A&M Gerber Chiropractic LLC v. Geico General Insurance Company , 921 F.3d 1273 ( 2019 )

Case: 17-15606 Date Filed: 04/19/2019 Page: 1 of 23
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15606
________________________
D.C. Docket No. 0:16-cv-62610-BB
A&M GERBER CHIROPRACTIC LLC,
as assignee of Conor Carruthers, on behalf
of itself and all others similarly situated,
Plaintiff - Appellee,
versus
GEICO GENERAL INSURANCE COMPANY,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 19, 2019)
Before WILSON and BRANCH, Circuit Judges, and VINSON, ∗ District Judge.
∗Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.
Case: 17-15606 Date Filed: 04/19/2019 Page: 2 of 23
VINSON, District Judge:
Conor 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).
2
Case: 17-15606 Date Filed: 04/19/2019 Page: 3 of 23
It is 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.”
Specifically, 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 schedule.
3
Case: 17-15606 Date Filed: 04/19/2019 Page: 4 of 23
GEICO 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
IMPORTANT NOTICE
FEE SCHEDULE ENDORSEMENT
and it 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.
Carruthers 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
4
Case: 17-15606 Date Filed: 04/19/2019 Page: 5 of 23
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.
GEICO 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.
Shortly 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
5
Case: 17-15606 Date Filed: 04/19/2019 Page: 6 of 23
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 diagnosis.
On 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.”
GEICO 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.
I.
6
Case: 17-15606 Date Filed: 04/19/2019 Page: 7 of 23
We must 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 determines that [the
plaintiff has no standing], the court is powerless to continue.”).
We review standing determinations de novo. See, e.g., SEC v. Quest Energy
Mgmt. Group, Inc., 768 F.3d 1106, 1108 (11th Cir. 2014) (citing CAMP Legal Def.
Fund, Inc. v. City of Atlanta, 451 F.3d 1257, 1268 (11th Cir. 2006)). After de novo
review—and with the benefit of oral argument—we conclude that Gerber lacks
standing.
II.
Article III of the Constitution limits federal courts to adjudicating actual
“cases” and “controversies.” See, e.g., Allen v. Wright, 468 U.S. 737, 750 (1984),
abrogated on other grounds by Lexmark Int’l, Inc. v. Static Control Components,
Inc., 572 U.S. 118 (2014). The case-or-controversy requirement sets fundamental
limits on federal judicial power. Id. “Perhaps the most important of the Article III
doctrines grounded in the case-or-controversy requirement is that of standing.”
Wooden v. Bd. of Regents of the Univ. Sys. of Ga., 247 F.3d 1262, 1273 (11th Cir.
2001). Standing cannot be waived or conceded by the parties, and it may be raised
(even by the court sua sponte) at any stage of the case. See Bender v. Williamsport
7
Case: 17-15606 Date Filed: 04/19/2019 Page: 8 of 23
Area Sch. Dist., 475 U.S. 534, 541 (1986); Harris v. Evans, 20 F.3d 1118, 1121 n.4
(11th Cir. 1994).
“In essence the question of standing is whether the litigant is entitled to
have the court decide the merits of the dispute or of particular issues.” Warth v.
Seldin, 422 U.S. 490, 498 (1975); see also Yellow Pages Photos, Inc. v. Ziplocal,
LP, 795 F.3d 1255, 1264 (11th Cir. 2015) (same). “The party who invokes a
federal court’s authority must show, at an ‘irreducible minimum,’ that at the time
the complaint was filed, he has suffered some actual or threatened injury resulting
from the defendant’s conduct, that the injury fairly can be traced to the challenged
action, and that the injury is likely to be redressed by favorable court disposition.”
Atlanta Gas Light Co. v. Aetna Cas. & Sur. Co., 68 F.3d 409, 414 (11th Cir. 1995).
Echoing the “case or controversy” requirement of Article III, the Declaratory
Judgment Act “provides that a declaratory judgment may only be issued in the case
of an actual controversy.” See Emory v. Peeler, 756 F.2d 1547, 1551-52 (11th Cir.
1985) (citing 28 U.S.C. § 2201); see also Atlanta Gas Light, 68 F.3d at 414 (“In all
cases arising under the Declaratory Judgment Act, . . . the threshold question is
whether a justiciable controversy exists.”). “That is, under the facts alleged, there
must be a substantial continuing controversy between parties having adverse legal
interests.” Emory, 756 F.2d at 1552. The controversy between the parties cannot
be “conjectural, hypothetical, or contingent; it must be real and immediate, and
8
Case: 17-15606 Date Filed: 04/19/2019 Page: 9 of 23
create a definite, rather than speculative threat of future injury.” Id. In order to
demonstrate that there is a case or controversy that satisfies Article III’s standing
requirement when a plaintiff is seeking declaratory relief—as opposed to seeking
damages for past harm—the plaintiff must allege facts from which it appears that
there is a “substantial likelihood that he will suffer injury in the future.” Malowney
v. Federal Collection Deposit Grp., 193 F.3d 1342, 1346 (11th Cir. 1999); accord
Strickland v. Alexander, 772 F.3d 876, 883 (11th Cir. 2014) (“Where the plaintiff
seeks declaratory or injunctive relief, as opposed to damages for injuries already
suffered, . . . the injury-in-fact requirement insists that a plaintiff ‘allege facts from
which it appears there is a substantial likelihood that he will suffer injury in the
future.’”) (quoting Malowney, 193 F.3d at 1346). “Thus, in order for this Court to
have jurisdiction to issue a declaratory judgment, . . . [the plaintiffs] must assert a
reasonable expectation that the injury they have suffered will continue or will be
repeated in the future.” Malowney, 193 F.3d at 1347; see also id. at 1348 (“Injury
in the past . . . does not support a finding of an Article III case or controversy when
the only relief sought is a declaratory judgment.”). Accordingly, if a plaintiff does
not assert a reasonable expectation of future injury, he “lack[s] standing to bring an
action for declaratory relief[.]” See id. at 1348.
In this case, Gerber, as assignee, stands in Carruthers’ shoes. Houk v. C.I.R.,
173 F.2d 821, 825 (5th Cir. 1949) (“[A]n assignee . . . stands in the same position
9
Case: 17-15606 Date Filed: 04/19/2019 Page: 10 of 23
as its assignor had stood.”). 1 It necessarily follows, then, that if Carruthers had no
standing to file this case against GEICO, Gerber has no standing either. Crossman
v. Fontainebleau Hotel Corp., 273 F.2d 720, 725 (5th Cir. 1959) (“An assignee has
no greater rights than his assignor[.]”).
It is well-settled that “if none of the named plaintiffs purporting to represent
a class establishes the requisite of a case or controversy with the defendants, none
may seek relief on behalf of himself or any other member of the class.” O’Shea v.
Littleton, 414 U.S. 488, 494 (1974); see also Prado-Steiman ex rel. Prado v. Bush,
221 F.3d 1266, 1279-80 (11th Cir. 2000) (class representative must have individual
standing to raise class claims); Wooden, 247 F.3d at 1288 (claim cannot be asserted
for a class “‘unless at least one named plaintiff has suffered the injury that gives
rise to that claim’”) (quoting Prado-Steiman, 221 F.3d at 1280). As we have said:
Under elementary principles of standing, a plaintiff must
allege and show that he personally suffered injury. If he
cannot show personal injury, then no article III case or
controversy exists, and a federal court is powerless to
hear his grievance. This individual injury requirement is
not met by alleging that injury has been suffered by
other, unidentified members of the class to which the
plaintiff belongs and which he purports to represent.
Thus, a plaintiff cannot include class action allegations in
a complaint and expect to be relieved of personally
meeting the requirements of constitutional standing, even
if the persons described in the class definition would
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted
as binding precedent all Fifth Circuit decisions rendered prior to the close of business on September
30, 1981.
10
Case: 17-15606 Date Filed: 04/19/2019 Page: 11 of 23
have standing themselves to sue. A named plaintiff in a
class action who cannot establish the requisite case or
controversy between himself and the defendants simply
cannot seek relief for anyone—not for himself, and not
for any other member of the class.
Griffin v. Dugger, 823 F.2d 1476, 1482-83 (11th Cir. 1987) (multiple citations,
quotation marks, and brackets omitted).
Importantly, Article III standing must be determined as of the time that the
plaintiff’s complaint is filed. See, e.g., Arcia v. Florida Sec’y of State, 772 F.3d
1335, 1340 (11th Cir. 2014); Focus on the Family v. Pinellas Suncoast Transit
Auth., 344 F.3d 1263, 1275 (11th Cir. 2003) (collecting multiple cases); Atlanta
Gas Light, 68 F.3d at 414 (in determining whether there is an Article III case or
controversy, “we ‘look to the state of affairs as of the filing of the complaint; a
justiciable controversy must have existed at that time’”) (citation omitted); accord
Morrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602, 616 (6th Cir. 2008) (stating
that standing must be evaluated “at the time the plaintiff filed his or her complaint
and not at anytime thereafter”) (citation omitted). Florida’s standing requirement
is the same in this respect. See Progressive Exp. Ins. Co. v. McGrath Community
Chiropractic, 913 So. 2d 1281, 1284-85 (Fla. 2d DCA 2005) (citing and discussing
cases and noting that “[a]s these cases demonstrate, the plaintiff’s lack of standing
at the inception of the case is not a defect that may be cured by the acquisition of
standing after the case is filed”).
11
Case: 17-15606 Date Filed: 04/19/2019 Page: 12 of 23
III.
GEICO argues on appeal, as it did below, that Carruthers was only entitled
to $2,500 in PIP benefits under the policy because there was no EMC diagnosis at
the time the complaint was filed. Consequently, Gerber (as Carruthers’ assignee)
was not entitled to benefits beyond $2,500. Because GEICO paid much more than
that amount, Carruthers/Gerber didn’t suffer harm as a result of GEICO’s alleged
misapplication of its policy. According to GEICO, no matter how we interpret the
disputed policy language, Gerber will not be able to recover anything from GEICO
(i.e., there was no injury to Carruthers resulting from GEICO’s conduct that can be
fairly traced to the challenged action and redressed by a favorable court ruling),
thereby eliminating the existence of a case or controversy. GEICO is correct.
When an insurance company has “paid all benefits in full . . . [t]here is no
case or controversy[.]” Harrison v. United Mine Workers of Am. 1974 Ben. Plan
& Trust, 941 F.2d 1190, 1193 (11th Cir. 1991); 2 accord Progressive Am. Ins. Co.
2
We recognize that there was “no case or controversy” in Harrison because the case was
rendered moot after the insurer paid benefits in full while the case was pending, unlike this case
where the benefits were paid in full pre-suit. But that is a distinction without a difference. As
Professor Monaghan has observed, the justiciability doctrines of standing and mootness “share
the same root.” Henry P. Monaghan, Constitutional Adjudication: The Who and When, 82 Yale
L.J. 1363, 1384 (1973). The Supreme Court has described mootness as merely “‘the doctrine of
standing set in a time frame: The requisite personal interest that must exist at the commencement
of the litigation (standing) must continue throughout its existence (mootness).’” United States
Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980) (quoting Monaghan, supra). If a case
becomes non-justiciable because an insurer has paid full benefits while the case is pending (as in
Harrison), the case should be non-justiciable if it is undisputed that the benefits were paid before
the case was even filed (as here). To hold otherwise would mean that if GEICO had denied PIP
12
Case: 17-15606 Date Filed: 04/19/2019 Page: 13 of 23
v. Stand-Up MRI of Orlando, 990 So. 2d 3, 4 (Fla. 5th DCA 2008) (“a PIP insurer is
not liable for benefits once benefits have been exhausted”); Neighborhood Health
P’ship Inc. v. Fischer, 913 So. 2d 703, 705 (Fla. 3d DCA 2005) (trial court abused
its discretion in certifying a class action “where the uncontroverted evidence is
clear that Dr. Fischer lacks standing to serve as a class representative because he
has no claim for damages against NHP, and, indeed, may in fact owe a refund to
NHP for claims overpaid to him”); Graham v. State Farm Fire & Cas. Co., 813
So. 2d 273, 274 (Fla. 5th DCA 2002) (“The conceded facts show that the Grahams
were paid in full two years prior to the filing of the class claims. . . . Based on the
conceded facts, there is no existing dispute between the Grahams and State Farm
that would give the Grahams standing to proceed on behalf of other potential
plaintiffs with similar disputes.”); Ramon v. Aries Ins. Co., 769 So. 2d 1053 (Fla.
3d DCA 2000) (policyholder who received full payment of PIP benefits lacked
standing to pursue class action claim).
In finding that Gerber had standing in the order under review, the District
Court relied on a single case: Mills v. Foremost Ins. Co., 511 F.3d 1300 (11th Cir.
2008). Based on that case, the District Court held that GEICO’s pre-suit (and pre-
EMC) payment in excess of the statutory cap didn’t implicate standing, but, rather,
benefits pre-suit but then paid Gerber $7,311 shortly after the case was filed, the case would have
become moot and thus non-justiciable, but undisputed evidence showing that those same benefits
were paid before the case was filed wouldn’t raise any justiciability concerns.
13
Case: 17-15606 Date Filed: 04/19/2019 Page: 14 of 23
it was an exhaustion of benefits affirmative defense. The District Court’s reliance
on Mills was misplaced.
The plaintiffs in that case, Dale and Diane Mills, owned a mobile home that
was insured under a policy issued by the defendant, Foremost Insurance Company.
They filed a class action alleging that Foremost had failed to pay them (and other
insureds) for overhead, profit, and taxes after they sustained hurricane-damaged
losses, and they sought compensation for those “Withheld Payments.” Notably—
and in contrast to this action—the plaintiffs in Mills were seeking both declaratory
relief and damages for breach of contract. The defendant argued that the plaintiffs
had failed to satisfy certain preconditions in the policy that allegedly required them
to complete repair or replacement of their damaged property first and then submit a
repair or replacement cost claim to the insurance company before entitling them to
the Withheld Payments. Foremost argued that the Millses’ failure to do so
deprived them of standing, and the District Court agreed.
In reversing, we began by holding the District Court erred in interpreting the
policy to require that the Millses jump through the aforementioned hoops. See 511
F.3d at 1304-06 (rejecting the district court’s conclusion that preconditions in the
policy required the Millses to complete repair or replacement of their damaged
property and to submit such a replacement cost claim to be entitled to the Withheld
Payments). We then continued:
14
Case: 17-15606 Date Filed: 04/19/2019 Page: 15 of 23
The district court also erred in treating these particular
insurance coverage issues under the Policy as standing
issues. The complaint alleges that the Millses had a
mobile home, that Foremost issued an insurance policy
covering hurricane damage to the mobile home, that a
hurricane damaged the Millses’ mobile home, that the
Millses made a claim under the Policy for those damages,
and that Foremost paid less on the claim than the Millses
contend they are owed. Thus, the Millses clearly had
standing to sue for damages under the Policy. See
Wooden v. Bd. of Regents, 247 F.3d 1262, 1273-74 (11th
Cir. 2001) (stating that standing is essentially a
determination of “whether the litigant is entitled to have
the court decide the merits of the dispute or of particular
issues,” and requires that a plaintiff have suffered a
concrete, particularized injury that is caused by the
challenged action of the defendant and can be redressed
by a favorable court decision).
Whether the Withheld Payments were covered by the
Policy is an issue of whether the Millses’ complaint fails
to state a claim for relief under the Policy—not a
standing issue. Whether the Millses’ complaint pled
sufficient facts is likewise a failure-to-state-a-claim issue.
We thus reject Foremost’s standing arguments as to the
Millses’ individual claims against Foremost on this basis
as well.
Id. at 1306-07 (emphasis added).
Therefore, Mills was not (as here) an exhaustion of benefits case. Rather, it
was a coverage dispute that included a breach of contract claim seeking damages
arising out of that dispute. This distinction is critical because if the plaintiffs had
prevailed in Mills, they would have been entitled to the Withheld Payments. Thus,
we found there that “the Millses clearly had standing to sue for damages under the
15
Case: 17-15606 Date Filed: 04/19/2019 Page: 16 of 23
Policy” because the plaintiffs alleged that the insurer “paid [them] less on the claim
than [they] contend they are owed,” and a ruling in their favor on that point would
entitle them to the money owed. 511 F.3d at 1307 (emphasis added). By contrast,
when insurance benefits are fully exhausted (as here, and as in certain of the cases
cited supra), there is no case or controversy because no money is owed regardless
of how the case is ultimately decided. See, e.g., Harrison, 941 F.2d at 1193. Mills
would apply if Gerber alleged breach of contract and sought damages. But, it
specifically tailored its complaint to avoid such allegations. 3
3
In her concurring opinion, Judge Branch believes it is irrelevant that GEICO paid in
excess of the PIP limit because Gerber is not seeking money damages. While it is true—as we
have noted several times—that Gerber is not seeking money damages for unpaid benefits in this
case, Gerber has made clear in its brief, in its notice of supplemental authority, and during oral
argument that the declaratory relief it seeks is merely a precursor to a claim for money damages
in subsequent cases. See Appellee Brief at 45 (“declaratory relief may serve ‘as a predicate for
later monetary relief’”) (quoting Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 429 (6th
Cir. 2012)); Notice of Supplemental Authority, dated December 5, 2018 (noting “‘a declaratory
judgment is normally a prelude to a request for other relief’”) (quoting Berger v. Xerox Corp.
Retirement Income Guarantee Plan, 338 F.3d 755, 763-64 (7th Cir. 2003)); Oral Argument
18:40-18:56 (“The declaratory relief, as we say in the cases cited in the supplemental authority
[Berger] and in the Gooch case from the Sixth Circuit that I want to focus on, all make it clear
that there’s nothing unusual about having declaratory relief as a precursor to monetary relief”).
Consistent with the foregoing, counsel for Gerber expressly said at oral argument that if their
interpretation of GEICO’s policy is correct and Gerber prevails in this lawsuit, the “monetary
claims . . . will come” later. Oral Argument 20:30-20:35. We understand this argument (that
there are viable claims for damages that will be raised in the future) to potentially implicate the
standing issue. If Gerber were to win on the merits, monetary claims may indeed come later
(and there may be standing) for class members who were underpaid as the result of GEICO’s
misinterpretation of its policy language. However, it is undisputed that when the complaint was
filed (the only time that matters) Carruthers (the only person who matters) was paid more in PIP
benefits than he was entitled to. See, e.g., Appellee Brief at 29 (acknowledging that GEICO
“voluntarily pa[id] Gerber $7,311 with no EMC determination when Gerber made its insurance
claims”). Thus, there is no monetary claim for Gerber as Carruthers’ assignee, and there will be
no such claim in the future for Carruthers—even though he was diagnosed with an EMC after
this case was filed—because standing must be determined as of the time of filing. That is why
16
Case: 17-15606 Date Filed: 04/19/2019 Page: 17 of 23
This is not to say, of course, that to have standing to pursue a declaratory
judgment action the complaint must seek monetary relief. It doesn’t have to seek
such relief. As earlier noted, however, when a plaintiff is seeking declaratory
relief without a claim for money damages for injuries already suffered, the plaintiff
must allege facts from which it appears that there is a substantial likelihood that he
will suffer injury in the future. E.g., Strickland, 772 F.3d at 883. Gerber has not
alleged such facts here. Quite to the contrary, a review of Gerber’s motion to
remand indicates that it specifically tailored its complaint to avoid alleging future
injury (as it did with the money damages). Indeed, Gerber unequivocally stated in
its motion that “Plaintiff does not make any claim in the complaint that there is a
risk of future injury.” See Remand Mot. at 9 (emphasis added). 4
Gerber now argues—directly contrary to what it previously argued—that
there is a risk of future injury here. Specifically, Gerber argues that the dispute
about the policy language will continue or be repeated in the future, and it will
injure Gerber and other chiropractors insofar as they don’t know whether to tell
their patients that GEICO is responsible for the full 100% of the relevant charges,
the exhaustion of benefits issue is relevant and why we have discussed it, even though money
damages are not being sought in this litigation.
4
Ironically, it appears that Gerber didn’t allege future injury because it knew that doing
so would implicate federal jurisdiction, and it wanted to avoid federal court and stay in Florida
state court. See Remand Mot. at 7-9 (arguing that federal courts lack Article III jurisdiction over
declaratory judgment actions if there is no claim for money damages or future injury—neither of
which, Gerber argued, was present in this case—but “the Florida Declaratory Judgment Act is
much more expansive and permits a claim similar to this action”).
17
Case: 17-15606 Date Filed: 04/19/2019 Page: 18 of 23
or whether the patients are responsible for 20%. See Oral Argument 19:16-20:23.
This is significant, Gerber’s counsel noted during oral argument, as evidenced by
the fact that GEICO had indirectly accused Gerber of insurance fraud in this case
for not attempting to collect the 20% from Carruthers, and such accusations could
adversely impact its license in the future. See id. at 19:10-20:13.5
Whether and to what extent Gerber might be injured is beside the point
because the proper inquiry in this case must focus on the potential future injury to
Carruthers, not to Gerber or other members of the class. Cf. Kostelac v. Allianz
Global Corp. & Specialty AG, 517 F. App’x 670, 675-76 (11th Cir. 2013) (stating
that because an assignee must stand in the shoes of the assignor, and he has no
rights greater than the assignor, “the relevant inquiry” must focus on the assignor,
and it is “misguided” to “shift the . . . inquiry” to the assignee) (citing Crossman,
273 F.2d at 725; Houk, 173 F.2d at 825).6 And we can see no potential future
threat to Carruthers, other than the possibility that he may someday be in another
car accident; sustain an injury entitling him to PIP benefits; and still be insured by
GEICO under the same or a similar policy being interpreted the same way, thereby
5
Gerber also points out in its brief that GEICO argued early on in this lawsuit (when it
removed the action to federal court) that Gerber did have standing. As we have already noted,
however, standing cannot be waived or conceded, and we must independently decide whether it
exists.
6
Although an unpublished opinion is not binding, it may be cited as persuasive authority.
See, e.g., Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342, 1355 n.5 (11th Cir. 2018) (citing
United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir. 2000), in turn citing 11th Cir. R. 36-2).
18
Case: 17-15606 Date Filed: 04/19/2019 Page: 19 of 23
having this issue present itself again. But, that is too contingent to constitute a
“substantial likelihood” of future injury. See, e.g., Emory, 756 F.2d at 1552 (to
satisfy Article III, the case or controversy cannot be “conjectural, hypothetical, or
contingent; it must be real and immediate, and create a definite, rather than
speculative threat of future injury”).
In the absence of a claim for money damages or substantial likelihood that
Carruthers will suffer a future injury—both of which Gerber was careful to avoid
alleging here—Gerber has no standing to pursue this case.
IV.
We recognize that this appeal raises an important issue for GEICO’s Florida
PIP policyholders and for medical providers treating them. And we recognize, too,
that the lawsuit has been pending for several years and has consumed a lot of both
judicial and attorney resources. If we could, we would reach the merits and give
finality to the questions presented. But we cannot. “‘In the absence of standing, a
court is not free to opine in an advisory capacity about the merits of a plaintiff’s
claims.’” CAMP Legal Def. Fund, 451 F.3d at 1269 (quoting Bochese v. Town of
Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005)). Again, “standing is ‘perhaps the
most important’ jurisdictional doctrine, and, as with any jurisdictional requisite, we
are powerless to hear a case when it is lacking.” Bochese, 405 F.3d at 974 (citation
omitted). Because we have no jurisdiction to entertain this suit, and neither did the
19
Case: 17-15606 Date Filed: 04/19/2019 Page: 20 of 23
District Court, the decision below must be reversed and the case remanded with
instructions to dismiss the complaint for lack of standing.
REVERSED AND REMANDED, WITH INSTRUCTIONS TO
DISMISS.
20
Case: 17-15606 Date Filed: 04/19/2019 Page: 21 of 23
BRANCH, Circuit Judge, concurring in part and concurring in the judgment:
I concur with the judgment in full and with the panel opinion except for the
portion that analyzes exhaustion of benefits. I find that analysis irrelevant given
that Gerber seeks only declaratory relief.
The oddness of this case calls for special emphasis. Gerber has deployed a
variety of tactics that make it hard to believe a case like this one will ever arise
again. In particular, Gerber vigorously argued in the district court that it lacked
Article III standing, and in doing so it expressly disclaimed any interest in future
relief. Nevertheless, Gerber decided to avoid the rigors of Rule 23(b)(3) of the
Federal Rules of Civil Procedure and to move to certify a class only under Rule
23(b)(2)—a rule intended, in part, to confer the prospective relief Gerber had
disclaimed. 1
1
If a class action meets certain prerequisites laid out in Rule 23(a), a class action may be
maintained under one of Rule 23(b)’s three provisions. Rule 23(b)(1) is not relevant here. Rule
23(b)(2) provides for a class action if “the party opposing the class has acted or refused to act on
grounds that apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole.” Rule 23(b)(3) provides for a
class action if “the court finds that the questions of law or fact common to class members
predominate over any questions affecting only individual members, and that a class action is
superior to other available methods for fairly and efficiently adjudicating the controversy.” As
the Supreme Court has explained, the “procedural protections attending the (b)(3) class—
predominance, superiority, mandatory notice, and the right to opt out—are missing from (b)(2)
. . . .” Wal-Mart Stores v. Dukes, 564 U.S. 338, 362 (2011).
21
Case: 17-15606 Date Filed: 04/19/2019 Page: 22 of 23
With these things in mind, I agree with the panel that Gerber—and by
extension Carruthers 2—lacks standing. But I agree only with the panel’s analysis
that concludes that Gerber and Carruthers lack an interest in future relief. I believe
that analysis is dispositive on its own.
Gerber and Carruthers seek only a declaration that the PIP requires GEICO
to pay 100% of certain charges rather than 80%. The only thing that matters, then,
is whether Gerber and Carruthers have an interest in any future relief conferred by
the declaration they seek. See Malowney v. Fed. Collection Deposit Grp., 193 F.3d
1342, 1346 (11th Cir. 1999) (“In order to demonstrate that a case or controversy
exists to meet the Article III standing requirement when a plaintiff is seeking
injunctive or declaratory relief, a plaintiff must allege facts from which it appears
there is a substantial likelihood that he will suffer injury in the future.”); id. at 1348
(“Injury in the past . . . does not support a finding of an Article III case or
controversy when the only relief sought is a declaratory judgment.”).
The panel correctly explains that a plaintiff need not seek monetary relief in
a declaratory judgment action. Yet the panel believes that it matters whether
2
I agree with the panel that Gerber stands in Carruthers’s shoes as assignee. But that is
not how the issue is framed, as Gerber purports to represent a class of healthcare providers that
received an assignment of benefits. The district court’s declaration also focuses on those
providers. See A & M Gerber Chiropractic LLC v. GEICO Gen. Ins. Co., 291 F. Supp. 3d 1318,
1344 (S.D. Fla. 2017) (“[I]f a provider submits a bill to GEICO that is less than 200 percent of
the applicable fee schedule, GEICO shall pay the provider 100 percent of the amount billed.”).
Ultimately, we need not resolve the confusion. Neither Gerber nor Carruthers has standing to
seek declaratory relief in this case—on behalf of themselves or anyone else.
22
Case: 17-15606 Date Filed: 04/19/2019 Page: 23 of 23
Gerber and Carruthers were paid beyond the PIP limit. The panel reasons that if
Gerber and Carruthers have exhausted their benefits, they have not suffered an
injury and will not benefit from a favorable declaration.
The problem is that, contrary to GEICO’s and the panel’s assertion, this case
is not about exhaustion of benefits. Again, Gerber’s operative complaint seeks
only a declaratory judgment regarding how GEICO should pay certain charges.
Yet Gerber has disclaimed the notion that GEICO will underpay it in the future.
See Doc. 7 at 7–9; Doc. 40 at 4. That disclaimer, not any money GEICO has paid
Gerber in the past, is why Gerber lacks standing.
In short, it does not matter how much money Gerber and Carruthers have
been paid. For that reason, the panel’s discussion of mootness is also irrelevant.
GEICO could not buy its way out of this declaratory judgment action—before or
after the action began. A declaratory judgment lawsuit requires the plaintiff to
prove a substantial likelihood of future harm. Gerber has disclaimed any such
harm. The panel and I agree on this point. But I believe it should be the beginning
and end of our standing inquiry.
23