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A Philadelphia judge has certified a class of doctors and hospitals in a lawsuit that claims Progressive Northern Insurance Co. bilked them out of interest owed on allegedly late insurance payments. Common Pleas Judge Gene D. Cohen issued a memorandum opinion in Glick v. Progressive Northern Ins. Co.,finding that the class met the criteria required under state rules of civil procedure. Glickis part of the Commerce Case Management Program. The class should consist of medical providers that were entitled to receive payment for treating Progressive’s injured clients but whose payments were overdue and, perhaps, should have included interest at a 12-percent annual rate, as required under the state Motor Vehicle Financial Responsibility Law, Cohen wrote. “At a minimum, hundreds if not thousands of doctors and hospitals who have submitted bills for payment to Progressive over the years would fall into this category,” said Steve Schwartz, who represents Richard S. Glick, a doctor of osteopathy who initiated the class action. Schwartz would not say how long after the 30-day window it took the insurance company to reimburse the medical providers on average, but did say, “We wouldn’t be prosecuting the case if they were paying bills within 30 days and paying interest for payments made after 30 days.” Schwartz practices at Chimicles & Tikellis in Haverford. The issue in Glickcenters on when the clock starts running on the 30-day window the insurance company has to pay medical providers for their services. State law says the payments are overdue if not paid 30 days after the insurance company receives “reasonable proof of the amount of the benefits,” according to the opinion, which was issued last month. Glick argues that the clock starts as soon as Progressive receives copies of the bills submitted by doctors or hospitals. Progressive contends that the clock starts after they have completed their internal investigation determining whether treatment was appropriate and whether other coverage was available, according to the opinion. Cohen notes that the purpose behind certifying class action suits is to provide “a means by which the claims of individuals could be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate,” quoting a 1996 Superior Court decision, DiLucido v. Terminix International Inc. In arguing against the class certification, Progressive said that Glick had failed to meet all of the criteria required for filing a class action, according to the opinion. One requirement is that plaintiffs share common issues of law or fact that can be resolved in a single proceeding. Progressive maintains that the decision to pay or deny a bill is made on a case by case basis, and that because each decision is “case specific,” plaintiffs cannot meet the commonality requirement. But Glick pointed to a pattern and practice of “blanket denial of paying interest on overdue bills,” contending that the proposed class’ grievances rise out of the same behavior carried out by Progressive, according to the opinion. Cohen agreed and said the plaintiffs met the commonality requirement. Another class certification requirement that the judge discussed was whether the plaintiffs’ claims and defenses are “typical” of the entire class. Progressive said that Glick was not a typical representative of the class because delays in paying some of his bills were due to an investigation into his billing practices, according to the opinion. Glick responded that — even if the investigations of each plaintiff vary — the process Progressive takes to investigate and make payments is still common to all of the proposed class members. “The same policy they used against Glick was the policy they used against the other doctors,” Schwartz said. Cohen called Progressive’s arguments “unpersuasive” and found the plaintiffs had met the typicality requirement. Finally, Progressive argued that the class would be difficult to “fairly and efficiently manage,” another re-quirement of class certification, because the factual issues involving individual claims would prevail over any common questions of law or fact, according to the opinion. The plaintiff countered that the necessary information — the date each bill was received and the date Progressive paid it — had already been collected and so it would not be difficult to manage the class. Cohen noted that potential management difficulties should not be afforded much weight, quoting a 1982 Superior Court decision: “Problems of administration alone . . . ordinarily should not justify the denial of an otherwise appropriate class action, for to do so would contradict the policies underlying this device . . . Rather the court should rely on the ingenuity and aid of counsel and upon its plenary authority to control the action to solve whatever management problems the litigation may bring.” According to this analysis, Cohen wrote, “it does not appear that there are any abnormal issues of class manageability in this case.” Lawyers for Progressive petitioned to amend Cohen’s order in late October, asking the judge to modify the order and allow Progressive to file an appeal to the Superior Court before trial, said Delano Lantz, who represents Progressive. Lantz, of McNees Wallace & Nurick in Harrisburg, declined to comment further, but in the brief he filed with the court he argued that the judge’s order involved a controlling question of law as to whether the class certification was appropriate “where the duty to pay interest is triggered by the receipt of ‘reasonable proof’ by an insurer.” Lantz said the court should certify the order for immediate appeal because an appeal could “materially advance the ultimate termination of the matter.” In the plaintiffs’ response to Progressive’s petition, Schwartz argued that the judge’s decision to grant the class certification is the type of interlocutory order that is not usually “appealable” and would cause undue delay and add procedural layers to the case. Schwartz said there is no controlling question of law on which a substantial difference of opinion exists. He pointed to three other Philadelphia Common Pleas decisions issued by Judge Stephen E. Levin that were consistent with Cohen’s class certification. (Copies of the 11-page opinion inGlick v. Progressive Northern Ins. Co. , PICS No. 03-1779, are available fromThe Legal Intelligencer . Please call the Pennsylvania Instant Case Serviceat 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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