Preview
Filing # 124922297 E-Filed 04/14/2021 02:59:34 PM
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
PRESGAR IMAGING OF CMI
NORTH, LC, and BEACHES
OPEN MRI OF TAMARAC, LLC, CONSOLIDATED
as assignees, individually, and on
behalf of all similarly situated Case Nos. CACE-20-010138 (02)
persons, et al., CACE-20-013306 (18)
CACE-20-014646 (14)
Plaintiffs, CACE-20-014759 (21)
vs.
LM GENERAL INSURANCE
COMPANY, et al.,
Defendants.
/
PLAINTIFFS’ RESPONSE IN OPPOSITION TO
DEFENDANTS’ MOTIONS TO DISMISS
Plaintiffs, Presgar Imaging of CMI North, LC ("Presgar"), Beaches Open
MRI of Tamarac, LLC, and Beaches Open MRI of the Treasure Coast, LLC
(“Beaches”) as assignees, individually, and on behalf of all similarly situated
persons, respond in opposition to the (1) "Motion to Dismiss the Class Action
Complaint" filed by Defendant LM General Insurance Company dated October 29,
2020 in Case No. CACE-20-010138, (2) “Motion to Dismiss the Class Action
Complaint” filed by Defendant Liberty Mutual Insurance Company dated October
29, 2020 in Case No. CACE 20-013306, (3) “Motion to Dismiss the Class Action
Complaint” filed by Defendant LM Insurance Corporation dated October 29, 2020
in Case No. CACE-20-014646, and (4) “Motion to Dismiss the Class Action
{00586284.1 }
#** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/14/2021 02:59:34 PM.**#*
Complaint” filed by Defendant First Liberty Insurance Corporation dated October
29, 2020 in Case No. CACE-20-014759, and state:
A. Introduction
1 These four consolidated cases assert class-wide claims for declaratory
relief and injunctive relief, pursuant to Florida Rule of Civil Procedure 1.220(b)(2)
and (c)(4), and individual non-class action claims for damages against each of the
Defendants (individually and collectively, “Liberty Mutual”).
2. The legal issue at the crux of the case is a dispute over the amount of
personal injury protection ("PIP") coverage available under insurance policies
issued by Liberty Mutual in the State of Florida. Specifically, Liberty Mutual contends
that its insurance policies only provide up to $10,000 in PIP coverage for medical
expenses, but Presgar and Beaches (collectively, the "MRI Providers") contend
that the insurance policies provide up to $12,500 in PIP coverage for medical
expenses. If the MRI Providers’ position is correct, Liberty Mutual is routinely
underpaying and/or rejecting PIP claims for medical expense.
3 As explained in the MRI Providers’ complaints, at least two previous
Broward County circuit court appellate decisions have agreed with the MRI
Providers’ position. In Sea Spine Orthopedic Institute, LLC, a. a. 0. Carmen
Charriez v. Liberty Mut. Ins, Co., Appeal No. CACE 17-013 776(AP), Slip Op. (Fla.
17th Jud. Cir. Ct. App. Div. April 30, 2020), the parties disagreed as to whether the
same insurance policy at issue provided PIP coverage limited to $10,000 or $12,500.
A three-judge panel of the Appellate Division of this Court (Bowman, Lopane, and
Fahnestock, JJ.) held that the insurance policy is ambiguous as to the amount of
available PIP coverage and as to whether the PIP benefits listed in the insurance
policy are "stackable." The Court noted that the insurance policy does not place the
insured on notice that PIP benefits are intended to be capped at $10,000, and held
that the insurance policy was required to be construed "in favor of coverage and
strictly against the insurer." In Ron Wechsel, D.C., Inc., a.a.o. Stephanie Taylor v.
LM Gen. Ins. Co., Appeal No. CACE18-011192(AP), Slip Op. (Fla. 17th Jud. Cir. Ct.
App. Div. May 21, 2020), that same three-judge panel followed the Sea Spine
opinion.
4 Each of the current complaints filed by the MRI Providers in these four
cases is identical in all material respects. In each complaint, Count I is a class action
seeking declaratory relief. Count II is a class action seeking injunctive relief. Any
remaining counts are individual non-class claims for damages asserted by each of the
respective MRI Providers, based on Liberty Mutual’s contention that PIP benefits
were exhausted at $10,000, instead of $12,500.
5. Each claim asserted by the MRI Providers absolutely alleges the
necessary elements of the cause of action being asserted, and otherwise states a cause
of action. The arguments presented in the Liberty Mutual motions to dismiss have
been repeatedly rejected by the courts in the context of the situation presented in this
lawsuit, and/or are otherwise without merit.
B Objection — Liberty Mutual’s_arguments__regarding clas:
certification and the merits are premature
6. Liberty Mutual’s motions to dismiss are premature at this preliminary
juncture of the case.
7: The class certification process is governed by Florida Rule of Civil
Procedure 1.220. The pleading requirements for a class action are set forth in Rule
1.220(c). Discovery associated with whether the claims can be maintained on a class
action basis is authorized by Rule 1.220(d)(1)(C) (court may order postponement of
class determination pending the completion of class discovery). It is not until such
class certification discovery is completed, that the Court may make an actual
determination of whether the claims can be determined on a class action basis. That
determination is typically accomplished by motion to certify a class and an order
which either grants or denies class certification. See, Fla. R. Civ. P. 1.220(d)(1).
8 Well settled case law provides that the parties and the Court should
address the issue of whether a class will be certified before determining the merits of
the claims. In Frankel v. City of Miami Beach, 340 So.2d 463, 469 (Fla. 1976), the
Florida Supreme Court explained:
In the average class action the information needed to satisfy the
requirements of [Rule 1.220] . . can only be obtained through
discovery. Consequently, trial courts should reserve ruling on a
motion to dismiss until the party seeking to represent or
maintain an action against a class has had the opportunity
to employ sufficient discovery to ascertain the necessary
information that must be plead... .
(Emph. added).! The consolidated cases are all in the preliminary pleadings stage,
and the MRI Providers have not yet had an opportunity to complete class
discovery, and a motion concerning class certification has not yet been filed or
ruled upon.
9. Accordingly, Liberty Mutual’s attempt to address substantive issues on
the merits of this case and to circumvent the MRI Providers’ class action allegations
is an improper attempt to short-circuit or circumvent the class certification process
contemplated by Rule 1.220 and controlling case law.
10. To the extent, if any, that the Court elects to prematurely consider
Liberty Mutual’s motions (over the MRI Providers’ objections), the arguments below
establish that the MRI Providers’ amended complaint clearly states a cause of action,
clearly complies with the class action pleadings requirements, and that Liberty
Mutual’s motions must be denied.
1 See also, Cordell v. World Ins. Co., 355 So. 2d 479, 481 (Fla. 1st DCA 1978) (trial court should
have reserved ruling on motion to dismiss until plaintiffs had an opportunity to employ sufficient
class certification discovery); Whigum v. Heilig-Myers Furniture, Inc., 682 So. 2d 643 (Fla. 1st
DCA 1996) (decision on class certification should not be made until after the parties have adequate
opportunity to discover facts necessary to support class action requirements); Samples v.
Hernando Taxpayers Ass'n, 682 So. 2d 184 (Fla. 2d DCA 1996) (trial court properly focused on
whether requirements of rule 1.220 were met and not on whether the plaintiffs had stated a cause
of action or would prevail on the merits); Océ Printing Sys. USA, Inc. v. Mailers Data Serv., Inc.,
760 So. 2d 1037, 1045 (Fla. 2d DCA 2000) (rejecting defendant's argument challenging the legal
proof of the plaintiffs' class action complaint and holding that "matters of proof that go to the
merits of the claim are inappropriate when considering class certification" and that "[w]hether
the Plaintiffs will be successful before a jury is a matter that is irrelevant at the class certification
stage"); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-178 (1974) (in determining the propriety
of a class action, the question is not whether the plaintiff stated a cause of action or will prevail on
the merits but rather whether the requirements of the rule are met); Fuller v. Becker & Poliakoff,
P.A., 197 F.R.D. 697, 699 (M.D. Fla. 2000)(in determining whether a class will be certified, the
court will not examine the merits of the case).
Cc Standards for deciding a motion to dismis:
11. Notably, Liberty Mutual’s motions do not (and cannot) argue that the
MRI Providers failed to plead any necessary elements of any of its causes of action.
Instead, Liberty Mutual’s motions primarily dispute the accuracy of the MRI
Providers’ allegations, and prematurely attack the MRI Providers’ class certification
allegations. These grounds are without merit and must be rejected.
12. A motion to dismiss merely tests the legal sufficiency of a complaint.
See, Bess v. Eagle Capital, Inc., 704 So.2d 621 (Fla. 4th DCA 1997). In ruling on a
motion to dismiss, this Court is confined to the allegations within the "four corners"
of the pleading. See, Cook v. Sheriffof Collier County, 573 So.2d 406, 408 (Fla. 2d
DCA 1991).
13. Ona motion to dismiss, the moving party is deemed to admit all matters
alleged in the complaint and the reasonable inferences arising therefrom, and may
not speculate as to whether the plaintiff's allegations will ultimately be proven. See,
Cook, 573 So.2d at 408; Simon v. Tampa Electric Co., 202 So.2d 209 (Fla. 2d DCA
1967).
14. In deciding whether a cause of action is stated, this Court must not
consider any affirmative defenses raised by the defendant or any evidence likely to
be produced by either side. See, Martin v. Principal Mutual Life Ins. Co., 557 So. 2d
128, 128-129 (Fla. 3d DCA 1990).
15. The complaint need not anticipate the defendant's affirmative defenses.
Rather, defenses should be stated by the defendant in an answer. If the plaintiff
alleges all of the necessary elements of the cause of action, the complaint states a
cause of action. See, Payne v. Humana Hosp. Orange Park, 661 So. 2d 1239, 1241
(Fla. ist DCA 1995).
16. A motion to dismiss is not a substitute for a motion for summary
judgment. Cook, 573 So. 2d at 408.
17. In this case, Counts I, II, II, and IV of the MRI Providers’ complaints
plead all of the necessary elements for the causes of action asserted, and Counts I and
II plead all of the necessary elements for seeking class action relief. It would be very
premature and improper to determine class certification or summary judgment at
this preliminary juncture of the case. Therefore, Liberty Mutual’s motions must be
denied.
D. Point I of Liberty Mutual’s motions actually seeks summary
judgment
18. Point I of Liberty Mutual’s motions does not assert that the MRI
Providers have failed to allege any required element of any of the causes of action
asserted in the complaints. Instead, Liberty Mutual attacks the merits of the MRI
Providers’ declaratory relief claim, and for all intents and purposes, seeks a
premature summary judgment.
19. As previously noted, two Broward County circuit court appellate
decisions have already rejected the legal arguments presented by Liberty Mutual.
See, Sea Spine Orthopedic Institute, LLC, a. a. o. Carmen Charriez v. Liberty Mut.
Ins, Co., Appeal No. CACE 17-013 776(AP), Slip Op. (Fla. 17th Jud. Cir. Ct. App. Div.
April 30, 2020); Ron Wechsel, D.C., Inc., a.a.o. Stephanie Taylor v. LM Gen. Ins.
Co., Appeal No. CACE 18-011192(AP), Slip Op. (Fla. 17th Jud. Cir. Ct. App. Div. May
21, 2020).
20. Both Sea Spine and Wechsel are cited in the MRI Providers’ complaints
Curiously, despite the fact that Liberty Mutual has already lost the exact same issue
in two separate appeals, the Sea Spine and Wechsel decisions are not mentioned
anywhere in Liberty Mutual’s lengthy motions.
21, In any event, Liberty Mutual is putting the cart before the horse. Instead
of deciding the merits of the parties’ controversy on a motion to dismiss, the Court is
required at this preliminary pleadings stage to determine whether the complaint
states a cause of action.
22. The Florida Declaratory Judgment Act is found in Chapter 86, Florida
Statutes. On one hand, the Act provides a cause of action “to render practical help in
ending controversies which have not reached the stage where other legal relief is
immediately available.” X Corp. v. Y Person, 622 So. 2d 1098, 1100 (Fla. 2d DCA
1993). On the other hand, the courts “have jurisdiction ... to declare rights, status,
and other equitable or legal relations whether or not further relief is or could be
claimed” and the “existence of another adequate remedy does not preclude a
judgment for declaratory relief.” § 86.011 and 86.111, Fla. Stat. (Emph. added). In
other words, the Florida Declaratory Judgment Act is intended provide a remedy--
regardless of whether other legal relief is otherwise available or not.
23. The plain language of the Act provides a statutory cause of action that is
both “substantive and remedial.” See, § 86.101, Fla. Stat. That cause of action is
available to “any person” in doubt about his or her rights under a contract or a
statute:
86.021 Power to construe.— Any person claiming to be interested
or who may be in doubt about his or her rights under a
contract, . or whose rights, status, or other equitable or legal
relations are affected by a statute, ... may have determined any
question of construction or validity arising under such
statute, contract, or any part thereof, and obtain a
declaration of rights, status, or other equitable or legal
relations thereunder.
§ 86.021, Fla. Stat. (Emph. added). In that situation, the Act provides a remedy “to
settle and to afford relief from insecurity and uncertainty” concerning the parties’
“rights, status, and other equitable or legal relations” and it is required “to be
liberally administered and construed” to achieve that purpose. § 86.101, Fla. Stat.
24. The type of relief provided by a declaratory judgment action is equitable
in nature. Phillips v. Cutler, 388 So. 2d 48, 49 (Fla. 2d DCA 1980). Indeed, the Act
expressly gives Florida courts the “power to give as full and complete equitable relief
as it would have had if such proceeding had been instituted as an action in chancery.”
§ 86.111, Fla. Stat. (Emph. added). See also, 8§ 86.021, 86.041, and 86.101, Fla. Stat.
(confirming that declaratory judgment action includes equitable relief).
25. Notably, the Florida Declaratory Judgment Act, which must be liberally
administered and construed, applies to “all” persons, contracts, and statutes—it does
not provide any immunity, exceptions, or exemptions for insurance companies,
insurance contracts, or insurance statutes. Indeed, declaratory judgment actions are
routinely filed by insurance companies and insureds alike to obtain binding coverage
decisions in disputes over the meaning and effect of insurance policies and the
statutes that govern them. See, e.g., Higgins v. State Farm Fire & Cas. Co., 894 So.
2d 5, 15 (Fla. 2004) (declaratory judgment actions are authorized to determine
insurance policy coverage and defense obligations); Travelers Ins. Co. v. Emery, 579
So. 2d 798, 801 (Fla. ist DCA 1991)(disagreements concerning coverage under
insurance policies are proper subjects for a declaratory judgment); Tindall v. Allstate
Ins. Co., 472 So. 2d 1291, 1292 (Fla. 2d DCA 1985)(same); People’s Tr. Ins. Co. v.
Franco, 305 So. 3d 579, 582-583 (Fla. 3d DCA 2020)(same); Tavares v. Allstate Ins.
Co., 342 So. 2d 551, 552 (Fla. 3d DCA 1977)(“bona fide dispute over ... coverage in an
insurance contract is a proper subject for entertaining a petition for declaratory
judgment relief under Chapter 86”); Lewis v. Liberty Mut. Ins. Co., 121 So. 3d 1136,
1137 (Fla. 4th DCA 2013)(insured was entitled to bring declaratory judgment claim
seeking determination of insurance coverage). Thus, a dispute concerning the type
or amount of coverage that must be provided under an insurance policy is precisely
the type of controversy that Section 86.021 expressly authorizes “any person” to
bring a declaratory relief claim to resolve.
26. As explained in Bell v. Associated Independents, Inc., 143 So. 2d 904,
908 (Fla. 2d DCA 1962):
While the granting of declaratory relief lies within the discretion of the
Court, and is not a matter of right, the discretion is not to be
exercised in connection with a motion to dismiss a
10
complaint which is sufficient to invoke the Court's
jurisdiction, but is to be exercised when the evidence is
before the court.
(Emph. added). Thus, the test for determining the sufficiency of a declaratory
judgment action on a motion to dismiss "is not whether the plaintiff will succeed in
obtaining the decree he seeks favoring his position, but whether he is entitled to a
declaration of rights at all." "X" Corp., 622 So. 2d at 1100-01. Numerous other cases
are in accord.2 Moreover, in Ribaya v. Board of Trustees of City Pension Fund, 162
So. 3d 348, 352 (Fla. 2d DCA 2015), the Second DCA explained that a complaint for
declaratory relief "can be legally sufficient even if the plaintiff ultimately loses the
case on its merits.”
27. The elements of a declaratory judgment action are well settled. The
party seeking relief must show that it is in doubt as to the existence or nonexistence
of some right, status, immunity, power, or privilege. In this regard, there must be a
"bona fide, actual, present, and practical need for the declaration" and a "present
controversy as to a state of facts." Sutton v. Dept. of Environmental Protection, 654
So. 2d at 1047, 1048-49 (Fla. 5th DCA 1995); "X" Corp., 622 So.2d at 1100-01. This
element is often described as requiring the presence of a "justiciable controversy."
2 See, e.g., Modernage Furniture Corp. v. Miami Rug Co., 84 So. 2d 916 (Fla. 1955); Rosenhouse
v. 1950 Spring Term Grand Jury, in and for Dade County, 56 So. 2d 445 (Fla.1952); Rigby v.
Liles, 505 So. 2d 598 (Fla.ist DCA 1987); R-C-B-S Corp. v. City of Atlantic Beach, 178 So. 2d 906
(Fla. ist DCA 1965); Lungu v. Walters, 198 So. 2d 99 (Fla. 34 DCA 1967); Johnson v. Thoburn,
160 So. 2d 729 (Fla. 3d DCA 1964); North Shore Realty Corp. v. Gallaher, 99 So. 2d 255 (Fla.3d
DCA 1957).
11
Jacobs & Goodman, P.A. v. McLin, Burnsed, Morrison, Johnson & Robuck, P.A., 582
So. 2d 98, 100 (Fla. 5th DCA 1991).
28. Count I alleges all of the essential elements and clearly states a cause of
action, and a determination of the merits is premature at this juncture. Sosa; Bell.
29. Indeed, if anything, Point I of Liberty Mutual’s motions to dismiss
confirms that the parties are currently engaged in exactly the type of “present
controversy” that the Florida Declaratory Judgment Act is designed to address.
Specifically, Liberty Mutual’s motions confirm that it contends that its insurance
policies only provide a maximum amount of PIP coverage of $10,000, while the MRI
Providers contend that the insurance policies provide $12,500 of PIP coverage.
E. The MRI Providers and putative class members have complied
with the PIP Statute's presuit demand letter requirement
(Point II.A of Motion)
30. In Point II.A of its motion, Liberty Mutual erroneously argues that the
MRI Providers have to failed to allege compliance with the PIP statute's presuit
demand letter requirement. This argument is without merit.
31. Each of the four complaints include the same materially identical
allegations concerning the presuit notice issue, but the paragraph numbering may
vary from complaint-to-complaint. In Case No. CACE-20-010138, the amended
complaint includes the following allegations, which must be deemed true at this
juncture:
6. All conditions precedent to the maintenance of this action
have occurred, have been performed, or have been waived.
12
33. Thereafter, Presgar sent the Insurance Company a Section
627.736(10), Florida Statutes presuit demand letter, a redacted copy of
which (without enclosures) is attached hereto as "Exhibit G.”
42. Thereafter, Beaches sent the Insurance Company a Section
627.736(10), Florida Statutes presuit demand letter, a redacted copy of
which (without enclosures) is attached hereto as "Exhibit L.”
48. As used herein, the "Sub-Class" consists of and is defined
as all persons and/or entities who: (a) are members of the Class, and (b)
submitted a presuit notice to the Insurance Company pursuant to
Section 627.736(10).
Count I — Class Action for Declaratory Relief
60. In pertinent part, Section 627.736(10), Florida Statutes
states the following:
DEMAND LETTER.—
(a) As a condition precedent to filing any action
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 the claim pursuant to paragraph (4)(b).
(Emph. added). Because Count I is an action for declaratory relief
under Chapter 86, it is not an "action for benefits" under Section
627.736, and a presuit demand letter is not a condition precedent to
the initiation of this action.
61. Alternatively, the MRI Providers and the Sub-Class
satisfied the presuit notice requirements of Section 627.736(10),
because for the following reasons:
(a) With respect to the services provided to the
Insured Patient, the MRI Providers sent the Insurance
Company the presuit demand letters attached to hereto as
Exhibit G and L.
13
(b)
Pursuant to the definition set forth in paragraph
48 above, each member of the Sub-Class is required to have
submitted a presuit demand letter to the Insurance Company
pursuant to Section 627.736(10).
Count II — Class Action for Injunctive Relief
74. ... Because Count II is an action for injunctive relief under
the common law, it is not an "action for benefits" under Section
627.736, and a presuit demand letter is not a condition precedent to
the initiation of this action.
75+ Alternatively, the MRI Providers and the Sub-Class
satisfied the presuit notice requirements of Section 627.736(10), for
the following reasons:
(a) With respect to the services provided to the
Insured Patient, the MRI Providers sent the Insurance
Company the presuit demand letters attached to hereto as
Exhibit G and L.
(b)
Pursuant to the definition set forth in paragraph
48 above, each member of the Sub-Class is required to have
submitted a presuit demand letter to the Insurance Company
pursuant to Section 627.736(10).
Count III — Presgar’s Individual Claim for PIP Benefits
85. Presgar satisfied the presuit notice requirements of
Section 627.736(10), based on the presuit demand letter attached
hereto as Exhibit G.
Count IV — Beaches’s Individual Claim for PIP Benefits
94. Beaches satisfied the presuit notice requirements of
Section 627.736(10), based on the presuit demand letter attached
hereto as Exhibit L.
The other three complaints have identical allegations in all material respects. In the
face of the foregoing allegations, Liberty Mutual’s suggestion that the MRI Providers
failed to allege compliance with the presuit demand letter requirements of Section
627.736(10) is absurd and frivolous.
32. Liberty Mutual’s contention that the putative class members are
required to comply with the PIP statute's presuit demand letter requirements is also
misplaced. The presuit demand letter requirements of the PIP statute are found in
Section 627.736(10)(a), which, in pertinent part, states:
(10) DEMAND LETTER —
(a) As a condition precedent to filing any action 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 the claim pursuant to paragraph (4)(b).
(Emph. added).3 In each of the complaints, the only "action[s] for benefits under
this section" (i.e., the PIP statute) are Counts III and/or IV, and the MRI Providers
have clearly submitted a presuit demand letter as a precondition to bringing those
non-class action claims. Moreover, the PIP statute's presuit demand letter
requirements are totally inapplicable to Counts I and II because those counts are
not "actions for benefits under this section" (i.e., the PIP statute).
33. Liberty Mutual ignores the plain language of Section 627.736(10)(a),
and the type of relief being sought by the MRI Providers’ complaint. Subsection
3 The same provision was previously numbered as Section 627.736(11), Florida Statutes (2003-
2006).
15
(10)(a) clearly states that it only applies to "any action for benefits under this section
[ie., the PIP statute]." Count I is an action for declaratory relief under Chapter 86,
Florida Statutes, and Count II is an action for injunctive relief under the common
law. Because those two counts are not "actions for benefits under [the PIP statute],”
the presuit demand letter provisions of the PIP statute are completely inapplicable
to those claims. See, Bristol West Ins. Co. v. MD Readers, Inc., 52 So. 3d 48, 51 (Fla.
4th DCA 2010); New Hampshire Indemnity Ins. Co. v. Rural Metro Ambulance,
a/a/o William Zambonini, 13 Fla. L. Weekly Supp. 573a (Fla. 18th Jud. Cir. Ct.
Appellate Div. Nov. 18, 2005); Acosta v. Mercury Insurance Company of Florida, 15
Fla. L. Weekly Supp. 868a (Fla. 9th Jud. Cir. Ct. Appellate Div. May 7, 2008). In
Bristol West, Zambonini, and Acosta, the appellate courts squarely held that the
presuit demand letter requirements of the PIP statute do not apply to declaratory
relief claims under Chapter 86.
34. As a statute that limits access to the courts, the presuit demand letter
provision of Section 627.736(10) must be strictly construed in a manner that favors
access to the courts, as guaranteed by Article I, Section 21 of the Florida Constitution.
See, e.g., Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida
Div. of Administrative Hearings, 948 So. 2d 705, 722 (Fla. 2007) ("Statutes that
limit access to the courts 'must be narrowly construed in a manner that favors
access"); Kukral v. Mekras, 679 So. 2d 278, 284 (Fla. 1996) (construing the statutory
medical malpractice presuit and notice requirements in a manner that favors access
to the courts). Interpreting Section 627.736(10) in a manner that limits one's ability
16
to file a type of action not even mentioned in the PIP statute would clearly violate this
fundamental principle of statutory construction in an unconstitutional manner.
Thus, the PIP statute's presuit demand letter requirements cannot be applied to
Counts I and II.
35- Section 627.736(10) must also be strictly construed because it is a
statute in derogation of the common law. Ady v. American Honda Fin. Corp., 675
So. 2d 577, 581 (Fla. 1996). Statutes in derogation of common law cannot be
interpreted "to make any alteration [in the common law] other than what was
specified and plainly pronounced." Slawson v. Fast Food Enterprises, 671 So. 2d
255, 257 (Fla. 4th DCA 1996). See also, Carlile v. Game & Fresh Water Fish Comm'n,
354 So. 2d 362, 364 (Fla. 1977). At common law, nothing required a plaintiff to give
the defendant a written presuit demand letter as a condition to filing a lawsuit against
a defendant. Consequently, the presuit demand letter provision of Section
627.736(10) must be strictly construed such that it is only required to be submitted
before "filing any action for benefits under [the PIP statute.]" Thus, the PIP statute's
presuit demand letter requirements cannot be applied to Counts I and II.
36. There is yet another reason why the PIP statute's presuit demand letter
requirement cannot possibly apply to Count I, which is a claim for declaratory relief
under Chapter 86.4 Chapter 86 does not impose a presuit notice requirement on
4 Because the PIP statute does not expressly authorize claims for declaratory relief, the authority
for such claims is pursuant to Chapter 86.
17
actions for declaratory relief.5 To the contrary, an action for declaratory relief
concerning a person's rights under a contract (such as a PIP insurance policy) may
be brought "either before or after there has been a breach of it." §86.031, Fla. Stat.
(Emph. added). Moreover, "[a]Jny declaratory judgment rendered pursuant to
[Chapter 86] may be rendered by way of anticipation with respect to any act
not yet done or any event which has not yet happened, and... shall have the
same binding effect with respect to that future act or event, and the rights or
liability to arise therefrom, as if that act or event had already been done or had
already happened before the judgment was rendered." §86.051, Fla. Stat. (Emph.
added).
37- The ability to bring a declaratory judgment action in anticipation of a
future contractual or statutory violation is significant in this case, because Section
627.736(10) expressly states that a plaintiff pursuing an "action for benefits" under
the PIP statute "may not" send a presuit demand letter "until the claim is overdue,
including any additional time the insurer has to pay the claim pursuant to paragraph
(4)(b) [of the PIP statute]." (Emph. added). Because declaratory relief actions under
Chapter 86 can be brought before a claim is overdue, it is clear that Section
627.736(10) cannot possibly be intended to apply to Chapter 86 declaratory relief
5 While a presuit demand letter is not required, if the plaintiff is seeking a declaration that "a
statute, charter, ordinance, or franchise is ... unconstitutional, the Attorney General or the state
attorney of the judicial circuit in which the action is pending shall be served with a copy of the
complaint and be entitled to be heard.” §86.091, Fla. Stat. This case does not seek any declaration
that a statute, charter, ordinance or franchise is unconstitutional.
18
actions. Because Chapter 86 specifically governs declaratory relief actions, Chapter
86 (not the PIP statute) governs the conditions precedent for filing a declaratory
relief action. See, McKendry v. State, 641 So. 2d 45, 46 (Fla.1994) (specific statute
covering particular subject area controls over statute covering same and other
subjects in more general terms).
38. Moreover, with respect to the putative class members, the presuit
demand letter requirements of the PIP statute do not apply to them. The plain
language of Section 627.736(10)(a) clearly states that the presuit demand letter is
condition precedent to filing any action for benefits under this section...." (Emph.
added). The putative class members have not actually "fil[ed] any action" in this case.
39. To the extent that the presuit demand letter requirements do apply, the
MRI Providers and the putative class members have clearly complied. With respect
to the MRI Providers, their presuit demand letters are attached to each complaint as
exhibits. With respect to the putative class members, Liberty Mutual’s suggestion
that putative class members did not provide sufficient notice is an argument that
pertains to class certification, and is therefore, premature. See, e.g., Frankel, 340 So.
2d at 469; Fla. R. Civ. P. 1.220(d)(4); Cordell, 355 So. 2d at 481. Further, each class
action claim asserted in the complaint includes the "presuit notice sub-class"
definition, which requires that each sub-class member must have submitted presuit
demand letters to Liberty Mutual.
40. Thus, each complaint clearly alleges that the MRI Providers and all
members of the sub-class complied with the presuit demand letter requirements of
19
Section 627.736(10)(a). On a motion to dismiss, this Court must assume those
allegations are true. Connolly v. Sebeco, Inc., 89 So. 2d 482 (Fla. 1956). As long as
all necessary elements of the cause of action are pled, each complaint states a cause
of action and Liberty Mutual’s motions to dismiss must be denied. Payne v. Humana
Hosp. Orange Park, 661 So. 2d 1239, 1241 (Fla. ist DCA 1995).
41. In sum, Liberty Mutual’s presuit demand letter arguments are
completely without merit and must be rejected.
F. Adequate remedy at law does not defeat the claims for
declaratory and injunctive relief (Response to Motion Point II.B)
42. In Point IIB of its motion, Liberty Mutual argues that the MRI
Providers cannot seek declaratory or injunctive relief because they supposedly have
“adequate remedy at law.” This is yet another meritless argument.
43. First, a declaratory judgment action under Chapter 86 is available
regardless of any other adequate remedy. As expressly stated in Section 86.111,
Florida Statutes:
86.111 Existence of another adequate remedy; effect—The
existence of another adequate remedy does not preclude a
judgment for declaratory relief. The court may order a speedy
hearing of an action for a declaratory judgment and may advance it on
the calendar. The court has power to give as full and complete equitable
relief as it would have had if such proceeding had been instituted as an
action in chancery.
(Emph. added). Consequently, this argument is inapplicable to the claim for
declaratory relief in Count I.
20
44. With respect to the MRI Providers’ injunctive relief action, Count II of
each complaint includes the following allegations (while the paragraph numbering
may vary from complaint-to-complaint):
67. .. Because the MRI Providers routinely provide MRI
services to the Insurance Company's PIP insureds, the issues raised in
this declaratory relief claim affects the MRI Providers on an ongoing
and continuing basis.
The Insurance Company's limitation of PIP coverage for
706.
medical expenses is unlawful, and is ongoing and continuing in
nature.
77- The MRI Providers and the class members will suffer
irreparable injury if the Insurance Company is permitted in the future
to continue relying upon an erroneous interpretation of its Insurance
Policy to unlawfully reduce or reject covered claims for medical
expenses. ... Examples of such irreparable injury include but are not
limited to the following:
(c) Absent injunctive relief requiring the Insurance
Company to cease and desist from such wrongful conduct in the
future, the MRI Providers and the class members are left in the
untenable position of having to address the Insurance Company's
continuing and ongoing wrongs with a multiplicity of lawsuits, in
the various different county courts across the State of Florida, with the
risk of suffering inconsistent and varying results.
(d) The Insurance Company's continuing and ongoing
unlawful conduct places its own PIP insureds at risk that MRI
providers will refuse to treat them without receiving full payment in
advance of receiving medical services needed to properly treat and/or
diagnose their health condition, and this will lead to incalculable or
unascertainable losses to third parties.
(Emph. added).
45. The foregoing allegations are deemed to be true on a motion to dismiss.
See, e.g., Cook, 573 So. 2d at 408. Further, the situations alleged above are precisely
21
the type of "irreparable harm" for which injunctive relief is available. Amelio v.
Marilyn Pines Unit II Condo. Ass'n, Inc., 173 So. 3d 1037, 1040 (Fla. 2d DCA 2015)
(irreparable harm is shown by ongoing violations prohibited by statute); Dispoto v.
Marion County, 969 So. 2d 423 (Fla. 5th DCA 2007) (irreparable harm is presumed
for continuing violations); Gainesville Gas & Elec. Power Co. v. City of Gainesville,
58 So. 785 (Fla. 1912) (injunction may be an appropriate remedy for allegations of a
multiplicity of suits); Davis v. Wilson, 190 So. 716, 719 (Fla. 1939) (the foundation
for the jurisdiction of equity to enjoin conduct is prevention of multiplicity of suits);
Zimmerman v. D.C.A. at Welleby, Inc., 505 So. 2d 1371, 1372-73 (Fla. 4th DCA 1987)
(remedy at law is inadequate where damages are unascertainable or incalculable).
46. Liberty Mutual also overlooks well-settled Florida case law authorizing
plaintiffs to "plead in the alternative" inconsistent claims for an injunction and for
damages. See, e.g., Downing v. Bird, 100 So. 2d 57 (Fla.1958) (plaintiff was allowed
to amend her complaint to ask for damages, either solely or in the alternative to her
request for injunction); Fintak v. Fintak, 120 So. 3d 177, 186 (Fla.2d DCA 2013) (a
party is permitted to plead in the alternative); Burr v. Norris, 667 So. 2d 424, 426
(Fla.2d DCA 1996) (plaintiffs are allowed to plead inconsistent or alternative actions
and need only elect remedies before final judgment); Palafrugell Holdings, Inc. v.
Cassel, 825 So. 2d 937, 940 (Fla.3d DCA 2001) (pleading in the alternative is
"perfectly acceptable practice"); Fla. R. Civ. P. 1.110 (g) ("party may...state as many
separate claims...as that party has, regardless of consistency and whether based on
legal or equitable grounds or both").
22
47. Accordingly, Liberty Mutual’s argument is incorrect and must be
rejected.
G. The complaints are not splitting causes of action (Response to
Motion Point II.C)
48. Liberty Mutual misplaces its reliance on Section 627.736(15), Florida
Statutes, which is completely inapplicable. That statute states:
(15) ALLCLAIMS BROUGHT IN A SINGLE ACTION.—In any
civil action to recover personal injury protection benefits
brought by a claimant pursuant to this section against an insurer, all
claims related to the same health care provider for the same
injured person shall be brought in one action, unless good
cause is shown why such claims should be brought
separately. Ifthe court determines that a civil action is filed for a claim
that should have been brought in a prior civil action, the court may not
award attorney’s fees to the claimant.
(Emph. added).
49. Counts I and II are the only claims brought as class actions. Those
claims only seek declaratory and injunctive relief, and are not “action[s] to recover
personal injury benefits.”
50. The remaining counts of the complaints are the only “action[s] to
recover personal injury benefits.” But those claims are only brought by the respective
MRI Providers on a non-class action basis. Those remaining counts are “all” of the
“claims related to the same health care provider for the same injured person”
contemplated by Section 627.736(15).
51. Liberty Mutual has not identified any claims being asserted in any other
lawsuits concerning the same injured persons involved in this lawsuit that are in
23
violation of Section 627.736(15). If there are any, Liberty Mutual can raise that issue
as an affirmative defense.
52. Moreover, Section 627.736(15) clearly states on its face that it does not
apply if “good cause is shown why such claims should be brought separately.” If this
Court ultimately decides that class certification is appropriate for Counts I and II,
then such good cause will be demonstrated because the class action will decide the
correct maximum amount of PIP benefits available under Liberty Mutual’s insurance
policies, and will eliminate the need for the same dispute to be decided in numerous
cases before numerous different judges with potentially inconsistent results.
H. Liberty Mutual’s arguments concerning class action allegation:
are premature (Response to Motion Points II.D and E)
53- Liberty Mutual’s remaining arguments contend that a class action is
inappropriate in each case. Such arguments are premature at this preliminary
juncture of the case. Liberty Mutual’s arguments concerning the issue of whether
class certification should be granted or denied should be raised after class discovery
is completed and a motion for class certification is pending before the Court. See,
PointB herein; Frankel, 340 So.2d at 469; Cordell, 355 So. 2d at 481; Whigum, 682
So. 2d 643.
54. Moreover, Liberty Mutual’s arguments concerning “individualized”
issues have no bearing in this case. The only class action claims asserted in this case
are declaratory and injunctive relief claims. Class certification of declaratory and
injunctive relief claims are governed by Florida Rule of Civil Procedure 1.220(b)(2).
24
In order to obtain class certification of a “(b)(2)” class, the moving party must
merely demonstrate that “the party opposing the class has acted or refused to act on
grounds generally applicable to all the members of the class, thereby making final
injunctive relief or declaratory relief concerning the class as a whole appropriate.”
See, Fla. R. Civ. P. 1.220(b)(2).
55- In sharp contrast, the “individualized” issues problem that Liberty
Mutual is arguing about pertain only to certification of a class pursuant to Rule
1.220(b)(3). In order to obtain class certification of a “(b)(3)” class, the moving
party must demonstrate that “the questions of law or fact common to the claim or
defense of the representative party and the claim or defense of each member of the
class predominate over any question of law or fact affecting only
individual members of the class, and class representation is superior to other
available methods for the fair and efficient adjudication of the controversy.” See, Fla.
R. Civ. P. 1.220(b)(3). In this case, the amended complaint does not allege a “(b)(3)”
class. The predominance-individualized-issues arguments do not apply to the
(b)(2) class sought by the MRI Providers in Counts I and II.
J Conclusion
506. For the reasons set forth above, Liberty Mutual’s motions are without
merit and should be denied.
57- Assuming arguendo that any of the MRI Providers’ complaints do not
properly state a cause of action, any dismissal should be without prejudice, as any
such defect could be easily cured in an amended pleading or by submitting a more
25
definite statement. Al-Hakim v. Holder, 787 So. 2d 939 (Fla. 2d DCA 2001)
(dismissal with prejudice should only be granted when there is no possible way to
amend to state a cause of action, or there has been an abuse of the privilege to
amend); Fla. R. Civ. P. 1.140(e).
WHEREFORE, the MRI Providers respectfully request this Honorable
Court to deny Liberty Mutual’s motions to dismiss. Alternatively, any dismissal
should be without prejudice to the MRI Providers’ ability to amend.
[Attorney’s signature appears on the following page.]
26
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy hereof was
Electronically Filed with the Clerk of the Court and Electronically Served on
Gary J. Guzzi, Esq. and Antonio Morin, Esq., (Email: gary.guzzi@akerman.com;
maria.revoredo@akerman.com; antonio.morin@akerman.com), Akerman LLP,
Three Brickell City Centre, 98 Southeast Seventh Ave., Miami, FL 33131; on this
14th day of April, 2021.
Respectfully submitted,
Cle
Thomas J. Wenzel, FBN 104117 J. Daniel Clark, FBN 106471
STEINGER, GREENE & FEINER CLARK & MARTINO, P.A.
2727 NW 62"4 Street 3407 W. Kennedy Boulevard
Fort Lauderdale, FL 33309 Tampa, FL 33609
Telephone: 954-491-7701 Telephone: 813-879-0700
Fax: 954-634-8312 Primary: dclark@clarkmartino.com
Email: pleadings@injurylawyers.com Secondary: rsmith@clarkmartino.com
Chad Bar, FBN 55365 David M. Caldevilla, FBN 654248
CHAD BARR LAW de la PARTE & GILBERT, P.A.
238 N. Westmonte Dr., Suite 200 Post Office Box 2350
Altamonte Springs, FL 32714 Tampa, FL 33601-2350
Telephone: 417-599-9036 Telephone: 813-229-2775
Primary: service@chardbarrlaw.com Primary: dcaldevilla@dgfirm.com
Secondary: chad@chadbarrlaw.com Secondary: serviceclerk@dgfirm.com
Kimberly P. Simoes, FBN 109479
THE SIMOES LAW GROUP, P.A.
351 E. New York Ave.
Deland, FL 32724 COUNSEL FOR PLAINTIFF
Telephone: 386-320-7967
Primary: kimberly@simoeslaw.com
Secondary: service@simoeslaw.com
27
Preview
Filing # 124922297 E-Filed 04/14/2021 02:59:34 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA PRESGAR IMAGING OF CMI NORTH, LC, and BEACHES OPEN MRI OF TAMARAC, LLC, CONSOLIDATED as assignees, individually, and on behalf of all similarly situated Case Nos. CACE-20-010138 (02) persons, et al., CACE-20-013306 (18) CACE-20-014646 (14) Plaintiffs, CACE-20-014759 (21) vs. LM GENERAL INSURANCE COMPANY, et al., Defendants. / PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTIONS TO DISMISS Plaintiffs, Presgar Imaging of CMI North, LC ("Presgar"), Beaches Open MRI of Tamarac, LLC, and Beaches Open MRI of the Treasure Coast, LLC (“Beaches”) as assignees, individually, and on behalf of all similarly situated persons, respond in opposition to the (1) "Motion to Dismiss the Class Action Complaint" filed by Defendant LM General Insurance Company dated October 29, 2020 in Case No. CACE-20-010138, (2) “Motion to Dismiss the Class Action Complaint” filed by Defendant Liberty Mutual Insurance Company dated October 29, 2020 in Case No. CACE 20-013306, (3) “Motion to Dismiss the Class Action Complaint” filed by Defendant LM Insurance Corporation dated October 29, 2020 in Case No. CACE-20-014646, and (4) “Motion to Dismiss the Class Action {00586284.1 } #** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 04/14/2021 02:59:34 PM.**#* Complaint” filed by Defendant First Liberty Insurance Corporation dated October 29, 2020 in Case No. CACE-20-014759, and state: A. Introduction 1 These four consolidated cases assert class-wide claims for declaratory relief and injunctive relief, pursuant to Florida Rule of Civil Procedure 1.220(b)(2) and (c)(4), and individual non-class action claims for damages against each of the Defendants (individually and collectively, “Liberty Mutual”). 2. The legal issue at the crux of the case is a dispute over the amount of personal injury protection ("PIP") coverage available under insurance policies issued by Liberty Mutual in the State of Florida. Specifically, Liberty Mutual contends that its insurance policies only provide up to $10,000 in PIP coverage for medical expenses, but Presgar and Beaches (collectively, the "MRI Providers") contend that the insurance policies provide up to $12,500 in PIP coverage for medical expenses. If the MRI Providers’ position is correct, Liberty Mutual is routinely underpaying and/or rejecting PIP claims for medical expense. 3 As explained in the MRI Providers’ complaints, at least two previous Broward County circuit court appellate decisions have agreed with the MRI Providers’ position. In Sea Spine Orthopedic Institute, LLC, a. a. 0. Carmen Charriez v. Liberty Mut. Ins, Co., Appeal No. CACE 17-013 776(AP), Slip Op. (Fla. 17th Jud. Cir. Ct. App. Div. April 30, 2020), the parties disagreed as to whether the same insurance policy at issue provided PIP coverage limited to $10,000 or $12,500. A three-judge panel of the Appellate Division of this Court (Bowman, Lopane, and Fahnestock, JJ.) held that the insurance policy is ambiguous as to the amount of available PIP coverage and as to whether the PIP benefits listed in the insurance policy are "stackable." The Court noted that the insurance policy does not place the insured on notice that PIP benefits are intended to be capped at $10,000, and held that the insurance policy was required to be construed "in favor of coverage and strictly against the insurer." In Ron Wechsel, D.C., Inc., a.a.o. Stephanie Taylor v. LM Gen. Ins. Co., Appeal No. CACE18-011192(AP), Slip Op. (Fla. 17th Jud. Cir. Ct. App. Div. May 21, 2020), that same three-judge panel followed the Sea Spine opinion. 4 Each of the current complaints filed by the MRI Providers in these four cases is identical in all material respects. In each complaint, Count I is a class action seeking declaratory relief. Count II is a class action seeking injunctive relief. Any remaining counts are individual non-class claims for damages asserted by each of the respective MRI Providers, based on Liberty Mutual’s contention that PIP benefits were exhausted at $10,000, instead of $12,500. 5. Each claim asserted by the MRI Providers absolutely alleges the necessary elements of the cause of action being asserted, and otherwise states a cause of action. The arguments presented in the Liberty Mutual motions to dismiss have been repeatedly rejected by the courts in the context of the situation presented in this lawsuit, and/or are otherwise without merit. B Objection — Liberty Mutual’s_arguments__regarding clas: certification and the merits are premature 6. Liberty Mutual’s motions to dismiss are premature at this preliminary juncture of the case. 7: The class certification process is governed by Florida Rule of Civil Procedure 1.220. The pleading requirements for a class action are set forth in Rule 1.220(c). Discovery associated with whether the claims can be maintained on a class action basis is authorized by Rule 1.220(d)(1)(C) (court may order postponement of class determination pending the completion of class discovery). It is not until such class certification discovery is completed, that the Court may make an actual determination of whether the claims can be determined on a class action basis. That determination is typically accomplished by motion to certify a class and an order which either grants or denies class certification. See, Fla. R. Civ. P. 1.220(d)(1). 8 Well settled case law provides that the parties and the Court should address the issue of whether a class will be certified before determining the merits of the claims. In Frankel v. City of Miami Beach, 340 So.2d 463, 469 (Fla. 1976), the Florida Supreme Court explained: In the average class action the information needed to satisfy the requirements of [Rule 1.220] . . can only be obtained through discovery. Consequently, trial courts should reserve ruling on a motion to dismiss until the party seeking to represent or maintain an action against a class has had the opportunity to employ sufficient discovery to ascertain the necessary information that must be plead... . (Emph. added).! The consolidated cases are all in the preliminary pleadings stage, and the MRI Providers have not yet had an opportunity to complete class discovery, and a motion concerning class certification has not yet been filed or ruled upon. 9. Accordingly, Liberty Mutual’s attempt to address substantive issues on the merits of this case and to circumvent the MRI Providers’ class action allegations is an improper attempt to short-circuit or circumvent the class certification process contemplated by Rule 1.220 and controlling case law. 10. To the extent, if any, that the Court elects to prematurely consider Liberty Mutual’s motions (over the MRI Providers’ objections), the arguments below establish that the MRI Providers’ amended complaint clearly states a cause of action, clearly complies with the class action pleadings requirements, and that Liberty Mutual’s motions must be denied. 1 See also, Cordell v. World Ins. Co., 355 So. 2d 479, 481 (Fla. 1st DCA 1978) (trial court should have reserved ruling on motion to dismiss until plaintiffs had an opportunity to employ sufficient class certification discovery); Whigum v. Heilig-Myers Furniture, Inc., 682 So. 2d 643 (Fla. 1st DCA 1996) (decision on class certification should not be made until after the parties have adequate opportunity to discover facts necessary to support class action requirements); Samples v. Hernando Taxpayers Ass'n, 682 So. 2d 184 (Fla. 2d DCA 1996) (trial court properly focused on whether requirements of rule 1.220 were met and not on whether the plaintiffs had stated a cause of action or would prevail on the merits); Océ Printing Sys. USA, Inc. v. Mailers Data Serv., Inc., 760 So. 2d 1037, 1045 (Fla. 2d DCA 2000) (rejecting defendant's argument challenging the legal proof of the plaintiffs' class action complaint and holding that "matters of proof that go to the merits of the claim are inappropriate when considering class certification" and that "[w]hether the Plaintiffs will be successful before a jury is a matter that is irrelevant at the class certification stage"); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-178 (1974) (in determining the propriety of a class action, the question is not whether the plaintiff stated a cause of action or will prevail on the merits but rather whether the requirements of the rule are met); Fuller v. Becker & Poliakoff, P.A., 197 F.R.D. 697, 699 (M.D. Fla. 2000)(in determining whether a class will be certified, the court will not examine the merits of the case). Cc Standards for deciding a motion to dismis: 11. Notably, Liberty Mutual’s motions do not (and cannot) argue that the MRI Providers failed to plead any necessary elements of any of its causes of action. Instead, Liberty Mutual’s motions primarily dispute the accuracy of the MRI Providers’ allegations, and prematurely attack the MRI Providers’ class certification allegations. These grounds are without merit and must be rejected. 12. A motion to dismiss merely tests the legal sufficiency of a complaint. See, Bess v. Eagle Capital, Inc., 704 So.2d 621 (Fla. 4th DCA 1997). In ruling on a motion to dismiss, this Court is confined to the allegations within the "four corners" of the pleading. See, Cook v. Sheriffof Collier County, 573 So.2d 406, 408 (Fla. 2d DCA 1991). 13. Ona motion to dismiss, the moving party is deemed to admit all matters alleged in the complaint and the reasonable inferences arising therefrom, and may not speculate as to whether the plaintiff's allegations will ultimately be proven. See, Cook, 573 So.2d at 408; Simon v. Tampa Electric Co., 202 So.2d 209 (Fla. 2d DCA 1967). 14. In deciding whether a cause of action is stated, this Court must not consider any affirmative defenses raised by the defendant or any evidence likely to be produced by either side. See, Martin v. Principal Mutual Life Ins. Co., 557 So. 2d 128, 128-129 (Fla. 3d DCA 1990). 15. The complaint need not anticipate the defendant's affirmative defenses. Rather, defenses should be stated by the defendant in an answer. If the plaintiff alleges all of the necessary elements of the cause of action, the complaint states a cause of action. See, Payne v. Humana Hosp. Orange Park, 661 So. 2d 1239, 1241 (Fla. ist DCA 1995). 16. A motion to dismiss is not a substitute for a motion for summary judgment. Cook, 573 So. 2d at 408. 17. In this case, Counts I, II, II, and IV of the MRI Providers’ complaints plead all of the necessary elements for the causes of action asserted, and Counts I and II plead all of the necessary elements for seeking class action relief. It would be very premature and improper to determine class certification or summary judgment at this preliminary juncture of the case. Therefore, Liberty Mutual’s motions must be denied. D. Point I of Liberty Mutual’s motions actually seeks summary judgment 18. Point I of Liberty Mutual’s motions does not assert that the MRI Providers have failed to allege any required element of any of the causes of action asserted in the complaints. Instead, Liberty Mutual attacks the merits of the MRI Providers’ declaratory relief claim, and for all intents and purposes, seeks a premature summary judgment. 19. As previously noted, two Broward County circuit court appellate decisions have already rejected the legal arguments presented by Liberty Mutual. See, Sea Spine Orthopedic Institute, LLC, a. a. o. Carmen Charriez v. Liberty Mut. Ins, Co., Appeal No. CACE 17-013 776(AP), Slip Op. (Fla. 17th Jud. Cir. Ct. App. Div. April 30, 2020); Ron Wechsel, D.C., Inc., a.a.o. Stephanie Taylor v. LM Gen. Ins. Co., Appeal No. CACE 18-011192(AP), Slip Op. (Fla. 17th Jud. Cir. Ct. App. Div. May 21, 2020). 20. Both Sea Spine and Wechsel are cited in the MRI Providers’ complaints Curiously, despite the fact that Liberty Mutual has already lost the exact same issue in two separate appeals, the Sea Spine and Wechsel decisions are not mentioned anywhere in Liberty Mutual’s lengthy motions. 21, In any event, Liberty Mutual is putting the cart before the horse. Instead of deciding the merits of the parties’ controversy on a motion to dismiss, the Court is required at this preliminary pleadings stage to determine whether the complaint states a cause of action. 22. The Florida Declaratory Judgment Act is found in Chapter 86, Florida Statutes. On one hand, the Act provides a cause of action “to render practical help in ending controversies which have not reached the stage where other legal relief is immediately available.” X Corp. v. Y Person, 622 So. 2d 1098, 1100 (Fla. 2d DCA 1993). On the other hand, the courts “have jurisdiction ... to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed” and the “existence of another adequate remedy does not preclude a judgment for declaratory relief.” § 86.011 and 86.111, Fla. Stat. (Emph. added). In other words, the Florida Declaratory Judgment Act is intended provide a remedy-- regardless of whether other legal relief is otherwise available or not. 23. The plain language of the Act provides a statutory cause of action that is both “substantive and remedial.” See, § 86.101, Fla. Stat. That cause of action is available to “any person” in doubt about his or her rights under a contract or a statute: 86.021 Power to construe.— Any person claiming to be interested or who may be in doubt about his or her rights under a contract, . or whose rights, status, or other equitable or legal relations are affected by a statute, ... may have determined any question of construction or validity arising under such statute, contract, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder. § 86.021, Fla. Stat. (Emph. added). In that situation, the Act provides a remedy “to settle and to afford relief from insecurity and uncertainty” concerning the parties’ “rights, status, and other equitable or legal relations” and it is required “to be liberally administered and construed” to achieve that purpose. § 86.101, Fla. Stat. 24. The type of relief provided by a declaratory judgment action is equitable in nature. Phillips v. Cutler, 388 So. 2d 48, 49 (Fla. 2d DCA 1980). Indeed, the Act expressly gives Florida courts the “power to give as full and complete equitable relief as it would have had if such proceeding had been instituted as an action in chancery.” § 86.111, Fla. Stat. (Emph. added). See also, 8§ 86.021, 86.041, and 86.101, Fla. Stat. (confirming that declaratory judgment action includes equitable relief). 25. Notably, the Florida Declaratory Judgment Act, which must be liberally administered and construed, applies to “all” persons, contracts, and statutes—it does not provide any immunity, exceptions, or exemptions for insurance companies, insurance contracts, or insurance statutes. Indeed, declaratory judgment actions are routinely filed by insurance companies and insureds alike to obtain binding coverage decisions in disputes over the meaning and effect of insurance policies and the statutes that govern them. See, e.g., Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5, 15 (Fla. 2004) (declaratory judgment actions are authorized to determine insurance policy coverage and defense obligations); Travelers Ins. Co. v. Emery, 579 So. 2d 798, 801 (Fla. ist DCA 1991)(disagreements concerning coverage under insurance policies are proper subjects for a declaratory judgment); Tindall v. Allstate Ins. Co., 472 So. 2d 1291, 1292 (Fla. 2d DCA 1985)(same); People’s Tr. Ins. Co. v. Franco, 305 So. 3d 579, 582-583 (Fla. 3d DCA 2020)(same); Tavares v. Allstate Ins. Co., 342 So. 2d 551, 552 (Fla. 3d DCA 1977)(“bona fide dispute over ... coverage in an insurance contract is a proper subject for entertaining a petition for declaratory judgment relief under Chapter 86”); Lewis v. Liberty Mut. Ins. Co., 121 So. 3d 1136, 1137 (Fla. 4th DCA 2013)(insured was entitled to bring declaratory judgment claim seeking determination of insurance coverage). Thus, a dispute concerning the type or amount of coverage that must be provided under an insurance policy is precisely the type of controversy that Section 86.021 expressly authorizes “any person” to bring a declaratory relief claim to resolve. 26. As explained in Bell v. Associated Independents, Inc., 143 So. 2d 904, 908 (Fla. 2d DCA 1962): While the granting of declaratory relief lies within the discretion of the Court, and is not a matter of right, the discretion is not to be exercised in connection with a motion to dismiss a 10 complaint which is sufficient to invoke the Court's jurisdiction, but is to be exercised when the evidence is before the court. (Emph. added). Thus, the test for determining the sufficiency of a declaratory judgment action on a motion to dismiss "is not whether the plaintiff will succeed in obtaining the decree he seeks favoring his position, but whether he is entitled to a declaration of rights at all." "X" Corp., 622 So. 2d at 1100-01. Numerous other cases are in accord.2 Moreover, in Ribaya v. Board of Trustees of City Pension Fund, 162 So. 3d 348, 352 (Fla. 2d DCA 2015), the Second DCA explained that a complaint for declaratory relief "can be legally sufficient even if the plaintiff ultimately loses the case on its merits.” 27. The elements of a declaratory judgment action are well settled. The party seeking relief must show that it is in doubt as to the existence or nonexistence of some right, status, immunity, power, or privilege. In this regard, there must be a "bona fide, actual, present, and practical need for the declaration" and a "present controversy as to a state of facts." Sutton v. Dept. of Environmental Protection, 654 So. 2d at 1047, 1048-49 (Fla. 5th DCA 1995); "X" Corp., 622 So.2d at 1100-01. This element is often described as requiring the presence of a "justiciable controversy." 2 See, e.g., Modernage Furniture Corp. v. Miami Rug Co., 84 So. 2d 916 (Fla. 1955); Rosenhouse v. 1950 Spring Term Grand Jury, in and for Dade County, 56 So. 2d 445 (Fla.1952); Rigby v. Liles, 505 So. 2d 598 (Fla.ist DCA 1987); R-C-B-S Corp. v. City of Atlantic Beach, 178 So. 2d 906 (Fla. ist DCA 1965); Lungu v. Walters, 198 So. 2d 99 (Fla. 34 DCA 1967); Johnson v. Thoburn, 160 So. 2d 729 (Fla. 3d DCA 1964); North Shore Realty Corp. v. Gallaher, 99 So. 2d 255 (Fla.3d DCA 1957). 11 Jacobs & Goodman, P.A. v. McLin, Burnsed, Morrison, Johnson & Robuck, P.A., 582 So. 2d 98, 100 (Fla. 5th DCA 1991). 28. Count I alleges all of the essential elements and clearly states a cause of action, and a determination of the merits is premature at this juncture. Sosa; Bell. 29. Indeed, if anything, Point I of Liberty Mutual’s motions to dismiss confirms that the parties are currently engaged in exactly the type of “present controversy” that the Florida Declaratory Judgment Act is designed to address. Specifically, Liberty Mutual’s motions confirm that it contends that its insurance policies only provide a maximum amount of PIP coverage of $10,000, while the MRI Providers contend that the insurance policies provide $12,500 of PIP coverage. E. The MRI Providers and putative class members have complied with the PIP Statute's presuit demand letter requirement (Point II.A of Motion) 30. In Point II.A of its motion, Liberty Mutual erroneously argues that the MRI Providers have to failed to allege compliance with the PIP statute's presuit demand letter requirement. This argument is without merit. 31. Each of the four complaints include the same materially identical allegations concerning the presuit notice issue, but the paragraph numbering may vary from complaint-to-complaint. In Case No. CACE-20-010138, the amended complaint includes the following allegations, which must be deemed true at this juncture: 6. All conditions precedent to the maintenance of this action have occurred, have been performed, or have been waived. 12 33. Thereafter, Presgar sent the Insurance Company a Section 627.736(10), Florida Statutes presuit demand letter, a redacted copy of which (without enclosures) is attached hereto as "Exhibit G.” 42. Thereafter, Beaches sent the Insurance Company a Section 627.736(10), Florida Statutes presuit demand letter, a redacted copy of which (without enclosures) is attached hereto as "Exhibit L.” 48. As used herein, the "Sub-Class" consists of and is defined as all persons and/or entities who: (a) are members of the Class, and (b) submitted a presuit notice to the Insurance Company pursuant to Section 627.736(10). Count I — Class Action for Declaratory Relief 60. In pertinent part, Section 627.736(10), Florida Statutes states the following: DEMAND LETTER.— (a) As a condition precedent to filing any action 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 the claim pursuant to paragraph (4)(b). (Emph. added). Because Count I is an action for declaratory relief under Chapter 86, it is not an "action for benefits" under Section 627.736, and a presuit demand letter is not a condition precedent to the initiation of this action. 61. Alternatively, the MRI Providers and the Sub-Class satisfied the presuit notice requirements of Section 627.736(10), because for the following reasons: (a) With respect to the services provided to the Insured Patient, the MRI Providers sent the Insurance Company the presuit demand letters attached to hereto as Exhibit G and L. 13 (b) Pursuant to the definition set forth in paragraph 48 above, each member of the Sub-Class is required to have submitted a presuit demand letter to the Insurance Company pursuant to Section 627.736(10). Count II — Class Action for Injunctive Relief 74. ... Because Count II is an action for injunctive relief under the common law, it is not an "action for benefits" under Section 627.736, and a presuit demand letter is not a condition precedent to the initiation of this action. 75+ Alternatively, the MRI Providers and the Sub-Class satisfied the presuit notice requirements of Section 627.736(10), for the following reasons: (a) With respect to the services provided to the Insured Patient, the MRI Providers sent the Insurance Company the presuit demand letters attached to hereto as Exhibit G and L. (b) Pursuant to the definition set forth in paragraph 48 above, each member of the Sub-Class is required to have submitted a presuit demand letter to the Insurance Company pursuant to Section 627.736(10). Count III — Presgar’s Individual Claim for PIP Benefits 85. Presgar satisfied the presuit notice requirements of Section 627.736(10), based on the presuit demand letter attached hereto as Exhibit G. Count IV — Beaches’s Individual Claim for PIP Benefits 94. Beaches satisfied the presuit notice requirements of Section 627.736(10), based on the presuit demand letter attached hereto as Exhibit L. The other three complaints have identical allegations in all material respects. In the face of the foregoing allegations, Liberty Mutual’s suggestion that the MRI Providers failed to allege compliance with the presuit demand letter requirements of Section 627.736(10) is absurd and frivolous. 32. Liberty Mutual’s contention that the putative class members are required to comply with the PIP statute's presuit demand letter requirements is also misplaced. The presuit demand letter requirements of the PIP statute are found in Section 627.736(10)(a), which, in pertinent part, states: (10) DEMAND LETTER — (a) As a condition precedent to filing any action 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 the claim pursuant to paragraph (4)(b). (Emph. added).3 In each of the complaints, the only "action[s] for benefits under this section" (i.e., the PIP statute) are Counts III and/or IV, and the MRI Providers have clearly submitted a presuit demand letter as a precondition to bringing those non-class action claims. Moreover, the PIP statute's presuit demand letter requirements are totally inapplicable to Counts I and II because those counts are not "actions for benefits under this section" (i.e., the PIP statute). 33. Liberty Mutual ignores the plain language of Section 627.736(10)(a), and the type of relief being sought by the MRI Providers’ complaint. Subsection 3 The same provision was previously numbered as Section 627.736(11), Florida Statutes (2003- 2006). 15 (10)(a) clearly states that it only applies to "any action for benefits under this section [ie., the PIP statute]." Count I is an action for declaratory relief under Chapter 86, Florida Statutes, and Count II is an action for injunctive relief under the common law. Because those two counts are not "actions for benefits under [the PIP statute],” the presuit demand letter provisions of the PIP statute are completely inapplicable to those claims. See, Bristol West Ins. Co. v. MD Readers, Inc., 52 So. 3d 48, 51 (Fla. 4th DCA 2010); New Hampshire Indemnity Ins. Co. v. Rural Metro Ambulance, a/a/o William Zambonini, 13 Fla. L. Weekly Supp. 573a (Fla. 18th Jud. Cir. Ct. Appellate Div. Nov. 18, 2005); Acosta v. Mercury Insurance Company of Florida, 15 Fla. L. Weekly Supp. 868a (Fla. 9th Jud. Cir. Ct. Appellate Div. May 7, 2008). In Bristol West, Zambonini, and Acosta, the appellate courts squarely held that the presuit demand letter requirements of the PIP statute do not apply to declaratory relief claims under Chapter 86. 34. As a statute that limits access to the courts, the presuit demand letter provision of Section 627.736(10) must be strictly construed in a manner that favors access to the courts, as guaranteed by Article I, Section 21 of the Florida Constitution. See, e.g., Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Div. of Administrative Hearings, 948 So. 2d 705, 722 (Fla. 2007) ("Statutes that limit access to the courts 'must be narrowly construed in a manner that favors access"); Kukral v. Mekras, 679 So. 2d 278, 284 (Fla. 1996) (construing the statutory medical malpractice presuit and notice requirements in a manner that favors access to the courts). Interpreting Section 627.736(10) in a manner that limits one's ability 16 to file a type of action not even mentioned in the PIP statute would clearly violate this fundamental principle of statutory construction in an unconstitutional manner. Thus, the PIP statute's presuit demand letter requirements cannot be applied to Counts I and II. 35- Section 627.736(10) must also be strictly construed because it is a statute in derogation of the common law. Ady v. American Honda Fin. Corp., 675 So. 2d 577, 581 (Fla. 1996). Statutes in derogation of common law cannot be interpreted "to make any alteration [in the common law] other than what was specified and plainly pronounced." Slawson v. Fast Food Enterprises, 671 So. 2d 255, 257 (Fla. 4th DCA 1996). See also, Carlile v. Game & Fresh Water Fish Comm'n, 354 So. 2d 362, 364 (Fla. 1977). At common law, nothing required a plaintiff to give the defendant a written presuit demand letter as a condition to filing a lawsuit against a defendant. Consequently, the presuit demand letter provision of Section 627.736(10) must be strictly construed such that it is only required to be submitted before "filing any action for benefits under [the PIP statute.]" Thus, the PIP statute's presuit demand letter requirements cannot be applied to Counts I and II. 36. There is yet another reason why the PIP statute's presuit demand letter requirement cannot possibly apply to Count I, which is a claim for declaratory relief under Chapter 86.4 Chapter 86 does not impose a presuit notice requirement on 4 Because the PIP statute does not expressly authorize claims for declaratory relief, the authority for such claims is pursuant to Chapter 86. 17 actions for declaratory relief.5 To the contrary, an action for declaratory relief concerning a person's rights under a contract (such as a PIP insurance policy) may be brought "either before or after there has been a breach of it." §86.031, Fla. Stat. (Emph. added). Moreover, "[a]Jny declaratory judgment rendered pursuant to [Chapter 86] may be rendered by way of anticipation with respect to any act not yet done or any event which has not yet happened, and... shall have the same binding effect with respect to that future act or event, and the rights or liability to arise therefrom, as if that act or event had already been done or had already happened before the judgment was rendered." §86.051, Fla. Stat. (Emph. added). 37- The ability to bring a declaratory judgment action in anticipation of a future contractual or statutory violation is significant in this case, because Section 627.736(10) expressly states that a plaintiff pursuing an "action for benefits" under the PIP statute "may not" send a presuit demand letter "until the claim is overdue, including any additional time the insurer has to pay the claim pursuant to paragraph (4)(b) [of the PIP statute]." (Emph. added). Because declaratory relief actions under Chapter 86 can be brought before a claim is overdue, it is clear that Section 627.736(10) cannot possibly be intended to apply to Chapter 86 declaratory relief 5 While a presuit demand letter is not required, if the plaintiff is seeking a declaration that "a statute, charter, ordinance, or franchise is ... unconstitutional, the Attorney General or the state attorney of the judicial circuit in which the action is pending shall be served with a copy of the complaint and be entitled to be heard.” §86.091, Fla. Stat. This case does not seek any declaration that a statute, charter, ordinance or franchise is unconstitutional. 18 actions. Because Chapter 86 specifically governs declaratory relief actions, Chapter 86 (not the PIP statute) governs the conditions precedent for filing a declaratory relief action. See, McKendry v. State, 641 So. 2d 45, 46 (Fla.1994) (specific statute covering particular subject area controls over statute covering same and other subjects in more general terms). 38. Moreover, with respect to the putative class members, the presuit demand letter requirements of the PIP statute do not apply to them. The plain language of Section 627.736(10)(a) clearly states that the presuit demand letter is condition precedent to filing any action for benefits under this section...." (Emph. added). The putative class members have not actually "fil[ed] any action" in this case. 39. To the extent that the presuit demand letter requirements do apply, the MRI Providers and the putative class members have clearly complied. With respect to the MRI Providers, their presuit demand letters are attached to each complaint as exhibits. With respect to the putative class members, Liberty Mutual’s suggestion that putative class members did not provide sufficient notice is an argument that pertains to class certification, and is therefore, premature. See, e.g., Frankel, 340 So. 2d at 469; Fla. R. Civ. P. 1.220(d)(4); Cordell, 355 So. 2d at 481. Further, each class action claim asserted in the complaint includes the "presuit notice sub-class" definition, which requires that each sub-class member must have submitted presuit demand letters to Liberty Mutual. 40. Thus, each complaint clearly alleges that the MRI Providers and all members of the sub-class complied with the presuit demand letter requirements of 19 Section 627.736(10)(a). On a motion to dismiss, this Court must assume those allegations are true. Connolly v. Sebeco, Inc., 89 So. 2d 482 (Fla. 1956). As long as all necessary elements of the cause of action are pled, each complaint states a cause of action and Liberty Mutual’s motions to dismiss must be denied. Payne v. Humana Hosp. Orange Park, 661 So. 2d 1239, 1241 (Fla. ist DCA 1995). 41. In sum, Liberty Mutual’s presuit demand letter arguments are completely without merit and must be rejected. F. Adequate remedy at law does not defeat the claims for declaratory and injunctive relief (Response to Motion Point II.B) 42. In Point IIB of its motion, Liberty Mutual argues that the MRI Providers cannot seek declaratory or injunctive relief because they supposedly have “adequate remedy at law.” This is yet another meritless argument. 43. First, a declaratory judgment action under Chapter 86 is available regardless of any other adequate remedy. As expressly stated in Section 86.111, Florida Statutes: 86.111 Existence of another adequate remedy; effect—The existence of another adequate remedy does not preclude a judgment for declaratory relief. The court may order a speedy hearing of an action for a declaratory judgment and may advance it on the calendar. The court has power to give as full and complete equitable relief as it would have had if such proceeding had been instituted as an action in chancery. (Emph. added). Consequently, this argument is inapplicable to the claim for declaratory relief in Count I. 20 44. With respect to the MRI Providers’ injunctive relief action, Count II of each complaint includes the following allegations (while the paragraph numbering may vary from complaint-to-complaint): 67. .. Because the MRI Providers routinely provide MRI services to the Insurance Company's PIP insureds, the issues raised in this declaratory relief claim affects the MRI Providers on an ongoing and continuing basis. The Insurance Company's limitation of PIP coverage for 706. medical expenses is unlawful, and is ongoing and continuing in nature. 77- The MRI Providers and the class members will suffer irreparable injury if the Insurance Company is permitted in the future to continue relying upon an erroneous interpretation of its Insurance Policy to unlawfully reduce or reject covered claims for medical expenses. ... Examples of such irreparable injury include but are not limited to the following: (c) Absent injunctive relief requiring the Insurance Company to cease and desist from such wrongful conduct in the future, the MRI Providers and the class members are left in the untenable position of having to address the Insurance Company's continuing and ongoing wrongs with a multiplicity of lawsuits, in the various different county courts across the State of Florida, with the risk of suffering inconsistent and varying results. (d) The Insurance Company's continuing and ongoing unlawful conduct places its own PIP insureds at risk that MRI providers will refuse to treat them without receiving full payment in advance of receiving medical services needed to properly treat and/or diagnose their health condition, and this will lead to incalculable or unascertainable losses to third parties. (Emph. added). 45. The foregoing allegations are deemed to be true on a motion to dismiss. See, e.g., Cook, 573 So. 2d at 408. Further, the situations alleged above are precisely 21 the type of "irreparable harm" for which injunctive relief is available. Amelio v. Marilyn Pines Unit II Condo. Ass'n, Inc., 173 So. 3d 1037, 1040 (Fla. 2d DCA 2015) (irreparable harm is shown by ongoing violations prohibited by statute); Dispoto v. Marion County, 969 So. 2d 423 (Fla. 5th DCA 2007) (irreparable harm is presumed for continuing violations); Gainesville Gas & Elec. Power Co. v. City of Gainesville, 58 So. 785 (Fla. 1912) (injunction may be an appropriate remedy for allegations of a multiplicity of suits); Davis v. Wilson, 190 So. 716, 719 (Fla. 1939) (the foundation for the jurisdiction of equity to enjoin conduct is prevention of multiplicity of suits); Zimmerman v. D.C.A. at Welleby, Inc., 505 So. 2d 1371, 1372-73 (Fla. 4th DCA 1987) (remedy at law is inadequate where damages are unascertainable or incalculable). 46. Liberty Mutual also overlooks well-settled Florida case law authorizing plaintiffs to "plead in the alternative" inconsistent claims for an injunction and for damages. See, e.g., Downing v. Bird, 100 So. 2d 57 (Fla.1958) (plaintiff was allowed to amend her complaint to ask for damages, either solely or in the alternative to her request for injunction); Fintak v. Fintak, 120 So. 3d 177, 186 (Fla.2d DCA 2013) (a party is permitted to plead in the alternative); Burr v. Norris, 667 So. 2d 424, 426 (Fla.2d DCA 1996) (plaintiffs are allowed to plead inconsistent or alternative actions and need only elect remedies before final judgment); Palafrugell Holdings, Inc. v. Cassel, 825 So. 2d 937, 940 (Fla.3d DCA 2001) (pleading in the alternative is "perfectly acceptable practice"); Fla. R. Civ. P. 1.110 (g) ("party may...state as many separate claims...as that party has, regardless of consistency and whether based on legal or equitable grounds or both"). 22 47. Accordingly, Liberty Mutual’s argument is incorrect and must be rejected. G. The complaints are not splitting causes of action (Response to Motion Point II.C) 48. Liberty Mutual misplaces its reliance on Section 627.736(15), Florida Statutes, which is completely inapplicable. That statute states: (15) ALLCLAIMS BROUGHT IN A SINGLE ACTION.—In any civil action to recover personal injury protection benefits brought by a claimant pursuant to this section against an insurer, all claims related to the same health care provider for the same injured person shall be brought in one action, unless good cause is shown why such claims should be brought separately. Ifthe court determines that a civil action is filed for a claim that should have been brought in a prior civil action, the court may not award attorney’s fees to the claimant. (Emph. added). 49. Counts I and II are the only claims brought as class actions. Those claims only seek declaratory and injunctive relief, and are not “action[s] to recover personal injury benefits.” 50. The remaining counts of the complaints are the only “action[s] to recover personal injury benefits.” But those claims are only brought by the respective MRI Providers on a non-class action basis. Those remaining counts are “all” of the “claims related to the same health care provider for the same injured person” contemplated by Section 627.736(15). 51. Liberty Mutual has not identified any claims being asserted in any other lawsuits concerning the same injured persons involved in this lawsuit that are in 23 violation of Section 627.736(15). If there are any, Liberty Mutual can raise that issue as an affirmative defense. 52. Moreover, Section 627.736(15) clearly states on its face that it does not apply if “good cause is shown why such claims should be brought separately.” If this Court ultimately decides that class certification is appropriate for Counts I and II, then such good cause will be demonstrated because the class action will decide the correct maximum amount of PIP benefits available under Liberty Mutual’s insurance policies, and will eliminate the need for the same dispute to be decided in numerous cases before numerous different judges with potentially inconsistent results. H. Liberty Mutual’s arguments concerning class action allegation: are premature (Response to Motion Points II.D and E) 53- Liberty Mutual’s remaining arguments contend that a class action is inappropriate in each case. Such arguments are premature at this preliminary juncture of the case. Liberty Mutual’s arguments concerning the issue of whether class certification should be granted or denied should be raised after class discovery is completed and a motion for class certification is pending before the Court. See, PointB herein; Frankel, 340 So.2d at 469; Cordell, 355 So. 2d at 481; Whigum, 682 So. 2d 643. 54. Moreover, Liberty Mutual’s arguments concerning “individualized” issues have no bearing in this case. The only class action claims asserted in this case are declaratory and injunctive relief claims. Class certification of declaratory and injunctive relief claims are governed by Florida Rule of Civil Procedure 1.220(b)(2). 24 In order to obtain class certification of a “(b)(2)” class, the moving party must merely demonstrate that “the party opposing the class has acted or refused to act on grounds generally applicable to all the members of the class, thereby making final injunctive relief or declaratory relief concerning the class as a whole appropriate.” See, Fla. R. Civ. P. 1.220(b)(2). 55- In sharp contrast, the “individualized” issues problem that Liberty Mutual is arguing about pertain only to certification of a class pursuant to Rule 1.220(b)(3). In order to obtain class certification of a “(b)(3)” class, the moving party must demonstrate that “the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy.” See, Fla. R. Civ. P. 1.220(b)(3). In this case, the amended complaint does not allege a “(b)(3)” class. The predominance-individualized-issues arguments do not apply to the (b)(2) class sought by the MRI Providers in Counts I and II. J Conclusion 506. For the reasons set forth above, Liberty Mutual’s motions are without merit and should be denied. 57- Assuming arguendo that any of the MRI Providers’ complaints do not properly state a cause of action, any dismissal should be without prejudice, as any such defect could be easily cured in an amended pleading or by submitting a more 25 definite statement. Al-Hakim v. Holder, 787 So. 2d 939 (Fla. 2d DCA 2001) (dismissal with prejudice should only be granted when there is no possible way to amend to state a cause of action, or there has been an abuse of the privilege to amend); Fla. R. Civ. P. 1.140(e). WHEREFORE, the MRI Providers respectfully request this Honorable Court to deny Liberty Mutual’s motions to dismiss. Alternatively, any dismissal should be without prejudice to the MRI Providers’ ability to amend. [Attorney’s signature appears on the following page.] 26 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy hereof was Electronically Filed with the Clerk of the Court and Electronically Served on Gary J. Guzzi, Esq. and Antonio Morin, Esq., (Email: gary.guzzi@akerman.com; maria.revoredo@akerman.com; antonio.morin@akerman.com), Akerman LLP, Three Brickell City Centre, 98 Southeast Seventh Ave., Miami, FL 33131; on this 14th day of April, 2021. Respectfully submitted, Cle Thomas J. Wenzel, FBN 104117 J. Daniel Clark, FBN 106471 STEINGER, GREENE & FEINER CLARK & MARTINO, P.A. 2727 NW 62"4 Street 3407 W. Kennedy Boulevard Fort Lauderdale, FL 33309 Tampa, FL 33609 Telephone: 954-491-7701 Telephone: 813-879-0700 Fax: 954-634-8312 Primary: dclark@clarkmartino.com Email: pleadings@injurylawyers.com Secondary: rsmith@clarkmartino.com Chad Bar, FBN 55365 David M. Caldevilla, FBN 654248 CHAD BARR LAW de la PARTE & GILBERT, P.A. 238 N. Westmonte Dr., Suite 200 Post Office Box 2350 Altamonte Springs, FL 32714 Tampa, FL 33601-2350 Telephone: 417-599-9036 Telephone: 813-229-2775 Primary: service@chardbarrlaw.com Primary: dcaldevilla@dgfirm.com Secondary: chad@chadbarrlaw.com Secondary: serviceclerk@dgfirm.com Kimberly P. Simoes, FBN 109479 THE SIMOES LAW GROUP, P.A. 351 E. New York Ave. Deland, FL 32724 COUNSEL FOR PLAINTIFF Telephone: 386-320-7967 Primary: kimberly@simoeslaw.com Secondary: service@simoeslaw.com 27