No Damage, No Case or Controversy, No Right to Sue in Federal Court: Assignee has no more Right to Sue than Assignor.

• Author: Zalma, Barry
• Position: ON MY RADAR

No fault insurance was designed to save insurers and insureds money by removing automobile accident damages from the tort law system. Like all seemingly good ideas the no fault insurance systems, like Florida's PIP system, were victims of the law of unintended consequences. One of those unintended consequences was the proclivity of health care providers to take assignments of the claims of the patients and then litigating to seek benefits plus tort damages. Often they succeeded. In the case that follows they forgot to sue for a case or controversy.

In A&M Gerber Chiropractic LLC, As Assignee Of Conor Carruthers, On Behalf Of Itself And All Others Similarly Situated v. GEICO General Insurance Company, No. 17-15606, United States Court of Appeals for the Eleventh Circuit (April 19, 2019) a chiropractor took an assignment from a patient, Conor Carruthers, who was involved in a car accident 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. 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.

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."

Carruthers assigned his rights to his treating chiropractic clinic, Gerber, which later filed a declaratory judgment class action suit in Florida state court. 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 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...