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A&M Gerber Chiropractic LLC v. GEICO General Insurance Co.

United States District Court, S.D. Florida

October 30, 2017

A&M GERBER CHIROPRACTIC LLC, a/a/o Conor Carruthers, on behalf of itself and all others similarly situated, Plaintiff,



         THIS CAUSE is before the Court upon Plaintiff's Motion to Intervene and to Extend Time for Sending Class Notice, ECF No. [133] (“Motion to Intervene”), Plaintiff's Motion for Protective Order, ECF No. [146] (“Motion for Protective Order”), and Plaintiff's Motion to Enforce Court Orders and/or for Issuance of an Order to Show Cause, ECF No. [153] (“Motion to Enforce”), (collectively the “Motions”). The Court has carefully considered the Motions, all supporting and opposing filings, the relevant authority, and is otherwise duly advised. For the reasons that follow, the Motion to Intervene is denied, the Motion for Protective Order is granted in part and denied part, and the Motion to Enforce is granted.

         I. BACKGROUND

         Plaintiff A&M Gerber Chiropractic LLC (“Plaintiff”) is a legal entity that provided medical treatment to an individual named Conor Carruthers (“Carruthers”) for injuries Carruthers sustained in an automobile accident. See ECF No. [23] (“Amended Complaint”) ¶ 13. Carruthers is a “contracting party and/or named insured” on an insurance policy issued by Defendant GEICO General Insurance Company (“GEICO”), and in exchange for treatment, Carruthers “assigned all benefits under the subject policy to Plaintiff.” Id. According to Plaintiff, GEICO pays Policy claims pursuant to the fee schedule permitted by Florida Statute § 627.736(5)(a) and GEICO's endorsement, FLPIP (01-13) (“Endorsement”). See Id. ¶¶ 7, 10. Plaintiff billed GEICO for services less than the amount payable under the elected fee schedule, and pursuant to the Policy and Endorsement, GEICO paid 80% of the charge submitted. See id. ¶ 14. Plaintiff pleads that, pursuant to its interpretation of the Policy and Endorsement, GEICO paid an incorrect amount, a practice GEICO allegedly employs on a wide-spread scale. See id. ¶¶ 11, 21. As such, Plaintiff seeks a declaratory judgment and has asked the Court to “interpret[] Florida Statute 627.736 and the insurance Policy issued by GEICO” and declare that “Defendant's Policy requires payment of 100% of the billed charges for all charges submitted under the Policy that are below the fee schedule amount.” Id. at 12.

         On June 6, 2017, this Court granted Plaintiff's Motion for Class Certification, and within that Order, it defined the class as follows:

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 with respect to the payment of any claims.

Id. at 22. It also appointed Plaintiff as the Class Representative and Plaintiff's counsel as Class Counsel. Id.

         Since then, Plaintiff, Class Counsel, and Harvey A. Frank, D.C., P.A. filed a motion asking the Court to allow the intervention of Harvey A. Frank, D.C., P.A. (the “proposed intervenor”) as a class representative as well as a named plaintiff. See ECF No. [133]. At the Court's recent case management conference, however, Class Counsel clarified that Plaintiff is only seeking to add the proposed intervenor for purposes of permissive intervention and is no longer seeking his intervention as a class representative. See ECF No. [150] at 11. GEICO challenges the proposed intervenor's standing, membership in the class, and ability to intervene as a named Plaintiff in this action. See ECF No. [151]. In light of Plaintiff's recent clarification regarding the purpose of the proposed intervention, the Court analyzes whether the proposed intervenor is indeed a member of the class and has an interest relating to the property that is the subject of this lawsuit. The parties also address multiple discovery matters within Plaintiff's Motion for Protective Order and Motion to Enforce. See ECF Nos. [146], [152], and [153]. In an effort to provide further clarity and guidance to the parties as to the limited discovery permitted at this late stage of the proceedings, the Court also addresses each of those Motions.


         A. Intervention

         Federal Rule of Civil Procedure 24 allows intervention as a matter of right and on a permissive basis. With regard to each basis, Rule 24 states:

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, ...

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