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Case Number: CACE-20-010138 Division: 02
Filing # 109144500 E-Filed 06/19/2020 04:33:59 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH CIRCUIT COURT
IN AND FOR BROWARD COUNTY, FLORIDA
CIVIL DIVISION
PRESGAR IMAGING OF CMI NORTH,
LC, as assignee, individually, and on behalf
of all similarly situated, Class Representation
Plaintiff, Case No.
vs. Division
LM GENERAL INSURANCE COMPANY,
Defendant.
/
CLASS ACTION COMPLAINT
AND DEMAND FOR JURY TRIAL
Pursuant to Florida Rules of Civil Procedure 1.100 and 1.220, the Plaintiff, Presgar Imaging
of CMI North, LC (the “Health Care Provider”), sues the Defendant, LM General Insurance
Company (the “Insurance Company”), and states:
Jurisdiction, Parties, and Venue
1 This is an action asserting class action claims for declaratory relief, injunctive
relief, and damages pursuant to Florida Rule of Civil Procedure 1.220(b)(2), (b)(3), and (c)(4).
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 the Health Care Provider contends that
the insurance policies provide up to $12,500 in PIP coverage for medical expenses. If the Health
Care Provider’s position is correct, the Insurance Company is routinely underpaying and/or
rejecting PIP claims for medical expenses.
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#** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/19/2020 04:33:57 PM.****
3 The Health Care Provider is, and at all material times has been, a professional
association organized and existing under the laws of the State of Florida, and doing business in
Florida, that provides health care services to Florida residents who have sustained personal injuries
in motor vehicle collisions, and who have assigned to the Health Care Provider their insurance
benefits, including PIP benefits, under automobile insurance policies issued by the Insurance
Company.
4 The Insurance Company is, 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 subject to the version of Section 627.736, Florida Statutes (the “PIP Statute”), which
has been in effect since January 1, 2013, as enacted in Chapter 2012-197, Laws of Florida, and is
part of the Liberty Mutual family of insurance companies.
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).
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).
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9 Under 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 Health Care Provider contends 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 (i.e., Liberty Mutual) has an advertising campaign
which routinely states that Liberty Mutual allows you to “customize your car insurance,”! and
“[b]y switching [to Liberty Mutual], you can get a better coverage or lower premium fees. 2
The Insurance Policy
12. This case involves the exemplar insurance policy and endorsements, the material
pages of which are attached hereto as “Exhibit A”> (the “Insurance Policy”).
13. Pages 1 and 2 of the Personal Injury Protection Coverage Endorsement to the
Insurance Policy states that it provides four types of PIP benefits: 1. Medical expenses; 2. Work
loss; 3. Replacement services; and 4. Accidental death.
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.
1 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=insurancepnm&utm_keyword=liberty%20mutual%
2insurance%20company&device=c&devicemodel=&network=o&placement=&macthtype=p&adposition=&creativ
e=&msclkid=c405a0933ac7 1 ab27b2dfe7 8dfe70bbd#quote
3 Exhibits to this complaint will be redacted in the interests of privacy protection. However, unredacted copies will
be made available to Defendant upon request.
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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 Personal Injury Protection Coverage
Endorsement (form AS 2090 01 13) (the “PIP Endorsement”) portion of the Insurance Policy.
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 0113
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
Accidental 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 all 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. $.627.736(1) are subject to a deductible of $ applicable to:
O The “named insured".
The "named insured" and any dependent "family member".
Exclusion Of Work Loss
Work loss does not apply as indicated below or in the Declarations:
1 Work loss will not be provided for the "named insured”.
1 Work loss will not be provided for the "named insured” and any dependent “family member”.
See, Exhbit A at p. 5.
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.
18. The second limit of liability is $10,000 for an “Emergency medical condition, »
which is defined in the PIP Endorsement as:
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“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:
a Serious jeopardy to patient health.
b. Serious impairment to bodily functions.
c. Serious dysfunction of any _ bodily
organ or part.
See, Exhibit A at p. 5.
19. The third limit of liability is $2,500 “for all other ‘bodily injury.”” The term “bodily
injury” is defined on page 1 of the main policy form AUTO 3422 Ed. 6-94 R1 as meaning “bodily
harm, sickness or disease, including death that results”. The phrase “all other”, which precedes
and modifies the term “bodily injury,” is not defined by the Insurance Policy.
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 InjuryPersonal
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. Vehicles involved; or
4__ Claims made.
ie Maximum limit o ability for the total of
all personal injury protection benefits shown in
the Schedule or Declarations is the total
aga or ite _limit for personal injury protection
efits available, to or for each “insured”
injured in any one accident, from all sources
combined, including this policy if the insured
receives services and care within 14
days after the motor vehicle accident.
See, Exhibit A at p. 7 (emph. added)
21. The phrases “total of all” and “total aggregate limit” are not defined by the
Insurance Policy.
22. In any event, the Insurance Company has set the maximum amount of coverage as
“the total aggregate limit “shown in the Schedule or Declarations.” As previously noted, the
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“Declarations” contain no limitation as to the amount of PIP benefits available. 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.””
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.”
Background Information Concerning Insured Patient
25. The Health Care Provider routinely provides health care services to the Insurance
Company’s PIP insureds and reasonably anticipates that this will continue into the foreseeable
future.
26. A.G.M. (the “Insured Patient”) 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.
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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
Health Care Provider does not possess a copy of the Insured Patient’s insurance policy, the Health
Care Provider has 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, the Insured Patient suffered an emergency medical
condition, as that term is used in the Insurance Policy.
28. As aresult of the injuries sustained by the Insured Patient, the Health Care Provider
subsequently rendered health care services to the Insured Patient.
29. Prior to providing such medical services and as a condition to providing them, the
Health Care Provider obtained from the Insured Patient a written assignment of benefits, a copy of
which is attached hereto as “Exhibit D.”
30. After providing health care services to the Insured Patient, the Health Care Provider
timely submitted its bill to the Insurance Company.
31. In response to the Health Care Provider’s bill, to the Insured Patient, 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 the Health Care Provider an “Explanation of Review,” a redacted copy of
which is attached hereto as “Exhibit E.” 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, the Health Care Provider sent the Insurance Company a Section
7
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627.736(10), Florida Statutes pre-suit demand letter, a redacted copy of which is attached hereto
as “Exhibit F.”
34. In response to the pre-suit demand letter, the Insurance Company sent a letter to the
Health Care Provider, a redacted copy of which is attached hereto as “Exhibit G.” 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. Notwithstanding the Insurance Company’s contention to the contrary, the Health
Care Provider contends--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.
36. As a 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 Health Care Provider, as well as other similarly situated health care 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.
Class Action Allegation:
37. Pursuant to Florida Rule of Civil Procedure 1.220(b)(2), the Health Care Provider,
together with such other individuals that may join this action as class representatives, hereby brings
Counts I, II, and III of this complaint on its 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.
38. As used herein, the “Class” consists of and is defined as all persons and/or entities
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who
(a) are health care providers operating in the State of Florida;
(b) provided health services to any insured patient that was covered by PIP insurance under
the Insurance Policy during the 5-year time period preceding the filing date of this
complaint;
(©) own an assignment of benefits from said insured patient;
(d) submitted medical bills for such services to the Insurance Company; and
(e) 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)
have already been fully paid by the Insurance Company or otherwise satisfied through litigation
or settlement or release; (b) were denied or reduced for any reason other than a purported
exhaustion of PIP benefits; (c) were denied due to alleged lack of an emergency medical condition,
or due to alleged fraud, alleged failure to cooperate, 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; 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”).
39. 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).
40. As used herein, all references to the “Class” shall include the “Sub-Class,” unless
otherwise stated.
41. The Health Care Provider reserves the right to amend the Class and Sub-Class
definitions as discovery proceeds and to conform to the evidence.
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42. While the exact number of class members is unknown at this time, the Health Care
Provider submits 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,
Attp://www.dinvflorida.org/2004-crash-data.shtml. Accordingly, the Health Care Provider has 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.
43. 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 conceming the maximum amount of PIP
coverage provided for medical expenses?
(b) Is any ambiguity in the Insurance Policy required to be strictly construed
against the Insurance Company and liberally in favor of coverage for the insured?
(c) 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?
(d) Are the Health Care Provider, 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 Health Care Provider, the Class, and/or the Sub-Class are entitled
to injunctive relief to require the Insurance Company to cease and desist from continuing
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to limit PIP benefits for medical expenses covered by the Insurance Policy at $10,000
instead of $12,500?
@ Are the Health Care Provider and/or the Sub-Class entitled to recover
damages associated with the Insurance Company’s underpayments?
44. Based on the facts and circumstances set forth herein, the Health Care Provider’s
claims are typical of the claims of the members of the Class and the Sub-Class.
45. 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.
46. The Health Care Provider has retained the undersigned attorneys who are well-
qualified and experienced in handling class action litigation and will adequately protect the
interests of the Class.
47. With respect to Counts I and II below, the Health Care Provider brings 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.
48. With respect to Count III below, the Health Care Provider brings this class action
pursuant to Florida Rule of Civil Procedure 1.220(b)(3) on the grounds that the questions of law
or fact common to the Health Care Provider’s claim and the claim of each sub-class member
predominate over any question of law or fact affecting only individual subclass members, and class
representation is superior to other available methods for the fair and efficient adjudication of the
controversy.
49. Alternatively, pursuant to Florida Rule of Civil Procedure 1.220(c)(4), to the extent
appropriate, any claim asserted herein may be brought or maintained on behalf of the Class or Sub-
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Class concerming particular issues.
Count I — Class Action for Declaratory Relief
50. This is a class action for declaratory relief pursuant to Chapter 86, Florida Statutes,
brought by the Health Care Provider and the Class against the Insurance Company. Alternatively,
this count is brought by the Health Care Provider and the Sub-Class against the Insurance
Company. Alternatively, if a class cannot be certified, this count is brought by the Health Care
Provider individually against the Insurance Company.
S1. The Health Care Provider realleges and incorporates by reference paragraphs 1-47
and 49 above.
52. 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.
53. Alternatively, the Health Care Provider 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 Health Care
Provider sent the Insurance Company the pre-suit demand letter attached hereto as Exhibit
FE.
(b) Pursuant to the definition set forth in paragraph 39 above, each member of
the Sub-Class is required to have submitted a pre-suit demand letter to the Insurance
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Company pursuant to Section 627.736(10).
54. The Health Care Provider takes 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.
55. The Health Care Provider is in doubt concerning its rights, and a bona fide present
controversy exists between the Health Care Provider, the Class members, and Garrison 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?
56. 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 Health Care
Provider and the Class members may obtain a declaration of rights, status, or other equitable or
legal relations thereunder.
57. 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 Health Care Provider or the Sub-Class under Count III, this Court still has jurisdiction to
determine the parties’ respective rights, status, and other equitable or legal relations under the
Insurance Policy.
58. Section 86.011(2), Florida Statutes states that “The court may render declaratory
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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
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.
59. 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 Health Care Provider)
who is in doubt about its rights under the Insurance Policy. Because the Health Care Provider
routinely provides health care services to the Insurance Company’s PIP insureds, the issues raised
in this declaratory relief claim affects the Health Care Provider on an ongoing and continuing
basis.
60. 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.
61. 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
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Insurance Company’s past conduct, in order to gauge its anticipated future conduct and to prevent
unlawful conduct in the future.
62. Section 86.071, Florida Statutes states, in pertinent part, that when a declaratory
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 a jury.” Thus, the existence of disputed fact issues does not prevent the Court from
providing declaratory relief under Chapter 86.
63. The Health Care Provider has 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 Injunctiye Relief
64. This is a common law action for injunctive relief brought by the Health Care
Provider and the Class against the Insurance Company. Alternatively, this count is brought by the
Health Care Provider and the Pre-Suit Notice Sub-Class against the Insurance Company.
Alternatively, if a class cannot be certified, this count is brought by the Health Care Provider
individually against the Insurance Company.
65. The Health Care Provider realleges and incorporates by reference paragraphs 1-47
and 49 above.
66. 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).
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(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.
67. Alternatively, the Health Care Provider 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 Health Care
Provider sent the Insurance Company the pre-suit demand letter attached hereto as Exhibit
FE.
(b) Pursuant to the definition set forth in paragraph 39 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).
68. The Insurance Company’s limitation of PIP coverage for medical expenses is
unlawful, and is ongoing and continuing in nature.
69. The Health Care Provider 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
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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.
(b) By erroneously limiting PIP coverage for medical expenses to $10,000
instead of $12,500, the Insurance Company routinely places class members in the
untenable position of having to file a Section 627.736(10) demand letter to recover full
payment on every PIP claim, which would amount 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 Health Care Provider and the Class
members are left in the untenable position of having to address the Insurance Company’s
‘ontinuing 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 health care 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.
70. The Health Care Provider 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
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coverage for medical expenses to $10,000 instead of $12,500.
71. The Health Care Provider and the Class members have no other adequate remedy
at law.
72. The injunctive relief requested by the Health Care Provider and the Class members
would not be contrary to the interest of the public generally.
73. The Health Care Provider has 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.
Count III —Class Action for PIP Benefits
74. This is a class action claim by the Health Care Provider and the Sub-Class against
the Insurance Company for unpaid PIP benefits. Alternatively, if a class cannot be certified, this
count is brought by the Health Care Provider individually against the Insurance Company.
7S. The Health Care Provider realleges and incorporates by reference paragraphs 1-46
and 48-49 above.
76. Pursuant to the Class definition set forth herein, none of the Sub-Class members’
PIP claims were denied or reduced for any reason other than the Insurance Company’s improper
contention that PIP coverage for medical expenses was exhausted at $10,000 instead of $12,500.
77. The Health Care Provider and the Sub-Class seek payment of their denied claims,
based on $12,500 of PIP coverage for medical expenses, instead of $10,000.
78. The Health Care Provider and the Sub-Class satisfied the pre-suit notice
requirements of Section 627.736(10), as follows:
(a) With respect to the services provided to the Insured Patient, the Health Care
Provider sent the Insurance Company the pre-suit demand letter attached hereto as Exhibit
F.
{005339421 } 18
(b) Pursuant to the definition set forth in paragraph 39 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).
79. After receiving such pre-suit demand letters, the Insurance Company failed to fully
and timely pay the appropriate amount of PIP benefits required by the $12,500 amount of PIP
coverage for medical expenses provided by the Insurance Policy.
80. 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 the Health Care Provider and the Sub-Class.
81. 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.
82. As a direct and proximate result of the foregoing acts and/or omissions by the
Insurance Company, the Health Care Provider and the Sub-Class members suffered damages.
83. The Health Care Provider has retained the undersigned counsel to prosecute this
action and is entitled to the recovery of its reasonable attomeys’ fees and costs pursuant to Sections
627.428 and/or 627.736(8), Florida Statutes.
PRAYER FOR RELIEF
WHEREFORE, the Health Care Provider respectfully requests this Honorable Court to
award the following relief against the Insurance Company:
a. Issue an order certifying that Counts I, II and/or III, and/or particular issues raised
therein are properly maintainable as a class action under Rule 1.220(b)(2), (b)(3), and/or (c)(4).
b Issue an order appointing the Health Care Provider as the Class Representative.
Cc. 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’
{005339421 } 19
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. Issue a judgment for damages against the Insurance Company and in favor of the
Health Care Provider and the Sub-Class under Count III, together with interest.
g Issue an order requiring the Insurance Company to pay the Health Care Provider’s
reasonable attorneys’ fees and costs pursuant to Sections 627.428 and/or 627.736(8).
h. Grant such other relief as this Honorable Court deems appropriate.
DEMAND FOR JURY TRIAL
The Health Care Provider, on all on behalf of itself and all others similarly situated who
may join this action, hereby demands a trial by jury on all the issues so triable.
DATED this 19th day of June, 2020.
Respectfully submitted,
STEINGER, GREENE & FEINER
/s/ Thomas J. Wenzel
THOMAS J. WENZEL, ESQUIRE
Fla. Bar No.: 104117
2727 NW 62nd St.
Fort Lauderdale, FL 33309
Telephone: 954-491-7701
Fax Number: 954-634-8312
E-Service: pleadings@injurylawyers.com
Attomey for Plaintiff
{005339421 } 20
Policy Declarations
Liberty
LM General Insurance Company Mutual.
INSURANCE
A summary of your auto insurance coverage
Reason for your new declarations page: Policy Change 01
© Change Operator on Vehicle @ Eliminate Vehicle 2
Effective date of this change 201 5 ACTION
INSURANCE INFORMATION
REQUIRED: {_
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Named Insured: Please review and
keep for your recore ds.
Policy Number: 0S
Policy Period: Bos Bos 12:01 AM
‘standard time at the address of the QUESTIONS ABOUT
Named Insured as stated below. YOUR POLICY?
By Phone
Mailing Address:
Affinity Affil
=a For Service:
1-800-225-7014
Liberty Mutual
PO Box 970
Vehicles Covered by Your Policy Mishawaka, IN 46546
VEH YEAR MAKE MODEL VEHICLE ID NUMBER .
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Sales Re
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1-954-771-2155,
1-800-630-3265
Coverage Details
Your total annual policy premium for all covered vehicles is shown below. A premium To report a claim
is shown for each type of coverage you have purchased for each vehicle. Where no Phone
premium is shown, you have not purchased the indicated coverage for that vehicle. 1-800-2CLAIMS
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Preview
Case Number: CACE-20-010138 Division: 02 Filing # 109144500 E-Filed 06/19/2020 04:33:59 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH CIRCUIT COURT IN AND FOR BROWARD COUNTY, FLORIDA CIVIL DIVISION PRESGAR IMAGING OF CMI NORTH, LC, as assignee, individually, and on behalf of all similarly situated, Class Representation Plaintiff, Case No. vs. Division LM GENERAL INSURANCE COMPANY, Defendant. / CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL Pursuant to Florida Rules of Civil Procedure 1.100 and 1.220, the Plaintiff, Presgar Imaging of CMI North, LC (the “Health Care Provider”), sues the Defendant, LM General Insurance Company (the “Insurance Company”), and states: Jurisdiction, Parties, and Venue 1 This is an action asserting class action claims for declaratory relief, injunctive relief, and damages pursuant to Florida Rule of Civil Procedure 1.220(b)(2), (b)(3), and (c)(4). 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 the Health Care Provider contends that the insurance policies provide up to $12,500 in PIP coverage for medical expenses. If the Health Care Provider’s position is correct, the Insurance Company is routinely underpaying and/or rejecting PIP claims for medical expenses. {005339421 } #** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 06/19/2020 04:33:57 PM.**** 3 The Health Care Provider is, and at all material times has been, a professional association organized and existing under the laws of the State of Florida, and doing business in Florida, that provides health care services to Florida residents who have sustained personal injuries in motor vehicle collisions, and who have assigned to the Health Care Provider their insurance benefits, including PIP benefits, under automobile insurance policies issued by the Insurance Company. 4 The Insurance Company is, 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 subject to the version of Section 627.736, Florida Statutes (the “PIP Statute”), which has been in effect since January 1, 2013, as enacted in Chapter 2012-197, Laws of Florida, and is part of the Liberty Mutual family of insurance companies. 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). 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). {005339421 } 9 Under 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 Health Care Provider contends 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 (i.e., Liberty Mutual) has an advertising campaign which routinely states that Liberty Mutual allows you to “customize your car insurance,”! and “[b]y switching [to Liberty Mutual], you can get a better coverage or lower premium fees. 2 The Insurance Policy 12. This case involves the exemplar insurance policy and endorsements, the material pages of which are attached hereto as “Exhibit A”> (the “Insurance Policy”). 13. Pages 1 and 2 of the Personal Injury Protection Coverage Endorsement to the Insurance Policy states that it provides four types of PIP benefits: 1. Medical expenses; 2. Work loss; 3. Replacement services; and 4. Accidental death. 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. 1 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=insurancepnm&utm_keyword=liberty%20mutual% 2insurance%20company&device=c&devicemodel=&network=o&placement=&macthtype=p&adposition=&creativ e=&msclkid=c405a0933ac7 1 ab27b2dfe7 8dfe70bbd#quote 3 Exhibits to this complaint will be redacted in the interests of privacy protection. However, unredacted copies will be made available to Defendant upon request. {005339421 } 3 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 Personal Injury Protection Coverage Endorsement (form AS 2090 01 13) (the “PIP Endorsement”) portion of the Insurance Policy. 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 0113 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 Accidental 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 all 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. $.627.736(1) are subject to a deductible of $ applicable to: O The “named insured". The "named insured" and any dependent "family member". Exclusion Of Work Loss Work loss does not apply as indicated below or in the Declarations: 1 Work loss will not be provided for the "named insured”. 1 Work loss will not be provided for the "named insured” and any dependent “family member”. See, Exhbit A at p. 5. 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. 18. The second limit of liability is $10,000 for an “Emergency medical condition, » which is defined in the PIP Endorsement as: {005339421 } “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: a Serious jeopardy to patient health. b. Serious impairment to bodily functions. c. Serious dysfunction of any _ bodily organ or part. See, Exhibit A at p. 5. 19. The third limit of liability is $2,500 “for all other ‘bodily injury.”” The term “bodily injury” is defined on page 1 of the main policy form AUTO 3422 Ed. 6-94 R1 as meaning “bodily harm, sickness or disease, including death that results”. The phrase “all other”, which precedes and modifies the term “bodily injury,” is not defined by the Insurance Policy. 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 InjuryPersonal 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. Vehicles involved; or 4__ Claims made. ie Maximum limit o ability for the total of all personal injury protection benefits shown in the Schedule or Declarations is the total aga or ite _limit for personal injury protection efits available, to or for each “insured” injured in any one accident, from all sources combined, including this policy if the insured receives services and care within 14 days after the motor vehicle accident. See, Exhibit A at p. 7 (emph. added) 21. The phrases “total of all” and “total aggregate limit” are not defined by the Insurance Policy. 22. In any event, the Insurance Company has set the maximum amount of coverage as “the total aggregate limit “shown in the Schedule or Declarations.” As previously noted, the {005339421 } “Declarations” contain no limitation as to the amount of PIP benefits available. 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.”” 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.” Background Information Concerning Insured Patient 25. The Health Care Provider routinely provides health care services to the Insurance Company’s PIP insureds and reasonably anticipates that this will continue into the foreseeable future. 26. A.G.M. (the “Insured Patient”) 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. {005339421 } 6 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 Health Care Provider does not possess a copy of the Insured Patient’s insurance policy, the Health Care Provider has 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, the Insured Patient suffered an emergency medical condition, as that term is used in the Insurance Policy. 28. As aresult of the injuries sustained by the Insured Patient, the Health Care Provider subsequently rendered health care services to the Insured Patient. 29. Prior to providing such medical services and as a condition to providing them, the Health Care Provider obtained from the Insured Patient a written assignment of benefits, a copy of which is attached hereto as “Exhibit D.” 30. After providing health care services to the Insured Patient, the Health Care Provider timely submitted its bill to the Insurance Company. 31. In response to the Health Care Provider’s bill, to the Insured Patient, 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 the Health Care Provider an “Explanation of Review,” a redacted copy of which is attached hereto as “Exhibit E.” 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, the Health Care Provider sent the Insurance Company a Section 7 {005339421 } 627.736(10), Florida Statutes pre-suit demand letter, a redacted copy of which is attached hereto as “Exhibit F.” 34. In response to the pre-suit demand letter, the Insurance Company sent a letter to the Health Care Provider, a redacted copy of which is attached hereto as “Exhibit G.” 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. Notwithstanding the Insurance Company’s contention to the contrary, the Health Care Provider contends--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. 36. As a 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 Health Care Provider, as well as other similarly situated health care 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. Class Action Allegation: 37. Pursuant to Florida Rule of Civil Procedure 1.220(b)(2), the Health Care Provider, together with such other individuals that may join this action as class representatives, hereby brings Counts I, II, and III of this complaint on its 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. 38. As used herein, the “Class” consists of and is defined as all persons and/or entities {005339421 } 8 who (a) are health care providers operating in the State of Florida; (b) provided health services to any insured patient that was covered by PIP insurance under the Insurance Policy during the 5-year time period preceding the filing date of this complaint; (©) own an assignment of benefits from said insured patient; (d) submitted medical bills for such services to the Insurance Company; and (e) 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) have already been fully paid by the Insurance Company or otherwise satisfied through litigation or settlement or release; (b) were denied or reduced for any reason other than a purported exhaustion of PIP benefits; (c) were denied due to alleged lack of an emergency medical condition, or due to alleged fraud, alleged failure to cooperate, 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; 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”). 39. 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). 40. As used herein, all references to the “Class” shall include the “Sub-Class,” unless otherwise stated. 41. The Health Care Provider reserves the right to amend the Class and Sub-Class definitions as discovery proceeds and to conform to the evidence. {005339421 } 9 42. While the exact number of class members is unknown at this time, the Health Care Provider submits 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, Attp://www.dinvflorida.org/2004-crash-data.shtml. Accordingly, the Health Care Provider has 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. 43. 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 conceming the maximum amount of PIP coverage provided for medical expenses? (b) Is any ambiguity in the Insurance Policy required to be strictly construed against the Insurance Company and liberally in favor of coverage for the insured? (c) 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? (d) Are the Health Care Provider, 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 Health Care Provider, the Class, and/or the Sub-Class are entitled to injunctive relief to require the Insurance Company to cease and desist from continuing {005339421 } 10 to limit PIP benefits for medical expenses covered by the Insurance Policy at $10,000 instead of $12,500? @ Are the Health Care Provider and/or the Sub-Class entitled to recover damages associated with the Insurance Company’s underpayments? 44. Based on the facts and circumstances set forth herein, the Health Care Provider’s claims are typical of the claims of the members of the Class and the Sub-Class. 45. 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. 46. The Health Care Provider has retained the undersigned attorneys who are well- qualified and experienced in handling class action litigation and will adequately protect the interests of the Class. 47. With respect to Counts I and II below, the Health Care Provider brings 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. 48. With respect to Count III below, the Health Care Provider brings this class action pursuant to Florida Rule of Civil Procedure 1.220(b)(3) on the grounds that the questions of law or fact common to the Health Care Provider’s claim and the claim of each sub-class member predominate over any question of law or fact affecting only individual subclass members, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy. 49. Alternatively, pursuant to Florida Rule of Civil Procedure 1.220(c)(4), to the extent appropriate, any claim asserted herein may be brought or maintained on behalf of the Class or Sub- {005339421 } 11 Class concerming particular issues. Count I — Class Action for Declaratory Relief 50. This is a class action for declaratory relief pursuant to Chapter 86, Florida Statutes, brought by the Health Care Provider and the Class against the Insurance Company. Alternatively, this count is brought by the Health Care Provider and the Sub-Class against the Insurance Company. Alternatively, if a class cannot be certified, this count is brought by the Health Care Provider individually against the Insurance Company. S1. The Health Care Provider realleges and incorporates by reference paragraphs 1-47 and 49 above. 52. 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. 53. Alternatively, the Health Care Provider 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 Health Care Provider sent the Insurance Company the pre-suit demand letter attached hereto as Exhibit FE. (b) Pursuant to the definition set forth in paragraph 39 above, each member of the Sub-Class is required to have submitted a pre-suit demand letter to the Insurance {005339421 } 12 Company pursuant to Section 627.736(10). 54. The Health Care Provider takes 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. 55. The Health Care Provider is in doubt concerning its rights, and a bona fide present controversy exists between the Health Care Provider, the Class members, and Garrison 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? 56. 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 Health Care Provider and the Class members may obtain a declaration of rights, status, or other equitable or legal relations thereunder. 57. 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 Health Care Provider or the Sub-Class under Count III, this Court still has jurisdiction to determine the parties’ respective rights, status, and other equitable or legal relations under the Insurance Policy. 58. Section 86.011(2), Florida Statutes states that “The court may render declaratory {005339421 } 13 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 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. 59. 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 Health Care Provider) who is in doubt about its rights under the Insurance Policy. Because the Health Care Provider routinely provides health care services to the Insurance Company’s PIP insureds, the issues raised in this declaratory relief claim affects the Health Care Provider on an ongoing and continuing basis. 60. 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. 61. 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 {005339421 } 14 Insurance Company’s past conduct, in order to gauge its anticipated future conduct and to prevent unlawful conduct in the future. 62. Section 86.071, Florida Statutes states, in pertinent part, that when a declaratory 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 a jury.” Thus, the existence of disputed fact issues does not prevent the Court from providing declaratory relief under Chapter 86. 63. The Health Care Provider has 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 Injunctiye Relief 64. This is a common law action for injunctive relief brought by the Health Care Provider and the Class against the Insurance Company. Alternatively, this count is brought by the Health Care Provider and the Pre-Suit Notice Sub-Class against the Insurance Company. Alternatively, if a class cannot be certified, this count is brought by the Health Care Provider individually against the Insurance Company. 65. The Health Care Provider realleges and incorporates by reference paragraphs 1-47 and 49 above. 66. 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). {005339421 } 15 (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. 67. Alternatively, the Health Care Provider 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 Health Care Provider sent the Insurance Company the pre-suit demand letter attached hereto as Exhibit FE. (b) Pursuant to the definition set forth in paragraph 39 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). 68. The Insurance Company’s limitation of PIP coverage for medical expenses is unlawful, and is ongoing and continuing in nature. 69. The Health Care Provider 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 {005339421 } 16 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. (b) By erroneously limiting PIP coverage for medical expenses to $10,000 instead of $12,500, the Insurance Company routinely places class members in the untenable position of having to file a Section 627.736(10) demand letter to recover full payment on every PIP claim, which would amount 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 Health Care Provider and the Class members are left in the untenable position of having to address the Insurance Company’s ‘ontinuing 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 health care 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. 70. The Health Care Provider 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 {005339421 } 17 coverage for medical expenses to $10,000 instead of $12,500. 71. The Health Care Provider and the Class members have no other adequate remedy at law. 72. The injunctive relief requested by the Health Care Provider and the Class members would not be contrary to the interest of the public generally. 73. The Health Care Provider has 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. Count III —Class Action for PIP Benefits 74. This is a class action claim by the Health Care Provider and the Sub-Class against the Insurance Company for unpaid PIP benefits. Alternatively, if a class cannot be certified, this count is brought by the Health Care Provider individually against the Insurance Company. 7S. The Health Care Provider realleges and incorporates by reference paragraphs 1-46 and 48-49 above. 76. Pursuant to the Class definition set forth herein, none of the Sub-Class members’ PIP claims were denied or reduced for any reason other than the Insurance Company’s improper contention that PIP coverage for medical expenses was exhausted at $10,000 instead of $12,500. 77. The Health Care Provider and the Sub-Class seek payment of their denied claims, based on $12,500 of PIP coverage for medical expenses, instead of $10,000. 78. The Health Care Provider and the Sub-Class satisfied the pre-suit notice requirements of Section 627.736(10), as follows: (a) With respect to the services provided to the Insured Patient, the Health Care Provider sent the Insurance Company the pre-suit demand letter attached hereto as Exhibit F. {005339421 } 18 (b) Pursuant to the definition set forth in paragraph 39 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). 79. After receiving such pre-suit demand letters, the Insurance Company failed to fully and timely pay the appropriate amount of PIP benefits required by the $12,500 amount of PIP coverage for medical expenses provided by the Insurance Policy. 80. 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 the Health Care Provider and the Sub-Class. 81. 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. 82. As a direct and proximate result of the foregoing acts and/or omissions by the Insurance Company, the Health Care Provider and the Sub-Class members suffered damages. 83. The Health Care Provider has retained the undersigned counsel to prosecute this action and is entitled to the recovery of its reasonable attomeys’ fees and costs pursuant to Sections 627.428 and/or 627.736(8), Florida Statutes. PRAYER FOR RELIEF WHEREFORE, the Health Care Provider respectfully requests this Honorable Court to award the following relief against the Insurance Company: a. Issue an order certifying that Counts I, II and/or III, and/or particular issues raised therein are properly maintainable as a class action under Rule 1.220(b)(2), (b)(3), and/or (c)(4). b Issue an order appointing the Health Care Provider as the Class Representative. Cc. 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’ {005339421 } 19 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. Issue a judgment for damages against the Insurance Company and in favor of the Health Care Provider and the Sub-Class under Count III, together with interest. g Issue an order requiring the Insurance Company to pay the Health Care Provider’s reasonable attorneys’ fees and costs pursuant to Sections 627.428 and/or 627.736(8). h. Grant such other relief as this Honorable Court deems appropriate. DEMAND FOR JURY TRIAL The Health Care Provider, on all on behalf of itself and all others similarly situated who may join this action, hereby demands a trial by jury on all the issues so triable. DATED this 19th day of June, 2020. Respectfully submitted, STEINGER, GREENE & FEINER /s/ Thomas J. Wenzel THOMAS J. WENZEL, ESQUIRE Fla. Bar No.: 104117 2727 NW 62nd St. Fort Lauderdale, FL 33309 Telephone: 954-491-7701 Fax Number: 954-634-8312 E-Service: pleadings@injurylawyers.com Attomey for Plaintiff {005339421 } 20 Policy Declarations Liberty LM General Insurance Company Mutual. INSURANCE A summary of your auto insurance coverage Reason for your new declarations page: Policy Change 01 © Change Operator on Vehicle @ Eliminate Vehicle 2 Effective date of this change 201 5 ACTION INSURANCE INFORMATION REQUIRED: {_ oo Named Insured: Please review and keep for your recore ds. Policy Number: 0S Policy Period: Bos Bos 12:01 AM ‘standard time at the address of the QUESTIONS ABOUT Named Insured as stated below. YOUR POLICY? By Phone Mailing Address: Affinity Affil =a For Service: 1-800-225-7014 Liberty Mutual PO Box 970 Vehicles Covered by Your Policy Mishawaka, IN 46546 VEH YEAR MAKE MODEL VEHICLE ID NUMBER . im Sales Re Jacqueline Fernande: 1-954-771-2155, 1-800-630-3265 Coverage Details Your total annual policy premium for all covered vehicles is shown below. A premium To report a claim is shown for each type of coverage you have purchased for each vehicle. Where no Phone premium is shown, you have not purchased the indicated coverage for that vehicle. 1-800-2CLAIMS (1-800-225-2467) Coverage Information Premium Adjustment from/2015 to (2015 THIS IS NOT YOUR VEH 1 VEH 2 VEH 3 VEH 4 AUTO INSURANCE BILL.