IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
WILMINGTON PAIN & REHABILITATION CENTER, P.A.,
on behalf of itself and all Others similarly Situated,
Plaintiff, C.A. N0. NlSC-()6-218 JRJ CCLD
V.
USAA GENERAL INDEMNITY INSURANCE COMPANY and GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY,
Defendants. OPINION
Date Submitted: September 7, 2017 Date Decided: October l7, 2017
Upon Wilmington Paz`n & Rehabilitation Center, P.A.’S Motion for Class Certifl`cation: DENIED.
John S. Spadaro, Esquire, John Sheehan Spadaro, LLC, Smyrna, DE, Attorney for Plaintiff.
Sidney S. Liebesman, Esquire, Lisa Zwally Brown, Esquire, Montgomery McCracken Walker & Rhoads LLP, Wilmington, DE, Jay Williams, Esquire (pro hac vice) (argued), Paula M. Ketcham, Esquire (pro hac vice), Schiff Hardin LLP, Chicago, IL, Attorneys for Defendants.
Jurden, P.J.
I. INTRODUCTION
Wilmington Pain & Rehabilitation Center, P.A. (“WPRC”) brings this putative class action against USAA General Indemnity Insurance Company and Garrison Property and Casualty Insurance Company (“USAA”), alleging that USAA has failed to pay reasonable medical expenses submitted by WPRC and other DelaWare health care providers under their patients’ Personal lnjury Protection (“PIP”) policies in violation of 21 Del. C. § 2118(a).l Novv before the Court is WPRC’s Motion for Class Certification (“Motion”).2 For the following reasons, WPRC’s Motion is DENIED.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties and the DelaWare PIP Statute
WPRC is a DelaWare professional association and outpatient care facility that specializes in physical medicine and rehabilitation3 lt regularly treats DelaWare residents for injuries suffered in automobile collisions.4 USAA is a Texas corporation engaged in the business of insurance.5 lt regularly sells auto
insurance in the State of DelaWare.6
l WPRC’s Amended Complaint (“Am. Compl.”) 11 l (Trans. ID. 58206331).
2 WPRC’s Opening Brief in Support of Motion for Class Certification (“WPRC’s Opening Br.”) (Trans. ID. 59732453); WPRC’s Reply Brief in Support of Motion for Class Certification (“WPRC’S Reply Br.”) (Trans. ID. 60652543).
3 WPRC’s Opening Br. at l.
4 Id.
5 Id. at 2.
6 ld.
Title 21, Section 2118 of Delaware Code, commonly referred to as the “Delaware PIP statute,” requires that every owner of a motor vehicle registered in Delaware must maintain specified insurance with specified minimum coverage7 This includes PlP coverage, defined as “[c]ompensation to injured persons for reasonable and necessary expenses incurred within two years from the date of the accident” for medical and other related expenses8 B. USAA’s Practice in Paying PIP Claims
When a PlP policyholder submits a claim to USAA, USAA utilizes a computerized bill review system, which it calls “Reasonable Fee Methodology” (“RF System”), to determine the reasonableness of medical expenses9 The first step of the RF System is “benchmarking.” The benchmarking step relies on a database compiled by the U.S. Department of Health and Human Services/Centers for Medicare and Medicaid Services (“CMS”).10 This database contains 1 billion records of charges billed by health care providers across the country and submitted to CMS.‘1 The RF System organizes those charges in the CMS database by CPT
Code, geozip, and time period.12 lt then lines them from lowest to highest and
7 21 Del. C. § 2118(a).
8 Ia’. (emphasis added).
9 USAA’s Brief in Opposition to Plaintiff’ s Motion for Class Certification (“USAA’s Opp’n Br.”) (Trans. ID. 60599408) at 9.
‘° ld.
11 1a
12 Ia'. at 10.
divides them into percentiles.13 USAA uses the 80th percentile of those charges as a benchmark, which is the amount at which at least 80% of the charges are equal to or lower than. lf a claim submitted by a health care provider is not higher than the 8011‘ percentile, it would be deemed reasonable14
The second step of the RF System involves a “rounding up” rule. lf a provider’s charge is above the 80th percentile, in addition to paying the amount of the 80111 percentile, USAA will pay an additional $10 or 5% of that 80th percentile, whichever is higher.15 The amount calculated after “benchmarking” and “rounding up” is the final amount USAA will pay for the PIP claim, subject to the policy limitS.16 C. Procedural History
WPRC filed its initial complaint in June 201517 and amended it in November 2015. USAA filed its answer to the amended complaint in December 2015.18 From June 2015 to January 2016, the parties exchanged written discovery requests and responses. On October 19, 2016, after several months of no activity in the case, USAA filed a motion to dismiss for failure to prosecute19 Two days later,
WPRC filed the instant Motion and supporting brief. On May 12, 2017, USAA
13 Id.
14 Id. at lO-ll.
15 Ia’. at 11.
16 Id.
17 WPRC’s Complaint (Trans. ID. 57432659).
18 USAA’s Answer to Plaintist Amended Complaint (Trans. lD. 58336085). 19 USAA’s Motion to Dismiss for Failure to Prosecute (Trans. lD. 59720660).
filed its answering brief, and WPRC filed a reply brief on May 26, 2017. On July 21, 2017, the Court heard oral argument on the l\/lotion.20 ln its amended complaint, WPRC asserts a single claim for declaratory judgment.21 Specifically, WPRC seeks a judicial declaration that USAA, by using the RF System to determine the reasonableness of PIP claims, has wrongfully underpaid those claims in violation of 21 Del. C. § 2118(a).22 Through its Motion, WPRC seeks to certify the following class: All care providers who, at any time since June 19, 2012, have billed medical-expense-related Delaware PlP claims to USAA, where USAA has subjected those claims to its “Reasonable Fee Methodology.”23 III. STANDARD OF REVIEW The requirements for certification of a class action are set forth in Superior Court Civil Rule 23 (“Rule 23”). When considering a motion for class certification, the Court conducts a two-step analysis. First, the proposed class must
satisfy each of the four elements of Rule 23 (a):
a. Numerosity: the class is so numerous that joinder of all members is impracticable;
b. Commonality: there are questions of law or fact common to the class;
20 Juiy 21, 2017 superior Ceurr Preeeeding worksheet (Trans. iD. 60883813). 21 Arn. Compl. 11 1.
22 1a
23 WPRC’s Opening Br. at 1.
c. Typicality: the claims or defenses of the representative parties are typical of the claims or defenses of the class;
d. Adequacy: the representative parties will fairly and adequately protect the interests of the class.
Second, if the Rule 23(a) prerequisites are satisfied, the Court must determine whether the action falls within one of three categories set forth in Rule 23(b). ln the instant action, WPRC seeks to certify a class under Rule 23(b)(1)(A) or Rule 23(b)(2): Rule 23(b)(1)(A): The prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class which
would establish incompatible standards of conduct for the party opposing the class;
Rule 23(b)(2): The party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making appropriate final
injunctive relief or corresponding declaratory relief with respect to the class
as a whole. `
Because Rule 23 is patterned after Federal Rule of Civil Procedure 23, cases interpreting Federal Rule 23 are persuasive authority in Delaware courts.24 When analyzing Rule 23’s federal counterpart, a federal court must engage in a “rigorous
analysis” in order to decide whether to certify a class.25 This “rigorous analysis” is
similarly required under Delaware Rule 23.26 When conducting this analysis, the
24 see Blance v. AMVAC Chem. Cerp_, 2012 wL 3194412, at *7 (Del. super Aug. 8, 2012) (citing Appriva S’hola’er Litig. Co. v. EV$, Inc., 937 A.2d 1275, 1286 (Del. 2007)).
25 Wal-Mart Stores, lnc. v. Dukes, 564 U.S. 338, 350-51 (2011).
26 In re Celera Corp. S’hola'er Litig., 59 A.3d 418, 432 (Del. 2012).
Court must evaluate the whole record and examine the method by which the
7 and may “delve
plaintiff proposes to prove its claims on a classwide basis,2 beyond the pleadings to determine whether the requirements for class certification are satisfied.”28 IV. DISCUSSION
A. WPRC’s Standing
ln USAA’s opposition to the Motion, it contends that WPRC has no right to bring the instant action.29 Specifically, USAA argues that WPRC purports to bring this action as an assignee of its patients but the assignment forms signed by WPRC’s patients are unenforceable30 WPRC counters by arguing that it brings this action on its own behalf and as the assignee of its patients. WPRC cites Sammons v. Hartfora' Una'erwriters lns. C0.,31 arguing that a health care provider who submits PlP claims to its patient’s auto insurer qualifies as a “claimant” under
21 Del. C. § 2118B and has a private right of action to sue for unpaid/underpaid
bills.32 At oral argument, USAA did not address Sa)nmons or respond to WPRC’s
27 See In re Hya'rogen Peroxia'e Antitrust Litig., 552 F.3d 305, 316-17 (3d Cir. 2008) (internal citations omitted).
28 Ia'. at 316 (internal citations omitted); see also Dakes, 564 U.S. at 351 (“Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff s underlying claim.”). 29 lt appears that USAA is launching a standing challenge here, although it does not explicitly characterize it as such.
30 USAA’s Opp’n Br. at 18.
31 2011 WL 6402189 (Del. Super. Dec. 15, 2011).
32 WPRC’s Reply Br. at 11-12.
argument on standing. The Court therefore assumes that USAA has abandoned its challenge to WPRC’s standing B. Rule 23(a)
a. Numerosity
The parties do not dispute that this requirement is satisfied
b. Commonality
Generally, a purported class should share at least one common question of law or fact to meet the commonality requirement33 At first impression, as WPRC contends, there appear to be many factual and legal questions in common, such as: ls the proposed class member a Delaware care provider? Has it sent PIP claims to USAA and have those claims been subject to the RF System? Does the RF System violate the Delaware PlP statute?34 But commonality requires more than that.
The United States Supreme Court elaborated at length on the commonality element in Wal-Mart Stores, [nc. v. Dakes. ln that case, three Wal-Mart female employees sought to certify a class consisting of all women employed at Wal-Mart retail stores who had been subjected to Wal-Mart’s pay and promotion policies and practices35 They alleged that Wal-Mart’s “uniform corporate culture” permitted
discrimination against women when its managers exercised their discretionary
33 E.g., Smah v. Hercales, rne., 2003 wL 1580603, at *7 (Dei. super Jarr. 31, 2003) (internal citations omitted).
34 wPRC’s opening Br. at 15.
35 564 U.s. at 346.
power in making promotion and pay decisions36 The Supreme Court recognized in Dakes that “any competently crafted class complaint literally raises common ‘questions’.”37 ln Dakes, the purported common questions included, “Do all of us plaintiffs indeed work for Wal-Mart? Do our managers have discretion over pay? ls that an unlawful employment practice?”38 The Supreme Court held that merely reciting these questions was not sufficient to establish commonality.39 lt further explained that commonality requires that the class members have all “suffered the same injury” which generated claims that can “productively be litigated at once.”40 Their claims must “depend upon a common contention” which must be “capable of classwide litigation.”41 Namely, the determination of that contention will “resolve an issue that is central to the validity of each one of the claims in one stroke.”42
WPRC contends that the one central claim common to all class members is whether USAA, by applying the RF System to determine the reasonableness of PlP
claims, fails to pay the reasonable medical expenses required under 21 Del. C. §
2118.43 The Court finds that this claim cannot be resolved on a classwide basis.
36 1a at 345.
37 Ia’. at 349.
33 1a
39 Ia’.
40 Ia’. at 350.
41 1a
42 Ia'.
43 E.g., WPRC’s Opening Br. at l. See also July 21, 2017 Oral Argument Transcript (“Oral Arg. Tr.”) at 15:13~15:16 (Trans. ID. 61089819) (“The case is about whether [USAA’s] methodology consistently . . . is designed to underpay, and does underpay, the range of reasonableness.”).
' 9
Under Delaware law, in order to prove an insurer’s payment violates 21 Del. C. § 2118, the burden lies on the plaintiff to show the incurred medical expenses are “reasonable and necessary.”44 As noted by USAA, this is a factual determination and requires a particularized assessment of individual issues, for example, each plaintiff’s injuries, treatment, and medical bills.45
WPRC argues that the crux of this action is not about whether each plaintiff’s charges are reasonable, but whether the amounts USAA ultimately paid are anreasonal)le.46 But this cannot be resolved on a classwide basis either. The RF System calculates and determines a benchmark amount for each CPT code based upon geozip and time period. The PlP claims submitted by each putative class member presumptively contain medical procedures with different CPT codes, and the procedures presumptively have occurred at different times and in different geographic locations. lt appears WPRC intends to prove that there is an objectively reasonable amount (or a range of amounts) for each CPT code within a specific geozip and time period, and every single benchmark amount calculated by the RF System is lower than that objectively reasonable amount. But WPRC has
not offered or provided a convincing plan to prove that on a classwide basis.
44 Murphy v. United Servs. Auto. Ass ’n, 2005 WL 1249374, at *2 (Del. Super. May 10, 2005).
45 USAA’s Opp’n Br. at 27; see also Watson v. Metro. Prop. & Cas. lns. Co., 2003 WL 22290906, at *5-6 (Del. Super. Oct. 2, 2003) (“[T]he determination of the ‘reasonableness’ of a medical provider’s bills is entirely factual in nature.”) (internal citations omitted).
46 WPRC’s Reply Br. at 15 (“The issue, then, is not whether the provider charged a reasonable fee, but whether USAA paid a reasonable fee.”).
1'0
WPRC proposes three ways to prove its claim: (l) evidence that a number of other insurance companies pay WPRC the full amount charged for the same treatments for which USAA claims a discount; (2) USAA’s business records which show that WPRC’s charges are lower to those of the Delaware medical community; and (3) nonparty discovery about the fees charged by other prolific Delaware medical service providers.47 With respect to the first mode of proof, it only concerns what other insurers pay for WPRC’s own PlP claims. Without corresponding evidence regarding other class members’ PlP claims, it has little probative value in a classwide trial where WPRC needs to demonstrate that the amounts USAA pays other class members are also unreasonable As to the other two modes of proof, although WPRC says it would obtain and present at trial evidence regarding other Delaware providers’ charges, WPRC has not submitted any such evidence. WPRC also does not explain how it intends to conduct such discovery, which supposedly will cover a huge number of Delaware doctors and medical facilities and seeks to obtain information about their charges for numerous CPT codes during the past five years. WPRC makes conclusory allegations about USAA’s wrongful conduct but does not provide evidence, or demonstrate how it could obtain evidence, to substantiate them. WPRC has failed to demonstrate how
it can prove all class members’ claims in one class action trial.
43 wPRC’S Reply Br. at 17-18. . 11 _
Several other courts that have addressed a similar “reasonable fee” issue have reached the same conclusion. For example, in Johnson v. Geico Casaalty Comjoany48 which has a very similar fact pattern,49 plaintiffs also asserted one count for declaratory relief under 21 Del. C. § 2118, contending that the common issues for declaratory judgment involved whether defendants’ policies and procedures were improper.50 The U.S. District Court for the District of Delaware refused to certify a class whose PlP claims had been reduced by defendants using a computerized review system, finding that the commonality requirement was not met.51 Similarly, in Ross-Randolph v. Allstate Insarance Company,52 another federal district court, when faced with an allegation that the defendant used computer programs to generate an unreasonable amount in violation of a Maryland PIP statute, held that an insurer’s obligation under Maryland’s PlP statute necessarily turned on whether an individual claimant’s charges were reasonable,
and that the court cannot avoid individual inquires to determine that issue.53
43 673 F. supp. 2d 255 (D. Del. 2009).
49 One of plaintiffs’ allegations in Johnson is that defendants reduced bills to the 801h percentile of charges submitted based on a recommendation made by their database providers. Id. at 266.
30 1a ar 273.
51 Id. (“The Court is persuaded that certifying the . . . Geographic Reduction Class to pursue a declaratory judgment . . . based on such a broad assertion of commonality is inconsistent with its duty to conduct a rigorous analysis into the requirements of Rule 23.”).
52 2001 WL 36042162(D.Md. May11,2011).
53 Id. at *6. See also MRI Assocs. of St. Pete, Inc. v. State Farm Mut. Auto. Ins. Co., 755 F. Supp. 2d 1205, 1208 (M.D. Fla. 2010) (“Plaintiffs’ claims, even for declaratory relief, require proof that the amounts provided in the statutory fee schedule are not reasonable. . . . [W]hat constitutes a reasonable amount will vary based on many factors specific to the individual claim.”).
WPRC cites to several cases in which courts seem to have certified a class under similar circumstances as the instant action. Although those cases also involve insurance companies’ payment decisions supposedly generated from a computerized system, they can be distinguished in a significant respect, i.e., plaintiffs in those cases directly attacked the computer software program itself, rather than alleging the amount the insurers ultimately paid was unreasonable For instance, in Brooks v. Ea'acators Mutaal Life Insurance Company,54 plaintiff insureds sued a group health insurer, alleging that the insurer, by using a computer software program, failed to pay the reasonable and customary charge for anesthesia services.55 Specifically, plaintiffs argued that the insurer’s use of the program violated its insurance contracts because the program did not specify from which geographical area its data was drawn, and the program took into account the amount anesthesia providers ultimately accepted as payments as opposed to what they originally charged.56 Plaintiffs in Brooks specifically alleged there were systematic flaws in the challenged computer software. Those allegations in Brooks
were central to the plaintiffs’ entire action, and unlike the allegations in the instant
54 206 F.R.D. 96 (E.D. Pa. 2002). WPRC did not cite Brooks in its briefs. lt brought this case to the Court for the first time at oral argument USAA opposed consideration of Brooks. The Court finds even if it takes Brooks into consideration, it does not support WPRC’s position.
55 Id. at 98-99.
36 1a at 99.
action, they had little to do with each class member’s individual factual situation.57 But WPRC has not alleged any such systematic flaws in the design or operation of the RF System. Unlike in Brooks, there is no common question in the instant action the resolution of which will produce a common answer to all class members’ claims.
c. Typicality
Typicality tests the sufficiency of the named plaintiffs.58 The class representative must be part of the class and “possess the same interest and suffer the same injury as the class members.”59 Where a class representative is subject to a unique defense, typicality may be lacking.60 WPRC asserts that its claim is not only typical, but also identical to those of other class members WPRC further argues that its claim arises from the same event that gives rise to claims of other class members, i.e., USAA’s applying the RF System to PlP claims, and is based
on the same legal theory, i.e., violation of the Delaware PIP statute.61
57 Most other cases cited by WPRC can be distinguished for the same reason. For example, in First State Orthopaedics v. Concentra, Inc., the plaintiff insured alleged that the computer bill review system adopted by the insurer was manipulated through certain “faulty and corrupt” statistical methods and the amount ultimately paid was calculated in an “arbitrary and capricious manner” based on this “flawed database.” 534 F. Supp. 2d. 500, 505 (E.D. Pa. 2007).
58 Johnson, 673 F. Supp. 2d at 270 (internal citations omitted).
39 E.g., osrrefv. stare Farm Ma¢. Auzo. lns. Co., 200 F.R.D. 521, 529 (D. Md. 2001) (internal citations omitted). The United States Supreme Court has stated that the commonality and typicality requirements tend to merge as they both serve as guideposts for determining whether the named plaintiffs’ claims and the class claims are so interrelated Dakes, 564 U.S. at 349 n.5 (citing Gen. Tel. Co. ofSw. v. Falcon, 457 U.S. 147, 157-58 n.l3 (1982)).
30 Osrref, 200 F.R.D. at 529.
61 WPRC’s Opening Br. at l7.
Typicality requires that a class representative maintains a very similar factual and legal position as other class members62 As discussed above, WPRC’s entire case focuses on unreasonableness of USAA’s PlP payments, the proof of which strongly depends on evaluation of each class member’s individual circumstances Presumably WPRC would encounter defenses that may not be asserted against all other class members Therefore, the Court does not find the typicality that Rule 23(a) demands
d. Adequacy
USAA contends that WPRC is not a qualified class representative because it lacks the basic understanding of the bill review system utilized by USAA and how that system operates63 USAA also contends that WPRC lacks the desire to
vigorously litigate the instant action because it did no work for eight months before
”64 Finally,
it filed the Motion which “lifted large sections from its [c]omplaint. USAA suggests that WPRC is not a qualified class representative because it engaged in unlawful billing and referral practices65 Because the Court finds that
both commonality and typicality are not satisfied, the Court need not address the
adequacy prong.66
63 See, @_g., Leon N. Wemer & Assecs. v. Krapr, 584 A.2d 1220, 1225 (Del. 1991).
55 USAA’s Opp’n Br. at 34.
64 1a
63 1a
66 See, e.g., Menns v. Del. Am. Life rns. CO., 2000 wL 973299, at *1 (Dei. super May 30, 2000) (internal citations omitted) (“The first step [of deciding whether to certify a class under Rule 23]
C. Rule 23(b)
lf a class representative fails to meet any of the Rule 23(a) requirements, analysis under Rule 23(b) is unnecessary. However, even if WPRC had satisfied the Rule 23(a) requirements it cannot satisfy the Rule 23(b) requirements
a. 23(b)(1)(A)
Rule 23(b)(1)(A) intends to avoid the risk of prejudice that may be suffered by the opposing party. lt addresses the concern that if individual class members bring multiple actions, the opposing party may be subject to incompatible standards of conduct established by inconsistent adjudications.67 ln the instant action, USAA does not contend that it would suffer any prejudice if the case is not certified. ln fact, it affirmatively asserts that individual PlP suits brought by the
t.68 Since
class members present no risk of incompatible standards of conduct to i the Court has already found that resolution of this case involves a fact-driven evaluation of each plaintiffs injuries, procedures and medical bills, the Court agrees with USAA that judgment in each potential individual case would be predicated on a different factual situation, and thus the risk contemplated by Rule
23(b)(1)(A) does not exist here.
b. 23(b)(2)
requires that the action satisfy all four of the prerequisites mandated by subsection (a) of the
ruie.”). 67 See, e.g., Ross-Rana'olph, at *8 (internal citations omitted). 63 USAA’s opp’n Br. at 31.
At first impression, this case seems to fit under Rule 23(b)(2) because WPRC is challenging an act conducted by USAA “on grounds generally applicable to the class,” i.e., usage of the RF System to process PlP claims But the putative class lacks the required “cohesiveness” that makes the classwide declaratory relief appropriate
lt is well established that Rule 23(b)(2) class members/claims must be cohesive69 The key feature of a Rule 23(b)(2) class is the “indivisible nature of the injunctive or declaratory remedy warranted.”70 lt means that the challenged conduct “can be enjoined or declared unlawful only as to all of the class members of as to none of them.”71 Rule 23(b)(2) does not authorize class certification when each class member may be entitled to a different declaratory judgment.72 As discussed above, whether a class member in the instant case is entitled to the requested declaratory relief relies heavily on analysis of his particular circumstances On the record before it, the Court does not find the requisite indivisible nature of the declaratory remedy sought on behalf of the whole class
WPRC consistently asserts that it seeks only declaratory relief, not monetary damages, and is not attempting to certify a class under Rule 23(b)(3).73 WPRC
argues that Rule 23(b)(1)/(2) does not have the predominance requirement as in
69 E_g., Barnes v. Am. Tebacco Ce., 161 F.3d 127, 143 (3d Cir. 1998). 30 Dakes, 564 U.s. at 360.
31 1a
75 See WPRC’s Reply Br. at 18; see also Oral Arg Tr. at 23:10-23:11.
23(b)(3),74 seemingly suggesting that Rule 23(b)(1)/(2) somehow imposes less rigorous certification standards than 23(b)(3). However, although predominance is not at issue here, a Rule 23(b)(2) class requires more cohesiveness than a (b)(3) class, because in a (b)(2) class action, unnamed class members are bound by the final result of the action and have no opportunity to opt out.75 Here, since the unnamed members of the putative class cannot opt out, certifying a class action which will result in a unified declaratory judgment is unfair to them. This is especially so in light of the significantly disparate factual circumstances of each putative class member. V. CONCLUSION
For the foregoing reasons, the purported class does not meet the requirements for certification set forth in Rule 23. WPRC’s Motion for Class Certification is hereby DENIED.
IT IS SO ORDERED.
._,,ff’ 7 / %rden, President Judge
74 Rule 23(b)(3) mandates that “the questions of law or fact common to the members of the class
predominate over any questions affecting only individual members” 75 Barnes, 161 F.3d at 142-43.