Motion to Dismiss in HANDS ON CHIROPRACTIC PL vs.UNITED SERVICES AUTOMOBILE ASSOCIATION| Trellis.Law

On December 29, 2017 a Motion,Ex Parte was filed involving a dispute between Hands On Chiropractic Pl, Hands On Chiropractic Pl Maureen T Ohalloran Aao, and United Services Automobile Association, for 3 in the District Court of Orange County.

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Filing # 145467640 E-Filed 03/10/2022 01:53:13 PM

IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR ORANGE COUNTY, FLORIDA

CASE NO. 2017-CA-011232-0

CLASS REPRESENTATION

HANDS ON CHIROPRACTIC PL, D/B/A
HANDS ON FAMILY CHIROPRACTIC,
A/A/0 MAUREEN T. O'HALLORAN,

Plaintiff,
v.

UNITED SERVICES AUTOMOBILE
ASSOCIATION,

Defendant.
/

DEFENDANT'S MOTION TO DISMISS THE
FOURTH AMENDED CLASS ACTION COMPLAINT

Defendant United Services Automobile Association (USAA") moves to dismiss the

Fourth Amended Class Action Complaint of Plaintiff Hands On Chiropractic, PL (HOC"). The

reasons for this Motion are set forth below.

Statement of the Relief Requested

This is HOC's fifih version of the complaint in this 2017 case and —
like the earlier versions

—
it fails to state class action claims for relief against USAA. Because HOC's Fourth Amended

Complaint persists in failing to state cognizable class action claims for relief against USAA, it

must be dismissed in its entirety with prejudice. See Kohn v. City of Miami Beach, 611 So. 2d 538,

539 (Fla. 3d DCA 1992) ([W]ith amendments beyond the third attempt, dismissal with prejudice

is generally not an abuse of discretion."); Florida Gas Co. v.Arkla Air Conditioning Co., 260 So.

54340970.1 1
2d 220, 221 (Fla. 1st DCA 1972) (in finding final dismissal appropriate, court noted that "'three

strikes are outin a baseball game.").

In the complaint, HOC brings two counts for declaratory relief based on two unrelated

theories as to how USAA allegedly miscalculated reimbursement for certain medical charges

submitted by HOC for the treatment of USAA insured Maureen O'Halloran ("O'Halloran"). Those

charges were submitted for payment under O'Halloran's Florida No-Fault ("PIP") coverage and

the PIP Statute, Fla. Stat. § 627.736 (2012 to date). HOC's "Lesser Charges" theory is that USAA

underpaid charges submitted at amounts below the maximum amount payable under the PIP

Statute's "schedule of maximum charges" in Fla. Stat. § 627.736(5)(a).1.a.-f. (the "PIP

Schedule). HOC's "X-Ray Charges" theory isthat USAA underpaid bills for x-ray charges by

using the wrong Medicare payment source for reimbursement.

Rather than sue USAA to recover the allegedly underpaid amounts, HOC eschews damages

in favor of two pretextual claims for declaratory relief on each theory. The logical strategy would

be for HOC to seek damages for the amount of the allegedly underpaid Lesser and X-Ray charges.

Indeed, such damage claims for underpaid PIP benefits are routinely brought in county courts.

Instead, HOC pretends to disclaim damages in a misguided attempt to mount class action claims

against USAA because Florida precedent otherwise holds that PIP damage class actions are

unsustainable. HOC's pretense is betrayed by the language of its requested declarations, which

seek to require USAA to "recalculate the implicated medical charges. What is a request to

"recalculate" except a
request for damages in disguise?

For each of its theories, HOC first seeks a declaration that USAA violated the law by

miscalculating payments for Lesser and X-Ray Charges. But declaratory relief is unwarranted

because the complaint states the issue of proper reimbursement calculation has already been

54340970.1 2
resolved by prior appellate authority. Taking these allegations as true —

as the Court must on a

motion to dismiss —
HOC has conceded that its alleged controversy regarding the payment of

Lesser and X-Ray Charges is rendered moot by prior precedent and does not present a genuine

controversy.

In the alternative, USAA states that the Lesser Charges theory fails to state a claim because

the authority cited to support the theory was recently overruled by MRI Assocs. of Tampa, Inc. v.

State Farm Mut. Auto. Ins. Co., No. SC18-1390, --
So. 3d --, 2021 WL 5832298 (Fla. Dec. 9,

2021) ("MR/ Assocs. II"), allg, State Farm Mut. Auto. Ins. Co. v. MRI Assocs. of Tampa, Inc.,

252 So. 3d 773, 778 (Fla. 2d DCA 2018) ("MRI Assocs. 1"). Thus, as toLesser Charges, HOC's

declaratory relief claim should be dismissed because the appellate authority that HOC cited as

controlling no longer applies based on the Florida Supreme Court's decision in MRlAssocs. II.

HOC also requests a declaration for each theory that, once USAA becomes aware of a

"change in the law" concerning the proper payment of PIP charges, Section (11) of the PIP Statute

requires that USAA revisit and recalculate PIP benefits without first receiving a demand letter

pursuant to Section (10) of the PIP Statute. This request fails because there is no private right of

action available to HOC to seek such relief.

The complaint also should be dismissed because HOC has not alleged compliance with the

pre-suit demand requirement of Fla. Stat. § 627.736(10). Additionally, HOC improperly seeks to

sever a legal issue (the declaratory relief requests) from the associated damages (the underpaid PIP

benefits) in violation of claim-splitting rules and Section (15) of the PIP Statute and otherwise

lacks standing to maintain, and fails to state, proper claims for declaratory relief.

54340970.1 3
Background

I. The O'Halloran Claim

USAA insured Maureen O'Halloran was involved in an accident on or about February 1,

2016. (Fourth Amended Complaint ("4th A.C.") ¶ 7). HOC submitted charges for O'Halloran's

treatment on February 11 and 17, 2016 to USAA. USAA paid those charges, but HOC alleges that

USAA underpaid them in two ways: (1) by paying certain charges at 80% of the billed amount

(instead of 100% of the billed amount or 80% of the amount set forth in the PIP Schedule); and

(2) by failing to pay the "highest allowable amount" under the Medicare Part B Applicable Fee

Schedule for x-ray charges. (Id, 1 12-21). Because HOC is not a party to the O'Halloran policy,

HOC alleges standing to sue pursuant to an
assignment of benefits from O'Halloran (Id, ¶ 10).

HOC does not attach the assignment or the applicable insurance policy.

II. The "Lesser Charges" Theory (Count I)

The PIP Statute mandates that an insurer cover 80% of all reasonable expenses for

medically necessary medical services. Fla. Stat. § 627.736(1)(a). It also includes a "schedule of

maximum charges" that sets maximum amounts payable for a
particular service. Fla. Stat. §

627.736(5)(a)1.a.-f. See MRI Assocs. II, 2021 WL 5832298, at *6. An insurer may utilize this

Schedule as a reimbursement cap if the policy contains language indicating such a limitation. Id

HOC does not dispute that O'Halloran's policy contains such a limitation.

For the services at issue, the PIP Schedule provides the maximum payment is 80% of 200%

of the allowable amount under the service year's1 participating physicians fee schedule of

i
Although the services were rendered in February of 2016 (4th A.C. ¶ 8),
the 2015 schedule applies
because the "service year" under the PIP Schedule is fixedon March 1,2015 and runs through the end of February
2016. Fla. Stat.§ 627.736(5)(a)2.

54340970.1 4
Medicare Part B.2 Fla. Stat. § 627.736(5)(a)1 II. HOC's first dispute centers on charges that are

less than 100% of the maximum amount set by the PIP Schedule, which it characterizes as "Lesser

Charges." (4th A.C. if 15). HOC contends that USAA has only two choices in calculating the

payment amount for all PIP charges, including Lesser Charges: (1) pay 80% of the PIP Schedule

maximum amount; or (2) 100% of the face amount of the charge. (4th A.C. if 16).

HOC contends that there is controlling authority requiring USAA to pay Lesser Charges at

80% of the PIP Schedule maximum or 100% of the face amount of the charge (whichever is less).

HOC alleges that Hands On Chiro. (Wick) v. Geico Gen. Ins. Co., 327 So. 3d 439 (Fla. 5th DCA

2021) has resolved the Lesser Charges issue in its favor. (Id Irlf 46-48).

III. The "X-Ray Charges" Theory (Count II)

HOC also challenges USAA's payment of certain x-ray charges. (4th A.C. 1 17-20).

Unlike the Lesser Charges, these x-ray charges were billed at amounts in excess of the PIP

Schedule maximum amounts. The PIP schedule generally limits reimbursement for HOC's x-ray

charges to 200% of the service year's participating physicians fee schedule of Medicare Part B.

Fla. Stat. § 627.736(5)(a)11 However, Section (5)(a)2. requires that the insurer pay according to

2007 pricing if itwould be higher than the applicable service year:

2. 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 and
for the area in which such services, supplies, or care is rendered, and the applicable
fee schedule or payment limitation applies to services, supplies, or care rendered
during that service year, notwithstanding any subsequent change made to the fee
schedule or payment limitation, except that it may not be less than the allowable
amount under the applicable schedule of Medicare Part B for 2007 for medical
services, supplies, and care subject to Medicare Part B. For purposes of this

2
The remaining 20% is payable by the insured as a
co-payment, which may be picked up by medical payments
or other coverage if an insured has purchased such coverage. See State Farm Mut. Auto. Ins.Co. v. Pressley, 28 So.
3d 105, 109 & n.3 (Fla.1st DCA 2010).

54340970.1
subparagraph, the term "service year means the period from March 1
through the
end of February of the following year.

Fla. Stat. § 627.736(5)(a)2. (2012 to date).

For HOC' s x-ray charges, 2007 pricing applied because itwas higher than the participating

physician's fee schedule of Medicare Part B for the 2016 services at issue. HOC does not dispute

that USAA used 2007 pricing for its 2016 x-ray charges; but alleges that USAA used the wrong

2007 source for that pricing. Instead of pricing under the participating physicians fee schedule of

Medicare Part B for 2007, HOC alleges that USAA should have used a different amount that it

vaguely characterizes as the "highest allowable amounr under Medicare Part B. (4th A.C. Tif 19,

87). HOC does not identify the source for this mysterious "highest allowable amount."

HOC alleges there is controlling authority requiring USAA to pay x-ray charges at this

unidentified "highest allowable amounr under 2007 Medicare Part B: Priority Medical Centers,

LLC v. Allstate Ins. Co., 319 So. 3d 724 (Fla. 3d DCA 2021) and Allstate Fire and Cas. Ins. Co.

v. Jeffrey L. Katzell, MD., P.A., 323 So. 3d 191 (Fla. 4th DCA 2021)3 (4th A.C. TT 52-54).

IV. The Proposed Classes

HOC brings its declaratory relief claims on behalf of an overall class defined as:

Any and all of Defendant's insureds under a Florida No-Fault automobile policy
affording PIP benefits, and medical care providers as assignees of DefendantsNo-
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

3
The certified question in Priority Medical was "Whether 'allowable amount under the applicable schedule
of Medicare Part B for 2007 for medical services, supplies, and care subject toMedicare Part B[,]' refers tothe non-
facility participating
price or the non-facilitylimiting charge." 319 So. 3d at725. While USAA does not dispute that
Priority Medical found that a provider must pay the 2007 non-facility limiting charge instead of the 2007 participating
provider price pursuant to §627.736(5)(a)2., it does not stand for the proposition that an
insurer must pay the "highest
allowable amounr ifthat amount is based onsome price other than the2007 non-facilitylimiting charge.

54340970.1 6
letter set forth in Fla. Stat. § 627.736(10), after the exhaustion and/or application of
any applicable deductible.

(4th A.C. ¶ 58). The three subclasses appear to limit class members to those who submitted Lesser

or X-Ray Charges (Id.).

V. The Declaratory Relief Claims

Rather than sue directly for damages, HOC brings two claims for declaratory relief. HOC

inexplicably disclaims entitlement to damages
—

alleging that "this action does not assert a claim

for monetary relief." (4th A.C. If 1).HOC asserts two functionally identical claims for declaratory

relief in each count:

(1) USAA violated Florida law by improperly paying Lesser and X-Ray charges; and

(2) "[O]nce an insurer becomes aware of the change in the law regarding the proper
payment methodology," it must "revisit and recalculate PIP benefits for all submitted
claims without first requiring the submission of demand letter set forth in Fla. Stat. §
627.736 (10) and as required by Fla. Stat. § 627.736(11).

As discussed, below, USAA contends that HOC's counts for declaratory relief fail to state a claim

for relief and should be dismissed.

Argument
I. Because HOC Alleges that Both the Lesser Charges and X-Ray Charges
Issues Have Been Resolved, It Cannot Seek A Declaration as to Those Issues

Seeking to avoid challenges that doom a class action for damages, HOC purports to bring

only claims for declaratory relief asking the Court to declare that USAA violated Florida law by

improperly paying Lesser and X-Ray charges. However, HOC moots itsown declaratory requests

by alleging that those issues have already been resolved by prior appellate decisions.

With respect to the Lesser Charges issue, HOC contends that the decision in Hands On,

327 So. 3d 439, resolved the issue in its favor. (See, e.g., 4th A.C. ¶ 48 (lt is Plaintiff s position

that [Hands On] resolved the
...
issue of Lesser Charges....")). With respect to the X-Ray Charges

54340970.1 7
issue, HOC contends that two decisions (Priority Medical, 319 So. 3d 724, and Katzell, 323 So.

3d 191) resolved the issue in its favor. (See, e.g.,4th A.C. If'
If
54-55 (lt is Plaintiff s position that

these cases resolved the issue of proper reimbursement" of X-Ray Charges)). The law is well-

established that the Court must take HOCs allegations as true for the purpose of a motion to

dismiss. See, e.g., Travel Ins. Facilities, PLC v.Naples Cmty. Hosp., 330 So. 3d 108, 110-111 (Fla.

2d DCA 2021); Gralau Maldonado v. Orange Cnty. Public Library Sys., 273 So. 3d 278, 279 (Fla.

5th DCA 2019). HOC's contention that these decisions have "resolved" the Lesser and X-Ray

Charges issues is therefore fatal to its request for a declaration as it leaves no dispute for the Court

to resolve.

In Brown-Peterkin v. Williamson, 307 So. 3d 45, 50 (Fla. 4th DCA 2020), the Fourth DCA

rejected auto insurance class claims for declaratory relief where the contract and statutory

interpretation issue had already been determined by a prior appellate decision. Under Florida law,

it is well-established that "once a prior appellate decision settles a question of law as to which

declaratory relief is sought, the relief requested is rendered moot." Id at 50; see also Vazquez v.

Citizens Prop. Ins. Corp., 304 So. 3d 1280, 1286 (Fla. 3d DCA 2020); Bay Area Rehab. Specialists

Holdings, Inc. v. USAA, 173 So. 3d 1004, 1009 (Fla. 2d DCA 2015).

Accordingly, HOC cannot simultaneously argue that the Hands On, Priority Medical, and

Katzell cases control and maintain its class claims for declaratory relief. HOC's request for a

declaration that USAA violated Florida law by improperly paying Lesser and X-Ray Charges must

be dismissed as moot based on the explicit allegations of its own complaint. See Crawley-Kitzman

v. Hernandez, 324 So. 3d 968, 975 (Fla. 3d DCA 2021) (affirming dismissal of claim for

declaratory relief); City ofApalachicola v. Bd of Cnty. Comm 'rs, 567 So. 2d 22, 22 (Fla. 1st DCA

1990) (affirming dismissal of moot claim for declaratory relief).

54340970.1 8
While HOC alleges that USAA does not agree itscited case law resolves these issues (4th

A.C. Tr 49, 56), its allegations are that they have been resolved by prior appellate authority. (Id

Tr 48, 54). Based on those allegations, therefore, it has not alleged a bona fide and present

controversy between the Parties. See Crawley-Kitzman, 324 So. 3d at 975 (purpose of declaratory

relief is to afford parties relief from uncertainty with respect to legal relations). HOC has not

alleged that the law is uncertain; only that USAA refuses to follow it. Ifthat is true, then itshould

be pursuing a damages action based on USAA's alleged disregard for the "resolved" case law. A

legitimate claim for declaratory relief would require HOC to allege that the law on the issue is not

yet settled —
a position that (not coincidentally) would contradict its requested declarations.

II. There Is No Private Right of Action for a Violation of Fla. Stat. § 627.736(11)

HOC' s second request for declaratory relief is identical in Counts I and II (4th A.C., Counts

I and II, Prayers for Relief at (C)(3)):

Declaring that once an insurer becomes aware of the change in the law concerning
the proper payment methodology for reimbursement of PIP benefits, that itmust
revisit and recalculate PIP benefits for all submitted claims without first requiring
the submission of a demand letter set forth in Fla. Stat. § 627.736(10) and as

required by Fla. Stat. § 627.736(11).

As addressed in USAA's separate Motion for a More Definite Statement, this requested declaration

is improperly vague, undefined, and untethered from the substance of the counts. HOC does not

define "the change in the law regarding proper paymentor confine the relief to the Lesser or X-

Ray Charges issues. Instead, it appears to seek a declaration that might apply to any and all

undefined "change[s] in the law." Even if limited to Lesser or X-Ray Charges, this requested

declaration is improper. Again, HOC' s manufactured declarations are an attempt to avoid damages

claims that cannot be maintained on a class action basis.

54340970.1 9
The alleged legal basis for HOC's second declaration is Section 11 of the PIP Statute:4

(11) FAILURE TO PAY VALID CLAIMS; UNFAIR OR DECEPTIVE
PRACTICE.—
(a) An insurer is engaging in a prohibited unfair or deceptive practice that is
subject to the penalties provided in s. 626.9521 and the office has the powers and
duties specified in ss. 626.9561-626.9601 ifthe insurer, with such frequency so as
to indicate a general business practice:
1. Fails to pay valid claims for personal injury protection; or
2. Fails to pay valid claims until receipt of the notice required by subsection (10).
(b) Notwithstanding s. 501.212, the Department of Legal Affairs may investigate
and initiate actions for a violation of this subsection, including, but not limited to,
the powers and duties specified in part II of chapter 501.

On its face, this provision gives only the Department of Legal Affairs ("DOLA”) or the Office of

Insurance Regulation (OIR") authority to address alleged violations. There is nothing in the

statutory text that gives rise to a
private right of action by an assignee medical provider or insured

for declaratory or other relief.5 See, e.g., MacNeil v. Crestview Hosp. Corp., 292 So. 3d 840, 844-

845 (Fla. 1st DCA 2020) (affirming dismissal of declaratory action to address payment of PIP

charges because there was no private right of action under the PIP Statute); United Auto. Ins. Co.

v. A 1stChoice Healthcare Sys., 21 So. 3d 124, 128 (Fla. 3d DCA 2009) (The PIP Statute does not

referenced in 626.9521 626.9561-9.601 part of the
4
The statutes § 627.736(11) include Fla.Stat. §§ and —

Florida Unfair Insurance Trade Practices Act ("UITPA") (Fla. Stat.Ch. 626, Part IX). There isno private rightof
action for aninsured to sue directlyfor a violationof UITPA. Id; see also Keehn v.Carolina Cas. Ins.Co., 758 F.2d
1522, 1523 (11th Cir.1985) (affirming holding that Fla.Stat.§ 626.9541 did not create an independent cause of action
for violation of its terms);
Joseph v. Bernstein, 612 F. App'x 551, 557 (11th Cir. 2015); Richardson v. Ameriquest
Mortg. Co., 2011 WL 5548066 (Fla. 1lth Jud'l Cir. Nov.8, 2011). The references to Chapter 501, including §
501.212,
refer to the general Florida Unfair and Deceptive Trade Practices Act
("FDUTPA"), which does not apply to insurance.
Fla. Stat.§ 501.212(4)(A) ("This part does not apply to:...
any person or
activity regulated under lawsadministered
by ...The [OIR] of the Financial Services Commission."). Section (11) of the PIP Statute givesthe DOLA limited
authority to use itspowers under Chapter 501 toinvestigate and initiateactions for aviolation of Section (11); but
does not confer a private right of action for
such violations.

5
See also House of Reps., Staff Analysis, HB 13C (Oct. 4,2007) (Exhibit 1).The House Staff Analysis
indicates "The [OIR] is given the authority withinits regulatory jurisdiction to examineand investigate theaffairs of
insurers in this state in
order to determine whether they have been or are
engaged in the failure to pay valid claims for
personal injury protection with such frequency so as to indicatea
general business practice. Insurers who engage in
such unfair trade practices willbe subjectto fmes, cease and desistorders, and revocation of their authorization to
conduct insurance business." Id at 13. Italso states that"[t]he billauthorizes the [DOLA] (Attorney General) to
investigate and initiateactions for insurers who failsto pay valid claims for personal injury protection with such
frequency so asto indicatea
general business practice...."Id There isno
recognition of a
privatecause of action.

54340970.1 10
include text giving rise to a private right of action for insurer's failure to provide an explanation

of benefits). A plaintiff may not maintain a claim for declaratory relief to address a statutory

provision that does not otherwise afford that plaintiff a private right of action. See, e.g., MacNeil,

292 So. 3d at 844-845; Collier v. State Dept. of Highway Safety and Motor Vehicles, 943 So. 2d

945 (Fla. 4th DCA 2006); The Fla. Physicians Union, Inc. v. United Healthcare of Fla., Inc., 837

So. 2d 1133, 1137 (Fla. 5th DCA 2003).

In A lst Choice, 21 So. 3d at 126, the Third DCA rejected a medical provider's attempt to

maintain a private action for violation of the PIP Statute based on an insurer's failure to provide a

timely explanation of benefits ("EOB"). While the trial court had permitted the provider to

proceed, the Third DCA reversed, finding that there was no private right of action for such a

violation:

It is axiomatic that whether a private right of action exists for a violation of a statute
is a matter of legislative intent. There is nothing in the text of section
627.736(4)(b) from which one can deduce that the legislature intended an

insured have a private right of action against an insurer for failure to provide
an EOB. In fact, the statute only authorizes one cause of action: a cause of
action for personal injury protection benefits. The circuit court appellate
division additionally departed from the essential requirements of law when it
afforded a private right of action to A 1st Choice in this case.

21 So. 3d at 128-129 (citations omitted); see also MacNeil, 292 So. 3d at 844-845 (rejecting

plaintiff s request for a declaration that the provider's medical charges were improper under the

PIP Statute because there was no private right of action conferred by that statute; and the court

would be forced to render an inappropriate advisory opinion); United Auto Ins. Co. v. Coastal

Wellness Center, Inc. 28 So. 3d 246, 246 (Fla. 4th DCA 2010) (adopting the reasoning of A 1st

Choice). Absent a specific expression of an intent to create a private right of action, one may not

be implied. See, e.g., Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d 842, 852 (Fla.

2003); City of Sarasota v. Windom, 736 So. 2d 741, 742 (Fla. 2d DCA 1999).

54340970.1 11
The A lst Choice court also noted that, despite the lack of a direct action for violation of

the PIP statutory provision, a plaintiff is not necessarily without recourse if an insurer engages in

unfair or deceptive PIP claims handling. In addition to a possible damages action, the court noted

that an insured might pursue a claim under the Florida Civil Remedy Statute (Fla. Stat. § 624.155):6

Furthermore, an insurer who does not act "fairly and honestly toward its insured"
in the settlement of properly submitted personal injury protection benefits claims
may be subject to a statutory first party bad faith action with all of its attendant
consequences. See § 624.155(1)(b)1, Fla. Stat. (2004). Accordingly, while there is
no absolute deadline for the payment of a properly presented personal injury
protection claim, there is a cost—and, indeed, ever increasing risk—to a miscreant
insurer who does not treat itscustomers properly. This is the manner in which the
legislature has chosen to regulate insurers in matters of this type.

21 So. 3d at 127 (citation omitted). Thus, A 1st Choice confirms the possible availability of a

damages or bad faith action pursuant to Fla. Stat. § 624.155 —
available claims that HOC has

strategically elected to ignore.

Contrary to HOC's theories, A 1stChoice also confirms that "there is no absolute deadline

for the [insurer's] payment of a properly presented [PIP] claim." Id at 127. The Statute generally

provides that benefits become "overdueif not paid within thirty days of notice. Fla. Stat. §

627.736(4)(b). But this is not an absolute deadline. An insurer may pay a properly presented PIP

charge more than 30 days after a bill is presented, but it willhave to pay statutory interest (accruing

from the day of notice) thereon. Fla. Stat. § 627.736(4)(d); see also Precision Diag., Inc. v.

Progressive Am. Ins. Co., 330 So. 3d 32 (Fla. 4th DCA 2021); Miracle Health Servs., Inc. v.

Progressive Select Ins. Co., 326 So. 3d 109, 114 (Fla. 3d DCA 2021).

6
The Civil Remedy Statute, Fla.Stat. § 624.155(1), allows any person to bring a civilaction for violationof
specifically enumerated violations of UITPA and/or the commission of certain acts. Indeed, private actions are

routinely brought under this statute for allegedly unfair or
deceptive PIP claims handling. See,e.g, Scott v.
Progressive
Express Ins.Co., 932 So. 2d 475, 476 (Fla.4th DCA 2006); Howell-Demarest v.State Farm Mut. Auto. Ins. Co., 673
So. 2d 526, 527-528 (Fla. 4thDCA 1996).

54340970.1 12
Thus, HOC' s requested declaration that USAA isimmediately and automatically obligated

to "revisit and recalculate all PIP medical bills after any "change in the law" is simply not

supported by the language of PIP Statute and the case law interpreting it.Of course, as the A 1st

Choice court recognizes, an insurer bears a risk if itdoes not handle and pay claims on atimely or

appropriate basis —
but that risk is the possibility of an interest payment or suit for damages or bad

faith.7 See State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So. 3d 1244, 1246 (Fla. 2d DCA 2002)

(an insurer will be deterred from mis-paying PIP benefits "by the penalty they face if they lose in

court—payment of their policyholderslegal fees."). It is not the risk of a private action for

declaratory relief for violation of the PIP Statute.

HOC has likely rejected potential claims for damages or violation of Fla. Stat. § 624.155

because those claims cannot be prosecuted as class actions. Section 624.155(6) explicitly forbids

class actions: "This section shall not be construed to authorize a class action suit against an

authorized insurer...."). And as set forth in USAA's separate motion for a more definite statement

(and to strike the class allegations), PIP class actions for damages are similarly unsustainable. See,

e.g., Ocean Harbor Cas. Ins. Co. v. MSPA Claims I, 261 So. 3d 637, 648 (Fla. 3d DCA 2018); IDS

Prop. Cas. Ins. Co. v. MSPA Claims, I,LLC, 263 So. 3d 122, 124-25 (Fla. 3d DCA 2018). In a

futile effort to preserve its class action claims, HOC has chosen to chase unworkable declaratory

relief claims for violation of Fla. Stat. § 627.736(11). But there is no private right of action for

violation of Fla. Stat. § 627.736(11), so its claims for declaratory relief pursuant to that section

must be dismissed.

7
A provider or insured can also serve USAA with a demand letter and possibly recover thedisputed charge
amounts and PIP statutory interest —
aswell as postage and a statutory penalty.Fla.Stat.§ 627.736(10). And if USAA
persists ina failure topay a properly presented PIP charge even after receipt of ademand, USAA may be sued for
recovery of the disputedcharge amount and statutory interest--
as well as attorneys' fees and costs pursuant to Fla.
Stat.§ 627.428. A I' Choice, 21 So. 3d at 127.

54340970.1 13
III. HOC's Lesser Charges Theory is Alternatively Precluded
by the Florida Supreme Court's Decision in MRI Assocs. II

HOC contends the PIP Statute requires USAA to pay all medical charges (including Lesser

Charges) at the lesser of: (1) 80% of the maximum amounts set forth under the PIP Schedule; or

(2) 100% of the face amount of the charge. (4th A.C. ¶ 16). In support of this theory, HOC relies

on Hands On, 327 So. 3d 439, which states:

There is nothing in the applicable statute or Geico's policy that allows itto 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 tobe paid in full. Therefore, Geico's hybrid payment
to Hands On at 80 percent of the billed amount is impermissible.

Id. at 440, 443 (emphasis added) (See also 4th A.C. ¶ 47). HOC makes this argument based solely

on the language of the PIP Statute8 and contends, based on Hands On and the related Geico

appeals,9 that USAA is limited to the lesser of two pricing options (80% of the Schedule amount

or 100% of the face amount). (4th A.C. ¶ 16). HOC asserts that USAA is precluded from accepting

the face amount of a provider's own billed charge as reasonable and paying 80% of that amount

pursuant to Fla. Stat. § 627.736(5)(a)1.1°

8
HOC quotes only the PIP Statute in support of its claim for
declaratory relief. (4th A.C. VI 68-69). Its theory
is not based on any policy language and the policy is notquoted, incoiporated, or attached to the complaint.
9
The courts reached similar conclusions in two other cases involving Geico: Geico Indem. Co. v.Muransky
Chiro., 323 So. 3d 742 (Fla.4th DCA 2021); Geico Indem. Co. v.Accid & Injury Clinic,Inc. (Irizarry), 290So. 3d
980 (Fla.5th DCA 2019). Allthree cases arereferred to asthe "Geico appeals."

10
The PIP Statute simply requires an insurer cover 80% of allreasonable expenses for medically necessary
medical services. Fla. Stat.§ 627.736(1)(a). No insurer "can disclaim" this 80% coverage requirement. MRI Assocs.
I,252 So. 3d at777-78; see also AllstateIns. Co. v.
Orthopedic Specialists, 212 So. 3d 973, 977 (Fla.2017); Geico v.

Virtual Imaging Servs., Inc.,141 So. 3d 147, 155 (Fla. 2013). Section (5)(a) of thePIP Statute alsoprovides thata

provider "may charge the insurer and injured party only a reasonable amount pursuant to this section forthe
services and supplies rendered However,
.... such a charge may not exceed the amount the person or institution
customarily charges for like services orsupplies.... (emphasis added). Thus, the amountactually charged by a provider
necessarily represents its view of a "reasonable amounr for theservice. IfPlaintiffcharged $100 for a service,the
reasonable amount could not exceed $100 and an insurer would pay 80% of that amount pursuant to Fla. Stat.§§
627.736(1)(a) and (5)(a). HOC' s theory —

Case Info

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Kevin B. Weiss Track Judge’s New Case

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Document Filed Date

March 10, 2022

Case Filing Date

December 29, 2017

County

Parties

HANDS ON CHIROPRACTIC PL Plaintiff
HANDS ON CHIROPRACTIC PL MAUREEN T OHALLORAN AAO Plaintiff
JOHN SHAHADY Attorney for the Plaintiff
UNITED SERVICES AUTOMOBILE ASSOCIATION Defendant
Alyson Laderman Attorneys for Plaintiffs
Lawrence Kopelman Attorneys for Plaintiffs
Jennifer Englert Attorney
Megan Deleon Attorneys for Defendants
Allison Gallagher Attorneys for Defendants
Marcy Aldrich Attorney
Valerie Greenberg Attorney
Edward Zebersky Attorney
Denise Beamer Attorney

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Motion,Ex Parte: HANDS ON CHIROPRACTIC PL vs.UNITED SERVICES AUTOMOBILE ASSOCIATION

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