Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 1 of 19 PageID 263 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

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1 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 1 of 19 PageID 263 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MRI ASSOCIATES OF ST. PETE, INC. d/b/a SAINT PETE MRI, as assignee, individually, and on behalf of all those similarly situated, Plaintiff, CLASS REPRESENTATION Case No.: 8:11-cv-665-JSM-MAP vs. DAIRYLAND INSURANCE COMPANY, et al., Defendants. / JOINT MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT Plaintiff, MRI Associates of St. Pete, Inc. d/b/a Saint Pete MRI, ( Plaintiff ), individually and on behalf of the proposed Settlement Class, and Defendants, Dairyland Insurance Company and Peak Property and Casualty Insurance Corp. ( Sentry Insurance ) 1, jointly move the Court for preliminary approval of their proposed class action settlement pursuant to Federal Rule of Civil Procedure 23, and in support thereof state: 1 SENTRY INSURANCE means Sentry Insurance a Mutual Company, Dairyland Insurance Company, Peak Property and Casualty Insurance Corporation, Middlesex Insurance Company and any other affiliated companies that issued Covered Auto Policies (which additional such companies, if any, shall be identified as additional co-defendants in the Amended Complaint described in Section 5.02 of the Settlement Agreement, shall be added as additional parties to the Settlement Agreement by written addendum signed by all Parties, and inserted in the definition of SENTRY INSURANCE in subsequent settlement-related documents, including but not limited to the Order of Preliminary Approval, the Class Notice, and the Final Order and Judgment). -1-

2 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 2 of 19 PageID 264 MEMORANDUM OF LAW SUMMARY 1. Plaintiff is a Florida health care provider that provides diagnostic services to, among others, persons injured in motor vehicle accidents. Sentry Insurance, as defined herein, are affiliated insurance companies that issue automobile coverage in Florida. 2. This case concerns the payment of medical charges under the Florida Motor Vehicle No-Fault Law (the No-Fault Law ). More particularly, it challenges Sentry Insurance s payment of personal injury protection ( PIP ) medical benefits using the payment calculation methodology described in Section (5)(a)2-5, Florida Statutes ( ) (the PIP Statute ). 3. Plaintiff contends that Sentry Insurance, under its policy language, was required to pay health care providers based upon their reasonable charges, not the payment calculation methodology described in Section (5)(a)2-5. Sentry Insurance does not dispute that it utilized that methodology, but contends that it was permitted under the No-Fault Law and its policy language. 4. After extensive arm s-length settlement negotiations, Plaintiff, individually and on behalf of the proposed Settlement Class, and Sentry Insurance entered into a proposed Settlement Agreement and Stipulation ( Settlement Agreement ), a copy of which is attached hereto as "Exhibit 1." The terms of the Settlement Agreement provide for a fundamentally fair, reasonable, and adequate resolution of claims, and are therefore highly likely satisfy the criteria for preliminary and ultimately final approval. 5. In brief, the terms of the Settlement Agreement provide settlement relief to Settlement Class Members in the form of cash payments. The settlement relief payment is calculated by determining the difference between the amount of medical charges billed by the -2-

3 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 3 of 19 PageID 265 Settlement Class Member and the amount previously allowed by Sentry Insurance utilizing the payment calculation methodology described in Section (5)(a)2-5. Generally, the settlement payment is based upon 100% of the difference. However, in order to ensure fairness of settlement relief across the class, charges that exceed a specified multiplier over the schedule of maximum charges will be adjusted to the Settlement Relief Charge. 6. Settlement Class Members who wish to receive payments under the settlement may do so by timely submitting a Settlement Claim Form. The Settlement Claim Form provides information similar to a statutory demand letter, but in a simplified format. Valid settlement claims will be eligible to receive a settlement relief payment according to the formula discussed above. Settlement Class Members will not be required to make further proof regarding the reasonableness of their charges. 7. Settlement Class Members who do not wish to collect payments under the settlement may opt out of the settlement, thereby preserving the right to sue Sentry Insurance regarding the claims at issue in this case. Settlement Class Members also have the option to stay in the Settlement Class, and object to the terms of the settlement. 8. Settlement Class Members will be advised of their rights and options by direct mail notice, supplemented with a dedicated web-site, through which they can receive updates and submit questions. Such notice has been regularly approved by the Courts as the best notice practicable. 9. In sum, the terms of the settlement reached between the Parties provide concrete monetary benefits to Settlement Class Members on fair, reasonable, and adequate terms. Thus, as established in further detail in this memorandum of law and the other submissions of the Parties, preliminary approval of the proposed settlement is appropriate. -3-

4 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 4 of 19 PageID 266 BACKGROUND 10. Plaintiff filed this lawsuit (the Lawsuit ) as a putative class action in the Circuit Court of the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, Case No On or about March 29, 2011, Sentry Insurance timely removed the Lawsuit to the United States District Court for the Middle District of Florida pursuant to the Class Action Fairness Act. Plaintiff did not move to remand. 11. On September 30, 2011, Plaintiff filed an Amended Complaint tailoring its allegations to seek certification under Federal Rule of Civil Procedure 23, instead of the Florida rules. The Amended Complaint sought certification of a class of Florida health care providers for declaratory and injunctive relief, while seeking individual damages for Plaintiff. Sentry answered the Amended Complaint. 12. Plaintiff has conducted discovery as to Sentry Insurance s policy language, the scope of Sentry Insurance s reliance on the schedule of maximum charges, and the average charge amounts for health care services rendered by class members. Plaintiff s claims and Sentry Insurance s defenses are also informed by the extensive industry-wide litigation over the matters at issue in the Lawsuit. In particular, in negotiating and reaching a settlement, the parties have considered the decisions of the Florida appellate courts regarding this issue. See, e.g., Kingsway Amigo Insurance Co. v. Ocean Health, Inc., 63 So.3d 63 (Fla. 4th DCA 2011), rev. den., 86 So.3d 1113 (Fla. 2012); Geico Indemnity Co. v. Virtual Imaging Services, Inc., 79 So.3d 55 (Fla. 3d DCA 2011). Moreover, the parties have also taken into consideration the Florida Supreme Court s pending review of one of those decisions in Geico Gen. Ins. Co. v. Virtual Imaging Services, Inc., 90 So.3d 321 (Fla. 3d DCA 2012), review granted, SC12-905, 2012 WL (Fla. July 20, 2012). -4-

5 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 5 of 19 PageID The parties counsel have considered the inherent issues in pursuing the claims and defenses in this case both on substantive grounds and concerning class certification, and have determined that it is in the best interests of all to enter into a fair, reasonable, and adequate settlement. In connection with the proposed settlement, Plaintiff has agreed to file a Second Amended Complaint that would seek damages on a class-wide basis. The parties negotiated settlement relief, in the form of cash payments, would alleviate the need for further litigation for those health care providers who remain in the Settlement Class. CLASS CERTIFICATION 14. The Parties move the Court to preliminarily approve the proposed Settlement Agreement and its attached Exhibits: (1) the proposed Order Certifying Settlement Class and Preliminarily Approving Class Action Settlement ( Preliminary Approval Order ); (2) the proposed Notice of Proposed Class Action Settlement and Fairness Hearing; (3) the proposed Settlement Claim Form; and (4) the proposed Final Order and Judgment. 15. For purposes of settlement of this action (and only for such purposes, and without an adjudication on the merits or a determination of whether a class should be certified if the settlement is not approved or does not otherwise become final), and pursuant to Federal Rule of Civil Procedure 23, the proposed Preliminary Approval Order would certify this lawsuit as a class action on behalf of the following Settlement Class: All persons or entities: (a) who are health care providers as described by Section (1)(a), Florida Statutes ( ), or their assigns; (b) who any time during the Class Period provided medical services to any person insured by SENTRY INSURANCE under a Covered Auto Policy; (c) who own an assignment of benefits from said insured; (d) who submitted bills to SENTRY INSURANCE for payment of such medical services; (e) where the amounts charged exceeded the rates described in Section (5)(a)2.a. through f., Florida Statutes ( ); and (f) who received payment from SENTRY INSURANCE based on -5-

6 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 6 of 19 PageID 268 the rates described in Section (5)(a)2.a. through f., Florida Statutes ( ). Excluded from the Settlement Class are: (1) any claims for medical services reimbursed pursuant to PIP or other no-fault medical benefits coverage provided under motor vehicle insurance policies that expired on or before December 31, 2007; (2) any claims resolved by separate settlement or in demand prior to the end of the Class Period; (3) any claims resolved under the May 5, 2010 Final Judgment, any amended Final Judgment, or any approved class settlement addressing post-final judgment claims in AFO Imaging, Inc. v. Peak Prop. & Cas. Ins. Corp., Case No , In the Circuit Court of the Thirteenth Judicial Circuit of the State of Florida, in and for Hillsborough County, Florida; (4) SENTRY INSURANCE, any entities in which SENTRY INSURANCE has a controlling interest, and all of their legal representatives, heirs and successors; and (5) members of the judiciary for the United States District Court for the Middle District of Florida. 16. In the proposed Preliminary Approval Order, the Court would expressly reserve the right to determine, should the occasion arise, whether the Lawsuit may continue to be certified as a class action for purposes other than settlement, and Sentry Insurance retains all rights to assert that this action may not be certified as a class action except for settlement purposes. 17. The proposed Preliminary Approval Order would approve counsel for Plaintiff as counsel for the Settlement Class ( Class Counsel ) for purposes of seeking approval of the settlement of the Lawsuit. Class Counsel for the Settlement Class would be the law firms of The Jeeves Law Group, P.A., Craig A. Rothburd, P.A., The Divale Law Group, P.A., and de la Parte & Gilbert, P.A. 18. The proposed Preliminary Approval Order would designate Plaintiff as the representative of the Settlement Class (the Class Representative ) for purposes of seeking approval of the settlement of the Lawsuit. -6-

7 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 7 of 19 PageID 269 Requirements Under Rule 23 of the Federal Rules of Civil Procedure 19. The Eleventh Circuit recognizes the strong public policy favoring the pretrial settlement of class action lawsuits. See e.g., In re U.S. Oil & Gas Litig., 967 F. 2d 489, 493 (11th Cir. 1992). When presented with a proposed settlement, a court must determine whether the proposed settlement class satisfies the requirements for class certification under Federal Rule of Civil Procedure Under Federal Rule of Civil Procedure 23, the requirements of class certification are divided into two subsections: Rule 23(a) and 23(b). For a class to be certified, each of the four requirements of Rule 23(a) must be satisfied, including (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy. In addition, one of the three requirements of Rule 23(b). Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1265 (11 th Cir. 2009); Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11 th Cir. 2004). 21. As established below, the Parties request the Court to find for purposes of the settlement of this action (and only for such purposes, and without an adjudication of the merits or a determination of whether a class should be certified if the settlement is not approved or does not otherwise become final) that the requirements of the Federal Rules of Civil Procedure and any other applicable law have been met. A. Rule 23(a) of the Federal Rules of Civil Procedure 23. Rule 23(a)(1) requires that the members of the settlement class are so numerous that separate joinder of each member is impracticable. The Eleventh Circuit has noted [a]lthough mere allegations of numerosity are insufficient to meet this prerequisite, a plaintiff need not show the precise number of members in the class. Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983); see Vega, 564 F.3d at 1267; see also 28 U.S.C

8 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 8 of 19 PageID 270 (jurisdictional provisions of the Class Action Fairness Act requiring that a proposed class have not less than 100 members). Here, the Settlement Class contains thousands of members. Thus, the numerosity requirement is clearly satisfied. 24. Rule 23(a)(2) requires that the claims or defenses of the class representative raise questions of law or fact common to the questions of law or fact raised by the claims or defenses of each member of the settlement class. 25. The commonality requirement requires that there be questions of law or fact common to the class. Fed.R.Civ.P. 23(a)(2). Commonality does not require that all the questions of law or fact raised by the dispute be common. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268 (11th Cir. 2009) (citations omitted). It simply requires that there be at least one issue whose resolution will affect all or a significant number of the putative class members. Williams v. Mohawk Indus., Inc., 568 F.3d 1350, 1355 (11th Cir. 2009) (citing Stewart v. Winter, 669 F.2d 328, 335 (5th Cir. 1982)). 26. Commonality exists among the Settlement Class. The Settlement Class has been defined to include claims that arose under common statutory provisions and policy forms. A common legal question in this case is whether the payment calculation method described in Section (5)(a)2-5 is inapplicable to the Settlement Class. 27. Rule 23(a)(3) requires that the claims or defenses of the claims representative are typical of the claims or defenses of each member of the settlement class. The typicality requirement therefore ensures that the class representative has the same interests as the class. Specifically, typicality measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large. Busby v. JRHBW Realty, Inc., 513 F. 3d 1314, 1322 (11th Cir. 2008). [A] strong similarity of legal theories will satisfy the typicality -8-

9 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 9 of 19 PageID 271 requirement despite substantial factual differences. Appleyard v. Wallace, 754 F. 2d 955, 958 (11th Cir. 1985). 30. Here, a sufficient nexus exists between Plaintiff and the Settlement Class Members. Plaintiff and the Settlement Class Members are all health care providers who billed Sentry Insurance under PIP coverage and who seek relief arising from Sentry Insurance s application of the payment calculation method described in Section (5)(a)2-5. They seek interpretation of the same Florida statutes and Sentry Insurance s same policy form applied under Florida law. 31. Rule 23(a)(4) requires that the class representative and class counsel can fairly and adequately protect the interests of each member of the Settlement Class. This requirement has two components: (1) the proposed representative has interests in common with, and not antagonistic to, the interests of the class; and (2) the plaintiff s attorneys are qualified, experienced and generally able to conduct the litigation. Kirkpatrick v. J.C. Bradford & Co., 827 F. 2d 718 (11th Cir. 1987). 32. Here, the claims of the Class Representative arise from the same course of alleged conduct by Sentry Insurance, and the Class Representative has the same interest in attempting to establish its claims against Sentry Insurance as those of the Settlement Class. Additionally, the Class Representative and the Settlement Class Members are represented by experienced and able counsel. Class Counsel extensively worked to identify and investigate the claims in this matter. Further, Class Counsel are experienced in handling class actions and other complex litigation, including claims such as the claims at issue in the case at bar. Class Counsel have extensive experience not only in handling class actions, but also in handling cases -9-

10 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 10 of 19 PageID 272 involving Florida s No-Fault Law and PIP. Thus, the Settlement Class is adequately represented by Class Counsel. B. Rule 23(b)(2) of the Federal Rules of Civil Procedure 33. Rule 23(b)(2) requires that the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. Here, since January 1, 2008, after receiving bills from the Settlement Class, including the Plaintiff, after determining that the health care services rendered were otherwise covered and payable under the insureds' PIP insurance coverage, Sentry Insurance applied the payment calculation methodology described in Section (5)(a)2-5 in determining reimbursement amounts This payment methodology was generally applied to the class making injunctive or declaratory relief appropriate. Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 162 (2d Cir. 2001) (finding (b)(2) certification appropriate where broad, class-wide injunctive or declaratory relief is necessary to redress a group-wide injury. ); Coleman v. General Motors Acceptance Corp., 220 F.R.D. 64, (M.D. Tenn. 2004). C. Rule 23(b)(3) of the Federal Rules of Civil Procedure 34. Rule 23(b)(3) requires that questions of law or fact common to the claims or defenses of the class representative and the claims or defenses of each member of the settlement class predominate over any questions of law or fact affecting only individual members, and a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). These dual requirements are referred to as predominance and superiority, respectively. In re Netbank, Inc. Sec. Litig., 259 F.R.D. 656, 663 (N.D. Ga. 2009). -10-

11 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 11 of 19 PageID Predominance 35. Common questions of law or fact predominate over individual questions when the issues in the class action are subject to generalized proof that applies to the case as a whole. Rutstein v. Avis Rent-A-Car Sys., 211 F. 3d 1228, 1233 (11th Cir. 2000); see also Anchem Products, Inc. v. Windsor, 521 U.S. 591, 623(1997) (holding that predominance probes whether the proposed class is sufficiently cohesive to warrant adjudication by representation). Thus, in deciding whether common issues predominate under Rule 23(b)(3), the focus in generally on whether there are common liability issues that may be resolved on a class-wide basis. See, e.g., Klay v. Humana, 382 F. 3d 1241, 1269 (11th Cir. 2004). 36. Although predominance tends to merge with the concept of commonality, it imposes a more exacting standard. Vega v. T-Mobile USA, Inc., 564 F.3d 1256, (11th Cir. 2009); see also Anchem, 521 U.S. at The Eleventh Circuit reiterated the standard of Rule 23(b)(3) predominance: Common issues of fact and law predominate if they ha[ve] a direct impact on every class member's effort to establish liability and on every class member's entitlement to injunctive and monetary relief. Mohawk Indus., Inc., 568 F.3d at 1357 (quoting Klay, 382 F.3d at 1255). 37. Predominance exists in this Lawsuit. The issues of fact and law common to the Settlement Class predominate over individual issues. The core issues commonly concern the legal issue of whether Sentry Insurance was required to rely on the payment calculation methodology described in Section (1)(a) and (5)(a)1, or the alternative payment calculation methodology described in Section (5)(a)2-5. Any individualized issues that potentially could have required individualized proof if the claims were fully litigated have been mooted by the settlement terms. Thus, the predominance of common questions is satisfied. -11-

12 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 12 of 19 PageID 274 Anchem, 521 U.S. at 620; Sullivan v. DB Investments, Inc., 667 F.3d 273, 302 (3d Cir. 2011) cert. denied, 132 S. Ct (U.S. 2012) reh'g denied, 2012 WL (U.S. May 21, 2012). 2. Superiority 38. Rule 23(b)(3) lists four factors that the Court should consider in taking into account whether a class action is superior to other methods of adjudicating this action: (1) the class members interests in individually controlling the prosecution or defense of separate actions; (2) the extent and nature of any litigation concerning the controversy already commenced by or against class members; (3) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (4) the likely difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3)(A)-(D). See Anchem, 521 U.S at 617; Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985). 39. An assessment of the Rule 23(b)(3) superiority factors show that a class action is the preferred procedure in this case. The amount of damages suffered by the vast majority of the class members are relatively small individual amounts. The economic interests of the Settlement Class Members are therefore better served through a class action. Additionally, the Parties have represented to the Court that they find it desirable to concentrate the existing litigation and conclude their settlement in this forum. 40. For purposes of certifying this Settlement Class, the above requirements have been satisfied. Moreover, this case would be certified as a settlement class providing a formulaic approach to damages. When certification of a settlement class is sought, rather than a litigation class, there are different considerations, and the certification is held to a less stringent standard regarding manageability considerations under Fed. R. Civ. P. 23(b)(3)(D). -12-

13 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 13 of 19 PageID Courts have recognized that manageability issues vary when a court is presented with preliminary certification of a settlement class, rather than a litigation class. When [c]onfronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems... for the proposal is that there be no trial. Anchem, 521 U.S. at 620; see also Sullivan, 667 F.3d at 302 (holding that the concern for manageability, a central tenet in the certification of a litigation class, is removed from the equation when certification concerns a settlement class). THE PROPOSED SETTLEMENT A. The Standard for Preliminary Approval 42. The preliminary approval of a class action settlement involves a two-step process. Manual for Complex Litigation, Fourth (the Manual ), First, counsel submit the proposed terms of the settlement and the judge makes a preliminary fairness evaluation. Id. If preliminary approval is granted, the court will direct notice to be provided to the class, and a final approval hearing will then be conducted. Id.; see also Manual, The preliminary approval stage requires the Court to make a preliminary determination on the fairness, reasonableness, and adequacy of the settlement terms. Manual, ; see also 4 Newberg on Class Actions, 13:64 (courts further examine whether the proposed settlement and plan of distribution are within the range of possible approval and whether notice to the settlement class of its terms and conditions, and the scheduling of a formal fairness hearing... will be worthwhile. ) 44. At this stage, the Court need only conduct a prima facie review of the relief and notice provided by the Settlement Stipulation to determine whether notice should be sent to the Class Members. Manual, ; see also Ass n for Disabled Ams. Inc. v. Amoco Oil Co.,

14 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 14 of 19 PageID 276 F.R.D. 457, (S.D. Fla. 2002). In determining whether to approve a proposed settlement, the cardinal rule is that the District Court must find that the settlement is fair, adequate and reasonable and is not the product of collusion between the parties. Bennett v. Behring Crop., 737 F. 2d 982, 986 (11 th Cir. 1984) (citing Cotton v. Hinton, 559 F. 2d 1326, 1330 (5 th Cir. 1977)); 2 see also Access Now, Inc. v. Claire s Stores, Inc., No CIV, 2002 WL , at *1 (S.D. Fla. May 7, 2002). The court in Bennett stated that [d]etermining the fairness of the settlement is left to the sound discretion of the trial court, and will not be overturned absent a clear showing of abuse of that discretion. 45. Ultimately, this court will determine final approval of the settlement. However, the Bennett court noted factors to consider in determining whether a settlement is fair, adequate and reasonable for purposes of preliminary approval: Bennett, 737 F. 2d at 986. (1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate and reasonable; (4) the complexity, expense and duration of litigation; (5) the substance and amount of opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved. 46. Here, the proposed settlement plainly satisfies the standard for preliminary approval as the settlement is well within the range of possible recovery at which is fair, adequate and reasonable, and resulted from arm s-length negotiations between experienced counsel at an advanced stage of the proceedings. 2 Decisions by the former Fifth Circuit issued before October 1, 1981 are binding as precedent in the Eleventh Circuit. See Slater v. Energy Services Group Intern., Inc, No , 2011 WL , at *6 (11th Cir. (Fla.) March 8, 2011 (citing Bonner v. City of Prichard, 661 F. 2d 1206, 1207 (11th Cir. 1981) (en banc)). -14-

15 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 15 of 19 PageID 277 B. The Proposed Settlement Resulted from Serious, Informed, and Non-Collusive Negotiations. 47. The requirement that a settlement be fair is designed to protect against collusion among the parties. Typically, [t]here is a presumption of fairness when a proposed class settlement, which was negotiated at arm s-length by counsel for the class, is presented for Court approval. Newberg, Here, the parties reached a Settlement after several months of negotiations serious, informed and non-collusive negotiations and confirmatory discovery and investigations between Plaintiff s counsel and counsel for Sentry Insurance. During this time period, counsel for both parties assessed the strengths and weaknesses of their cases and the value of the potential damages claims. The nature of the negotiations between the Parties, the experience of Class Counsel, and the fair result reached are illustrative of the arm s-length negotiations that led to the Settlement Stipulation. C. The Proposed Settlement is Fair to the Settlement Class. 49. The proposed Settlement is fair because it provides ample relief to Settlement Class Members without requiring Settlement Class Members to risk the time and delay inherent in any trial. Accordingly, while Class Counsel are willing to pursue the claims through trial and appeal, if necessary, and believe in the merits of the claims, Class Counsel also recognize the risk and delay that continued litigation poses to the Settlement Class Members and the very real possibility of diminished returns for the Settlement Class even assuming a win at trial due to exhaustion of benefits available to pay claims. 50. The proposed mail notice program is extensive and the best notice practicable under the circumstances. See Adams v. Southern Farm Bureau Life Ins. Co., 493 F.3d 1276, 1287 (11th Cir. 2007) (holding that due process and Fed. R. Civ. P. 23(c) requires the method -15-

16 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 16 of 19 PageID 278 utilized to be the best notice practicable under the circumstances. ) The Notice is designed to adequately inform potential Settlement Class Members of the pendency of litigation, make a claim for payment and afford them an opportunity to present objections, if necessary. See Id. at ; see also Gross v Barnett Banks, Inc., 934 F.Supp. 1340, 1344 (M.D. Fla. 1995) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, (U.S. 1950)). 51. Additionally, the Settlement provides that a dedicated Internet website will be established. Settlement Class Members will be able to gain additional information and updates relating to the Settlement through the Internet and mail, as set forth in the Settlement Stipulation and explained in the Notice. Settlement Class Member may also contact the Settlement Administrator via , as provided on the settlement website, with any questions concerning the Settlement. 52. Moreover, the Settlement provides Settlement Class Members with Settlement Relief that is fair and adequate compensation. There is no limited fund and no aggregate cap on Settlement Payments. Most settlement claims will be eligible for the full difference between the original charges and the fee schedule amount previously allowed by Sentry Insurance. Those charges which fall at the top of the range will be subject to maximum Settlement Relief Charge, which was calculated following an extensive review of all claims submitted during the relevant class period of time and determining the average percentage of charges over the maximum schedule of charges under Florida s PIP law submitted by the Settlement Class. Thus, the maximum Settlement Relief Charge represents figures based the actual claims made by the Settlement Class and allows the Settlement Class members the opportunity to receive a cash payment of an additional Twenty-Five percent (25%) more per each claim made during the Settlement Class Period. However, providers all have the alternative of opting out of the -16-

17 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 17 of 19 PageID 279 settlement and attempting to prove that they are entitled to their charges in excess of the maximum Settlement Relief Charge Also, the agreed award of attorneys fees and expenses, in the amount of $182,058.00, is being paid separately by Sentry Insurance, and will not be offset against payments available to Settlement Class Members. Additionally, to account for the willingness of Plaintiff to serve as class representative, the Settlement will provide incentive bonus in the modest amount of $5, The settlement provides for a liberal claims process. Settlement payments are payable to a Settlement Class Member upon submission of an executed Claim Form, along with proof of an assignment of benefits or legal transfer of rights. A substantial amount of time 90 days will be provided to Settlement Class Members for submission of a claim. Moreover, Settlement Class Members will have 30 days after receiving its Settlement Payment to challenge Sentry Insurance s determination as to the amount of Settlement Relief. 55. In sum, the Settlement is highly likely to receive final approval as fundamentally fair, reasonable, and adequate. Thus, preliminary approval of the settlement by the Court, and notice to the class, are appropriate. CONCLUSION 56. In light of the benefits of the proposed settlement, the risks of the Lawsuit proposed to be settled, and the legal standards set forth above, the proposed settlement terms are such that the Court can easily conclude they are fair, reasonable, and adequate. For the foregoing reasons, the Parties jointly request that the Court grant preliminary approval of the proposed settlement and direct that notice be provided in the manner outlined in the proposed Order of Preliminary Approval. -17-

18 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 18 of 19 PageID 280 WHEREFORE, the parties pray this Honorable Court grant this Joint Motion for Preliminary Approval of Class Action Settlement, enter the proposed Order Certifying Settlement Class and Preliminarily Approving Class Action Settlement attached thereto and grant such other and further relief as this Court deems just and proper. CRAIG E. ROTHBURD, P.A. FOWLER WHITE BOGGS P.A. /s/ Craig E. Rothburd CRAIG E. ROTHBURD, ESQ FBN: West De Leon Street Tampa, Florida Phone: (813) Fax: (813) Attorney for Plaintiff /s/ E.K. Cottrell E.K. COTTRELL FBN: N. Laura Street, #2800 Jacksonville, Florida Phone: (904) Fax: (904) Attorney for Defendants -18-

19 Case 8:11-cv JSM-MAP Document 31 Filed 09/14/12 Page 19 of 19 PageID 281 CERTIFICATE OF SERVICE I HEREBY CERTIFY on this 14 th day of September 2012, I electronically filed the foregoing with the Clerk of Court by using this Court s CM/ECF system that will send a notice of electronic filing to: John P. Marino, E.K. Cottrell, and Lindsey R. Trowell, (Attorneys for Defendant) FOWLER WHITE BOGGS, P.A., 50 N. Laura St., # 2800, Jacksonville, FL CRAIG E. ROTHBURD, P.A. /s/ Craig E. Rothburd CRAIG E. ROTHBURD, ESQ. - FBN: West De Leon Street Tampa, Florida Phone: (813) Fax: (813) crothburd@e-rlaw.com Our File No: 6021 & THE JEEVES LAW GROUP, P.A. Scott R. Jeeves, FBN First Avenue North St. Petersburg, FL Telephone: (727) & de la PARTE & GILBERT, P.A. David M. Caldevilla, FBN Post Office Box 2350 Tampa, FL Telephone: (813) & THE DIVALE LAW GROUP, P.A. Lorca J. Divale, FBN P.O. Box St. Petersburg, Florida Telephone: (727) ATTORNEYS FOR PLAINTIFF -19-

20 Case 8:11-cv JSM-MAP Document 31-1 Filed 09/14/12 Page 1 of 36 PageID 282 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION MRI ASSOCIATES OF ST. PETE, INC. d/b/a SAINT PETE MRI, as assignee, individually, and on behalf of all those similarly situated, Plaintiff, CLASS REPRESENTATION Case No.: 8:11-CV-665-JSM-MAP vs. DAIRYLAND INSURANCE COMPANY and PEAK PROPERTY AND CASUALTY INSURANCE CORP., Defendants. / SETTLEMENT AGREEMENT AND STIPULATION This Settlement Agreement (as defined in Section 1) is made, subject to approval of the Court consistent with Federal Rule of Civil Procedure 23, this day of, 2012, by and between the Plaintiff St. Pete MRI (as defined in Section 1) on behalf of itself and its assignors and for the class of persons defined herein, and the Defendants Dairyland Insurance Company and Peak Property and Casualty Insurance Corp., and their affiliated entities, collectively defined as SENTRY INSURANCE in Section 1. 1