A&M GERBER CHIROPRACTIC LLC, as assignee of Conor Carruthers, on behalf of itself and all others similarly situated, Plaintiff - Appellee,
GEICO GENERAL INSURANCE COMPANY, Defendant-Appellant.
from the United States District Court for the Southern
District of Florida D.C. Docket No. 0:16-cv-62610-BB.
WILSON and BRANCH, Circuit Judges, and VINSON, [*] District Judge.
PETITION FOR REHEARING
VINSON, District Judge.
consideration, we grant the Appellee's petition for panel
rehearing. We vacate our prior opinion in this case, issued
on April 19, 2019, and published at 921 F.3d 1273 (11th Cir.
2019), and hereby substitute the following opinion in its
Carruthers was involved in a car accident on March 18, 2015,
after which he sought medical services from A&M Gerber
Chiropractic LLC. At the time, Carruthers was covered under
an automobile insurance policy issued by GEICO General
Insurance Company. Pursuant to Florida's Motor Vehicle
No-Fault Law, the policy provided him with $10, 000 in
personal injury protection (PIP) benefits. See Fla.
Stat. § 627.736(1) (mandating that automobile insurers
provide PIP benefits "to a limit of $10, 000"). To
be entitled to the full $10, 000, however, the statute
required that Carruthers-like all PIP beneficiaries-be
diagnosed by an authorized health care provider with an
"emergency medical condition" (EMC); without such a
diagnosis, he was limited to $2, 500 in benefits. See
id. at § 627.736(1)(a)(3)-(4); Robbins v.
Garrison Prop. & Cas. Ins. Co., 809 F.3d 583, 587-88
(11th Cir. 2015) (holding in consolidated appeal that
"[b]ecause neither Robbins' nor Enivert's claim
was supported by [an EMC determination], neither Garrison nor
Progressive violated Fla. Stat. § 627.736 by limiting
benefits to $2, 500"); accord, e.g., Progressive Am.
Ins. Co. v. Eduardo J. Garrido D.C., P.A., 211 So.3d
1086, 1093 (Fla. 3d DCA 2017); Medical Ctr. of Palm
Beaches v. USAA Cas. Ins. Co., 202 So.3d 88, 92-93 (Fla.
4th DCA 2016); McCarty v. Myers, 125 So.3d 333, 335
(Fla. 1st DCA 2013).
undisputed that Carruthers was not diagnosed with an EMC at
the time this case was filed. It is also undisputed that,
despite the lack of an EMC finding, GEICO paid
Carruthers/Gerber $7, 311 in PIP benefits pre-suit, well in
excess of the $2, 500 cap. Even though Carruthers received
almost triple the amount in PIP benefits that he was entitled
to, Gerber believed that GEICO had misinterpreted certain
language in its automobile policies and that this
misinterpretation resulted in GEICO consistently underpaying
PIP benefits as a "general business practice."
the policy contains an endorsement identified as FLPIP
(01-13), and that endorsement (under the heading
"PAYMENTS WE WILL MAKE") references fee schedules
pursuant to which GEICO will pay 80% of benefits that are
medically necessary. The endorsement goes on to state:
"For all other medical services, supplies, and care
[GEICO will pay] 200 percent of the allowable amount under [a
Medicare Part B fee schedule]," subject to a limitation
of 80% of the "maximum reimbursable allowance under
workers' compensation . . . ." Below that statement,
GEICO added the following: "A charge submitted by a
provider, for an amount less than the amount allowed above,
shall be paid in the amount of the charge submitted."
The underlying dispute in this case hinges on whether this
single sentence is the operative language of the policy for
health care provider bills of less than 200% of the fee
has taken the position that the policy is an "80/20
policy" pursuant to which it was required to pay the
lower of 80% of the fee schedule amount or 80% of the charged
amount, while insureds are required to pay the remaining 20%
as co-insurance. To supports its position, GEICO relied,
inter alia, on a document mailed or provided to its
PIP policyholders effective on or after January 1, 2013, and
identified as M608 (01-13). This document was titled
provides in relevant part that "in no event will the
Company pay more than 80 percent" of properly billed
medical expenses. GEICO asserts that M608 (01-13) is an
endorsement and, thus, part of the policy. Gerber has argued
that M608 (01-13) is not an endorsement/part of the policy,
and it further argues that FLPIP (01-13) provides that when a
health care provider bills for services at an amount less
than 200% of the fee schedule, GEICO must pay the charge
as billed (that is, "in the amount of the
charge submitted") without the 20% reduction.
assigned his rights to his treating chiropractic clinic,
Gerber, which later filed a declaratory judgment class action
suit in Florida state court in September 2016. The complaint
sought certification of a class (with Gerber as the class
representative) along with a declaration (a) that GEICO's
interpretation of its policy language was wrong, and (b) that
the misinterpretation "constitutes a breach of the
insurance Policy." Although the complaint sought a
declaration that GEICO had breached the policy, the complaint
stated that "there is no claim for monetary relief"
in the case.
removed the case to the United States District Court for the
Southern District of Florida in November 2016, pursuant to
the Class Action Fairness Act, and Gerber filed an
unsuccessful motion to remand the case for lack of Article
III standing. The District Court appointed Gerber as class
representative, and it certified the class to include:
All health care providers that received an assignment of
benefits from a claimant and thereafter, pursuant to that
assignment, submitted claims for no-fault benefits under
GEICO PIP policies to which Endorsement FLPIP (01- 13)
applies, and any subsequent policies with substantially
similar language that were in effect since January 1, 2013,
where GEICO utilized the Code BA [billed amount] with respect
to the payment of any claims.
after the action was removed to federal court, and while its
motion to remand was pending, Gerber filed an amended
complaint. The amended complaint was largely the same as the
original complaint, but it added another sentence to
re-emphasize that "this action does not assert a claim
for any monetary relief," and it deleted the request for
a declaration that GEICO's misinterpretation of the
disputed policy language "constitutes a breach of the
insurance Policy." Thus, as amended, the complaint
clarified that it only sought declaratory relief and that
there was no claim for breach of contract or request for
money damages related thereto. In July 2017-more than two
years after the underlying car accident, and ten months after
the litigation was filed-Carruthers obtained an EMC medical
cross motions for summary judgment, GEICO argued, inter
alia, that Gerber lacked standing at the outset of the
lawsuit because it was undisputed that GEICO had paid Gerber
more than $2, 500 before the case was filed, even though he
had not been diagnosed with an EMC at that time. By order
dated November 17, 2017, the District Court disagreed with
GEICO and found there was standing. It also ruled that M608
(01-13) was not an endorsement (but rather was merely a
notice) and, thus, it was not part of the policy. Applying a
textual interpretation of the FLPIP (01-13) endorsement, the
District Court granted summary judgment for Gerber and held
that, "under the disputed provision, when a health care
provider bills for covered services in an amount less than
200% of the fee schedule, GEICO is required to pay the charge
as billed without any reduction."
now appeals, arguing that Gerber lacked standing to bring
this case. It further argues that the District Court erred in
certifying the class; in limiting the documents that comprise
the policy (that is, in failing to treat M608 (01-13) as an
endorsement); and in ruling for Gerber on the merits as to
the policy interpretation question.
begin with the question of standing. See Kondrat'yev
v. City of Pensacola, Fla.,903 F.3d 1169, 1172 (11th
Cir. 2018). If there is no standing, we must end there, too.
University of S. Ala. v. American Tobacco Co., 168
F.3d 405, 410 (11th Cir. 1999) ("Simply put, once a
federal court ...