEICO’s practice of adjusting claims using the BA code to reduce payment to 80% of the claim is a uniform practice applicable to all members of the putative class and that this sort of wide
GEICO raises several points in response.
Here, consistent with the distinction drawn in Kartman and the advisory committee notes to Rule 23, Plaintiffs requested declaratory relief, if granted, would qualify as “corresponding injunctive relief’ because such a finding would serve as a basis for future injunctive relief. Not only does Plaintiff allege a threat of future injury, but the putative class has been defined in an open-ended manner to cover “any subsequent policies with substantially similar language that were in effect since January 1, 2013.” See ECF No. [45] at 8-9. Along the same lines, GEICO agrees that the language of the Endorsement has not changed since 2013. See ECF No. [37] at 13 (“GEICO has not changed the terms of its FLPIP (01-13) policy and any policy amendment would require approval of
GEICO also relies upon Richards v. Delta Air Lines, Inc., 453 F.3d 525 (D.C. Cir. 2006), to argue that injunctive relief is improper because Plaintiff is, in reality, seeking monetary damages.
IV. CONCLUSION
For the reasons stated herein, it is ORDERED AND ADJUDGED as follows:
1. Plaintiffs Motion, ECF No. [53], is GRANTED. The following class is certified:
*703 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 with respect to the payment of any claims.
2. Plaintiff, A&M Gerber Chiropractic LLC, a/a/o Conor Carruthers, is appointed as Class Representative.
3. Plaintiffs counsel, Todd Payne and Edward Zebersky of Zebersky Payne LLP and Steven R. Jaffe and Mark S. Fistos of Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. are appointed as Class Counsel.
DONE AND ORDERED in Miami, Florida, this 6th day of June, 2017.
. Related to this issue of contract interpretation is Plaintiff's request for a declaration, which will be part and parcel of any finding involving the interpretation of the contract. Additionally, Plaintiff states that class notice must be addressed. Much like the resolution of the contractual dispute, which applies to the class as a whole, the issue of class notice likewise will be common to the putative class.
. Geico also states that "an injunction would be impermissible in this ease because Gerber has an adequate remedy at law to sue for damages for underpayment of PIP benefits.” See ECF No, [57] at 12. Plaintiff has not asserted a claim for in-junctive relief. Plaintiff has only asserted a claim for declaratory relief, In its Motion to Dismiss, Geico advanced a similar argument when it sought to dismiss the claim for declaratory relief because a breach of contract claim is a more effective remedy. Denying Geico's Motion to Dismiss, this Court stated: "the Federal Rules of Civil Procedure expressly provide that '[t]he existence of another adequate remedy does not preclude a declaratory judgment that is otherwise appropriate.' Fed. R. Civ. P. 57; see Kenneth F. Hackett & Assocs., Inc. v. GE Capital Info. Tech. Sols., Inc., 744 F.Supp.2d 1305, 1310 (S.D. Fla. 2010) ('Because the decision to entertain a declaratory claim is discretionary, some courts dismiss claims for declaratory relief where the plaintiff also alleges a sufficient and related breach of contract claim.,.. Other courts allow claims for declaratory relief to travel with a claim for breach of contract.').” See ECF No. [51] at 5-6. The Court sees no reason to deviate from its prior conclusion.
. In support of their argument, Geico also cites to In re Allstate Ins. Co., 400 F.3d 505 (7th Cir. 2005) and states that certification was denied under Rule 23(b)(2) because the class sought a judgment declaring that the members were entitled to benefits under Allstate's ERISA plan and then armed with that declaration, the class members would seek benefits. The Court's review of this case reveals no such finding. Id. at 505-508. Rather, the circuit court vacated the class certification because there were critical differences among the claims of the putative class members concerning the circumstances that led to their resignation. Id. at 507. It was this critical difference among class members that made certification under Rule 23(b)(2) unsuitable. In this case, no such critical differences among the putative class members exist as all of their claims were adjusted using the BA code.
. Consistent with this analysis, the Court finds a recent decision from the Middle District of Florida instructive. See AA Suncoast Chiropractic Clinic, 321 F.R.D. at 687, 2017 WL 2123467 at *8. In AA Suncoast Chiropractic Clinic, the district court certified a class action under Rule 23(b)(2) involving a PIP policy wherein the plaintiffs did not seek monetary damages but sought only declaratory and injunctive relief. Id. The district court stated: "Plaintiffs have assured this Court that once the legal issue is determined, there will be no more supervision required to determine individual damages. Consequently, the Court finds the class certification at this juncture to be appropriate.” Id. Plaintiff has likewise assured the Court that once the interpretation of the Endorsement is resolved, this Court will not be required to resolve any other class claims.
Reference
- Full Case Name
- A & M GERBER CHIROPRACTIC LLC, a/a/o Conor Carruthers, on behalf of itself and all others similarly situated v. GEICO GENERAL INSURANCE COMPANY
- Cited By
- 4 cases
- Status
- Published