IDS PROPERTY CASUALTY INSURANCE COMPANY

v.

MSPA CLAIMS 1, LLC, ET AL.

Third District Court of Appeal State of Florida

Opinion filed September 30, 2024. Not final until disposition of timely filed motion for rehearing. ________________

No. 3D21-1790 Lower Tribunal No. 15-27940 ________________

IDS Property Casualty Insurance Company, Appellant,

vs.

MSPA Claims¹, LLC, et al., Appellees.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, David C. Miller, Judge.

White & Case LLP, and Raoul G. Cantero and Zachary B. Dickens; Ramón A. Abadin, P.A., and Ramón A. Abadin; Maynard, Cooper & Gayle, P.C., and Thomas Julian Butler (Birmingham, AL), for appellant.

MSP Recovery Law Firm, and John H. Ruiz and Michael O. Mena and Arlenys Perdomo and Reynaldo Martinez; Armas Bertran Pieri, and J. Alfredo Armas, Eduardo Bertran, and Francesco A. Zincone, for appellees.

Before LOGUE, C.J., and EMAS,¹ and BOKOR, JJ.

2

BOKOR, J.

This is an appeal of an order granting class certification in a personal injury protection (PIP) action for declaratory judgment. IDS, the defendant and insurer below, challenges the certification of a class consisting of all Florida Medicare Advantage Organizations (MAOs)² and downstream

Congress divided the Medicare Act into so-called parts. Part C of the Act allows private entities to provide insurance coverage for some Medicare enrollees. See 42 U.S.C. § 1395w-21(a). These private entities are known as Medicare Advantage Organizations or MAOs. See id. Just like the Medicare program itself, these MAOs act as secondary payers in situations where another insurer—for example, a worker’s compensation plan or automobile insurer—is also responsible for paying for medical care. See id. §§ 1395y(b)(2)(A)(ii); 1395w- 22(a)(4). These other insurers are known as primary payers.

A simple example illustrates this point. Suppose a driver is injured in a car accident. Assume the driver has a car insurance policy with a $10,000 limit for medical bills associated with an accident and, separately, has coverage from an MAO through Medicare Part C. In an ideal world, the driver’s car insurance would cover the first $10,000 in medical expenses with the MAO picking up the rest.

The real world, of course, is not always ideal, and primary payers do not always pay (or timely pay) covered medical expenses. The Medicare Act recognizes this reality and allows an MAO (as a secondary payer) to make “conditional payments” if the primary payer “has not made or cannot reasonably be expected to make payment with respect to such item or service promptly.” Id. § 1395y(b)(2)(B). If an MAO makes such a conditional payment, the Act in turn creates a private right of action allowing the MAO to seek reimbursement from the primary payer who should have made payment in the first place.

FACTS AND BACKGROUND

MSPA and La Ley, the plaintiffs named in the operative complaint, are two limited liability companies that were assigned the rights to reimbursement of certain conditional medical payments made to IDS’s insureds by Florida Healthcare Plus, a now-defunct MAO. Florida Healthcare Plus initially attempted to assign its reimbursement rights to La Ley in April 2014, and La Ley in turn assigned its rights to MSPA in February 2015.

See id. § 1395y(b)(3)(A). Importantly, this private right of action allows an MAO to recover double damages for any unreimbursed conditional payment. See id.

Because of the ubiquity of insurance in the modern economy, people often have overlapping coverage through both a primary payer and an MAO. As a result, MAOs sometimes make conditional payments with insufficient knowledge about the responsible primary payer. If an MAO later learns that a primary payer shouldered principal responsibility for a particular covered expense, the organization is able to seek reimbursement from the primary payer. But trying to collect these unreimbursed payments can be tedious, costly, and uncertain. This creates an incentive for MAOs to outsource this process—essentially to assign or sell its right to reimbursement to another party.

MAO-MSO Recovery II, LLC v. State Farm Mut. Auto. Ins. Co., 994 F. 3d 869, 871–72 (7th Cir. 2021).

MSPA brought its original complaint against IDS on December², 2015, initially asserting class-action breach of contract claims on behalf of all similarly-situated MAOs due to IDS’s failure to identify its Medicare-eligible insureds for which IDS had a primary obligation and reimburse secondary payers for their conditional payments to those insureds. MSPA argued both that IDS failed to make mandatory primary payments for the reasonable and necessary medical expenses of eligible insureds and that IDS failed to make such payments or reimburse secondary payers. La Ley was not named as a party. The trial court initially granted class certification, but this court reversed the class certification and remanded for further proceedings. See IDS Prop. Cas. Ins. Co. v. MSPA Claims¹, LLC, 263 So. 3d 122 (Fla. 3d DCA 2018) (IDS I). There, we concluded that the putative class failed to satisfy the predominance requirement of Fla. R. Civ. P. 1.220(b)(3). As an alternative

3 The parties do not dispute that MSPA is the current assignee.

On remand, MSPA amended the complaint to add La Ley as a plaintiff and solely seek a declaratory judgment that IDS was required under the Medicare Act and the Florida Motor Vehicle No-Fault Law to determine which of its insureds were eligible for Medicare Part C benefits and notify secondary payers to enable coordination of benefits. The trial court again granted class certification, and IDS now appeals once more.

ANALYSIS

We see no substantive change in the legal analysis as applicable to the issues raised in this appeal from the issues resolved in IDS I. We begin by addressing the issue of standing, which is a “threshold inquiry in a motion for class certification.” See Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 116 (Fla. 2011). “A trial court’s decision as to whether a party has satisfied the standing requirement is reviewed de novo.” Id. “To satisfy the standing requirement for a class action claim, the class representative must illustrate that a case or controversy exists between him or her and the defendant, and that this case or controversy will continue throughout the