Mirror, mirror on the class, are damages what you really asked?
The Eleventh Circuit reversed an interlocutory order certifying an injunction class, rejecting the plaintiffs’ ploy “to lop off all the damages-based warts and recast their claim as one for injunctive relief under Rule 23(b)(2)” after their attempt to certify a damages class was denied. The decision underscores the importance of looking beyond face value to determine whether the relief requested is truly forward-looking in nature to support an injunction class or merely an ill-disguised attempt to obtain class certification.
Three health care providers sued Progressive American Insurance Co., seeking declaratory and injunctive relief, and damages for breach of contract. The plaintiffs alleged that Progressive relied on negative emergency medical condition determinations from non-treating health care providers to limit personal injury protection to $2,500 when only treating providers were allowed to make such determinations. The plaintiffs’ claims related to a 2012 revision to the PIP statute that capped benefits at $2,500 unless the insured motorist has an “emergency medical condition,” in which case benefits are $10,000.
Seeking class action status, the plaintiffs moved to certify an injunction class under Rule 23(b)(2) and a damages subclass under Rule 23(b)(3). The district court certified the injunction class but refused to certify the damages subclass because the damages claims were studded with individualized issues that precluded class certification under the predominance and superiority requirements of Federal Rule of Civil Procedure 23(b)(3). Progressive then filed an interlocutory appeal of the injunction class certification.
The Eleventh Circuit determined that everything about the plaintiffs’ case, from their theory of standing to their request for relief to their class definition, was geared toward the recovery of damages rather than preventing future harm.
The court first found that the plaintiffs’ theory of standing – the lost opportunity to recover full PIP benefits upon reprocessing their claims – was entirely retrospective: an ongoing interest in getting paid for past claims that Progressive rejected. Next, the court found that the plaintiffs’ request for relief – to reinstate their full amount of PIP coverage – was also backward-looking to past injuries. The only outcome that the relief could ever lead to was payment of additional benefits for injuries that the plaintiffs already suffered. Thirdly, the court found that the plaintiffs’ class definition was articulated all in past tense and did not envision future harm. Thus, because the proposed injunction class sought redress for Progressive’s past alleged underpayments rather than any prospective wrongdoing, the Eleventh Circuit held that injunctive relief was not the proper remedy as “an injunction must be geared toward preventing future harm.”
Finally, the court explained why the injunction class could not be saved by enjoining Progressive from including provisions in its policies that would allow negative emergency medical condition determinations by non-treaters: “justifying a class that is all about damages with a de minimus request for injunctive relief is like trying to prop up a tower with a toothpick.”
AA Suncoast Chiropractic Clinic, P.A. v. Progressive Am. Ins. Co., No. 17-13003 (11th Cir. Sept. 12, 2019).
