A Florida federal judge certified a class of health care providers Wednesday to pursue claims that Geico General Insurance Co. has engaged in a widespread practice of improperly underpaying personal injury protection claims in violation of its policy language.
The lawsuit, filed in May 2019 by chiropractor Randy Rosenberg, claims Geico’s policy requires reimbursement of 100% of all submitted charges that are less than the amount allowed under its established fee schedule, but that it has been the insurer’s general business practice to pay only 80% of all claims. The complaint includes a single count for breach of contract.
In her 16-page order, U.S. District Judge Aileen M. Cannon found that on the central dispute over class certification, Rosenberg had adequately shown that he can ascertain the other members of the class through a database of paid claims provided by the insurer in discovery.
Geico argued that Rosenberg’s method, which focused in part on explanations of benefits featuring a “BA” notation — indicating the insurer reduced reimbursement to 80% of the “billed amount” — was unreliable because there are 15 scenarios for which it might use that code, according to the order. It said a claim-by-claim “paper” review of each claim file would be required.
But Judge Cannon concluded that an analysis of Geico’s data conducted by The Fontana Group Inc. for Rosenberg that identified about 6,000 providers who met the class definition was sufficient.
Geico’s own expert said Rosenberg’s preliminary expert report incorrectly relied upon the “BA” code, but did not rebut a revised report based on additional information from Geico, the judge added
“Although Geico presents a fair challenge to ascertainability, and although the expert opinions on this issue conflict, the court has reviewed the full record and determines that plaintiff’s proposed class is adequately defined and presently ascertainable sufficient to satisfy plaintiff’s burden,” Judge Cannon said.
She also found that although there may have been questions about the number of uncontested class members Rosenberg could accurately identify, it appeared clear that he had reasonably estimated a class of more than 40 members, thus satisfying the numerosity requirement.
The judge also found that common questions of fact and law exist, noting all class members are medical providers who are seeking a similar resolution of the proper interpretation of Geico’s use of the BA code and whether it represents a violation of its policy.
Similarly, common issues predominate in the case, Judge Cannon said.
“The single legal issue is whether Geico’s uniform policy of allegedly uniform policy of allegedly reducing payments using the same ‘BA’ code was lawful,” she said. “This class-wide dispute predominates over any individual issue.”
The judge also ruled that a class action would be superior to the alternative of piecemeal state court litigation or individual negotiations with Geico.
The order greenlights a class of similarly situated health care providers who received assignments of benefits within the applicable statutes of limitation through the date of Rosenberg filing his lawsuit and who received similarly reduced payment on claims for no-fault benefits through Geico policies.
The issue relates to Geico vehicle insurance policyholders who are injured in traffic accidents and who assign their personal injury protection insurance benefits to the health care providers so that the providers are paid by the insurer.
Florida’s Motor Vehicle No-Fault Law requires all vehicle operators to possess personal injury protection that provides the insured at least $10,000 in combined medical expenses and lost wage coverage in the event of an accident.
Geico’s form PIP policy say that “[t]he company will pay in accordance with the Florida Motor Vehicle No Fault Law … eighty percent (80%) of medical benefits which are medically necessary” pursuant to the “schedule of maximum charges contained in the Florida statutes,” according to the order.
Geico’s fee schedule is keyed into the fee schedule of Medicare Part B, and Florida’s PIP statute says insurers can limit reimbursement to 80% of charges for medical services, supplies and care that are up to 200% of the allowed amount.
But Geico’s policy also includes a line that states: “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.”
Based on that language, Rosenberg claims that Geico is required to pay the full amount of charges billed by a provider that are less than 200% of the fee schedule.
Rosenberg had filed a similar version of his lawsuit that closely mirrored a lawsuit filed in the Southern District of Florida by A&M Gerber Chiropractic LLC against two Geico entities. Gerber won summary judgment, but the Eleventh Circuit vacated the judgment in April 2019 after finding Gerber lacked standing.
Rosenberg then dismissed his suit, which, like Gerber, sought only declaratory judgment. He filed the current suit, initially seeking declaratory judgment and claiming breach of contract, but he dropped the declaratory judgment claim, according to the order.
Counsel for both sides did not immediately respond to requests for comment Wednesday.
Rosenberg is represented by Edward H. Zebersky, Mark S. Fistos and Michael T. Lewenz of Zebersky Payne Shaw Lewenz LLP, and Alec H. Schultz of Hilgers Graben PLLC.
Geico is represented by Michael A. Rosenberg and Peter David Weinstein of Cole Scott & Kissane PA.
The case is Rosenberg v. Government Employees Insurance Co. et al., case number 0:19-cv-61422, in the U.S. District Court for the Southern District of Florida.