Preview
Filing # 109965327 E-Filed 07/08/2020 04:51:45 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH CIRCUIT COURT
IN AND FOR BROWARD COUNTY, FLORIDA
CIVIL DIVISION
PRESGAR IMAGING OF CMI NORTH,
LC and BEACHES OPEN MRI OF
TAMARAC, LLC, as assignees, individually,
and on behalf of all similarly situated persons, Class Representation
Plaintiffs, Case No. CACE-20-010138
vs. Division 02
LM GENERAL INSURANCE COMPANY,
Defendant.
/
AMENDED CLASS ACTION COMPLAINT
AND_DEMAND FOR JURY TRIAL
Pursuant to Florida Rules of Civil Procedure 1.100 and 1.220, the Plaintiffs, Presgar Imaging
of CMI North, LC (“Presgar”) and Beaches Open MRI of Tamarac, LLC (“Beaches”), as assignees,
individually, and on behalf of all similarly situated persons, sue the Defendant, LM General
Insurance Company (the “Insurance Company”), and state:
Jurisdiction, Parties, and Venue
1 This is an action asserting 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. The amount in controversy exceeds $30,000, exclusive of interest,
attorneys’ fees and costs.
2. This case involves a dispute concerning the amount of personal injury protection
(“PIP”) coverage available under insurance policies issued by the Insurance Company in the State
of Florida. Specifically, the Insurance Company contends that its insurance policies only provide
up to $10,000 in PIP coverage for medical expenses, but Presgar and Beaches (collectively, the
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#** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/08/2020 04:51:41 PM.**#*
“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, the Insurance Company is routinely
underpaying and/or rejecting PIP claims for medical expenses.
3 Each of the MRI Providers is, and at all material times has been, an entity organized
and existing under the laws of the State of Florida, and doing business in Florida, that provides
magnetic resonance imaging (“MRI”) services to Florida residents who have sustained personal
injuries in motor vehicle collisions, and who have assigned to the MRI Providers their insurance
benefits, including PIP benefits, under automobile insurance policies issued by the Insurance
Company.
4 The Insurance Company is part of the Liberty Mutual family of insurance
companies, and at all material times, has been a corporation doing business under the laws of the
State of Florida, and selling automobile insurance, including PIP coverage.
5 Venue is proper in Broward County, Florida because the Insurance Company has
offices for transaction of their customary business in Broward County, Florida, and/or and one or
more of the cause of action set forth below arose and/or accrued in Broward County, Florida.
6 All conditions precedent to the maintenance of this action have occurred, have been
performed, or have been waived.
Background Concerning PIP Insurance Coverag:
7
PIP insurance is a creature of statute that only provides minimum thresholds for coverage
and benefits which an insurer cannot reduce, restrict, or negate. See, e.g., Nunez v. Geico Gen. Ins. Co., 117
So. 3d 388 (Fla. 2013), See also Salas v. Liberty Mut. Fire Ins. Co., 272 So, 2d 1 (Fla. 1972); Mullis v. State
Farm Mut, Auto. Ins. Co., 252 So. 2d 229 (Fla. 1971).
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8 An insurance company may always issue insurance policies with coverage or benefits that
exceed any applicable statutory minimum requirements. See, e.g., Wright v. Auto-Owners Ins. Co., 739 So.
2d 180 (Fla. 2d DCA 1999); Sturgis v. Fortune Ins. Co., 475 So. 2d 1272 (Fla. 2d DCA 1985).
9 Under Section 627.736, Florida Statutes (the “PIP Statute”), an automobile insurer
must provide no less than $10,000 of medical and disability benefits. However, there is no legal
authority prohibiting an insurance company from providing greater amounts of PIP coverage to its
customers.
10. In this case, the MRI Providers contend that the Insurance Company’s insurance
policies provides PIP coverage for medical expenses which is greater than the minimum amount
required by the PIP Statute.
11. Indeed, the Insurance Company’s advertising campaign routinely states that Liberty
Mutual allows you to “customize your car insurance,”! and “[bly switching [to Liberty Mutual],
02
you can get a better coverage or lower premium fees.
The Insurance Policy
12. This case involves an exemplar insurance policy and endorsements, a redacted copy
of is attached hereto as “Exhibit A” (the “Insurance Policy”).
13, The Insurance Policy’s Personal Injury Protection Coverage Endorsement (form
AS 2090 01 13) (the “PIP Endorsement”) states that the Insurance Company provides four types
' See, e.g., https://www.youtube.com/watch?v=WFpIRXgS8T4
2 See, e.g., http://www. liberty.compare-quote.com/auto-insurance.php?&utm_source=Bing&utm_account=
CWA&utm_campaign=B_SHA-CQ_LiMu&utm_adgroup=insurancepmm&utm_keyword=liberty%20mutual%
20insurance%20company&device=c&devicemodel=&network=o&placement=&macthtype=p&adposition=&creativ
e=&msclkid=c405a0933ac7 lab27b2dfe7 8dfe7 0bbd##quote
3 Some of the exhibits to this amended complaint are redacted in the interests of privacy protection. However,
unredacted copies will be made available to Defendant upon request.
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of PIP benefits: (a) Medical Expenses; (b) Work Loss; (c) Replacement Services; and (d)
Accidental Death. See, Exhibit A at p. 32-33.
14, Notably, the Policy Declarations section of the Insurance Policy does not identify
any cap on the amount of PIP coverage, as is done regarding various other types of coverage
provided by the Insurance Policy. See, Exhibit A at p. 1-2.
15. Rather than address the amount of PIP coverage in the Policy Declarations section
of the Insurance Policy, the Insurance Company buries language outlining the limits of various
portions of its PIP coverage in a “Schedule” contained in the PIP Endorsement portion of the
Insurance Policy. See, Exhibit A at p. 32.
16. The PIP Endorsement includes the following provisions concerning PIP insurance
coverage:
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
PERSONAL INJURY PROTECTION COVERAGE - FLORIDA AS 2090 01 13
With respect to coverage provided by this endorsement, the provisions of the policy apply unless modified
by the endorsement.
SCHEDULE
Benefits Limit Of Liability
Medical Expenses No specific dollar amount
Work Loss No specific dollar amount
Replacement Services No specific dollar amount
.ccidental Death $ 5,000
Maximum Limit For The Total Of All $10,000
Personal Injury Protection Benefits for an
“Emergency medical condition"
Maximum Limit For The Total Of $2,500
All Personal Injury Protection Benefits
for ail other “bodily injury”
Personal Injury Protection Coverage Deductible
As indicated below or in the Declarations, all expenses and losses described under required personal injury
protection in FLA. STAT. S.627.736(1) are subject to a deductible of $ applicable to:
O The "named insured”.
1 The “named insured" and any dependent “family member”.
Exclusion Of Work Loss
Work loss does not apply as indicated below or in the Declarations:
O Work foss will not be provided for the “named insured".
1 Work fass will not be provided for the "named insured" and any dependent "family member".
See, Exhbit A at p. 32.
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17. The foregoing “Schedule” identifies three specific “Limit[s] Of Liability.” The first
limit of liability is $5,000 for “Accidental Death,” which is irrelevant to this lawsuit. See, Exhbit
A at p. 32.
18. The second limit of liability is $10,000 for an “Emergency medical condition,”
which is defined in the PIP Endorsement as:
“Emergency medical condition" means a
medical condition manifesting itself by
acute symptoms of sufficient severity,
which may include severe pain, such that
the absence of immediate medical
attention could reasonably be expected to
result in any of the following:
¢. Serious
i
a, Serious jeopardy to patient health.
b. Serious impairment to bodily functions.
dysfunction of any bodily
organ or part.
See, Exhibit A at p. 32.
19. The third limit of liability is $2,500 “for all other ‘bodily injury.’” See, Exhibit A
at p. 32. The term “bodily injury” is defined by the Insruance Policy’s “Definitions” section as
meaning “bodily harm, sickness or disease, including death that results.” See, Exhibit A at p. 8.
20. In addition, the “LIMIT OF LIABILITY” section of the PIP Endorsement states:
LIMIT OF LIABILITY
A. The limits of liability shown in the Schedule or
Declarations for Personal Injury Protection
Coverage are the most we will pay to or for
each "insured" injured in any one accident,
regardless of the number of:
1 “Insureds";
2. Policies or bonds applicable;
3. Vel hicles involved; or
m mad
ie maximum hint of abil ror the total oi
all personal injury protection benefits shown in
the Schedule or Declarations is the total
te_limit for personal injury protection
pegetts
enefits avalab
available, to or for each "insured"
injured in any one accident, from all sources
combined, including this policy if the insured
receives initial services and care within 14
days after the motor vehicle accident.
See, Exhibit A at p. 34 (emph. added).
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21. The phrases “total of all” and “total aggregate limit” are not defined by the
Insurance Policy. See, Exhibit A.
22. In any event, the Insurance Company has set the maximum amount of coverage as
“the total of all [PIP] benefits shown in the Schedule or Declarations... from all sources combined,
including this policy...” See, Exhibit A at p. 34. As previously noted, the “Declarations” contain
no limitation as to the amount of PIP benefits available. See, Exhibit A at p. 1. However, the
“Schedule” provides two separate limits of liability for the “maximum limit for the total of all
personal injury protection benefits”: (a) $10,000 for an “Emergency medical condition” and (b)
$2,500 for “all other ‘bodily injury.”” See, Exhbit A at p. 32.
23. In Sea Spine Orthopedic Institute, LLC, a.a.o. Carmen Charriez v. Liberty Mut. Ins.
Co., Appeal No. CACE17-013776(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.” A copy of the Sea
Spine opinion is attached hereto as “Exhibit B.”
24. 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. A copy of the Wechsel opinion is attached
hereto as “Exhibit C.”
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Background Information Concerning the Insured Patients
: 25. Each of the MRI Providers routinely provides health care services to the Insurance
Company’s PIP insureds and reasonably anticipates that this will continue into the foreseeable
future.
26. As one example, AGM was involved in a motor vehicle accident, and as a result,
sustained bodily injuries related to the operation, maintenance, or use of a motor vehicle. At the
time of the accident, the Insurance Company was a contracting party and/or a named insured and/or
an omnibus insured under an automobile insurance policy issued by the Insurance Company, and
that policy was in full force and effect, and provided PIP coverage. While the MRI Provider does
not possess a copy of AGM’s insurance policy, the MRI Providers have good reason to believe
that it is, in all material respects, identical to the Insurance Policy attached hereto as “Exhibit A.”
27. As a result of the accident, AGM suffered an emergency medical condition and/or
bodily injuries, as those terms are used in the Insurance Policy.
28. As a result of the injuries sustained by AGM, Presgar subsequently rendered MRI
services to AGM.
29. Prior to providing such MRI services and as a condition to providing them, Presgar
obtained from AGM a written assignment of benefits, a redacted copy of which is attached hereto
as “Exhibit D.”
30. After providing MRI services to AGM, Presgar timely submitted its bills to the
Insurance Company, redacted copies of which are attached hereto as “Exhibit E.”
31. In response to Presgar’s bills, the Insurance Company declined and refused to pay
the full amount due under the applicable terms and conditions of the Insurance Policy.
32. Instead of paying the proper amount due, the Insurance Company paid a reduced
amount and provided Presgar an “Explanation of Review,” a redacted copy of which is attached
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hereto as “Exhibit F.” Among other things, the Explanation of Review stated, “... REDUCTIONS
ARE DUE TO CHARGES EXCEEDING THE GUIDELINES OF THE FLORIDA MOTOR
VEHICLE NO-FAULT LAW.”
33. Thereafter, Presgar sent the Insurance Company a Section 627.736(10), Florida
Statutes pre-suit demand letter, a redacted copy of which (without enclosures) is attached hereto
as “Exhibit G.”
34. In response to the pre-suit demand letter, the Insurance Company sent a letter to
Pregar, a redacted copy of which (without enclosures) is attached hereto as “Exhibit H.” In
pertinent part, the Insurance Company’s letter stated, “A review of the file indicates all
‘BENEFITS EXHAUSTED’ prior to receipt of your demand letter. As a result, no additional
monies are due and/or owing.”
35. As another example, RL was involved in a motor vehicle accident, and as a result,
sustained bodily injuries related to the operation, maintenance, or use of a motor vehicle, At the
time of the accident, the Insurance Company was a contracting party and/or anamed insured and/or
an omnibus insured under an automobile insurance policy issued by the Insurance Company, and
that policy was in full force and effect, and provided PIP coverage. While the MRI Provider does
not possess a copy of RL’s insurance policy, the MRI Providers have good reason to believe that
it is, in all material respects, identical to the Insurance Policy attached hereto as “Exhibit A.”
36. As a result of the accident, RL suffered an emergency medical condition and/or
bodily injuries, as those terms are used in the Insurance Policy.
37. As a result of the injuries sustained by RL, Beaches subsequently rendered MRI
services to RL.
38. Prior to providing such MRI services and as a condition to providing them, Beaches
obtained from RL a written assignment of benefits, a redacted copy of which is attached hereto as
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“Exhibit 1.”
39. After providing MRI services to AGM, Presgar timely submitted its bill to the
Insurance Company, a redacted copy of which is attached hereto as “Exhibit J.”
40. In response to Beaches’ bill, the Insurance Company declined and refused to pay
the full amount due under the applicable terms and conditions of the Insurance Policy.
41. Instead of paying the proper amount due, the Insurance Company paid a reduced
amount and provided correspondence to Beaches, a redacted copy of which is attached hereto as
“Exhibit K.” Among other things, the correspondence stated, “BENEFITS ARE EXHAUSTED.”
42. Thereafter, Beaches sent the Insurance Company a Section 627.736(10), Florida
Statutes pre-suit demand letter, a redacted copy of which (without enclosures) is attached hereto
as “Exhibit L.”
43. In response to the pre-suit demand letter, the Insurance Company sent a letter to
Beaches, a redacted copy of which (without enclosures) is attached hereto as “Exhibit M.” In
pertinent part, the Insurance Company’s letter stated, “A review of the file indicates all
‘BENEFITS EXHAUSTED?’ prior to receipt of your demand letter. As a result, no additional
monies are due and/or owing.”
44. Notwithstanding the Insurance Company’s contentions to the contrary, the MRI
Providers contend--consistent with Sea Spine and Wechsel--that the Insurance Policy must be
construed as providing $12,500 of PIP coverage for medical expenses, instead of merely $10,000.
45. Asa result of the Insurance Company’s position that the Insurance Policy provides
merely $10,000 of PIP coverage for medical expenses, the Insurance Company routinely
underpays the MRI Providers, as well as other similarly situated MRI providers, whose PIP claims
are reduced or rejected based on the Insurance Company’s contention that the insured patient’s
PIP coverage for medical expenses is limited to $10,000, instead of $12,500.
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Class Action Allegations
46. Pursuant to Florida Rule of Civil Procedure 1.220(b)(2), the MRI Providers,
together with such other individuals that may join this action as class representatives, hereby bring
Counts I and II of this complaint on their own behalf and on behalf of all those similarly situated
persons whose medical bills were reduced or rejected by the Insurance Company based on its
contention that PIP benefits for medical expenses were exhausted at $10,000, instead of affording
up to $12,500 of coverage.
47. As used herein, the “Class” consists of and is defined as all persons and/or entities
who:
@) are MRI providers operating in the State of Florida;
) at any time since June 19, 2015 provided MRI services to any insured patient that was
covered by PIP insurance under the Insurance Policy;
© own an assignment of benefits from said insured patient;
@ submitted medical bills for such services to the Insurance Company; and
(©) were not paid the full amount due based on the Insurance Company’s contention that the
insured patient’s PIP benefits for medical expenses were exhausted at $10,000, instead of
affording up to $12,500 of coverage.
Excluded from the foregoing definition are any PIP claims otherwise described above which: (a)
were incurred after the insured patient’s medical expenses covered by PIP had already exceeded
$12,500.00; (b) have already been fully paid by the Insurance Company or otherwise satisfied
through litigation or settlement or release; (c) were denied or reduced for any reason other than a
purported exhaustion of PIP benefits, including but not limited to alleged lack of an emergency
medical condition, alleged material misrepresentation, alleged fraud, alleged failure to cooperate,
and/or alleged failure to submit to an independent medical examination or examination under oath,
and/or because the health care services allegedly were not reasonable or medically necessary;
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and/or (d) are the subject of pending litigation against the Insurance Company as of the date of any
class certification order or other deadline established by the Court (hereinafter the “Class”).
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 pre-suit notice to the Insurance
Company pursuant to Section 627.736(10).
49, As used herein, all references to the “Class” shall include the “Sub-Class,” unless
otherwise stated.
50. The MRI Providers reserve the right to amend the Class and Sub-Class definitions
as discovery proceeds and to conform to the evidence.
51. While the exact number of class members is unknown at this time, the MRI
Providers submit that the numbers of class members are so numerous that separate joinder of each
member is impractical. For example, according to data published by the Florida Department of
Motor Vehicles, there are well over 200,000 traffic accidents per year in the State of Florida, and
a significant percentage of those traffic accidents result in injuries. See,
hitp://www.dmyflorida,org/2004-crash-data.shtml. Accordingly, the MRI Providers have a good
faith reason to believe that, during the material time period described by the Class definition herein,
there are more than enough similarly situated health care providers who are potential class members
to satisfy the numerosity requirements of Rule 1.220.
52. This action poses questions of law and fact that are common to and affect the rights
of all members of the Class and/or Sub-Class. Such questions of law and fact common to the Class
and/or Sub-Class include but are not limited to the following:
(a) Is the Insurance Policy ambiguous concerning the maximum amount of PIP
coverage provided for medical expenses?
(b) Is any ambiguity in the Insurance Policy required to be strictly construed
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against the Insurance Company and liberally in favor of coverage for the insured?
© Is the Insurance Policy required to be construed as providing a maximum
amount of PIP coverage for medical expenses in the amount of $10,000, or $12,500 or
some other amount?
@ Are the MRI Providers, the Class members and/or the Sub-Class members
entitled to declaratory relief to determine the parties’ respective rights and obligations
under the Insurance Policy?
© Are the MRI Providers, the Class, and/or the Sub-Class are entitled to
injunctive relief to require the Insurance Company to cease and desist from continuing to
limit PIP benefits for medical expenses covered by the Insurance Policy at $10,000 instead
of $12,500?
53. Based on the facts and circumstances set forth herein, the MRI Providers’ claims
are typical of the claims of the members of the Class and the Sub-Class.
54. Further, other individual plaintiffs may elect to join this action upon such grounds
as the Court may set forth and these individuals will likewise have issues that are common to those
of all other class members.
55. The MRI Providers have retained the undersigned attorneys who are well-qualified
and experienced in handling class action litigation and will adequately protect the interests of the
Class.
56. With respect to Counts I and II below, the MRI Providers bring this class action
pursuant to Florida Rule of Civil Procedure 1.220(b)(2) on the grounds that the Insurance
Company’s actions or omissions as alleged herein, are generally applicable to all class members
thereby making declaratory and/or injunctive relief concerning the Class as a whole appropriate.
57. Alternatively, pursuant to Florida Rule of Civil Procedure 1.220(c)(4), to the extent
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appropriate, any claim asserted herein may be brought or maintained on behalf of the Class or Sub-
Class concerning particular issues.
Count I — Class Action for Declaratory Relief
58. This is a class action for declaratory relief pursuant to Chapter 86, Florida Statutes,
brought by the MRI Providers and the Class against the Insurance Company. Alternatively, this
count is brought by the MRI Providers and the Sub-Class against the Insurance Company.
Alternatively, if a class cannot be certified, this count is brought by the MRI Providers individually
against the Insurance Company.
59. The MRI Providers reallege and incorporates by reference paragraphs 1-57 above.
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 pre-suit demand letter is not a condition
precedent to the initiation of this action.
61. Alternatively, the MRI Providers and the Sub-Class satisfied the pre-suit 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 pre-suit demand letters attached hereto as
Exhibits 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 pre-suit demand letter to the Insurance
{00576283.1) 13
Company pursuant to Section 627.736(10).
62. The MRI Providers take the position that the Insurance Policy must be construed
as providing a maximum amount of PIP coverage for medical expenses in the amount of $12,500.
The Insurance Company disagrees and contends the Insurance Policy must be construed as
providing a maximum amount of PIP coverage for medical expenses in the amount of $10,000.
63. The MRI Providers are in doubt concerning their rights, and a bona fide present
controversy exists between the MRI Providers, the Class members, and the Insurance Company
concerning the proper interpretation of the Insurance Policy, and the parties’ respective rights and
obligations thereunder, with respect to the issue of whether the Insurance Policy must be construed
as providing a maximum amount of PIP coverage for medical expenses in the amount of $10,000,
or $12,500 or some other amount?
64. The rights, status, or other equitable or legal relations of the parties are affected by
the express terms of the Insurance Policy. Accordingly, pursuant to Chapter 86, the MRI Providers
and the Class members may obtain a declaration of rights, status, or other equitable or legal
relations thereunder.
65. Section 86.011, Florida Statutes states that this Court has “jurisdiction .,. to declare
rights, status, and other equitable or legal relations whether or not further relief is or could be
claimed.” Section 86.111, Florida Statutes states, “The existence of another adequate remedy does
not preclude a judgment for declaratory relief.” Thus, regardless of whether damages are available
to the MRI Provider or the Sub-Class, this Court still has jurisdiction to determine the parties’
respective rights, status, and other equitable or legal relations under the Insurance Policy.
66. Section 86.011(2), Florida Statutes states that “The court may render declaratory
judgments on the existence, or nonexistence . Of any fact upon which the existence or
nonexistence of such immunity, power, privilege, or right does or may depend, whether such
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immunity, power, privilege, or right now exists or will arise in the future.” Thus, the Court still
has jurisdiction to determine whether the Insurance Company’s conduct has been unlawful, in
order to prevent the same unlawful conduct in the future.
67. Section 86.021, Florida Statutes states, “Any person claiming to be interested or
who may be in doubt about his or her rights under a ... contract, ... may have determined any
question of construction or validity arising under such ... contract, ... or any part thereof, and
obtain a declaration of rights, status, or other equitable or legal relations thereunder.” Thus, the
Court has jurisdiction to determine the rights of “any person” (such as the MRI Providers) who is
in doubt about its rights under the Insurance Policy. 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.
68. Section 86.031, Florida Statutes states, “A contract may be construed either before
or after there has been a breach of it.” Under this statute, the Court has jurisdiction to determine
whether the Insurance Company has improperly limited PIP coverage for medical expenses, and/or
whether this conduct will breach the Insurance Policy in the future.
69. Section 86.051, Florida Statutes states, “Any declaratory judgment rendered
pursuant to this chapter may be rendered by way of anticipation with respect to any act not yet
done or any event which has not yet happened, and in such case the judgment 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.” This statute confirms that the Court has jurisdiction to determine the legality of the
Insurance Company’s past conduct, in order to gauge its anticipated future conduct and to prevent
unlawful conduct in the future.
70. Section 86.071, Florida Statutes states, in pertinent part, that when a declaratory
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action “concerns the determination of an issue of fact, the issue may be tried as issues of fact are
tried in other civil actions in the court in which the proceeding is pending. To settle questions of
fact necessary to be determined before judgment can be rendered, the court may direct their
submission to ajury.” Thus, the existence of disputed fact issues does not prevent the Court from
providing declaratory relief under Chapter 86.
71. The MRI Providers have retained the undersigned counsel to prosecute this action
and is entitled to recover its reasonable attorneys’ fees and costs pursuant to Section 627.428,
Florida Statutes.
Count II — Class Action for Injunctive Relief
72. This is a common law action for injunctive relief brought by the MRI Providers and
the Class against the Insurance Company. Alternatively, this count is brought by the MRI
Providers and the Sub-Class against the Insurance Company. Alternatively, if a class cannot be
certified, this count is brought by the MRI Provider individually against the Insurance Company.
73. The MRI Provider realleges and incorporates by reference paragraphs 1-57 above.
74. 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 II is an action for injunctive relief under common law, it is not an
“action for benefits” under Section 627.736, and a pre-suit demand letter is not a condition
precedent to the initiation of this action.
7. Alternatively, the MRI Providers and the Sub-Class satisfied the pre-suit notice
requirements of Section 627.736(10), because for the following reasons:
00576283.) 16
@ With respect to the services provided to the Insured Patient, the MRI
Providers sent the Insurance Company the pre-suit demand letters attached hereto as
Exhibits 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 pre-suit demand letter to the Insurance
Company pursuant to Section 627.736(10).
76. The Insurance Company’s limitation of PIP coverage for 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. reduce
its Examples of such irreparable injury include but are not limited to the following:
(a) Under Section 627.736(5)(a)4, “If an insurer limits payment as authorized
by [Section 627.736(5)(a)1], the person providing such services, supplies, or care may not
bill or attempt to collect from the insured any amount in excess of such limits, except for
amounts that are not covered by the insured’s personal injury protection coverage due to
the coinsurance amount or maximum policy limits.” This balance-billing prohibition places
class members in the untenable position of being unable to recover full payment from either
the Insured Patient or the Insurance Company. In other words, the Insurance Company is
exacting an involuntary discount from class members, without any legal recourse.
() By erroneously limiting PIP coverage for medical expenses to $10,000
instead of $12,500, the Insurance Company routinely places the MRI Providers and the
class members in the untenable position of having to file a Section 627.736(10) demand
letter to recover full payment on an otherwise unexhausted PIP claim, which would amount
(00876283.1} 17
to an unfair or deceptive claims practice under Section 627.736(11). In other words, the
class members are left having to provide valuable medical services, comply with the
various billing requirements of Section 627.736, and file a statutory demand letter in an
effort to collect the lawful amount of their charge, simply because the Insurance Company
is impermissibly paying less coverage than required by the Insurance Policy.
© 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.
@ 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.
78. The MRI Providers and the class members have a clear legal right to seek an
injunction requiring that the Insurance Company cease and desist in the future from limiting PIP
coverage for medical expenses to $10,000 instead of $12,500.
79, The MRI Providers and the class members have no other adequate remedy at law.
80. The injunctive relief requested by the MRI Providers and the class members would
not be contrary to the interest of the public generally.
81. The MRI Providers have retained the undersigned counsel to prosecute this action
and is entitled to the recovery of its reasonable attorneys’ fees and costs pursuant to Section
627.428, Florida Statutes.
{00576283.2) 18
Count Ill — Presgar’s Individual Claim for PIP Benefits
82. This is an individual non-class action claim by Presgar against the Insurance
Company for unpaid PIP benefits rendered to AGM.
83. Presgar realleges and incorporates by reference paragraphs 1-34 and 44-45 above.
84. Presgar seeks payment of its denied claim, based on $12,500 of PIP coverage for
medical expenses, instead of $10,000.
85. Presgar satisfied the pre-suit notice requirements of Section 627.736(10), based on
the pre-suit demand letter attached hereto as Exhibit G.
86. After receiving the pre-suit demand letter, the Insurance Company failed to fully
and timely pay to Presgar the appropriate amount of PIP benefits required by the $12,500 amount
of PIP coverage for medical expenses provided by the Insurance Policy.
87. As a result, the Insurance Company violated Section 627.736, Florida Statutes
and/or breached the insurance policy, by failing to make timely and proper payment of PIP benefits
to Presgar.
88. The Insurance Company also failed to pay the penalty and/or interest, which is due
on the overdue PIP benefits pursuant to Section 627.736(4)(d), Florida Statutes.
89. As a direct and proximate result of the foregoing acts and/or omissions by the
Insurance Company, Presgar suffered damages.
90. Presgar has retained the undersigned counsel to prosecute this action and is entitled
to the recovery of its reasonable attorneys’ fees and costs pursuant to Sections 627.428 and/or
627.736(8), Florida Statutes.
Count IV — Beaches’ Individual Claim for PIP Benefits
91. This is an individual non-class action claim by Beaches against the Insurance
Company for unpaid PIP benefits rendered to RL.
(00576283.1} 19
92. Beaches realleges and incorporates by reference paragraphs 1-25 and 35-45 above.
93. Beaches seeks payment of its denied claim, based on $12,500 of PIP coverage for
medical expenses, instead of $10,000.
94, Beaches satisfied the pre-suit notice requirements of Section 627.736(10), based on
the pre-suit demand letter attached hereto as Exhibit L.
95. After receiving the pre-suit demand letter, the Insurance Company failed to fully
and timely pay to Beaches the appropriate amount of PIP benefits required by the $12,500 amount
of PIP coverage for medical expenses provided by the Insurance Policy.
96. As a result, the Insurance Company violated Section 627.736, Florida Statutes
and/or breached the insurance policy, by failing to make timely and proper payment of PIP benefits
to Beaches.
97. The Insurance Company also failed to pay the penalty and/or interest, which is due
on the overdue PIP benefits pursuant to Section 627.736(4)(d), Florida Statutes.
98. As a direct and proximate result of the foregoing acts and/or omissions by the
Insurance Company, Beaches suffered damages.
99. Beaches has retained the undersigned counsel to prosecute this action and is entitled
to the recovery of its reasonable attorneys’ fees and costs pursuant to Sections 627.428 and/or
627.736(8), Florida Statutes.
PRAYER FOR RELIEF
WHEREFORE, the MRI Providers respectfully request this Honorable Court to award
the following relief against the Insurance Company:
a. Issue an order certifying that Counts I and/or II, and/or particular issues raised
therein are properly maintainable as a class action under Rule 1.220(b)(2) and/or (c)(4).
b. Issue an order appointing one or both of the MRI Providers as the Class
(00576283.1 } 20
Representatives.
C, Issue an order appointing the undersigned law firms as class counsel.
d. Issue an order granting a declaratory judgment under Count I declaring the parties’
respective rights and obligations concerning the proper amount of PIP coverage for medical
expenses provided under the Insurance Policy.
e. Issue an order granting a temporary and/or permanent injunction under Count II
against the Insurance Company.
f. Under Count III, issue a judgment against the Insurance Company and in favor of
Presgar, for damages plus interest.
g Under Count IV, issue a judgment against the Insurance Company and in favor of
Beaches, for damages plus interest.
h Issue an order requiring the Insurance Company to pay the MRI Providers’
reasonable attorneys’ fees and costs pursuant to Sections 627.428 and/or 627.736(8).
1 Grant such other relief as this Honorable Court deems appropriate.
DEMAND FOR JURY TRIAL
The MRI Providers, on all on behalf of themselves and all others similarly situated, hereby
demand a trial by jury on all the issues so triable.
DATED this 8th day of July, 2020.
{00576283.1 ) 21
Respectfully submitted,
/s! Thomas
9. Wensel
Thomas J. Wenzel, FBN 104117
STEINGER, GREENE & FEINER
2727 NW 62nd St.
Ft. Lauderdale, FL 33309
Telephone: (954)491-7701
Email: pleadings@injurylawyers.com
ls!9, Daniel (ark
J. Daniel Clark, FBN 0106471
CLARK & MARTINO, P.A.
3407 W. Kennedy Blvd., Tampa, FL 33609
Telephone: (813) 879-0700
Primary: delark@clarkmartino.com
Secondary: rsmith@clarkmartino.com
ls! DautdMU. Caldeudla
David M. Caldevilla, FBN 654248
de la PARTE & GILBERT, P.A.
P.O. Box 2350, Tampa, FL 33601-2350
Telephone: (813) 229-2775
Primary: dcaldevilla@dgfirm.com
Secondary: serviceclerk@dgfirm.com
(s) Chad44, Ban
Chad A. Barr, FBN 55365
CHAD BARR LAW
238 N. Westmonte Dr., Suite 200
Altamonte Springs, FL 32714
Telephone: (407)599-9036
Primary: service@chadbarrlaw.com
Secondary: chad@chadbarrlaw.com
|s| Kimberly P. Simoes
Kimberly P. Simoes, FBN 109479
The Simoes Law Group, P.A.
351 E. New York Ave., Deland FL 32724
Telephone: (386) 320-7967
Primary: kimberly@simoeslaw.com
Secondary: service@simoeslaw.com
COUNSEL FOR PLAINTIFFS
{00576283.1} 22
Policy Declarations
LM General Insurance Company Pages,
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Your declarations are effective as of ERUXGSS
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Filing # 109965327 E-Filed 07/08/2020 04:51:45 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH CIRCUIT COURT IN AND FOR BROWARD COUNTY, FLORIDA CIVIL DIVISION PRESGAR IMAGING OF CMI NORTH, LC and BEACHES OPEN MRI OF TAMARAC, LLC, as assignees, individually, and on behalf of all similarly situated persons, Class Representation Plaintiffs, Case No. CACE-20-010138 vs. Division 02 LM GENERAL INSURANCE COMPANY, Defendant. / AMENDED CLASS ACTION COMPLAINT AND_DEMAND FOR JURY TRIAL Pursuant to Florida Rules of Civil Procedure 1.100 and 1.220, the Plaintiffs, Presgar Imaging of CMI North, LC (“Presgar”) and Beaches Open MRI of Tamarac, LLC (“Beaches”), as assignees, individually, and on behalf of all similarly situated persons, sue the Defendant, LM General Insurance Company (the “Insurance Company”), and state: Jurisdiction, Parties, and Venue 1 This is an action asserting 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. The amount in controversy exceeds $30,000, exclusive of interest, attorneys’ fees and costs. 2. This case involves a dispute concerning the amount of personal injury protection (“PIP”) coverage available under insurance policies issued by the Insurance Company in the State of Florida. Specifically, the Insurance Company contends that its insurance policies only provide up to $10,000 in PIP coverage for medical expenses, but Presgar and Beaches (collectively, the {00576283.1} #** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 07/08/2020 04:51:41 PM.**#* “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, the Insurance Company is routinely underpaying and/or rejecting PIP claims for medical expenses. 3 Each of the MRI Providers is, and at all material times has been, an entity organized and existing under the laws of the State of Florida, and doing business in Florida, that provides magnetic resonance imaging (“MRI”) services to Florida residents who have sustained personal injuries in motor vehicle collisions, and who have assigned to the MRI Providers their insurance benefits, including PIP benefits, under automobile insurance policies issued by the Insurance Company. 4 The Insurance Company is part of the Liberty Mutual family of insurance companies, and at all material times, has been a corporation doing business under the laws of the State of Florida, and selling automobile insurance, including PIP coverage. 5 Venue is proper in Broward County, Florida because the Insurance Company has offices for transaction of their customary business in Broward County, Florida, and/or and one or more of the cause of action set forth below arose and/or accrued in Broward County, Florida. 6 All conditions precedent to the maintenance of this action have occurred, have been performed, or have been waived. Background Concerning PIP Insurance Coverag: 7 PIP insurance is a creature of statute that only provides minimum thresholds for coverage and benefits which an insurer cannot reduce, restrict, or negate. See, e.g., Nunez v. Geico Gen. Ins. Co., 117 So. 3d 388 (Fla. 2013), See also Salas v. Liberty Mut. Fire Ins. Co., 272 So, 2d 1 (Fla. 1972); Mullis v. State Farm Mut, Auto. Ins. Co., 252 So. 2d 229 (Fla. 1971). {00576283.1} 8 An insurance company may always issue insurance policies with coverage or benefits that exceed any applicable statutory minimum requirements. See, e.g., Wright v. Auto-Owners Ins. Co., 739 So. 2d 180 (Fla. 2d DCA 1999); Sturgis v. Fortune Ins. Co., 475 So. 2d 1272 (Fla. 2d DCA 1985). 9 Under Section 627.736, Florida Statutes (the “PIP Statute”), an automobile insurer must provide no less than $10,000 of medical and disability benefits. However, there is no legal authority prohibiting an insurance company from providing greater amounts of PIP coverage to its customers. 10. In this case, the MRI Providers contend that the Insurance Company’s insurance policies provides PIP coverage for medical expenses which is greater than the minimum amount required by the PIP Statute. 11. Indeed, the Insurance Company’s advertising campaign routinely states that Liberty Mutual allows you to “customize your car insurance,”! and “[bly switching [to Liberty Mutual], 02 you can get a better coverage or lower premium fees. The Insurance Policy 12. This case involves an exemplar insurance policy and endorsements, a redacted copy of is attached hereto as “Exhibit A” (the “Insurance Policy”). 13, The Insurance Policy’s Personal Injury Protection Coverage Endorsement (form AS 2090 01 13) (the “PIP Endorsement”) states that the Insurance Company provides four types ' See, e.g., https://www.youtube.com/watch?v=WFpIRXgS8T4 2 See, e.g., http://www. liberty.compare-quote.com/auto-insurance.php?&utm_source=Bing&utm_account= CWA&utm_campaign=B_SHA-CQ_LiMu&utm_adgroup=insurancepmm&utm_keyword=liberty%20mutual% 20insurance%20company&device=c&devicemodel=&network=o&placement=&macthtype=p&adposition=&creativ e=&msclkid=c405a0933ac7 lab27b2dfe7 8dfe7 0bbd##quote 3 Some of the exhibits to this amended complaint are redacted in the interests of privacy protection. However, unredacted copies will be made available to Defendant upon request. {00576283.1) 3 of PIP benefits: (a) Medical Expenses; (b) Work Loss; (c) Replacement Services; and (d) Accidental Death. See, Exhibit A at p. 32-33. 14, Notably, the Policy Declarations section of the Insurance Policy does not identify any cap on the amount of PIP coverage, as is done regarding various other types of coverage provided by the Insurance Policy. See, Exhibit A at p. 1-2. 15. Rather than address the amount of PIP coverage in the Policy Declarations section of the Insurance Policy, the Insurance Company buries language outlining the limits of various portions of its PIP coverage in a “Schedule” contained in the PIP Endorsement portion of the Insurance Policy. See, Exhibit A at p. 32. 16. The PIP Endorsement includes the following provisions concerning PIP insurance coverage: THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. PERSONAL INJURY PROTECTION COVERAGE - FLORIDA AS 2090 01 13 With respect to coverage provided by this endorsement, the provisions of the policy apply unless modified by the endorsement. SCHEDULE Benefits Limit Of Liability Medical Expenses No specific dollar amount Work Loss No specific dollar amount Replacement Services No specific dollar amount .ccidental Death $ 5,000 Maximum Limit For The Total Of All $10,000 Personal Injury Protection Benefits for an “Emergency medical condition" Maximum Limit For The Total Of $2,500 All Personal Injury Protection Benefits for ail other “bodily injury” Personal Injury Protection Coverage Deductible As indicated below or in the Declarations, all expenses and losses described under required personal injury protection in FLA. STAT. S.627.736(1) are subject to a deductible of $ applicable to: O The "named insured”. 1 The “named insured" and any dependent “family member”. Exclusion Of Work Loss Work loss does not apply as indicated below or in the Declarations: O Work foss will not be provided for the “named insured". 1 Work fass will not be provided for the "named insured" and any dependent "family member". See, Exhbit A at p. 32. {00576283.1) 17. The foregoing “Schedule” identifies three specific “Limit[s] Of Liability.” The first limit of liability is $5,000 for “Accidental Death,” which is irrelevant to this lawsuit. See, Exhbit A at p. 32. 18. The second limit of liability is $10,000 for an “Emergency medical condition,” which is defined in the PIP Endorsement as: “Emergency medical condition" means a medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following: ¢. Serious i a, Serious jeopardy to patient health. b. Serious impairment to bodily functions. dysfunction of any bodily organ or part. See, Exhibit A at p. 32. 19. The third limit of liability is $2,500 “for all other ‘bodily injury.’” See, Exhibit A at p. 32. The term “bodily injury” is defined by the Insruance Policy’s “Definitions” section as meaning “bodily harm, sickness or disease, including death that results.” See, Exhibit A at p. 8. 20. In addition, the “LIMIT OF LIABILITY” section of the PIP Endorsement states: LIMIT OF LIABILITY A. The limits of liability shown in the Schedule or Declarations for Personal Injury Protection Coverage are the most we will pay to or for each "insured" injured in any one accident, regardless of the number of: 1 “Insureds"; 2. Policies or bonds applicable; 3. Vel hicles involved; or m mad ie maximum hint of abil ror the total oi all personal injury protection benefits shown in the Schedule or Declarations is the total te_limit for personal injury protection pegetts enefits avalab available, to or for each "insured" injured in any one accident, from all sources combined, including this policy if the insured receives initial services and care within 14 days after the motor vehicle accident. See, Exhibit A at p. 34 (emph. added). (00576283.1) 21. The phrases “total of all” and “total aggregate limit” are not defined by the Insurance Policy. See, Exhibit A. 22. In any event, the Insurance Company has set the maximum amount of coverage as “the total of all [PIP] benefits shown in the Schedule or Declarations... from all sources combined, including this policy...” See, Exhibit A at p. 34. As previously noted, the “Declarations” contain no limitation as to the amount of PIP benefits available. See, Exhibit A at p. 1. However, the “Schedule” provides two separate limits of liability for the “maximum limit for the total of all personal injury protection benefits”: (a) $10,000 for an “Emergency medical condition” and (b) $2,500 for “all other ‘bodily injury.”” See, Exhbit A at p. 32. 23. In Sea Spine Orthopedic Institute, LLC, a.a.o. Carmen Charriez v. Liberty Mut. Ins. Co., Appeal No. CACE17-013776(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.” A copy of the Sea Spine opinion is attached hereto as “Exhibit B.” 24. 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. A copy of the Wechsel opinion is attached hereto as “Exhibit C.” {008762831 ) Background Information Concerning the Insured Patients : 25. Each of the MRI Providers routinely provides health care services to the Insurance Company’s PIP insureds and reasonably anticipates that this will continue into the foreseeable future. 26. As one example, AGM was involved in a motor vehicle accident, and as a result, sustained bodily injuries related to the operation, maintenance, or use of a motor vehicle. At the time of the accident, the Insurance Company was a contracting party and/or a named insured and/or an omnibus insured under an automobile insurance policy issued by the Insurance Company, and that policy was in full force and effect, and provided PIP coverage. While the MRI Provider does not possess a copy of AGM’s insurance policy, the MRI Providers have good reason to believe that it is, in all material respects, identical to the Insurance Policy attached hereto as “Exhibit A.” 27. As a result of the accident, AGM suffered an emergency medical condition and/or bodily injuries, as those terms are used in the Insurance Policy. 28. As a result of the injuries sustained by AGM, Presgar subsequently rendered MRI services to AGM. 29. Prior to providing such MRI services and as a condition to providing them, Presgar obtained from AGM a written assignment of benefits, a redacted copy of which is attached hereto as “Exhibit D.” 30. After providing MRI services to AGM, Presgar timely submitted its bills to the Insurance Company, redacted copies of which are attached hereto as “Exhibit E.” 31. In response to Presgar’s bills, the Insurance Company declined and refused to pay the full amount due under the applicable terms and conditions of the Insurance Policy. 32. Instead of paying the proper amount due, the Insurance Company paid a reduced amount and provided Presgar an “Explanation of Review,” a redacted copy of which is attached (00576288.2 } 7 hereto as “Exhibit F.” Among other things, the Explanation of Review stated, “... REDUCTIONS ARE DUE TO CHARGES EXCEEDING THE GUIDELINES OF THE FLORIDA MOTOR VEHICLE NO-FAULT LAW.” 33. Thereafter, Presgar sent the Insurance Company a Section 627.736(10), Florida Statutes pre-suit demand letter, a redacted copy of which (without enclosures) is attached hereto as “Exhibit G.” 34. In response to the pre-suit demand letter, the Insurance Company sent a letter to Pregar, a redacted copy of which (without enclosures) is attached hereto as “Exhibit H.” In pertinent part, the Insurance Company’s letter stated, “A review of the file indicates all ‘BENEFITS EXHAUSTED’ prior to receipt of your demand letter. As a result, no additional monies are due and/or owing.” 35. As another example, RL was involved in a motor vehicle accident, and as a result, sustained bodily injuries related to the operation, maintenance, or use of a motor vehicle, At the time of the accident, the Insurance Company was a contracting party and/or anamed insured and/or an omnibus insured under an automobile insurance policy issued by the Insurance Company, and that policy was in full force and effect, and provided PIP coverage. While the MRI Provider does not possess a copy of RL’s insurance policy, the MRI Providers have good reason to believe that it is, in all material respects, identical to the Insurance Policy attached hereto as “Exhibit A.” 36. As a result of the accident, RL suffered an emergency medical condition and/or bodily injuries, as those terms are used in the Insurance Policy. 37. As a result of the injuries sustained by RL, Beaches subsequently rendered MRI services to RL. 38. Prior to providing such MRI services and as a condition to providing them, Beaches obtained from RL a written assignment of benefits, a redacted copy of which is attached hereto as (00576283. } 8 “Exhibit 1.” 39. After providing MRI services to AGM, Presgar timely submitted its bill to the Insurance Company, a redacted copy of which is attached hereto as “Exhibit J.” 40. In response to Beaches’ bill, the Insurance Company declined and refused to pay the full amount due under the applicable terms and conditions of the Insurance Policy. 41. Instead of paying the proper amount due, the Insurance Company paid a reduced amount and provided correspondence to Beaches, a redacted copy of which is attached hereto as “Exhibit K.” Among other things, the correspondence stated, “BENEFITS ARE EXHAUSTED.” 42. Thereafter, Beaches sent the Insurance Company a Section 627.736(10), Florida Statutes pre-suit demand letter, a redacted copy of which (without enclosures) is attached hereto as “Exhibit L.” 43. In response to the pre-suit demand letter, the Insurance Company sent a letter to Beaches, a redacted copy of which (without enclosures) is attached hereto as “Exhibit M.” In pertinent part, the Insurance Company’s letter stated, “A review of the file indicates all ‘BENEFITS EXHAUSTED?’ prior to receipt of your demand letter. As a result, no additional monies are due and/or owing.” 44. Notwithstanding the Insurance Company’s contentions to the contrary, the MRI Providers contend--consistent with Sea Spine and Wechsel--that the Insurance Policy must be construed as providing $12,500 of PIP coverage for medical expenses, instead of merely $10,000. 45. Asa result of the Insurance Company’s position that the Insurance Policy provides merely $10,000 of PIP coverage for medical expenses, the Insurance Company routinely underpays the MRI Providers, as well as other similarly situated MRI providers, whose PIP claims are reduced or rejected based on the Insurance Company’s contention that the insured patient’s PIP coverage for medical expenses is limited to $10,000, instead of $12,500. (00576283.1 } 9 Class Action Allegations 46. Pursuant to Florida Rule of Civil Procedure 1.220(b)(2), the MRI Providers, together with such other individuals that may join this action as class representatives, hereby bring Counts I and II of this complaint on their own behalf and on behalf of all those similarly situated persons whose medical bills were reduced or rejected by the Insurance Company based on its contention that PIP benefits for medical expenses were exhausted at $10,000, instead of affording up to $12,500 of coverage. 47. As used herein, the “Class” consists of and is defined as all persons and/or entities who: @) are MRI providers operating in the State of Florida; ) at any time since June 19, 2015 provided MRI services to any insured patient that was covered by PIP insurance under the Insurance Policy; © own an assignment of benefits from said insured patient; @ submitted medical bills for such services to the Insurance Company; and (©) were not paid the full amount due based on the Insurance Company’s contention that the insured patient’s PIP benefits for medical expenses were exhausted at $10,000, instead of affording up to $12,500 of coverage. Excluded from the foregoing definition are any PIP claims otherwise described above which: (a) were incurred after the insured patient’s medical expenses covered by PIP had already exceeded $12,500.00; (b) have already been fully paid by the Insurance Company or otherwise satisfied through litigation or settlement or release; (c) were denied or reduced for any reason other than a purported exhaustion of PIP benefits, including but not limited to alleged lack of an emergency medical condition, alleged material misrepresentation, alleged fraud, alleged failure to cooperate, and/or alleged failure to submit to an independent medical examination or examination under oath, and/or because the health care services allegedly were not reasonable or medically necessary; {00576283.1} 10 and/or (d) are the subject of pending litigation against the Insurance Company as of the date of any class certification order or other deadline established by the Court (hereinafter the “Class”). 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 pre-suit notice to the Insurance Company pursuant to Section 627.736(10). 49, As used herein, all references to the “Class” shall include the “Sub-Class,” unless otherwise stated. 50. The MRI Providers reserve the right to amend the Class and Sub-Class definitions as discovery proceeds and to conform to the evidence. 51. While the exact number of class members is unknown at this time, the MRI Providers submit that the numbers of class members are so numerous that separate joinder of each member is impractical. For example, according to data published by the Florida Department of Motor Vehicles, there are well over 200,000 traffic accidents per year in the State of Florida, and a significant percentage of those traffic accidents result in injuries. See, hitp://www.dmyflorida,org/2004-crash-data.shtml. Accordingly, the MRI Providers have a good faith reason to believe that, during the material time period described by the Class definition herein, there are more than enough similarly situated health care providers who are potential class members to satisfy the numerosity requirements of Rule 1.220. 52. This action poses questions of law and fact that are common to and affect the rights of all members of the Class and/or Sub-Class. Such questions of law and fact common to the Class and/or Sub-Class include but are not limited to the following: (a) Is the Insurance Policy ambiguous concerning the maximum amount of PIP coverage provided for medical expenses? (b) Is any ambiguity in the Insurance Policy required to be strictly construed (00576283.1 } 11 against the Insurance Company and liberally in favor of coverage for the insured? © Is the Insurance Policy required to be construed as providing a maximum amount of PIP coverage for medical expenses in the amount of $10,000, or $12,500 or some other amount? @ Are the MRI Providers, the Class members and/or the Sub-Class members entitled to declaratory relief to determine the parties’ respective rights and obligations under the Insurance Policy? © Are the MRI Providers, the Class, and/or the Sub-Class are entitled to injunctive relief to require the Insurance Company to cease and desist from continuing to limit PIP benefits for medical expenses covered by the Insurance Policy at $10,000 instead of $12,500? 53. Based on the facts and circumstances set forth herein, the MRI Providers’ claims are typical of the claims of the members of the Class and the Sub-Class. 54. Further, other individual plaintiffs may elect to join this action upon such grounds as the Court may set forth and these individuals will likewise have issues that are common to those of all other class members. 55. The MRI Providers have retained the undersigned attorneys who are well-qualified and experienced in handling class action litigation and will adequately protect the interests of the Class. 56. With respect to Counts I and II below, the MRI Providers bring this class action pursuant to Florida Rule of Civil Procedure 1.220(b)(2) on the grounds that the Insurance Company’s actions or omissions as alleged herein, are generally applicable to all class members thereby making declaratory and/or injunctive relief concerning the Class as a whole appropriate. 57. Alternatively, pursuant to Florida Rule of Civil Procedure 1.220(c)(4), to the extent {00576283.1) 12 appropriate, any claim asserted herein may be brought or maintained on behalf of the Class or Sub- Class concerning particular issues. Count I — Class Action for Declaratory Relief 58. This is a class action for declaratory relief pursuant to Chapter 86, Florida Statutes, brought by the MRI Providers and the Class against the Insurance Company. Alternatively, this count is brought by the MRI Providers and the Sub-Class against the Insurance Company. Alternatively, if a class cannot be certified, this count is brought by the MRI Providers individually against the Insurance Company. 59. The MRI Providers reallege and incorporates by reference paragraphs 1-57 above. 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 pre-suit demand letter is not a condition precedent to the initiation of this action. 61. Alternatively, the MRI Providers and the Sub-Class satisfied the pre-suit 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 pre-suit demand letters attached hereto as Exhibits 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 pre-suit demand letter to the Insurance {00576283.1) 13 Company pursuant to Section 627.736(10). 62. The MRI Providers take the position that the Insurance Policy must be construed as providing a maximum amount of PIP coverage for medical expenses in the amount of $12,500. The Insurance Company disagrees and contends the Insurance Policy must be construed as providing a maximum amount of PIP coverage for medical expenses in the amount of $10,000. 63. The MRI Providers are in doubt concerning their rights, and a bona fide present controversy exists between the MRI Providers, the Class members, and the Insurance Company concerning the proper interpretation of the Insurance Policy, and the parties’ respective rights and obligations thereunder, with respect to the issue of whether the Insurance Policy must be construed as providing a maximum amount of PIP coverage for medical expenses in the amount of $10,000, or $12,500 or some other amount? 64. The rights, status, or other equitable or legal relations of the parties are affected by the express terms of the Insurance Policy. Accordingly, pursuant to Chapter 86, the MRI Providers and the Class members may obtain a declaration of rights, status, or other equitable or legal relations thereunder. 65. Section 86.011, Florida Statutes states that this Court has “jurisdiction .,. to declare rights, status, and other equitable or legal relations whether or not further relief is or could be claimed.” Section 86.111, Florida Statutes states, “The existence of another adequate remedy does not preclude a judgment for declaratory relief.” Thus, regardless of whether damages are available to the MRI Provider or the Sub-Class, this Court still has jurisdiction to determine the parties’ respective rights, status, and other equitable or legal relations under the Insurance Policy. 66. Section 86.011(2), Florida Statutes states that “The court may render declaratory judgments on the existence, or nonexistence . Of any fact upon which the existence or nonexistence of such immunity, power, privilege, or right does or may depend, whether such {00576283.1} 14 immunity, power, privilege, or right now exists or will arise in the future.” Thus, the Court still has jurisdiction to determine whether the Insurance Company’s conduct has been unlawful, in order to prevent the same unlawful conduct in the future. 67. Section 86.021, Florida Statutes states, “Any person claiming to be interested or who may be in doubt about his or her rights under a ... contract, ... may have determined any question of construction or validity arising under such ... contract, ... or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.” Thus, the Court has jurisdiction to determine the rights of “any person” (such as the MRI Providers) who is in doubt about its rights under the Insurance Policy. 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. 68. Section 86.031, Florida Statutes states, “A contract may be construed either before or after there has been a breach of it.” Under this statute, the Court has jurisdiction to determine whether the Insurance Company has improperly limited PIP coverage for medical expenses, and/or whether this conduct will breach the Insurance Policy in the future. 69. Section 86.051, Florida Statutes states, “Any declaratory judgment rendered pursuant to this chapter may be rendered by way of anticipation with respect to any act not yet done or any event which has not yet happened, and in such case the judgment 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.” This statute confirms that the Court has jurisdiction to determine the legality of the Insurance Company’s past conduct, in order to gauge its anticipated future conduct and to prevent unlawful conduct in the future. 70. Section 86.071, Florida Statutes states, in pertinent part, that when a declaratory {00576283.1} 15 action “concerns the determination of an issue of fact, the issue may be tried as issues of fact are tried in other civil actions in the court in which the proceeding is pending. To settle questions of fact necessary to be determined before judgment can be rendered, the court may direct their submission to ajury.” Thus, the existence of disputed fact issues does not prevent the Court from providing declaratory relief under Chapter 86. 71. The MRI Providers have retained the undersigned counsel to prosecute this action and is entitled to recover its reasonable attorneys’ fees and costs pursuant to Section 627.428, Florida Statutes. Count II — Class Action for Injunctive Relief 72. This is a common law action for injunctive relief brought by the MRI Providers and the Class against the Insurance Company. Alternatively, this count is brought by the MRI Providers and the Sub-Class against the Insurance Company. Alternatively, if a class cannot be certified, this count is brought by the MRI Provider individually against the Insurance Company. 73. The MRI Provider realleges and incorporates by reference paragraphs 1-57 above. 74. 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 II is an action for injunctive relief under common law, it is not an “action for benefits” under Section 627.736, and a pre-suit demand letter is not a condition precedent to the initiation of this action. 7. Alternatively, the MRI Providers and the Sub-Class satisfied the pre-suit notice requirements of Section 627.736(10), because for the following reasons: 00576283.) 16 @ With respect to the services provided to the Insured Patient, the MRI Providers sent the Insurance Company the pre-suit demand letters attached hereto as Exhibits 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 pre-suit demand letter to the Insurance Company pursuant to Section 627.736(10). 76. The Insurance Company’s limitation of PIP coverage for 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. reduce its Examples of such irreparable injury include but are not limited to the following: (a) Under Section 627.736(5)(a)4, “If an insurer limits payment as authorized by [Section 627.736(5)(a)1], the person providing such services, supplies, or care may not bill or attempt to collect from the insured any amount in excess of such limits, except for amounts that are not covered by the insured’s personal injury protection coverage due to the coinsurance amount or maximum policy limits.” This balance-billing prohibition places class members in the untenable position of being unable to recover full payment from either the Insured Patient or the Insurance Company. In other words, the Insurance Company is exacting an involuntary discount from class members, without any legal recourse. () By erroneously limiting PIP coverage for medical expenses to $10,000 instead of $12,500, the Insurance Company routinely places the MRI Providers and the class members in the untenable position of having to file a Section 627.736(10) demand letter to recover full payment on an otherwise unexhausted PIP claim, which would amount (00876283.1} 17 to an unfair or deceptive claims practice under Section 627.736(11). In other words, the class members are left having to provide valuable medical services, comply with the various billing requirements of Section 627.736, and file a statutory demand letter in an effort to collect the lawful amount of their charge, simply because the Insurance Company is impermissibly paying less coverage than required by the Insurance Policy. © 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. @ 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. 78. The MRI Providers and the class members have a clear legal right to seek an injunction requiring that the Insurance Company cease and desist in the future from limiting PIP coverage for medical expenses to $10,000 instead of $12,500. 79, The MRI Providers and the class members have no other adequate remedy at law. 80. The injunctive relief requested by the MRI Providers and the class members would not be contrary to the interest of the public generally. 81. The MRI Providers have retained the undersigned counsel to prosecute this action and is entitled to the recovery of its reasonable attorneys’ fees and costs pursuant to Section 627.428, Florida Statutes. {00576283.2) 18 Count Ill — Presgar’s Individual Claim for PIP Benefits 82. This is an individual non-class action claim by Presgar against the Insurance Company for unpaid PIP benefits rendered to AGM. 83. Presgar realleges and incorporates by reference paragraphs 1-34 and 44-45 above. 84. Presgar seeks payment of its denied claim, based on $12,500 of PIP coverage for medical expenses, instead of $10,000. 85. Presgar satisfied the pre-suit notice requirements of Section 627.736(10), based on the pre-suit demand letter attached hereto as Exhibit G. 86. After receiving the pre-suit demand letter, the Insurance Company failed to fully and timely pay to Presgar the appropriate amount of PIP benefits required by the $12,500 amount of PIP coverage for medical expenses provided by the Insurance Policy. 87. As a result, the Insurance Company violated Section 627.736, Florida Statutes and/or breached the insurance policy, by failing to make timely and proper payment of PIP benefits to Presgar. 88. The Insurance Company also failed to pay the penalty and/or interest, which is due on the overdue PIP benefits pursuant to Section 627.736(4)(d), Florida Statutes. 89. As a direct and proximate result of the foregoing acts and/or omissions by the Insurance Company, Presgar suffered damages. 90. Presgar has retained the undersigned counsel to prosecute this action and is entitled to the recovery of its reasonable attorneys’ fees and costs pursuant to Sections 627.428 and/or 627.736(8), Florida Statutes. Count IV — Beaches’ Individual Claim for PIP Benefits 91. This is an individual non-class action claim by Beaches against the Insurance Company for unpaid PIP benefits rendered to RL. (00576283.1} 19 92. Beaches realleges and incorporates by reference paragraphs 1-25 and 35-45 above. 93. Beaches seeks payment of its denied claim, based on $12,500 of PIP coverage for medical expenses, instead of $10,000. 94, Beaches satisfied the pre-suit notice requirements of Section 627.736(10), based on the pre-suit demand letter attached hereto as Exhibit L. 95. After receiving the pre-suit demand letter, the Insurance Company failed to fully and timely pay to Beaches the appropriate amount of PIP benefits required by the $12,500 amount of PIP coverage for medical expenses provided by the Insurance Policy. 96. As a result, the Insurance Company violated Section 627.736, Florida Statutes and/or breached the insurance policy, by failing to make timely and proper payment of PIP benefits to Beaches. 97. The Insurance Company also failed to pay the penalty and/or interest, which is due on the overdue PIP benefits pursuant to Section 627.736(4)(d), Florida Statutes. 98. As a direct and proximate result of the foregoing acts and/or omissions by the Insurance Company, Beaches suffered damages. 99. Beaches has retained the undersigned counsel to prosecute this action and is entitled to the recovery of its reasonable attorneys’ fees and costs pursuant to Sections 627.428 and/or 627.736(8), Florida Statutes. PRAYER FOR RELIEF WHEREFORE, the MRI Providers respectfully request this Honorable Court to award the following relief against the Insurance Company: a. Issue an order certifying that Counts I and/or II, and/or particular issues raised therein are properly maintainable as a class action under Rule 1.220(b)(2) and/or (c)(4). b. Issue an order appointing one or both of the MRI Providers as the Class (00576283.1 } 20 Representatives. C, Issue an order appointing the undersigned law firms as class counsel. d. Issue an order granting a declaratory judgment under Count I declaring the parties’ respective rights and obligations concerning the proper amount of PIP coverage for medical expenses provided under the Insurance Policy. e. Issue an order granting a temporary and/or permanent injunction under Count II against the Insurance Company. f. Under Count III, issue a judgment against the Insurance Company and in favor of Presgar, for damages plus interest. g Under Count IV, issue a judgment against the Insurance Company and in favor of Beaches, for damages plus interest. h Issue an order requiring the Insurance Company to pay the MRI Providers’ reasonable attorneys’ fees and costs pursuant to Sections 627.428 and/or 627.736(8). 1 Grant such other relief as this Honorable Court deems appropriate. DEMAND FOR JURY TRIAL The MRI Providers, on all on behalf of themselves and all others similarly situated, hereby demand a trial by jury on all the issues so triable. DATED this 8th day of July, 2020. {00576283.1 ) 21 Respectfully submitted, /s! Thomas 9. Wensel Thomas J. Wenzel, FBN 104117 STEINGER, GREENE & FEINER 2727 NW 62nd St. Ft. Lauderdale, FL 33309 Telephone: (954)491-7701 Email: pleadings@injurylawyers.com ls!9, Daniel (ark J. Daniel Clark, FBN 0106471 CLARK & MARTINO, P.A. 3407 W. Kennedy Blvd., Tampa, FL 33609 Telephone: (813) 879-0700 Primary: delark@clarkmartino.com Secondary: rsmith@clarkmartino.com ls! DautdMU. Caldeudla David M. Caldevilla, FBN 654248 de la PARTE & GILBERT, P.A. P.O. Box 2350, Tampa, FL 33601-2350 Telephone: (813) 229-2775 Primary: dcaldevilla@dgfirm.com Secondary: serviceclerk@dgfirm.com (s) Chad44, Ban Chad A. Barr, FBN 55365 CHAD BARR LAW 238 N. Westmonte Dr., Suite 200 Altamonte Springs, FL 32714 Telephone: (407)599-9036 Primary: service@chadbarrlaw.com Secondary: chad@chadbarrlaw.com |s| Kimberly P. Simoes Kimberly P. Simoes, FBN 109479 The Simoes Law Group, P.A. 351 E. New York Ave., Deland FL 32724 Telephone: (386) 320-7967 Primary: kimberly@simoeslaw.com Secondary: service@simoeslaw.com COUNSEL FOR PLAINTIFFS {00576283.1} 22 Policy Declarations LM General Insurance Company Pages, INSURANCE A summary of your auto insurance coverage Welcome. Thank you for insuring with us. Your declarations are effective as of ERUXGSS INSURANCE INFORMATION ACTION Named Insured: Policy Number: =m REQUIRED: Please review and keep for your records. Policy Period: = standard time at the address of the Q Named Insured as stated below. QUESTIONS ABOUT Mailing