good morning may it please the court thomas hunger on behalf of the appellant geico in this case reversals required for two reasons number one we asked the court to reverse the district court's unprecedented expansion of rule twenty three b two twin compass a case injunctive relief was not available and that relief sought related to unplayed individualized claims for damages that could not be certified under rule twenty three b three and we also asked the court to reverse the summary judgment which was entered with outstanding and which in this interpreted guy goes policy beginning with the class certification issue under rule twenty three b two certification is proper only if final injunctive relief or corresponding declaratory relief is appropriate and is not available when the appropriate final relief relates exclusively or predominantly to money damages were well that's what gerber says they're seeking they're just seeking simple declaratory relief a statement that geico may not interpret its policy as we're acquiring the insurance to pay a twenty percent co payment even when the total cost is less than the schedule that's all they're asking for right they're not asking for any form of monetary damages they're just asking the court they're asking for a duck clara tore a judgment by the court to put the contract or am i wrong about that what they've done is they've essentially re framed part of their damages claim as a declaratory count and no they're asking for monetary damages they are not asking in this specifically to be awarded monetary damages but i don't believe that that is the deciding factor as this court has previously ruled in cases where they do see both a account one for declaratory relief and account two for monetary damages if you can't certify that count for monetary damages then you can't certify the count for declaratory relief so for that reason why would the analysis be any different simply by artful pleading leaving out the compensatory damages count is very similar to what happened in wal mart vs dukes wherein the supreme court noted that the class counsel specifically omitted account for compensatory damages that they could squeeze it into rule twenty three b two and the court said that's improper because the collateral estoppel effects of the decision prejudice the individual claims class members damages claims and shouldn't be prejudice just because the class council omitted that count well it twenty twenty three b to pla submitted there's a burger case from the seventh circuit the burger case i believe that was the one where it was in a recent claim and then there's there's the case that was cited subsequently  from this sort of good eleven through good that your opposing counsel submitted more recently by letter right if you're referring to those cases in the supplemental authority those are readily distinguishable from this case for the simple fact maybe maybe you should do that sure the first case that they cite from this court was a variation discrimination going and that's a no fault scheme which admittedly does not create a cause of action for injunctive relief to enforce the terms of the policy the florida courts have held that there is only one cause of action and that's a cause of action for pitt benefits and as this court noted in the christ case it was a very similar fact pattern where the claim was based on teela the truth in lending act which this court noted does not create a cause of action for injunctive relief and if that's the case under the substance of statute this court held that you can't simply proceed on under the d j for declaratory judgment the other case that they cite in their supplemental authority is the burger i believe is the burger case that you mentioned and again that's an interesting case under the  the statutes there is a statutory cause of action for injunctive relief to enforce the terms of the arisa plan so those cases are readily distinguishable from pip and so for that reason that i don't think they have any here now with respect to issues no case in the insurance context no appellate decision has really done this because what you need to show in order to get an injunction if that action has to kind of neck nature not just equitable in nature but injunctive in nature and what you have to show is that you suffered irreparable harm you have a clear legal right now i don't have an adequate remedy at law they've made no attempt to certify even plead any of those elements in this case and for that reason alone this is the two would not be proper similar situation but was presented in the cartman case that we cite in our brief and i would direct the court to look at the very last paragraph in that case it was an insurance case and they say that in a case where you're bit you basically the only injunctive relief you could ask would be to either reprocess the claim or or pay benefits you haven't established an adequate patent miss miss there's misread of future and very well they haven't even established a single injury in this case the court has has determined that liability is left for future cases so we don't even see any injury at all much less a future in their injured depending upon how the contract insurance contract is interpreted well then in pip you have to remember under the statute in pip you can contest they're they have to meet their burden every time and you can raise your defenses and that's what the court and it up doing in the order is putting all these qualifications on the declaratory relief which basically says in order to prove an injury you got to file a suit for damages prove you bennett prove your burden and overcome the defenses well and speaking of injury can you address what is sort of the jarring point of this case this is not a case where one of your insurer is seeking to represent a class because of some problem with the payment from the insurance company this is and one of your insured and so other than the claim for past due monies what interest does the plaintiff have in the perspective component of this where they don't have an interest they don't have a statutory right for an injunction as i said before this is different from racial discrimination or more gender discrimination case where the very discrimination itself in this is an invasion of a personal right separate in part from the monetary damages that you would be able to recover from violation of that right so in this case the only thing that that's at issue is the money there are it's all about the money it's the past due money past due money yes an one one insured for your company who assigned its rights under that policy for that and so that's correct before we leave that the route twenty three b to have you seen corresponding correspond bill or corresponding but you can't get rid of that word corresponding it has a definite meaning and in even in this court's crazed case it determined that you just can't bring a random claim for declaratory relief into the d if there is no injunctive relief available and i think that that there in the case that you just mentioned the supreme court actually supports our position because it's telling the lower court that there's a strong possibility that you can't just go on declaratory relief alone and i think that's where the court went wrong in this case and i see i'm going on my time so i'd like to address some of the other issues unless the court has any further questions on the class action specifically with the standing issue it's undisputed that at the time the lawsuit was filed standing has to be measured at the time the lawsuit is filed and it's undisputed that benefits were only twenty five hundred dollars some disputed there was no emergency medical condition diagnosis at the time lawsuit was filed so the very basis of their declaratory count which is i haven't i've controversy because i was underpaid didn't exist at the time the lawsuit was filed now the fact they got an m c after the lawsuit was filed but as this court is held you can't create or cure a lack of standing at that didn't exist at the time suit was filed by obtaining it during suit so for that reason summary judgment should be reversed due to lack of standing we also point out that there was a factual dispute regarding the contents of the policy specifically having to do with the m six o eight indorsement geico maintains that that was part and parcel of the policy it states in the title that it is an endorsement it describes what geico will pay pursuant to the terms of policy it was required to be issued by the office of insurance related regulation and it was issued with every policy effective and renewed after general firstly those in their team to the last two points of your argument can you address the standing in the well in the mills case it was different because the question there was what benefits are covered under the policy the specific charges that would be were covered or not covered under the policy so depending on the outcome of that question it was a live dispute as to whether those benefits recovered but here all of the facts relating to standing were not in dispute at the time the lawsuit was filed they don't contend there are any benefits available on the policy they concede that there was no emergency medical condition and they can see that geico paid more than twenty five hundred before the suit was filed so that's a really relevant distinction to mil's case and lastly i'd like to just briefly address the policy language in this case all signs pointed to the eighty percent language in the court really went against the thrust of the intent of that provision of the policy particularly when it's considered in context of the of the f l p ip zero one one three where you have the scope of sub parts canon which directs also a paragraph to be that or modified by the preceding paragraph and at the preceding paragraph says eighty percent it also says that what geico is trying to do here is is pay pursuant to the statute even cites the statute in this provision but the court seemed to think that the statute was somehow not relevant because of these distinctions yet it the court determined that the language amount allowed above was ambiguous but didn't seek to resolve favor of coverage that is a rule of last resort and in this court certified that question to the florida supreme court that's one of the main cases they rely on in the florida supreme court only issued a plurality opinion and with a very long and detailed dissent which cites numerous cases saying that that is a rule of last resort the court is first to try to determine if that ambiguity can be resolved either with reference to the statutory framework this case or royals are you saying the law of florida is now the m six zero eight endorsement is not part of the policy you still should be considered as parole evidence in addition the court should look at the other parts of the policy and other parts of the policy one guy goes wants to pay one hundred percent they say one hundred percent they don't say eighty percent for example to a pip as we point out and in the med pay provisions it says right there expressly one hundred percent and so when you take the statute in context which is amount allowed under subsection one points right back to the eighty percent and then you take into account the m six endorsement the other parts of the policy and the page that is in dispute it all points back to eighty percent so for that reason the court's interpretation is wrong and we would ask on both grounds for the court to reverse  think there's a lot of pride focus from the panel on the rule twenty three b two issue but we believe the contract interpretation is pretty straightforward here and however you decide on the rule twenty three b to issue which we think should affirm that of course but you should affirm the contract interpretation the suggestion that it should be certified to the florida supreme court it seems like a waste of a lot of resources this is a contract specific to geico seems to be th they might have made a drafting error they didn't want this way it's not reason though to have some novel question to go to the florida supreme court furthermore this argument made in point three of the brief was not preserved below they've now argued for the first time on appeal that there is disputed issue of fact that's not what they argue below if you look at page two of their response to the summary judgment motion they told the court geico request a hearing on this matter because the motion concerns a dispositive issue of law and this court's ruling will directly impact the many thousands of claims of individual class might well that's an alternative or a good mood assuming it's not decisive as a matter of law guess i agree it's an alternative argument but it wasn't made below your honor i can't lease i can't find it in the record their argument below was that this was a it was crossed motions for summary judgment and this was a legal question for the court to decide well there was evidence decide differently than what was decided on cross motions for summary judgment and their entire third point on appeal is that there are now disputed if you issues of fact and i agree you can judgments and you can make that as an alternative argument but it was as best i can tell from reviewing this record i don't see where that was made to judge bloom that argument it's unfair would be unfair to reverse the district judge on the not presented below i don't think she addressed it in her opinion either right that's correct because it was never argued below and that's that should just take out the third point on in their brief for not being preserved your honor turning to the rule twenty three b two judge branch i want to answer your question this is not just about past relief and there's nothing unusual about the fact that the provider as opposed to the insurer brings the claim chiropractor's and other medical professionals have you know hundreds thousands of patients on these pip policies in florida and i would encourage the court it's not brought up directly in the briefs but there was a lot of litigation below on the motion to disqualify the class representative as well as a motion for intervention by another  medical provider there's a lot of evidence there that the district judge got to rule upon where dr gerber made it clear that he has other patients who are geico authority and in the case from the sixth circuit that i want to focus on all make it clear that there nothing unusual about having declan relief as a precursor to monetary relief but that is not the only purpose of this deck a tor relief in this case and i would encourage the court to go back and look at what the district judge saw with the motion to disqualify because what geico accused dr garber of was fraud and so and here's why and here's why it's important for all these chiropractor's and other providers to have this cleared up if if the contract is as geico says it is where the insurance company pays eighty percent and the patient pays twenty percent then the chiropractors need to be collecting that are trying to collect that twenty percent from the patients and what they cues dr gerber of was insurance fraud in this case they accused them of this because they said you weren't trying to collect the twenty percent so you are really billing us the whole hundred percent now why is the deputy relief important well if we're right then dr gerber can tell his insured i'm not going to collect anything from you because geico has to pay one hundred percent and so they've this is an issue for his license there's lots of things his deputy relief will provide to the class on a daily basis because these providers need to know should i be making collection efforts to get these patients or am i able to just go to geico so they need to know what the environment is that they're working in so they can bill accordingly and treat accordingly right putting aside the question of monetary claims which were not that well com i'm not trying to run away from that and i think you should go back and look at geico as response to our motion to remain and geico put in evidence from a corporate representative deposition that there were one point nine million bills submitted under this provision and that the estimated aggregate overcharging i'm sorry under payment by them under pa nt by geico is close to twenty three million dollars they had limited i'm sorry to have one point nine million bills submitted and seventy seven thousand claims that's the number i have it's it's it's a lot and it's and they admitted this is an ongoing practice of theirs pursuant to this provision and what we're really here about and the reason the debt relief was filed was just to find out i have it here in front of me it's one page the whole case is about this doc sixty seven dash one page thirty one i've highlighted for my copy here the pertinent language but it's very simple language it says a charge submitted by a provider for an amount less than the amount allowed above shall be paid in the amount of the charge submitted and so the whole dispute here that makes a big difference for florida chiropractors and other providers who regularly have pi from geico is what did the what was meant by less than the amount allowed above and but what you're talking here talking about how your client has an interest in an in motion to remain you argued that your client lacked article three standing because you had not alleged assists obsess stanch a likelihood of future substantial harm what's changed right very odd how this case panned out i there are arguable differences between the florida deck judgment act and the federal dekel toward judgment act and there's an unpublished case from this court in two thousand  which made the point that even if you meet all the katha requirements if you don't have standing under federal law you may nonetheless want to go back you have the right to go back to stay court and see if you have standing under florida caution we brought to the issue of the district court the potential that there might not be standing and that and that it should be remanded the district court disagreed with us there was a petition filed in this court this co affirmed and we are living with that decision and i don't think they've changed anything there what they're bringing up now is their standing arguments are issues that are under the mil's case that judge benson brought up are merits so i don't know if that answers your question but what's changed is we brought an issue to the attention the court i believe judge bloom got it right at the onset on the standing there not challenging that initial determination there saying there was more facts that came to light about dr gerber and about the emergency medical condition which are merits issues on the close on the claim that matters and i think the thing just said you know what i wanted to understand w before you go too far why don't you address the response your response to the argument that mills was different and not applicable to what it's not it's we explained in our brief it's it's spot on and i think what you're seeing happening here and i don't with the other cases we cited i believe are all relevant what you're seeing the insurance company trying to do here is to really push together and conflate  the issues that are appropriate for a role twelve b six and rule fifty sex with article three standing and then they're saying for example that there's a question about whether mr career crew there's had an emergency medical condition and so under the policy and under the florida statute that varies whether you have a twenty five hundred or ten thousand dollar now once we were told that they were going to contest that we got an opinion from an authorized physician that there was an emergency medical condition they want to dispute that and what i was going to try to tell judge branches a lot of this pip litigation it starts with having to do demand under the statute under subsection ten and i think it's important that the court take a look at judge carnes as opinion in sorry let me get in front of me here in south florida  wellness and footnote two and i know you judge benson are familiar with that case from your roy decision as you spoke about it a lot but what it says there in footnote two is very similar scituate situation where there was a charge of that the insurance company company was under paying the claims and it says if the putative class obtain declan relief all of state might choose to simply pay the claimants additional amounts of food after determining that it was not worth the litigate the reasonable list of charges on one point six million different bills if that did not occur however the putative class members would have to request the additional payment from all state and wait for all state to deny the request before they could file suit see florida statute section six to seven point seven three six ten a and if you dig into that statute there's a lot of priests who requirements and the florida courts have recognized that it's appropriate before you do an action for for than if it first you have to go to the priest to procedures under that statute but they've recognized that you need a release sometimes to understand contract or the statute before you do anything and here's a big reason why that statute requires you to put the exact amount you're claiming and if and if so you you want to have everything lined up before you week ago i wanted to bring the court's attention to the six circuits decision in gooch which is cited in our brief and i think if you look at pages for twenty seven to twenty nine of that  opinion it really makes the arguments identical arguments that we're making here it talks about the fact that b two certification even after wal mart v dukes remains available when the plaintiffs seek a declaration about the explicitly ask the court to enter a deputy judgment separate from the request for restitution and monetary damages he did not combine any claim for individual relief with this class why did young ssion and that's quoting from the wal mart case  here of course we didn't even asserted and the court explains how it's appropriate to look at each claim separately for purposes of certification so even if we had asserted a monetary damages claim which we didn't do here the court rigorous requirements of b three but there's there's in any way i think if you go through and you read that i think you get your point before you are out of time i do need to answer you about what i consider to be a critical issue florida law yes sir and that's whether there's ambiguity in the court or should the court first consider extrinsic evidence that may deal with it in your brief it page seven writ brief it says you will construe it strictly against the insure your opinion i think it's what your honor said and we don't have to rely on a single case there's multiple cases in florida that the supreme court and district court of appeal level that make it clear that if there's an ambiguity in the insurance contract it has to be construed in favor of the insured with i need to point out to you there's numerous cases still coming out that say the opposite including the decision by judge bloomer self after your decision why i guess your honor i i think it's pretty well settled in for the wall that the ambiguity has to be construed in favor of the of the insured but as far as considering extends it evidence again this contract interpretation issue that i guess would be considered at extrinsic evidence is this notice that was sent out and they of course contend that the notice is part of the contract and we say it's not i think we have the better of the argument based on judge bloom's reasoning she went through and pointed to the statute as to why that wasn't a valid endorsement but i'll say this take that notice it's on pages two and three judge bloom's  us order document one seventy one two three and four she lays out the language of of of the in george smith which i have here as well as this notice to you didn't address the argument that florida statute six to seven point four two one is that regardless of what these other requirements are you still need to consider the provision valid and you didn't address that in what i don't i don't i the better tell us why i just would written courage accord to go back and read the plain language is of the statute and i don't think that the the defense's argument is well taken on that at the end of the day your honor though i don't think  really need to even reach this issue i think that if you if you even if you read the notice in conjunction with the endorsement it's an ambiguity and i just as i'll try to express shape the court's liberty i think if you if there's nothing in that notice that contravenes judge vinson this plain language a charge submitted by a provider for an amount less than the amount allowed above shall be paid in the amount of the charge submitted and then if you look at directly above that it's talking about medicare part b and two hundred percent for several sentences they want to take you target they want to take you all the way up here i'm taking you right here on the page it's that simple and there's nothing in the notice that concerns contradicts that language so above to me means here not here their argument as above is up here thank you your honor thank you for the extra time mr hucker you reserve some time dr gerber was concerned about being accused of fraud for not collecting co payments what he gets to do is file an individual declaratory action on that basis what he doesn't get to do is what happened in this case is tie everyone else's fate to his fate by getting sort of cation under be two that's exactly what walmart versus duke's warned against is that you cannot simply by omitting a claim for contempt compensatory damages get around the strictures of rule twenty three b three the good case that counsel relies on was a case where certification of the damages was available under rule twenty three b three in this case they concede probably because of all the prior decisions from this court in the lower courts in florida that twenty three b three sort of cation wouldn't be available for pip damages because of all the individual ised issues are trying to make an end run around that by squeezing this into b two words simply doesn't apply there's no on are the are the risks of cases the civil rights cases all where injunctive relief is available now with regard to the language of the policy the court determined that the phrase amount allowed above was ambiguous the next step in the analysis is to try to resolve that ambiguity and florida contract law says you look to specially when it's a contract that arises out of a statutory framework like pip is a creature of contract you look to the statute and in this case the policy tracks the statu it comparing it to other parts of the policy where they say one hundred percent they mean one hundred percent and six zero eight endorsement clearly says the maximum we will pay is eighty percent all right i think we have your argument mr