A & M Gerber Chiropractic LLC v. GEICO Gen. Ins. Co.
Docket: Case No. 16–cv–62610–BLOOM/Valle
Court: District Court, S.D. Florida; November 16, 2017; Federal District Court
A. M. Gerber Chiropractic LLC filed a Motion for Partial Summary Judgment against GEICO General Insurance Company concerning the interpretation of a specific provision in a GEICO insurance policy related to personal injury protection (PIP) benefits. The case arises from health care services provided to Conor Carruthers following a car accident in March 2015, with Carruthers insured under a GEICO policy that includes PIP coverage as mandated by Florida law. The policy features the FLPIP (01-13) Endorsement, effective January 1, 2013, which stipulates payment terms for medical benefits, including reimbursement of 80% for medically necessary services and 200% for certain other services based on Medicare guidelines.
The primary legal contention involves the interpretation of a sentence stating: "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." This sentence is the focal point of the dispute. Additionally, there is a document known as M608 (01-13) that both parties acknowledge as authentic, but they disagree on its classification and its relevance to the FLPIP (01-13) Endorsement. This document was sent to policyholders for new and renewed policies effective from January 1, 2013. The Court denied GEICO's Motion to Disqualify the Class Representative, granted the Plaintiff's Motion for Summary Judgment, and denied GEICO's Motion for Summary Judgment.
The parties acknowledge that the document was mailed to comply with Florida Statute 627.736(5)(a)5 and House Bill 119. The M608 (01-13) document outlines the reimbursement structure for medical expenses under Personal Injury Protection claims, stating that reimbursement will be limited to 80% of a properly billed reasonable charge and will not exceed specified maximum charges. For medical services not reimbursable under Medicare Part B, reimbursement is capped at 80% of the maximum allowable amount under workers' compensation statutes.
The policy also incorporates fee schedules as authorized by Florida Statute 627.736(5)(a)1.a-f. Following amendments in 2012, insurers are required to inform policyholders at issuance or renewal about potential payment limitations based on such fee schedules. The Florida Office of Insurance Regulation issued an Informational Memorandum to guide insurers in fulfilling this notice requirement. GEICO submitted the FLPIP (01-13) Endorsement as a revision to its forms and later submitted the M608 (01-13) form without indicating that it would replace the FLPIP endorsement.
The plaintiff, having received an assignment of insurance benefits from Carruthers, submitted claims to GEICO for treatment rendered, including charges of $60 for CPT code 97110 and $45 for CPT code 97140.
Charges for CPT Code 97110 and CPT Code 97140 were below the 2015 Medicare Part B Fee Schedule, which set the fees at $33.52 and $30.72, respectively. At 200% of the Medicare Fee Schedule, the amounts total $67.04 and $61.44. GEICO compensated the Plaintiff 80% of the billed amounts, resulting in $48 for 97110 and $36 for 97140. An explanation code "BA," indicating "Billed Amount," was applied on the Explanation of Review after processing claims that met specific criteria. The Plaintiff claims that GEICO underpaid by $57.00 compared to the policy requirements.
Under the FLPIP (01-13) Endorsement, medical benefits are capped at $10,000 if an emergency medical condition is confirmed by a licensed physician, otherwise limited to $2,500.
The Court granted class certification on June 6, 2017, appointing the Plaintiff as Class Representative and defining the class to include healthcare providers that submitted no-fault claims under GEICO PIP policies with the FLPIP (01-13) endorsement and related language since January 1, 2013, where the "BA" code was used. Currently pending are GEICO's Motion to Disqualify the Plaintiff as class representative and the parties' Motions for Summary Judgment. The Court has reviewed all responses, replies, and supporting documents, and conducted oral arguments on the summary judgment motions.
Before addressing the summary judgment motions, the Court must resolve GEICO's challenge to the Plaintiff's adequacy as a class representative, which is governed by Rule 23(a)(4). This requires an assessment of whether substantial conflicts of interest exist between the representative and the class, and whether the representative will adequately prosecute the action. The adequacy requirement has two components: the representative must have no antagonistic interests to the class, and class counsel must be competent to handle the litigation.
The adequacy of the named plaintiffs as class representatives under Rule 23(a)(4) primarily hinges on the qualifications and experience of their counsel and whether the plaintiffs' interests conflict with those of the class. GEICO's Motion to Disqualify solely contests the plaintiffs' adequacy as representatives, not the class counsel's qualifications. Both parties have submitted cross-motions for summary judgment concerning the interpretation of a specific provision in the FLPIP Endorsement, which addresses payment for charges submitted by a provider. GEICO has also questioned the plaintiff's standing.
In ruling on cross-motions for summary judgment, a district court employs the same standards as when only one party moves for summary judgment. Cross-motions may demonstrate the absence of factual disputes if they show agreement on key legal theories and material facts. A court may grant summary judgment if the movant establishes no genuine dispute exists regarding any material fact. The parties must provide evidence to support their positions, which can include depositions, documents, affidavits, or declarations. A genuine issue exists if a reasonable trier could rule in favor of the non-moving party, and a material fact is one that could impact the suit's outcome. The court views evidence in favor of the non-moving party without weighing conflicting evidence. The moving party bears the initial burden of proving the absence of a genuine issue, and if successful, the non-moving party must demonstrate sufficient evidence for each essential element of their case rather than merely showing doubt about the facts.
The non-moving party is required to present evidence beyond mere pleadings, using affidavits, depositions, interrogatory responses, and admissions, to show that a reasonable jury could potentially rule in their favor. Even if the opposing party fails to provide evidence of material facts, summary judgment cannot be granted unless the court confirms that all evidence supports the uncontroverted facts proposed by the moving party.
Prior to addressing the Motions for Summary Judgment, the court must first rule on GEICO's Motion to Disqualify the Plaintiff as a class representative, which rests on three main arguments: (1) the Plaintiff is not a member of the class and therefore lacks typicality; (2) the Plaintiff does not have a current need for a declaration due to GEICO's overpayment of benefits, which also affects typicality; and (3) the Plaintiff's corporate representative is deemed lacking in candor and credibility, rendering them an inadequate representative.
In regard to the first argument, GEICO contends that the Plaintiff did not utilize the assignment when submitting claims for no-fault benefits, which is essential for class membership. GEICO outlines a two-step process for membership: (1) class members must receive an assignment of benefits, and (2) they must submit that assignment to GEICO when filing a claim. GEICO acknowledges that the Plaintiff met the first criterion but asserts that the omission of the assignment during the claims submission excludes the Plaintiff from class membership, as this was a condition precedent to membership. GEICO's argument introduces a new requirement not previously considered in the Court’s Class Certification Order, which originally narrowed the class definition to include only those healthcare providers who received assignments and subsequently submitted claims for no-fault benefits under GEICO PIP policies. The Court's refinement aimed to address GEICO's concern regarding the breadth of the proposed class and standing issues, particularly regarding providers without assignments.
At the class certification stage, GEICO did not assert that class members needed to have submitted their assignments to qualify; it only argued against including members without an assignment. GEICO now incorrectly interprets the Class Certification Order as requiring the submission of actual assignments during the claims process, which is not stipulated in the class definition. The class members are only required to have received an assignment of benefits from a claimant. The phrase "pursuant to that assignment" does not necessitate that the assignment be submitted with the claim, but rather that health care providers submit claims as authorized by the assignment. The Court rejects adding unagreed-upon requirements to the class definition and questions the timeliness of GEICO's argument, noting that GEICO had been aware of the revised class definition for five months and did not seek reconsideration until close to the trial. Consequently, the Court confirms that the Plaintiff holds a valid assignment and is a member of the class.
Regarding GEICO's argument that the Plaintiff is not a typical class member due to a lack of an EMC determination, which limits his benefits to $2,500, the Court disagrees. Despite GEICO's claim that the lawsuit was prematurely filed because of this, it had full knowledge of the documents in Carruthers's claims file when it paid out benefits exceeding the $2,500 limit. GEICO did not raise the issue of atypicality at the class certification stage, indicating awareness of the situation prior to the lawsuit’s filing. Thus, the Court finds that Plaintiff's claim maintains the typicality needed for class membership.
GEICO argued against the typicality of the plaintiff's claims, contending that each individual PIP claim would involve different facts and coverage defenses. GEICO had the opportunity to raise this EMC challenge during the class certification stage over five months prior but did not. The EMC issue only became apparent to GEICO during the summary judgment stage, indicating a lack of thorough review earlier in the process. Even if deemed timely, GEICO's typicality argument does not prevail as it falls outside the narrow scope of the lawsuit, which is focused on whether the policy mandates payment of 80% or 100% of billed amounts under specific circumstances.
GEICO previously raised concerns about the exhaustion of benefits during class certification but did not pursue reconsideration of the Class Certification Order. The Court clarified that while exhaustion of benefits could be a defense in future claims, it does not need to be resolved in the current lawsuit. The Court must assess whether the plaintiff's claims are typical of the class, guided by Rule 23(a), which allows for claims to be "reasonably co-extensive" rather than identical. The Court confirmed that the plaintiff's claim aligns with those of the class, as they collectively seek an interpretation of the FLPIP Endorsement, focusing on GEICO's alleged practice of reimbursing 80% even when billed amounts are below the fee schedule.
GEICO seeks to disqualify the Plaintiff as a class representative, alleging a lack of candor, honesty, and credibility, citing multiple instances of purported dishonesty, including fabricating evidence, failing to advise the Court of missing documents, maintaining inadequate records, and attempting to orchestrate an intervention. However, the Court deems GEICO's objections untimely, as they had the opportunity to challenge Plaintiff's adequacy during the class certification stage but did not do so. Specifically, the Class Certification Order indicated that GEICO did not assert any conflicts or suitability issues at that time. Additionally, GEICO delayed its attempts to depose Plaintiff's corporate representative until well after the class certification briefing and order. The Court concludes that GEICO's late challenge is improper, and even if timely, the issues raised do not justify disqualifying Plaintiff. The adequacy of representation requires that no substantial conflicts of interest exist and that the representatives can adequately prosecute the action. A claim for disqualification only succeeds if conflicts are fundamental to the specific issues at hand. Furthermore, past rulings in the Southern District of Florida establish that inquiries into a plaintiff's credibility do not pertain to class certification merits, reinforcing the position that inconsistencies in testimony do not inherently undermine a representative's adequacy.
The Motion to Disqualify contends that the Plaintiff lacks credibility, citing allegations of fabricated evidence related to co-payments and an intention to waive such payments. In response, the Plaintiff has provided an affidavit and evidence that contradicts GEICO's claims. The Court must evaluate Plaintiff's credibility under Rule 23(a) for class certification, but cannot engage in extensive merits analysis as established in Amgen Inc. v. Conn. Ret. Plans. Tr. Funds. Consequently, credibility issues alone do not warrant disqualification. GEICO's additional arguments, including the Plaintiff's failure to submit an assignment of benefits, inadequate medical records, and failure to produce documents at deposition, are insufficient to disqualify the Plaintiff as a class representative. The class definition does not require the assignment of benefits, and GEICO fails to cite legal support for disqualification based on record-keeping deficiencies. The Court's Omnibus Order clarified the scope of discovery, limiting it to completing Dr. Gerber's deposition without requiring document production. Thus, Plaintiff was not obligated to present new documents during this deposition. GEICO's efforts to disqualify the Plaintiff are therefore ineffective, as the Court previously found that the Plaintiff's interests align with those of the class, satisfying the adequacy requirement under Rule 23(a).
Additionally, both parties have filed Cross Motions for Summary Judgment regarding the interpretation of the FLPIP (01-13) Endorsement. The Plaintiff requests partial summary judgment on the GEICO Policy interpretation, while GEICO argues that summary judgment is premature due to a pending interlocutory appeal concerning the Class Certification Order and challenges Plaintiff's standing, seeking to dismiss the Amended Complaint on jurisdictional grounds related to a non-justiciable declaratory relief claim.
If the Court determines that the Plaintiff has standing, GEICO requests final summary judgment regarding the interpretation of the FLPIP (01-13) Endorsement. GEICO contends that the Plaintiff's Motion for Summary Judgment is premature due to GEICO's ongoing petition for interlocutory review of the Class Certification Order under Rule 23(f). GEICO argues that if the Eleventh Circuit finds the class was improperly certified, the Plaintiff may seek certification under Rule 23(b)(3) upon remand. The Plaintiff initially sought certification only under Rule 23(b)(2), and a current summary judgment would violate the principle against one-way intervention if the Eleventh Circuit later reverses the certification.
During a summary judgment hearing, Class Counsel indicated that the Plaintiff intends to pursue Rule 23(b)(3) certification if the Class Certification Order is reversed. However, the Court maintains that it has the discretion to manage its docket and that the deadline for the Plaintiff to seek class certification expired on April 13, 2017. The Plaintiff had the opportunity to request certification under both Rule 23(b)(2) and (b)(3) but opted for Rule 23(b)(2) for strategic reasons, as confirmed by Class Counsel. The Plaintiff did not seek an extension for the certification deadline or permission to pursue bifurcated certification. Consequently, the Plaintiff is barred from seeking certification on different grounds if the initial strategy fails, as established in precedent.
Plaintiffs' counsel, experienced litigators, consciously decided against seeking alternative class certification, which resulted in a failure to timely pursue certification under Rule 23(b)(3). The court stated that the certification stage is now closed, and any reversal of the Class Certification Order would not violate the one-way intervention rule, allowing the Motions for Summary Judgment to be deemed ripe for adjudication.
GEICO contests Plaintiff's standing, arguing that Carruthers, as an assignee, was entitled to only $2,500 in medical benefits under the Policy without a prior EMC determination. Consequently, Plaintiff's receipt of payments exceeding this amount means no harm was suffered from GEICO's application of a 20-percent coinsurance, which, according to GEICO, negates any case or controversy.
The issue of standing has been previously addressed multiple times in this litigation. Initially, the Plaintiff challenged the court's jurisdiction in a Motion for Remand, but the court found that the Plaintiff alleged ongoing and substantial future injury, granting standing. The court also noted the systematic nature of the claimed harm over three years, rejecting arguments of remoteness. During class certification, the court confirmed that at least one class representative had Article III standing to raise class claims, with GEICO not challenging Plaintiff's individual standing at that time.
Now, at the summary judgment stage, GEICO is contesting Plaintiff's standing and subject-matter jurisdiction even though it initially invoked the court's jurisdiction upon removing the case from state court. The court has a duty to ensure it maintains subject-matter jurisdiction, including standing, despite GEICO's inconsistent positions.
GEICO's Motion for Summary Judgment conflates standing with affirmative defenses by asserting that the Plaintiff's exhaustion of policy benefits negates its standing in this declaratory judgment action. The Court emphasizes that standing is a jurisdictional matter that must be resolved before addressing the merits of the claims. It defines standing as determining if the plaintiff is the rightful party to bring the suit, independent of the legality of the conduct in question. In contrast, an affirmative defense, if proven, would result in judgment for the defendant even if the plaintiff’s case is established. GEICO, as the defendant, must prove any affirmative defenses, while the Plaintiff must prove standing.
The Court asserts that GEICO's argument pertains not to standing but to an affirmative defense concerning the exhaustion of benefits. It references the Eleventh Circuit's decision in Mills v. Foremost Ins. Co., where the court ruled that insurance coverage issues should not be framed as standing challenges. The district court's dismissal in Mills was reversed because it incorrectly categorized an insurance coverage issue as a standing issue. The Court concludes that GEICO's argument regarding the Plaintiff's exhaustion of benefits is a defense against the claim for benefits, not a challenge to standing.
GEICO's Motion for Summary Judgment asserts that Carruthers' policy limit was $2,500 due to the absence of an EMC diagnosis, even though GEICO paid him $7,311. GEICO contends that, regardless of how the court interprets the policy questions raised in Gerber's complaint, Gerber is not entitled to any further benefits. The case centers on the interpretation of the FLPIP (01-13) Endorsement, with a critical focus on a particular sentence regarding provider charges. Plaintiff argues that if a healthcare provider bills below 200% of the fee schedule, GEICO must pay the billed amount without applying a reduction for coinsurance. In contrast, GEICO maintains that the policy clearly states a 20% coinsurance applies to all charges. The court favors the Plaintiff’s interpretation of the policy.
The document explains that under Florida law, insurance policies are treated similarly to contracts, governed by ordinary contract principles. The court must determine if the insurance provision is ambiguous, which is a legal question. Policies are interpreted according to their plain meaning and should be understood in their ordinary sense, taking into account the intent of the parties involved. The interpretation must be practical and sensible rather than forced or unrealistic, ensuring that policy language is read in conjunction with other provisions to reflect the parties' intent.
Terms and phrases within an insurance contract must be interpreted collectively, ensuring each provision is meaningful. If an insurance policy presents multiple reasonable interpretations, it creates an ambiguity that favors the policyholder against the insurer. Florida law mandates that insurance contracts be construed according to their complete terms, including any modifications or endorsements. In this case, the parties agree that the FLPIP (01-13) is an endorsement but dispute whether the M608 (01-13) document qualifies as an endorsement or merely a notice and its implications for the Policy.
GEICO contends the M608 (01-13) document is an endorsement based on its attachment to the Policy, the label "Fee Schedule Endorsement," and a requirement from the Office of Insurance Regulation. GEICO cites case law supporting the notion that attached endorsements are part of the contract. However, the Court must first ascertain whether M608 (01-13) is indeed an endorsement. Florida law requires that policies explicitly identify all endorsements with specific information, including form numbers and edition dates.
GEICO has not pointed to any language in the Policy that refers to the M608 (01-13) document as an endorsement. In contrast, the Policy’s Declarations Page lists other endorsements in compliance with Florida statutes, indicating a structured approach to identifying contracts, amendments, and endorsements.
The Declarations Page lacks any mention of the M608 (01-13) form, which is not categorized as a "Contract Type," "Contract Amendment," or "Unit Endorsement." Florida law mandates that all endorsements be listed on the Policy. An endorsement is defined as a document that modifies the policy's benefits or exclusions. The M608 (01-13) does not amend or restrict Carruthers's benefits, as it contains no language indicating any changes to the Policy. In contrast, other endorsements attached to the Policy, such as the FLPIP (01-13) and A-115 (04-08), explicitly state they amend the Policy and are signed by GEICO executives. The M608 (01-13) lacks similar language and signatures. Furthermore, it does not reference the Policy or indicate it is part of the Policy, failing to establish a link to the Policy as required by case law. The final sentences of the M608 (01-13) direct the insured to the Policy for its terms, implying that M608 (01-13) is not integral to the Policy. Overall, the absence of identifying language and signatures in M608 (01-13) suggests it was not intended as an amendment or endorsement of the Policy.
GEICO argues that the M608 (01-13) document qualifies as an endorsement due to language in an Informational Memorandum from the Florida Office of Insurance Regulation (OIR), asserting it was required to function as policy language under House Bill 119. However, the Court finds no such mandate in the memorandum. The OIR document primarily aims to assist insurers in meeting the notice requirement of Section 627.736(5)(a)5 of Florida Statutes, following House Bill 119. It states that insurers may propose policy language as an alternative to sample language but does not require that such proposals take the form of endorsements.
The memorandum emphasizes that each insurer is responsible for developing its own language and suggests that existing policy language may already meet the notice requirement, indicating flexibility rather than a strict requirement. The Court concludes that M608 (01-13) cannot be considered an endorsement because GEICO typically identifies endorsements in the Declarations Page and includes specific language detailing their effects on the policy, which was not done in this case.
The Court notes that M608 (01-13) appears to be a notice regarding GEICO's adoption of Medicare fee schedules, rather than an endorsement. The ambiguity created by the title "Important Notice Fee Schedule Endorsement" and the lack of clear identification as part of the policy suggests multiple interpretations, which must be construed against the insurer. The final issue for summary judgment pertains to interpreting a specific sentence within the FLPIP (01-13) Endorsement.
A charge submitted by a healthcare provider for an amount less than the allowed fee schedule must be paid in the amount billed. The Plaintiff argues that this provision indicates GEICO must cover the full billed amount without applying a 20% coinsurance when the bill is below the fee schedule amount. Conversely, GEICO contends that the provision allows for the application of coinsurance regardless of the billed amount. The Court must examine this provision within the context of the Florida Motor Vehicle No Fault Law (FLPIP) and its associated fee schedules. Under the relevant section, GEICO is mandated to pay 80% of medically necessary medical benefits based on the Florida Statutes, and for other services, 200% of the allowable amount under Medicare Part B, unless excluded. The Plaintiff interprets "an amount less than the amount allowed above" as referring to the 200% Medicare fee schedule. GEICO counters that the provision only indicates that the charges not exceeding the fee schedule will be paid at the submitted amount, without clarifying how much GEICO will pay versus what the insured is responsible for. To clarify this, GEICO cites Florida Statute 627.736(5)(a), which permits insurers to limit reimbursement to 80% of specified maximum charges while requiring prior notice in the policy to enforce such limits. Under this statute, if a provider submits a charge below the allowed amount, the insurer may pay the submitted charge.
GEICO contends that the statute mandates a 20% copayment for all reimbursements, urging the Court to interpret the disputed provision in light of the statutory language. However, the Court emphasizes that the interpretation of insurance policies falls under contract principles. GEICO claims that the FLPIP (01-13) Endorsement mirrors the language of section 627.736(5)(a) of the Florida PIP statute, suggesting that interpretations of the endorsement would apply universally to all Florida PIP insurers. Nonetheless, the Court notes significant differences between the statute and the endorsement's language that must be acknowledged. The integration of the Florida Motor Vehicle No Fault Law into the endorsement does not permit disregarding the policy language. The Court rejects the notion that the inclusion of the PIP statute allows for unilateral alterations to the payment methodology outlined in the policy. It clarifies that insurers may offer coverage exceeding statutory minimums.
The Court also disputes Auto-Owners' interpretation that the reference to the "No-Fault Law" limits policy coverage to minimum legal requirements. Critical distinctions between the endorsement and the statute include the mandatory nature of the endorsement's payment provision, stating that a provider's charge shall be paid in full if below the allowed amount, whereas the statute permits payment at the submitted charge, making it discretionary. Additionally, the endorsement lacks specificity on the payor, unlike the statute, which identifies the insurer as the payor. Consequently, the Court will concentrate on the FLPIP (01-13) Endorsement's language to determine its implications.
GEICO contends that the alignment and indentation of the disputed provision in the endorsement indicate it is a subpart of paragraph (A), which stipulates an 80% reimbursement for medically necessary medical benefits based on specified statutory maximum charges. Citing the Scope-of-Subparts Canon, GEICO argues that the indented nature of the provision implies it refers back to the 80% rate, suggesting a 20% coinsurance. Conversely, the Plaintiff argues that canons of interpretation should not override the context and wording of the provision, asserting that no interpretation canon is absolute. The Court acknowledges that different interpretive principles can influence outcomes, referencing a prior case where the Eleventh Circuit disregarded the Scope-of-Subparts Canon when it led to illogical results. The Plaintiff proposes the Supremacy of Text Canon, emphasizing the importance of the governing text's language and context. The Court will examine the endorsement comprehensively, noting that it begins with "PAYMENTS WE WILL MAKE," detailing an 80% payment structure for medical benefits based on the statutory maximum charges, and includes various qualifications. The disputed provision specifies that if services are not reimbursable under Medicare Part B, reimbursement will be limited to 80% of the maximum allowable under workers' compensation, and it raises the key question of whether the phrase "an amount less than the amount allowed above" refers to the Medicare fee schedule or the 80% reimbursement rate.
The Court finds the provision in question to be ambiguous, allowing for multiple reasonable interpretations. GEICO argues that the indented paragraphs suggest the provision is modified by section (A), limiting reimbursement to 80%. However, the use of "above" in the subsequent paragraph indicates a reference to subsection (A)6, suggesting it may not be constrained to 80%. GEICO's explicit limitation of reimbursement to 80% for non-Medicare Part B charges, while omitting such language in the disputed provision, implies it could be interpreted as having no such limitation. The indented format raises questions about why GEICO would specify an 80% rate in one instance but not in the disputed clause. Given that multiple interpretations exist, the Court rules against GEICO, requiring that when a healthcare provider bills for covered services under 200% of the fee schedule, GEICO must pay the full billed amount.
In the conclusion, the Court denies GEICO's motion to disqualify the class representative, grants the plaintiff's motion for partial summary judgment, and denies GEICO's motion for summary judgment. The disputed provision is interpreted to require GEICO to pay 100% of the billed amount for charges under 200% of the fee schedule. This ruling does not relieve class members from proving their entitlement to benefits or address any defenses GEICO may raise. Additional motions are deemed moot, and the case is set to close.
GEICO's position assumes no reasons exist to deny coverage or reduce a claim, and that no additional coverage was purchased. In response to the Motion to Disqualify, the Plaintiff contends that they notified GEICO of the assignment through HCFA 1500 forms submitted with their benefits claim. There are conflicting interpretations between GEICO and the Plaintiff regarding the significance of the HCFA 1500 form, particularly concerning specific boxes related to Medicare versus PIP benefits. The Court indicates that individual class members are not obligated to submit their assignment of benefits, negating the need to analyze the HCFA 1500 forms in GEICO's claim file. GEICO's arguments regarding "typicality" and alleged overpayment are intertwined with a standing issue raised in their Motion for Summary Judgment, which was not previously addressed during certification. Credibility issues should be resolved at trial, but both parties have requested the Court to evaluate the case on summary judgment, where credibility cannot be weighed. The Plaintiff claims they were not able to respond to GEICO's arguments on equitable assignment raised in a Sur-reply. GEICO did not initially raise the EMC issue in its pleadings, and the Court acknowledges that GEICO's fourth affirmative defense addresses a different standing issue without mentioning EMC or policy limits. The Court clarifies that standing is not a true affirmative defense but a denial, emphasizing its obligation to confirm subject-matter jurisdiction. GEICO argues a particular provision does not apply to its policy, but the Court disagrees, citing statutory language that applies to life and health insurance policies at original issue.
The statute in question applies universally to "every policy," but for life and health insurance, its provisions are effective only at the original issuance. The Florida Legislature's lack of specific limitation for other insurance types, such as automobile insurance, indicates that the statute governs all insurance contracts under the insurance code. The Court clarifies that section 627.413(1)(g) does not mandate that endorsements be listed on a policy's declarations page; rather, it requires that all policies specify certain information. GEICO has not provided any language in the Policy or Declarations Page identifying M608 (01-13) as an endorsement. The Court's conclusion does not render the M608 (01-13) notice invalid but recognizes it as a notice of GEICO's election of the fee schedule in accordance with House Bill 119 and section 627.736(5)(a)5, rather than an endorsement.
