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Filing # 144547669 E-Filed 02/24/2022 01:36:06 PM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR ORANGE COUNTY, FLORIDA
ELLIS H. SCHAUDER, D.C. D/B/A CASE NO.: 2020-CA-000924-O
SCHAUDER CHIROPRACTIC &
WELLNESS CENTER A/A/O NOELIA
VELASQUEZ, CLASS REPRESENTATION
PLAINTIFF,
v.
PROGRESSIVE SELECT INSURANCE
COMPANY,
DEFENDANT.
/
SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY RELIEF
Plaintiff, ELLIS H. SCHAUDER, D.C. D/B/A SCHAUDER CHIROPRACTIC &
WELLNESS CENTER A/A/O NOELIA VELASQUEZ, (“Plaintiff”), on behalf of itself and all
others similarly situated, for its Second Amended Class Action Complaint, hereby sues
Defendant, PROGRESSIVE SELECT INSURANCE COMPANY, (“Progressive” or
“Defendant”), and alleges as follows:
JURISDICTION, PARTIES AND VENUE
1. This is an action asserting class action claims for declaratory relief pursuant to
Florida Rules of Civil Procedure 1.220(b)(1)(A) and/or 1.220(b)(2) and Florida Statutes Chapter
86 of which in the aggregate exceeds $30,000.00, exclusive of all costs and attorney’s fees.
Moreover, this action does not assert a claim for monetary relief.
2. Plaintiff ELLIS H. SCHAUDER, D.C. D/B/A SCHAUDER CHIROPRACTIC &
WELLNESS CENTER, is a Florida corporation authorized to do business and doing business
in Orlando, Orange County, Florida.
3. Defendant, PROGRESSIVE SELECT INSURANCE COMPANY, is a foreign
profit corporation authorized to transact and is transacting insurance business in Orange County,
Florida, and at all times material hereto provided no-fault (Personal Injury Protection (“PIP”))
insurance coverage throughout the State of Florida.
4. Venue is proper in Orange County, Florida. Defendant has offices for the
transaction of its customary business in Orange County, Florida.
5. All conditions precedent to the bringing of this claim have been performed or
waived.
FACTUAL BACKGROUND – SPECIFIC TO CLASS REPRESENTATIVE
6. At all times material hereto, NOELIA VELASQUEZ (hereinafter, “Velasquez”)
was insured under Defendant’s policy of insurance, a true, correct, and complete copy of which is
in the possession of Defendant (hereinafter “Policy”).
7. On or about March 26, 2019, Velasquez was involved in a motor vehicle accident
resulting in bodily injuries to her person (hereinafter “subject accident”).
8. As a direct and proximate result of her injuries, Velasquez received treatment from
Plaintiff with dates of service of April 3, 2019 through August 15, 2019 (hereinafter “Dates of
Service”).
9. Plaintiff provided medical services and treatment to Velasquez that Defendant
deemed reasonable, related, and medically necessary for those Dates of Service.
10. At all times material hereto, Plaintiff was an assignee of Velasquez pursuant to an
assignment of benefits, a true and correct copy of which is in the possession of Defendant
(hereinafter “Assignment”).
11. Further, an equitable assignment exists from Velasquez to Plaintiff, in that
Velasquez received services and treatment from the Plaintiff in exchange for an equitable
assignment.
12. Plaintiff submitted its charges to Defendant for payment for medical services and
treatment rendered to Velasquez pursuant to the Assignment and/or equitable assignment.
13. Defendant made partial payment of Plaintiff’s submitted charges for the Dates of
Service pursuant to that Assignment.
14. Upon information and belief, Defendant calculated reimbursements pursuant to the
schedule of maximum charges set forth in Fla. Stat. § 627.736(5)(a)1.a-f. (hereinafter “Schedule”)1
and Fla. Stat. § 627.736(5)(a)2. to determine the amount it would pay in PIP benefits to Plaintiff
for its submitted charges for the Dates of Service.
15. In some instances, the charges for the services provided by Plaintiff to Velasquez
were less than the amount allowed under the Schedule (hereinafter “Lesser Charges”). These
amounts are as follows:
Service CPT Code Amount Medicare Fee Schedule 80% of MFS
Year 2 Billed Allowed Amount (MFS) 3
2019 99203 $155.00 $218.30 $174.64
2019 98941 $50.00 $82.64 $66.11
2019 G0283 $25.00 $28.36 $22.69
1
The applicable schedule of maximum charges for the subject Plaintiff is Fla. Stat. §
627.736(5)(a)1.f.(I), to-wit: 200% of the allowable amount under the participating physicians fee
schedule of Medicare Part B for the service year, except that the payment limitation may not be
less than the highest allowable amount under the applicable schedule of Medicare Part B for
2007. See Fla. Stat. § 627.736(5)(a)2.
2
For purposes of this Complaint, the Service Year is defined by Fla. Stat. § 627.736(5)(a)2. which
states that “For purposes of subparagraph 1., the applicable fee schedule or payment limitation
under Medicare is the fee schedule or payment limitation in effect on March 1 of the service year
in which the services, supplies or care is rendered … except that it may not be less than the
allowable amount under the applicable schedule of Medicare Part B for 2007…. For purposes of
this subparagraph, the term “service year” means the period from March 1 through the end of
February of the following year.”
3
See and Id. at Footnote 1.
2019 97012 $25.00 $29.98 $23.98
2019 97110 (x3) $140.00 $185.52 $148.42
2019 99213 $125.00 $148.82 $119.06
16. For each of the above charges, the Defendant paid PIP benefits at 80% of the
“Amount Billed” rather than 80% of the Schedule or the full amount of the charge submitted
(whichever is less). Specifically:
Year CPT Code Amount Medicare Fee 80% of MFS Amount Paid
4 Billed Schedule Allowed by Defendant
Amount (MFS)
2019 99203 $155.00 $218.30 $174.64 $124.00
2019 98941 $50.00 $82.64 $66.11 $40.00
2019 G0283 $25.00 $28.36 $22.69 $20.00
2019 97012 $25.00 $29.98 $23.98 $20.00
2019 97110 (x3) $140.00 $185.52 $148.42 $112.00
2019 99213 $125.00 $148.82 $119.06 $100.00
17. Plaintiff billed for two diagnostic studies (hereinafter “X-Ray Charges”) that were
taken of their patient Velasquez for injuries sustained in the subject accident.
18. Defendant utilized the Schedule to determine that it intended to pay Plaintiff 80%
of 200% of the 2007 participating physicians Medicare Part B fee schedule for the X-Ray Charges
rather than 80% of the highest allowable amount under the applicable Medicare fee schedule for
2007.
19. For the X-Ray Charges, the amounts billed by Plaintiff, the amounts allowed by
Defendant, and the highest allowable amounts under the applicable Medicare Part B fee schedule
for 2007 are as follows:
4
See and Id. at Footnote 2.
Year5 CPT Amount Highest Allowable Amount Amount Defendant
Code Billed under 2007 Medicare Part Allowed
B Applicable Fee Schedule
2019 72052 $200.00 $177.80 $121.94
2019 72070 $80.00 $104.16 $68.86
20. For the X-Ray Charges, Defendant paid 80% of the amounts it allowed, specifically
$97.55 (i.e. $121.94 * 80%) and $55.09 (i.e. $68.86 * 80%)6.
21. Defendant should have paid 80% of the highest allowable amount under the
applicable 2007 Medicare Part B fee schedule, which would have been $142.24 (i.e. $177.80 *
80%) and $83.33 ($104.16 * 80%), respectively.
FACTUAL BACKGROUND – GENERAL FOR CLASS MEMBERS
FOR LESSER CHARGES
22. At all times material hereto, Defendant claims that the Policy contained a notice
pursuant to Fla. Stat. § 627.736(5)(a)5 informing its insured that Defendant would limit payment
pursuant to the schedule of maximum charges set forth in Fla. Stat. §§ 627.736(5)(a)1.a.-f.,
(5)(a)2., and (5)(a)5. (hereinafter, the “Schedule”).
23. In this action and for similar charges submitted to Defendant in the past, when
Plaintiff has submitted a charge to Defendant for an amount less that the amount allowed by the
Schedule, Defendant has failed to pay the full amount of the Lesser Charges submitted or 80% of
the Schedule, instead only paying 80% of the Lesser Charges.
24. Plaintiff and similarly situated class members are medical providers who are in the
business of providing medical services and treatment to patients, including patients who, like
Velasquez, have been involved in a motor vehicle accident and rely upon PIP benefits for the
5
See and Id. at Footnote 2.
6
For CPT code 72070, the Lesser Charges analysis would apply as the amount billed fell below
the highest allowable amount under the 2007 Medicare Part B fee schedule.
payment of charges for medical services and treatment rendered.
25. Plaintiff and those similarly situated class members have every reason to expect
and believe that, in the future, Defendant will continue to pay in accordance with the methodology
enumerated herein.
26. Without knowing whether Defendant uses the proper methodology to calculate and
limit payments pursuant to the Schedule, Plaintiff and all similarly situated medical providers are
in doubt as to whether they are in violation of Florida Statute 627.736(5)(a)(4) which provides that
if an insurer limits payment as authorized by subparagraph 1, the person providing such services,
supply 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.
27. Accordingly, there has been actual past harm, and, in the absence of a declaration,
there will be actual future harm to Plaintiff and similarly situated members of this class by
Defendant.
28. Upon information and belief, for all claims similarly situated, when a provider has
submitted a charge to Defendant for an amount less that the amount allowed by the Schedule,
Defendant has failed to pay the full amount of the Lesser Charges submitted or 80% of the
Schedule, and instead has paid only 80% of the Lesser Charges.
29. Plaintiff, on behalf of itself and all others similarly situated, seeks a determination
of its rights under the subject insurance Policy, under Fla. Stat. §§ 627.736(5)(a)1. and (5)(a)5.
(2016), and declaratory relief pursuant to Chapter 86.
FACTUAL BACKGROUND – GENERAL FOR CLASS MEMBERS
FOR X-RAY CHARGES
30. At all times material hereto, Defendant claims that the Policy contained a notice
pursuant to Fla. Stat. § 627.736(5)(a)5 informing its insured that Defendant would limit payment
pursuant to the schedule of maximum charges set forth in Fla. Stat. §§ 627.736(5)(a)1., (5)(a)2.,
and (5)(a)5. (hereinafter, the “Schedule”).
31. In this action and for similar charges submitted to Defendant in the past, when
Plaintiff has submitted a charge to Defendant for a diagnostic study (i.e. x-rays), Defendant has
failed to pay 80% of the highest allowable amount under the 2007 Medicare Part B applicable fee
schedule, instead only paying 80% of the 2007 Medicare Part B participating physicians fee
schedule.
32. Plaintiff and similarly situated class members are medical providers who are in the
business of providing medical services and treatment to patients, including patients who, like
Velasquez, have been involved in a motor vehicle accident and rely upon PIP benefits for the
payment of charges for medical services and treatment rendered.
33. Plaintiff and those similarly situated class members have every reason to expect
and believe that, in the future, Defendant will continue to pay in accordance with the methodology
enumerated herein.
34. Without knowing whether Defendant uses the proper methodology to calculate and
limit payments pursuant to the Schedule, Plaintiff and all similarly situated medical providers are
in doubt as to whether they are in violation of Florida Statute 627.736(5)(a)(4) which provides that
if an insurer limits payment as authorized by subparagraph 1, the person providing such services,
supply 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.
35. Accordingly, there has been actual past harm, and, in the absence of a declaration,
there will be actual future harm to Plaintiff and similarly situated members of this class by
Defendant.
36. Upon information and belief, for all claims similarly situated, when a medical
provider has submitted a charge to Defendant for an x-ray code, Defendant has failed to pay 80%
of the highest allowable amount under the 2007 Medicare Part B applicable fee schedule, instead
paying only 80% of the 2007 Medicare Part B participating physicians fee schedule.7
37. Plaintiff, on behalf of itself and all others similarly situated, seeks a determination
of its rights under the subject insurance Policy, under Fla. Stat. §§ 627.736(5)(a)1., (5)(a)2., and
(5)(a)5. (2016), and declaratory relief pursuant to Chapter 86.
PERSONAL INJURY PROTECTION HISTORY
38. The purpose of Florida’s No-Fault statute (the PIP statute) “is to ‘provide swift and
virtually automatic payment so that the injured insured may get on with his [or her] life without
undue financial interruption.’” Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683-84 (Fla. 2000)
(quoting Gov’t Emps. Ins. Co. v. Gonzalez, 512 So. 2d 269, 271 (Fla. 3d DCA 1987)). To that end,
“[s]ince its inception in 1971, the PIP statute has required insurers to provide coverage for
reasonable expenses for necessary medical services.” GEICO Gen. Ins. Co. v. Virtual Imaging
Services, Inc., 141 So.3d 147, 153 (Fla. 2013) (citing §627.736(1)(a), Fla. Stat. (1971)).
39. During the 2007 legislative session, the Florida Legislature revived and readopted
the PIP statute, effective January 1, 2008. Id. (citing ch. 2007-324, §13, Laws of Fla). The revived
2008 PIP statute, like its predecessor statute, “sets forth a basic coverage mandate: every PIP
insurer is required to—that is, the insurer ‘shall’—reimburse eighty percent of reasonable expenses
for medically necessary services. … The question raised in a PIP dispute therefore often becomes
7
Footnotes 5 is incorporated herein for all purposes as if fully set forth herein.
how the insurer and the medical services provider will determine what constitutes a reasonable
expense.” GEICO Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So.3d 147, 155 (Fla. 2013).
40. In an effort to reduce litigation as to whether a charge was reasonable, the 2008
amendments to the PIP statute afford insurers a “safe harbor” to limit reimbursements to 80 percent
of a schedule of maximum charges. Payment in accordance with the Schedule satisfies the statutory
mandate to pay reasonable expenses, and an insurer that pays pursuant to the Schedule is immune
from litigation.
41. Effective July 1, 2012, the PIP statute was further amended to require that insurers
provide notice in the policy of the election to use the Schedule in order to limit payment to 80%
of the Schedule. If the Schedule is properly elected and, if a provider submits a charge for less than
the amount allowed by the Schedule, the insurer may pay the Lesser Charges as follows:
[A]n insurer may limit payment as authorized by this paragraph only
if the insurance policy includes a notice at the time of issuance or renewal
that the insurer may limit payment pursuant to the schedule of charges
8
specified in this paragraph . A policy form approved by the office satisfies
this requirement. If a provider submits a charge for an amount less than the
amount allowed under subparagraph 1. [the Schedule], the insurer may pay
the amount of the charge submitted.
Fla. Stat. § 627.736(5)(a)5 (emphasis added) (hereinafter “statutorily required
notice”).
42. Defendant claims the subject Policy provided the statutorily required notice to limit
reimbursement of PIP benefits pursuant to the Schedule in accordance with Fla. Stat. §
8
The only “schedule of charges” specified in paragraph 5 of Fla. Stat. § 627.736(5)(a)5 are those
set forth in § 627.736(5)(a)1, which states that an insurer [who provides notice under §
627.736(5)(a)5] “may limit reimbursement to 80 percent of the following schedule of maximum
charges…”.
627.736(5)(a)5. Having provided the statutorily required notice, Defendant must comply with Fla.
Stat. §§ 627.736(5)(a)2.-5., the provisions that govern the application of the schedule of maximum
charges.
43. “Florida law provides that where a contract is entered into on a matter surrounded
by statutory limitations and requirements, the parties are presumed to have entered into such
agreement with reference to the statute, and the statutory provisions become a part of the
contract.” Grant v. State Farm Fire and Casualty Company, 638 So.2d 936 (Fla. 1994)
(quoting Standard Accident Ins. Co. v. Gavin, 184 So.2d 229, 232 (Fla. 1st DCA 1966), cert.
dismissed, 196 So.2d 440 (Fla. 1967); see also Fla. Stat. § 627.7311.9
44. Furthermore, under Florida law, it is well-settled that “all parts of a statute must be
read together in order to achieve a consistent whole. Where possible, courts must give full effect
to all statutory provisions and construe related statutory provisions in harmony with one another.”
Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992).
CASE LAW SINCE THE FILING OF THIS ACTION - LESSER CHARGES
45. Since the initial filing of this action on January 23, 2020, the Fifth District Court of
Appeals issued an opinion concerning the proper payment methodology for calculation and
reimbursement of Lesser Charges where an insurer has provided the statutorily required notice of
its intention to limit PIP benefits reimbursements pursuant to the Schedule.
9
Fla. Stat. § 627.7311 provides that “The provisions and procedures authorized in ss. 627.730-
627.7405 shall be implemented by insurers offering policies pursuant to the Florida Motor Vehicle
No-Fault Law. The Legislature intends that these provisions and procedures have full force and
effect regardless of their express inclusion in an insurance policy form, and a specific provision
or procedure authorized in ss. 627.730-627.7405 shall control over general provisions in an
insurance policy form. An insurer is not required to amend its policy form or to expressly notify
providers, claimants, or insureds in order to implement and apply such provisions or procedures.”
Emph. added.
46. In Hands On Chiropractic PL a/a/o Justin Wick v. Geico Gen. Ins. Co., 5D20-2705
(Fla. 5th DCA, September 10, 2021), the Fifth District Court of Appeals expressly explained how
to calculate the reimbursement of PIP benefits for a submitted charge, such as Plaintiff’s charges
in this case, which were in amounts less than the amounts otherwise allowed under the Schedule.
47. The Wick Court explained: “There is nothing in the applicable statute or Geico’s
policy that allows it to pay 80 percent of the billed amount. It must either pay the amount allowed
based on the applicable fee schedule (80 percent of 200 percent) or, if the billed amount is less
than the amount allowed, it is to be paid in full.” (emphasis added).
48. It is Plaintiff’s position that Wick, as well as its predecessors and progeny
concerning Lesser Charges, resolved the issue of proper reimbursement of Lesser Charges,
rendering the charges submitted for the Dates of Service in this matter valid claims that must be
paid pursuant to Fla. Stat. § 627.736(11).
49. Upon information and belief, Defendant maintains that its methodology of paying
80% of the Lesser Charge is proper, despite the case law cited above, creating doubt as to the
Plaintiff’s and putative class members’ rights regarding Lesser Charges.
CASE LAW SINCE THE FILING OF THIS ACTION – X-RAY CHARGES
50. Since the initial filing of this action, the Third District Court of Appeals issued an
opinion concerning the proper payment methodology for calculation and reimbursement of
diagnostic studies, including x-ray charges like the ones at issue in this litigation.
51. In Priority Medical Centers, LLC v. Allstate Ins. Co., 46 Fla. L. Weekly D978 (Fla.
3d DCA 2021, the Third District held that the proper reimbursement rate for services where the
service year Medicare allowable amounts are less than the 2007 Medicare allowable amounts, the
proper reimbursement rate for those services is the highest allowable amount under the 2007
Medicare Part B applicable fee schedule and not the lower 2007 non-facility participating
physicians fee schedule amount.
52. Specifically, Priority Medical Centers held that an insurer must compare the
service year pricing with the 2007 Medicare pricing and pay 80% of the “highest allowable
amount.”
53. The Fourth District in Allstate Fire and Cas. Ins. Co. v. Jeffrey L. Katzell, M.D.,
P.A. a/a/o Sylviane Louvrier, (Fla. 4th DCA 2021) reached the same result, citing to Priority
Medical Centers.
54. It is Plaintiff’s position that these cases resolved the issue of proper reimbursement
of PIP benefits where the service year Medicare Part B allowable amounts are less than the 2007
Medicare Part B allowable amounts, the proper reimbursement rate for those services is the highest
allowable amount under the 2007 Medicare Part B applicable fee schedule and not the lower 2007
non-facility participating physicians fee schedule amount. 10
55. Accordingly, it is Plaintiff’s position that these opinions render the X-Ray Charges
submitted in this matter valid claims that must be paid pursuant to Fla. Stat. § 627.736(11).
56. Upon information and belief, Defendant maintains that its payment methodology is
proper, despite the case law cited above, creating doubt as to the Plaintiff’s and putative class
members’ rights regarding the proper payment methodology for these services.
CLASS REPRESENTATIVE ALLEGATIONS
57. Plaintiff seeks to be designated as “Class Representative” and as Class
Representative brings this action on its own behalf and on behalf of all insureds and their assignees
similarly situated pursuant to Florida Rules of Civil Procedure 1.220(b)(1)(A) and/or 1.220(b)(2)
10
Footnotes 5 is incorporated herein for all purposes as if fully set forth herein.
in that inconsistent or varying adjudications concerning individual Members of the Class may
establish incompatible standards of conduct for Defendant, and Defendant has acted or refused to
act on grounds or in a manner generally applicable to all Members of the Class, thereby making
this action and the relief sought appropriate to the entire Class.
58. Members are defined as follows:
Any and all of Defendant’s insureds under a Florida No-Fault automobile
policy affording PIP benefits, and medical care providers as assignees of
Defendant’s No-Fault insureds, who submitted a charge(s) for medical
services and treatment arising from injuries sustained in a motor vehicle
accident that were paid at a reduced amount, and where the law
subsequently provides directive as to the application of the proper payment
methodology for the subject charge(s) and where Defendant has failed and
refused to pay the statutorily required amount of PIP benefits pursuant to
the proper payment methodology absent receipt of a demand letter set forth
in Fla. Stat. § 627.736(10), after the exhaustion and/or application of any
applicable deductible.
Subclass Definition:
Any and all medical care providers who provide medical services and
treatment to Defendant’s insureds under a Florida No-Fault automobile
insurance policy, presently and in the future, who are in need of certainty
(prior to rendering medical services and treatment) as to the payment
methodology Defendant, by and through its policy of insurance and
Florida’s No-Fault Statute, is going to use to calculate and limit
reimbursements for Lesser Charges and X-Ray Charges, so that the medical
care providers can properly bill their patients for the co-pay, if any.
Subclass Definition:
Any and all of Defendant’s insureds under a Florida No-Fault automobile
policy affording PIP benefits, and medical care providers as assignees of
Defendants’ No-Fault insureds, who submitted a charge(s) for medical care
arising out of a motor vehicle accident for an amount less than the amount
allowed under Fla. Stat. § 627.736(5)(a)1. and were reimbursed under the
No-Fault portion of the Policy at 80% of the submitted charge rather than
80% of the schedule of maximum charges set forth in Fla. Stat. §
627.736(5)(a)1. or the amount of the charge submitted as set forth in Fla.
Stat. § 627.736(5)(a)5., after the exhaustion and/or application of any
applicable deductible.
Subclass Definition:
Any and all of Defendant’s insureds under a Florida No-Fault automobile
policy affording PIP benefits, and medical care providers as assignees of
Defendants’ No-Fault insureds, who submitted a charge(s) for a diagnostic
study, such as an x-ray, where the service year Medicare Part B allowable
amounts are less than the 2007 Medicare Part B allowable amounts and
where the Defendant failed to calculate and reimburse PIP benefits pursuant
to the highest allowable amount under the 2007 Medicare Part B applicable
fee schedule, after the exhaustion and/or application of any applicable
deductible.
Plaintiff and Class Members reserve the right to amend the class definition as
discovery proceeds and to conform to the evidence.
59. Numerosity: Plaintiff alleges, on information and belief, that the number of Class
Members is so numerous that joinder of them is impractical. Plaintiff’s belief is based on the fact
that Defendant sells a large number of insurance policies in the State of Florida, that this issue has
spanned the entire five-year statute of limitations and continues presently, and on information
indicating that Defendant had a general business practice of paying only 80% of the submitted
charge where the charge was for an amount less than the amount allowed by the Schedule.
60. The Members of the Class will be easily ascertained through Defendant’s records
through discovery and will consist of all insureds and assignees of insureds who submitted a charge
for an amount less than the amount allowed by the Schedule and were paid 80% of the submitted
charge rather than the full amount of the charge or 80% of the Schedule.
61. Commonality: There are questions of law and fact that are common to all Members
of the Class. The principal common issues include:
a. Whether an insurer, once it becomes aware of the change in the law
concerning the proper payment methodology for reimbursement of PIP benefits,
must revisit and recalculate PIP benefits for all submitted claims pursuant to Fla.
Stat. § 627.736(11) without first requiring the submission of a demand letter set
forth in Fla. Stat. § 627.736(10);
b. Whether Defendant is allowed to pay 80% of a charge submitted for less
than the amount allowed by the Schedule, or must reimburse the full amount of the
Lesser Charge or 80% of the amount allowed by the Schedule;
c. Whether Defendant’s payment of 80% of the charge submitted, rather than
the full amount of the Lesser Charge or 80% of the Schedule, violates Florida law;
d. Whether Defendant’s payment of 80% of the lower 2007 non-facility
participating physicians Medicare Part B fee schedule amount rather than the
highest allowable amount under the 2007 Medicare Part B applicable fee schedule
violates Florida law.
62. Typicality: The claims of the Class Representative are typical of the claims that
would be asserted by other Members of the Class in that, in proving its claims, Plaintiff will prove
the claims of all Class Members. Plaintiff and each Class Member is an insured or assignee of an
insured under Defendant’s PIP policy that contains the Policy language at issue here, whose
submitted charge was for less than the amount allowed by the Schedule and was paid at 80% of
the submitted charge, and Plaintiff and each Class Member will seek declaratory relief to determine
their rights under Defendant’s policy and Florida law. All Class Members, like the Plaintiff, were
similarly injured by Defendant’s conduct.
63. Adequacy: The Class Representative is a health care provider and assignee of
benefits of an insured of Defendant, doing business in Orange County, Florida, which has no
interest that conflicts with, or is otherwise antagonistic to, the interests of other Class Members.
Plaintiff will fairly and adequately protect and represent the interests of each Member of the Class.
Additionally, the Class Representative is fully aware of its responsibility as Class Representative
and has retained experienced counsel fully capable of, and intent upon, vigorously pursuing the
action. Class counsel has extensive experience in class and/or insurance claims and litigation.
64. The questions of law or fact common to the Class Representative’s claims and the
claim of each Member of the Class as described above predominate over any questions of law or
fact affecting only individual Members of the Class. Moreover, class representation is clearly
superior to other available methods for resolving the Plaintiff’s and Class Members’ claims.
Judicial economy is well served by concentrating all of the Class Members’ claims in one forum
in one proceeding. No undue management difficulties mitigate against class action treatment of
this case. Additionally, Defendant’s actions are generally applicable to the Class as a whole
thereby making declaratory relief to the entire Class particularly appropriate.
COUNT I - DECLARATORY RELIEF FOR LESSER CHARGES
65. The Class Representative realleges paragraphs 1 through 29, 38 through 49, and 57
through 64 above as if specifically set forth herein.
66. Plaintiff and each Class Member have submitted a charge to Defendant for an
amount less than the amount allowed under Fla. Stat. § 627.736(5)(a)1. and have received payment
of 80% of the submitted charge.
67. At all times material hereto, Defendant claims its Policy provided the statutory
notice required to allow it to limit payment pursuant to the Schedule set forth in Fla. Stat. §
627.736(5)(a)1.
68. At all times material hereto, Fla. Stat. § 627.736(5)(a)5. provided that where an
insurer has provided proper notice that it will limit payment pursuant to the Schedule and a
provider submits a charge for an amount less than the amount allowed by Fla. Stat. §
627.736(5)(a)1., then “the insurer may pay the amount of the charge submitted,” rather than paying
80% of the Schedule.
69. Plaintiff maintains that despite the clear and unambiguous language of Fla. Stat. §
627.736(5)(a)5., where a provider submits to Defendant a charge for less than the amount allowed
under Fla. Stat. § 627.736(5)(a)1., Defendant has failed and refused to pay the full amount of the
charge submitted or 80% of the Schedule, instead only paying 80% of the submitted charge in
violation of the No-Fault Statute.
70. Furthermore, it is Plaintiff’s position that Defendant’s payment of 80% of the
submitted charge is violative of the Fifth District’s holding in Wick.
71. Defendant’s continued failure and refusal to calculate PIP benefits pursuant to the
Wick opinion (and its challenge to the application of the Wick ruling) for both past and present
charges has placed Plaintiff, on behalf of itself and Class Members, in doubt as to their rights under
Fla. Stat. § 627.736(5)(a)1.-5., and requests that this Court declare its rights and obligations under
the foregoing statute.
72. Additionally, Defendant fails and refuses to notify its insureds of the proper
payment methodology and refuses to revisit and recalculate PIP benefits that might be due and
owing to similarly situated class members pursuant to the payment methodology set forth in Wick
absent a demand letter from the medical providers in this class.
73. There is a bona fide, actual, present, practical need for the Court to declare if
Defendant’s payment of only 80% of submitted charges for charges that are less than the amount
allowed under the Schedule is permitted under Florida law.
74. Upon information and belief, the Defendant, despite existing case law setting forth
the proper methodology for calculating these otherwise valid claims, refuses to do anything unless
and until a demand letter pursuant to Fla, Stat. § 627.736(10) is submitted.
75. There is also a bona fide, actual, present, practical need for the Court to declare if
Defendant, once it becomes aware of the change in the law concerning the proper payment
methodology for reimbursement of PIP benefits, must recalculate PIP benefits pursuant to the
correct payment methodology and notify putative class members pursuant to Fla. Stat. §
627.736(11) without first requiring the submission of a demand letter set forth in Fla. Stat. §
627.736(10).
76. Plaintiff and the Class Members have an interest adverse to Defendant, and the
declaration requested deals with a present ascertainable state of facts as presented in the allegations
set forth above.
77. There is an actual controversy between Defendant and Plaintiff and all Class
Members concerning the application of Florida law under which Plaintiff and the Class are
beneficiaries and/or assignees of insureds.
78. Plaintiff has retained the undersigned counsel to prosecute this action and is entitled
to the recovery of its reasonable attorneys’ fees and costs pursuant to Fla. Stat. §§ 627.428 and/or
627.736(8).
WHEREFORE, Plaintiff, ELLIS H. SCHAUDER, D.C. D/B/A SCHAUDER
CHIROPRACTIC & WELLNESS CENTER A/A/O NOELIA VELASQUEZ, respectfully
requests this Court order the following relief against the Defendant, PROGRESSIVE SELECT
INSURANCE COMPANY:
A. Finding that this action satisfies the prerequisites for maintenance as a Class Action
set forth in Florida Rules of Civil Procedure 1.220(b)(1)(A) and/or 1.220(b)(2);
B. Designating Plaintiff as Representative of the Class and its counsel as Class
Counsel;
C. Entering a judgment in favor of Plaintiff and the Class Members and against
Defendant as follows:
1. Certifying that this case is properly maintainable as a Class Action
under Florida Rules of Civil Procedure 1.220(b)(1)(A) and/or 1.220(b)(2);
2. Declaring that Defendant violated Florida law by paying o
Preview
Filing # 144547669 E-Filed 02/24/2022 01:36:06 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA ELLIS H. SCHAUDER, D.C. D/B/A CASE NO.: 2020-CA-000924-O SCHAUDER CHIROPRACTIC & WELLNESS CENTER A/A/O NOELIA VELASQUEZ, CLASS REPRESENTATION PLAINTIFF, v. PROGRESSIVE SELECT INSURANCE COMPANY, DEFENDANT. / SECOND AMENDED CLASS ACTION COMPLAINT FOR DECLARATORY RELIEF Plaintiff, ELLIS H. SCHAUDER, D.C. D/B/A SCHAUDER CHIROPRACTIC & WELLNESS CENTER A/A/O NOELIA VELASQUEZ, (“Plaintiff”), on behalf of itself and all others similarly situated, for its Second Amended Class Action Complaint, hereby sues Defendant, PROGRESSIVE SELECT INSURANCE COMPANY, (“Progressive” or “Defendant”), and alleges as follows: JURISDICTION, PARTIES AND VENUE 1. This is an action asserting class action claims for declaratory relief pursuant to Florida Rules of Civil Procedure 1.220(b)(1)(A) and/or 1.220(b)(2) and Florida Statutes Chapter 86 of which in the aggregate exceeds $30,000.00, exclusive of all costs and attorney’s fees. Moreover, this action does not assert a claim for monetary relief. 2. Plaintiff ELLIS H. SCHAUDER, D.C. D/B/A SCHAUDER CHIROPRACTIC & WELLNESS CENTER, is a Florida corporation authorized to do business and doing business in Orlando, Orange County, Florida. 3. Defendant, PROGRESSIVE SELECT INSURANCE COMPANY, is a foreign profit corporation authorized to transact and is transacting insurance business in Orange County, Florida, and at all times material hereto provided no-fault (Personal Injury Protection (“PIP”)) insurance coverage throughout the State of Florida. 4. Venue is proper in Orange County, Florida. Defendant has offices for the transaction of its customary business in Orange County, Florida. 5. All conditions precedent to the bringing of this claim have been performed or waived. FACTUAL BACKGROUND – SPECIFIC TO CLASS REPRESENTATIVE 6. At all times material hereto, NOELIA VELASQUEZ (hereinafter, “Velasquez”) was insured under Defendant’s policy of insurance, a true, correct, and complete copy of which is in the possession of Defendant (hereinafter “Policy”). 7. On or about March 26, 2019, Velasquez was involved in a motor vehicle accident resulting in bodily injuries to her person (hereinafter “subject accident”). 8. As a direct and proximate result of her injuries, Velasquez received treatment from Plaintiff with dates of service of April 3, 2019 through August 15, 2019 (hereinafter “Dates of Service”). 9. Plaintiff provided medical services and treatment to Velasquez that Defendant deemed reasonable, related, and medically necessary for those Dates of Service. 10. At all times material hereto, Plaintiff was an assignee of Velasquez pursuant to an assignment of benefits, a true and correct copy of which is in the possession of Defendant (hereinafter “Assignment”). 11. Further, an equitable assignment exists from Velasquez to Plaintiff, in that Velasquez received services and treatment from the Plaintiff in exchange for an equitable assignment. 12. Plaintiff submitted its charges to Defendant for payment for medical services and treatment rendered to Velasquez pursuant to the Assignment and/or equitable assignment. 13. Defendant made partial payment of Plaintiff’s submitted charges for the Dates of Service pursuant to that Assignment. 14. Upon information and belief, Defendant calculated reimbursements pursuant to the schedule of maximum charges set forth in Fla. Stat. § 627.736(5)(a)1.a-f. (hereinafter “Schedule”)1 and Fla. Stat. § 627.736(5)(a)2. to determine the amount it would pay in PIP benefits to Plaintiff for its submitted charges for the Dates of Service. 15. In some instances, the charges for the services provided by Plaintiff to Velasquez were less than the amount allowed under the Schedule (hereinafter “Lesser Charges”). These amounts are as follows: Service CPT Code Amount Medicare Fee Schedule 80% of MFS Year 2 Billed Allowed Amount (MFS) 3 2019 99203 $155.00 $218.30 $174.64 2019 98941 $50.00 $82.64 $66.11 2019 G0283 $25.00 $28.36 $22.69 1 The applicable schedule of maximum charges for the subject Plaintiff is Fla. Stat. § 627.736(5)(a)1.f.(I), to-wit: 200% of the allowable amount under the participating physicians fee schedule of Medicare Part B for the service year, except that the payment limitation may not be less than the highest allowable amount under the applicable schedule of Medicare Part B for 2007. See Fla. Stat. § 627.736(5)(a)2. 2 For purposes of this Complaint, the Service Year is defined by Fla. Stat. § 627.736(5)(a)2. which states that “For purposes of subparagraph 1., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect on March 1 of the service year in which the services, supplies or care is rendered … except that it may not be less than the allowable amount under the applicable schedule of Medicare Part B for 2007…. For purposes of this subparagraph, the term “service year” means the period from March 1 through the end of February of the following year.” 3 See and Id. at Footnote 1. 2019 97012 $25.00 $29.98 $23.98 2019 97110 (x3) $140.00 $185.52 $148.42 2019 99213 $125.00 $148.82 $119.06 16. For each of the above charges, the Defendant paid PIP benefits at 80% of the “Amount Billed” rather than 80% of the Schedule or the full amount of the charge submitted (whichever is less). Specifically: Year CPT Code Amount Medicare Fee 80% of MFS Amount Paid 4 Billed Schedule Allowed by Defendant Amount (MFS) 2019 99203 $155.00 $218.30 $174.64 $124.00 2019 98941 $50.00 $82.64 $66.11 $40.00 2019 G0283 $25.00 $28.36 $22.69 $20.00 2019 97012 $25.00 $29.98 $23.98 $20.00 2019 97110 (x3) $140.00 $185.52 $148.42 $112.00 2019 99213 $125.00 $148.82 $119.06 $100.00 17. Plaintiff billed for two diagnostic studies (hereinafter “X-Ray Charges”) that were taken of their patient Velasquez for injuries sustained in the subject accident. 18. Defendant utilized the Schedule to determine that it intended to pay Plaintiff 80% of 200% of the 2007 participating physicians Medicare Part B fee schedule for the X-Ray Charges rather than 80% of the highest allowable amount under the applicable Medicare fee schedule for 2007. 19. For the X-Ray Charges, the amounts billed by Plaintiff, the amounts allowed by Defendant, and the highest allowable amounts under the applicable Medicare Part B fee schedule for 2007 are as follows: 4 See and Id. at Footnote 2. Year5 CPT Amount Highest Allowable Amount Amount Defendant Code Billed under 2007 Medicare Part Allowed B Applicable Fee Schedule 2019 72052 $200.00 $177.80 $121.94 2019 72070 $80.00 $104.16 $68.86 20. For the X-Ray Charges, Defendant paid 80% of the amounts it allowed, specifically $97.55 (i.e. $121.94 * 80%) and $55.09 (i.e. $68.86 * 80%)6. 21. Defendant should have paid 80% of the highest allowable amount under the applicable 2007 Medicare Part B fee schedule, which would have been $142.24 (i.e. $177.80 * 80%) and $83.33 ($104.16 * 80%), respectively. FACTUAL BACKGROUND – GENERAL FOR CLASS MEMBERS FOR LESSER CHARGES 22. At all times material hereto, Defendant claims that the Policy contained a notice pursuant to Fla. Stat. § 627.736(5)(a)5 informing its insured that Defendant would limit payment pursuant to the schedule of maximum charges set forth in Fla. Stat. §§ 627.736(5)(a)1.a.-f., (5)(a)2., and (5)(a)5. (hereinafter, the “Schedule”). 23. In this action and for similar charges submitted to Defendant in the past, when Plaintiff has submitted a charge to Defendant for an amount less that the amount allowed by the Schedule, Defendant has failed to pay the full amount of the Lesser Charges submitted or 80% of the Schedule, instead only paying 80% of the Lesser Charges. 24. Plaintiff and similarly situated class members are medical providers who are in the business of providing medical services and treatment to patients, including patients who, like Velasquez, have been involved in a motor vehicle accident and rely upon PIP benefits for the 5 See and Id. at Footnote 2. 6 For CPT code 72070, the Lesser Charges analysis would apply as the amount billed fell below the highest allowable amount under the 2007 Medicare Part B fee schedule. payment of charges for medical services and treatment rendered. 25. Plaintiff and those similarly situated class members have every reason to expect and believe that, in the future, Defendant will continue to pay in accordance with the methodology enumerated herein. 26. Without knowing whether Defendant uses the proper methodology to calculate and limit payments pursuant to the Schedule, Plaintiff and all similarly situated medical providers are in doubt as to whether they are in violation of Florida Statute 627.736(5)(a)(4) which provides that if an insurer limits payment as authorized by subparagraph 1, the person providing such services, supply 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. 27. Accordingly, there has been actual past harm, and, in the absence of a declaration, there will be actual future harm to Plaintiff and similarly situated members of this class by Defendant. 28. Upon information and belief, for all claims similarly situated, when a provider has submitted a charge to Defendant for an amount less that the amount allowed by the Schedule, Defendant has failed to pay the full amount of the Lesser Charges submitted or 80% of the Schedule, and instead has paid only 80% of the Lesser Charges. 29. Plaintiff, on behalf of itself and all others similarly situated, seeks a determination of its rights under the subject insurance Policy, under Fla. Stat. §§ 627.736(5)(a)1. and (5)(a)5. (2016), and declaratory relief pursuant to Chapter 86. FACTUAL BACKGROUND – GENERAL FOR CLASS MEMBERS FOR X-RAY CHARGES 30. At all times material hereto, Defendant claims that the Policy contained a notice pursuant to Fla. Stat. § 627.736(5)(a)5 informing its insured that Defendant would limit payment pursuant to the schedule of maximum charges set forth in Fla. Stat. §§ 627.736(5)(a)1., (5)(a)2., and (5)(a)5. (hereinafter, the “Schedule”). 31. In this action and for similar charges submitted to Defendant in the past, when Plaintiff has submitted a charge to Defendant for a diagnostic study (i.e. x-rays), Defendant has failed to pay 80% of the highest allowable amount under the 2007 Medicare Part B applicable fee schedule, instead only paying 80% of the 2007 Medicare Part B participating physicians fee schedule. 32. Plaintiff and similarly situated class members are medical providers who are in the business of providing medical services and treatment to patients, including patients who, like Velasquez, have been involved in a motor vehicle accident and rely upon PIP benefits for the payment of charges for medical services and treatment rendered. 33. Plaintiff and those similarly situated class members have every reason to expect and believe that, in the future, Defendant will continue to pay in accordance with the methodology enumerated herein. 34. Without knowing whether Defendant uses the proper methodology to calculate and limit payments pursuant to the Schedule, Plaintiff and all similarly situated medical providers are in doubt as to whether they are in violation of Florida Statute 627.736(5)(a)(4) which provides that if an insurer limits payment as authorized by subparagraph 1, the person providing such services, supply 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. 35. Accordingly, there has been actual past harm, and, in the absence of a declaration, there will be actual future harm to Plaintiff and similarly situated members of this class by Defendant. 36. Upon information and belief, for all claims similarly situated, when a medical provider has submitted a charge to Defendant for an x-ray code, Defendant has failed to pay 80% of the highest allowable amount under the 2007 Medicare Part B applicable fee schedule, instead paying only 80% of the 2007 Medicare Part B participating physicians fee schedule.7 37. Plaintiff, on behalf of itself and all others similarly situated, seeks a determination of its rights under the subject insurance Policy, under Fla. Stat. §§ 627.736(5)(a)1., (5)(a)2., and (5)(a)5. (2016), and declaratory relief pursuant to Chapter 86. PERSONAL INJURY PROTECTION HISTORY 38. The purpose of Florida’s No-Fault statute (the PIP statute) “is to ‘provide swift and virtually automatic payment so that the injured insured may get on with his [or her] life without undue financial interruption.’” Ivey v. Allstate Ins. Co., 774 So. 2d 679, 683-84 (Fla. 2000) (quoting Gov’t Emps. Ins. Co. v. Gonzalez, 512 So. 2d 269, 271 (Fla. 3d DCA 1987)). To that end, “[s]ince its inception in 1971, the PIP statute has required insurers to provide coverage for reasonable expenses for necessary medical services.” GEICO Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So.3d 147, 153 (Fla. 2013) (citing §627.736(1)(a), Fla. Stat. (1971)). 39. During the 2007 legislative session, the Florida Legislature revived and readopted the PIP statute, effective January 1, 2008. Id. (citing ch. 2007-324, §13, Laws of Fla). The revived 2008 PIP statute, like its predecessor statute, “sets forth a basic coverage mandate: every PIP insurer is required to—that is, the insurer ‘shall’—reimburse eighty percent of reasonable expenses for medically necessary services. … The question raised in a PIP dispute therefore often becomes 7 Footnotes 5 is incorporated herein for all purposes as if fully set forth herein. how the insurer and the medical services provider will determine what constitutes a reasonable expense.” GEICO Gen. Ins. Co. v. Virtual Imaging Services, Inc., 141 So.3d 147, 155 (Fla. 2013). 40. In an effort to reduce litigation as to whether a charge was reasonable, the 2008 amendments to the PIP statute afford insurers a “safe harbor” to limit reimbursements to 80 percent of a schedule of maximum charges. Payment in accordance with the Schedule satisfies the statutory mandate to pay reasonable expenses, and an insurer that pays pursuant to the Schedule is immune from litigation. 41. Effective July 1, 2012, the PIP statute was further amended to require that insurers provide notice in the policy of the election to use the Schedule in order to limit payment to 80% of the Schedule. If the Schedule is properly elected and, if a provider submits a charge for less than the amount allowed by the Schedule, the insurer may pay the Lesser Charges as follows: [A]n insurer may limit payment as authorized by this paragraph only if the insurance policy includes a notice at the time of issuance or renewal that the insurer may limit payment pursuant to the schedule of charges 8 specified in this paragraph . A policy form approved by the office satisfies this requirement. If a provider submits a charge for an amount less than the amount allowed under subparagraph 1. [the Schedule], the insurer may pay the amount of the charge submitted. Fla. Stat. § 627.736(5)(a)5 (emphasis added) (hereinafter “statutorily required notice”). 42. Defendant claims the subject Policy provided the statutorily required notice to limit reimbursement of PIP benefits pursuant to the Schedule in accordance with Fla. Stat. § 8 The only “schedule of charges” specified in paragraph 5 of Fla. Stat. § 627.736(5)(a)5 are those set forth in § 627.736(5)(a)1, which states that an insurer [who provides notice under § 627.736(5)(a)5] “may limit reimbursement to 80 percent of the following schedule of maximum charges…”. 627.736(5)(a)5. Having provided the statutorily required notice, Defendant must comply with Fla. Stat. §§ 627.736(5)(a)2.-5., the provisions that govern the application of the schedule of maximum charges. 43. “Florida law provides that where a contract is entered into on a matter surrounded by statutory limitations and requirements, the parties are presumed to have entered into such agreement with reference to the statute, and the statutory provisions become a part of the contract.” Grant v. State Farm Fire and Casualty Company, 638 So.2d 936 (Fla. 1994) (quoting Standard Accident Ins. Co. v. Gavin, 184 So.2d 229, 232 (Fla. 1st DCA 1966), cert. dismissed, 196 So.2d 440 (Fla. 1967); see also Fla. Stat. § 627.7311.9 44. Furthermore, under Florida law, it is well-settled that “all parts of a statute must be read together in order to achieve a consistent whole. Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455 (Fla. 1992). CASE LAW SINCE THE FILING OF THIS ACTION - LESSER CHARGES 45. Since the initial filing of this action on January 23, 2020, the Fifth District Court of Appeals issued an opinion concerning the proper payment methodology for calculation and reimbursement of Lesser Charges where an insurer has provided the statutorily required notice of its intention to limit PIP benefits reimbursements pursuant to the Schedule. 9 Fla. Stat. § 627.7311 provides that “The provisions and procedures authorized in ss. 627.730- 627.7405 shall be implemented by insurers offering policies pursuant to the Florida Motor Vehicle No-Fault Law. The Legislature intends that these provisions and procedures have full force and effect regardless of their express inclusion in an insurance policy form, and a specific provision or procedure authorized in ss. 627.730-627.7405 shall control over general provisions in an insurance policy form. An insurer is not required to amend its policy form or to expressly notify providers, claimants, or insureds in order to implement and apply such provisions or procedures.” Emph. added. 46. In Hands On Chiropractic PL a/a/o Justin Wick v. Geico Gen. Ins. Co., 5D20-2705 (Fla. 5th DCA, September 10, 2021), the Fifth District Court of Appeals expressly explained how to calculate the reimbursement of PIP benefits for a submitted charge, such as Plaintiff’s charges in this case, which were in amounts less than the amounts otherwise allowed under the Schedule. 47. The Wick Court explained: “There is nothing in the applicable statute or Geico’s policy that allows it to pay 80 percent of the billed amount. It must either pay the amount allowed based on the applicable fee schedule (80 percent of 200 percent) or, if the billed amount is less than the amount allowed, it is to be paid in full.” (emphasis added). 48. It is Plaintiff’s position that Wick, as well as its predecessors and progeny concerning Lesser Charges, resolved the issue of proper reimbursement of Lesser Charges, rendering the charges submitted for the Dates of Service in this matter valid claims that must be paid pursuant to Fla. Stat. § 627.736(11). 49. Upon information and belief, Defendant maintains that its methodology of paying 80% of the Lesser Charge is proper, despite the case law cited above, creating doubt as to the Plaintiff’s and putative class members’ rights regarding Lesser Charges. CASE LAW SINCE THE FILING OF THIS ACTION – X-RAY CHARGES 50. Since the initial filing of this action, the Third District Court of Appeals issued an opinion concerning the proper payment methodology for calculation and reimbursement of diagnostic studies, including x-ray charges like the ones at issue in this litigation. 51. In Priority Medical Centers, LLC v. Allstate Ins. Co., 46 Fla. L. Weekly D978 (Fla. 3d DCA 2021, the Third District held that the proper reimbursement rate for services where the service year Medicare allowable amounts are less than the 2007 Medicare allowable amounts, the proper reimbursement rate for those services is the highest allowable amount under the 2007 Medicare Part B applicable fee schedule and not the lower 2007 non-facility participating physicians fee schedule amount. 52. Specifically, Priority Medical Centers held that an insurer must compare the service year pricing with the 2007 Medicare pricing and pay 80% of the “highest allowable amount.” 53. The Fourth District in Allstate Fire and Cas. Ins. Co. v. Jeffrey L. Katzell, M.D., P.A. a/a/o Sylviane Louvrier, (Fla. 4th DCA 2021) reached the same result, citing to Priority Medical Centers. 54. It is Plaintiff’s position that these cases resolved the issue of proper reimbursement of PIP benefits where the service year Medicare Part B allowable amounts are less than the 2007 Medicare Part B allowable amounts, the proper reimbursement rate for those services is the highest allowable amount under the 2007 Medicare Part B applicable fee schedule and not the lower 2007 non-facility participating physicians fee schedule amount. 10 55. Accordingly, it is Plaintiff’s position that these opinions render the X-Ray Charges submitted in this matter valid claims that must be paid pursuant to Fla. Stat. § 627.736(11). 56. Upon information and belief, Defendant maintains that its payment methodology is proper, despite the case law cited above, creating doubt as to the Plaintiff’s and putative class members’ rights regarding the proper payment methodology for these services. CLASS REPRESENTATIVE ALLEGATIONS 57. Plaintiff seeks to be designated as “Class Representative” and as Class Representative brings this action on its own behalf and on behalf of all insureds and their assignees similarly situated pursuant to Florida Rules of Civil Procedure 1.220(b)(1)(A) and/or 1.220(b)(2) 10 Footnotes 5 is incorporated herein for all purposes as if fully set forth herein. in that inconsistent or varying adjudications concerning individual Members of the Class may establish incompatible standards of conduct for Defendant, and Defendant has acted or refused to act on grounds or in a manner generally applicable to all Members of the Class, thereby making this action and the relief sought appropriate to the entire Class. 58. Members are defined as follows: Any and all of Defendant’s insureds under a Florida No-Fault automobile policy affording PIP benefits, and medical care providers as assignees of Defendant’s No-Fault insureds, who submitted a charge(s) for medical services and treatment arising from injuries sustained in a motor vehicle accident that were paid at a reduced amount, and where the law subsequently provides directive as to the application of the proper payment methodology for the subject charge(s) and where Defendant has failed and refused to pay the statutorily required amount of PIP benefits pursuant to the proper payment methodology absent receipt of a demand letter set forth in Fla. Stat. § 627.736(10), after the exhaustion and/or application of any applicable deductible. Subclass Definition: Any and all medical care providers who provide medical services and treatment to Defendant’s insureds under a Florida No-Fault automobile insurance policy, presently and in the future, who are in need of certainty (prior to rendering medical services and treatment) as to the payment methodology Defendant, by and through its policy of insurance and Florida’s No-Fault Statute, is going to use to calculate and limit reimbursements for Lesser Charges and X-Ray Charges, so that the medical care providers can properly bill their patients for the co-pay, if any. Subclass Definition: Any and all of Defendant’s insureds under a Florida No-Fault automobile policy affording PIP benefits, and medical care providers as assignees of Defendants’ No-Fault insureds, who submitted a charge(s) for medical care arising out of a motor vehicle accident for an amount less than the amount allowed under Fla. Stat. § 627.736(5)(a)1. and were reimbursed under the No-Fault portion of the Policy at 80% of the submitted charge rather than 80% of the schedule of maximum charges set forth in Fla. Stat. § 627.736(5)(a)1. or the amount of the charge submitted as set forth in Fla. Stat. § 627.736(5)(a)5., after the exhaustion and/or application of any applicable deductible. Subclass Definition: Any and all of Defendant’s insureds under a Florida No-Fault automobile policy affording PIP benefits, and medical care providers as assignees of Defendants’ No-Fault insureds, who submitted a charge(s) for a diagnostic study, such as an x-ray, where the service year Medicare Part B allowable amounts are less than the 2007 Medicare Part B allowable amounts and where the Defendant failed to calculate and reimburse PIP benefits pursuant to the highest allowable amount under the 2007 Medicare Part B applicable fee schedule, after the exhaustion and/or application of any applicable deductible. Plaintiff and Class Members reserve the right to amend the class definition as discovery proceeds and to conform to the evidence. 59. Numerosity: Plaintiff alleges, on information and belief, that the number of Class Members is so numerous that joinder of them is impractical. Plaintiff’s belief is based on the fact that Defendant sells a large number of insurance policies in the State of Florida, that this issue has spanned the entire five-year statute of limitations and continues presently, and on information indicating that Defendant had a general business practice of paying only 80% of the submitted charge where the charge was for an amount less than the amount allowed by the Schedule. 60. The Members of the Class will be easily ascertained through Defendant’s records through discovery and will consist of all insureds and assignees of insureds who submitted a charge for an amount less than the amount allowed by the Schedule and were paid 80% of the submitted charge rather than the full amount of the charge or 80% of the Schedule. 61. Commonality: There are questions of law and fact that are common to all Members of the Class. The principal common issues include: a. Whether an insurer, once it becomes aware of the change in the law concerning the proper payment methodology for reimbursement of PIP benefits, must revisit and recalculate PIP benefits for all submitted claims pursuant to Fla. Stat. § 627.736(11) without first requiring the submission of a demand letter set forth in Fla. Stat. § 627.736(10); b. Whether Defendant is allowed to pay 80% of a charge submitted for less than the amount allowed by the Schedule, or must reimburse the full amount of the Lesser Charge or 80% of the amount allowed by the Schedule; c. Whether Defendant’s payment of 80% of the charge submitted, rather than the full amount of the Lesser Charge or 80% of the Schedule, violates Florida law; d. Whether Defendant’s payment of 80% of the lower 2007 non-facility participating physicians Medicare Part B fee schedule amount rather than the highest allowable amount under the 2007 Medicare Part B applicable fee schedule violates Florida law. 62. Typicality: The claims of the Class Representative are typical of the claims that would be asserted by other Members of the Class in that, in proving its claims, Plaintiff will prove the claims of all Class Members. Plaintiff and each Class Member is an insured or assignee of an insured under Defendant’s PIP policy that contains the Policy language at issue here, whose submitted charge was for less than the amount allowed by the Schedule and was paid at 80% of the submitted charge, and Plaintiff and each Class Member will seek declaratory relief to determine their rights under Defendant’s policy and Florida law. All Class Members, like the Plaintiff, were similarly injured by Defendant’s conduct. 63. Adequacy: The Class Representative is a health care provider and assignee of benefits of an insured of Defendant, doing business in Orange County, Florida, which has no interest that conflicts with, or is otherwise antagonistic to, the interests of other Class Members. Plaintiff will fairly and adequately protect and represent the interests of each Member of the Class. Additionally, the Class Representative is fully aware of its responsibility as Class Representative and has retained experienced counsel fully capable of, and intent upon, vigorously pursuing the action. Class counsel has extensive experience in class and/or insurance claims and litigation. 64. The questions of law or fact common to the Class Representative’s claims and the claim of each Member of the Class as described above predominate over any questions of law or fact affecting only individual Members of the Class. Moreover, class representation is clearly superior to other available methods for resolving the Plaintiff’s and Class Members’ claims. Judicial economy is well served by concentrating all of the Class Members’ claims in one forum in one proceeding. No undue management difficulties mitigate against class action treatment of this case. Additionally, Defendant’s actions are generally applicable to the Class as a whole thereby making declaratory relief to the entire Class particularly appropriate. COUNT I - DECLARATORY RELIEF FOR LESSER CHARGES 65. The Class Representative realleges paragraphs 1 through 29, 38 through 49, and 57 through 64 above as if specifically set forth herein. 66. Plaintiff and each Class Member have submitted a charge to Defendant for an amount less than the amount allowed under Fla. Stat. § 627.736(5)(a)1. and have received payment of 80% of the submitted charge. 67. At all times material hereto, Defendant claims its Policy provided the statutory notice required to allow it to limit payment pursuant to the Schedule set forth in Fla. Stat. § 627.736(5)(a)1. 68. At all times material hereto, Fla. Stat. § 627.736(5)(a)5. provided that where an insurer has provided proper notice that it will limit payment pursuant to the Schedule and a provider submits a charge for an amount less than the amount allowed by Fla. Stat. § 627.736(5)(a)1., then “the insurer may pay the amount of the charge submitted,” rather than paying 80% of the Schedule. 69. Plaintiff maintains that despite the clear and unambiguous language of Fla. Stat. § 627.736(5)(a)5., where a provider submits to Defendant a charge for less than the amount allowed under Fla. Stat. § 627.736(5)(a)1., Defendant has failed and refused to pay the full amount of the charge submitted or 80% of the Schedule, instead only paying 80% of the submitted charge in violation of the No-Fault Statute. 70. Furthermore, it is Plaintiff’s position that Defendant’s payment of 80% of the submitted charge is violative of the Fifth District’s holding in Wick. 71. Defendant’s continued failure and refusal to calculate PIP benefits pursuant to the Wick opinion (and its challenge to the application of the Wick ruling) for both past and present charges has placed Plaintiff, on behalf of itself and Class Members, in doubt as to their rights under Fla. Stat. § 627.736(5)(a)1.-5., and requests that this Court declare its rights and obligations under the foregoing statute. 72. Additionally, Defendant fails and refuses to notify its insureds of the proper payment methodology and refuses to revisit and recalculate PIP benefits that might be due and owing to similarly situated class members pursuant to the payment methodology set forth in Wick absent a demand letter from the medical providers in this class. 73. There is a bona fide, actual, present, practical need for the Court to declare if Defendant’s payment of only 80% of submitted charges for charges that are less than the amount allowed under the Schedule is permitted under Florida law. 74. Upon information and belief, the Defendant, despite existing case law setting forth the proper methodology for calculating these otherwise valid claims, refuses to do anything unless and until a demand letter pursuant to Fla, Stat. § 627.736(10) is submitted. 75. There is also a bona fide, actual, present, practical need for the Court to declare if Defendant, once it becomes aware of the change in the law concerning the proper payment methodology for reimbursement of PIP benefits, must recalculate PIP benefits pursuant to the correct payment methodology and notify putative class members pursuant to Fla. Stat. § 627.736(11) without first requiring the submission of a demand letter set forth in Fla. Stat. § 627.736(10). 76. Plaintiff and the Class Members have an interest adverse to Defendant, and the declaration requested deals with a present ascertainable state of facts as presented in the allegations set forth above. 77. There is an actual controversy between Defendant and Plaintiff and all Class Members concerning the application of Florida law under which Plaintiff and the Class are beneficiaries and/or assignees of insureds. 78. Plaintiff has retained the undersigned counsel to prosecute this action and is entitled to the recovery of its reasonable attorneys’ fees and costs pursuant to Fla. Stat. §§ 627.428 and/or 627.736(8). WHEREFORE, Plaintiff, ELLIS H. SCHAUDER, D.C. D/B/A SCHAUDER CHIROPRACTIC & WELLNESS CENTER A/A/O NOELIA VELASQUEZ, respectfully requests this Court order the following relief against the Defendant, PROGRESSIVE SELECT INSURANCE COMPANY: A. Finding that this action satisfies the prerequisites for maintenance as a Class Action set forth in Florida Rules of Civil Procedure 1.220(b)(1)(A) and/or 1.220(b)(2); B. Designating Plaintiff as Representative of the Class and its counsel as Class Counsel; C. Entering a judgment in favor of Plaintiff and the Class Members and against Defendant as follows: 1. Certifying that this case is properly maintainable as a Class Action under Florida Rules of Civil Procedure 1.220(b)(1)(A) and/or 1.220(b)(2); 2. Declaring that Defendant violated Florida law by paying o