                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                   ELEVENTH CIRCUIT
                                      No. 10-12554                  OCTOBER 19, 2011
                                ________________________               JOHN LEY
                                                                        CLERK
                              D.C. Docket No. 0:09-cv-60902-UU

ALL FAMILY CLINIC OF DAYTONA BEACH, INC.,
on behalf of itself and all others similarly situated,
d.b.a. Florida Medical Associates,

lllllllllllllllllllll                                                Plaintiff - Appellee,

                                             versus

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

lllllllllllllllllllll                                                Defendant - Appellant.


                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                      (October 19, 2011)
Before BARKETT and WILSON,* Circuit Judges, and WALTER,** Judge.

PER CURIAM:

       State Farm Mutual Automobile Insurance Co. (“State Farm”) appeals the

district court’s grant of summary judgment in favor of All Family Clinic of

Daytona Beach, Inc. (“the Clinic”).1

       State Farm reimbursed the Clinic for MRI services provided to State Farm’s

insured under a personal injury protection (“PIP”) auto insurance policy. Florida’s

“No-Fault” law, Fla. Stat. § 627.736, provides the methodology by which State

Farm, as a PIP insurer, may limit reimbursement for MRI services. The parties

agree that the only issue on appeal is how to construe the provision in the No-

Fault law allowing insurers to “limit reimbursement to 80 percent of . . . 200

percent of the allowable amount under the participating physicians schedule of

Medicare Part B.” Fla. Stat. § 627.736(5)(a)(2)(f) (emphasis added).2 State Farm


       *
         Judge Wilson was a member of the original panel but did not participate in this decision,
which is filed by a quorum of the panel pursuant to 28 U.S.C. § 46(d).
       **
          Honorable Donald E. Walter, District Judge for the Western District of Louisiana,
sitting by designation.
       1
         “This court reviews a district court’s grant of summary judgment de novo, applying the
same legal standards used by the district court.” United States v. Fort, 638 F.3d 1334, 1337 (11th
Cir. 2011).
       2
           The statute reads in pertinent part:

       The insurer may limit reimbursement to 80 percent of the following schedule of
       maximum charges: . . . f. For all other medical services, supplies, and care, 200

                                                  2
claims that the statute’s explicit incorporation of Medicare’s “participating

physicians schedule” necessarily includes Medicare’s “[s]pecial rule for imaging

services,” 42 U.S.C. § 1395w-4(b)(4), which in certain circumstances reduces the

amount that Medicare reimburses for MRIs. The Clinic claims that the statute

refers to the schedule alone without any reduction and that State Farm has thus

underpaid the Clinic.

      The district court awarded summary judgment to the Clinic on the plain text

of the statute. See All Family Clinic of Daytona Beach, Inc. v. State Farm Mut.

Auto. Ins. Co., 685 F. Supp. 2d 1297 (S.D. Fla. 2010). On appeal, the parties

jointly moved for certification to the Florida Supreme Court, agreeing that no

Florida appellate court had ruled on the issue. Shortly after oral argument,

however, the District Court of Appeal for Florida’s Second District addressed

precisely this issue, concluding that the statute’s plain text did not allow a

reduction under Medicare’s special rule for imaging services reimbursements. See

Nationwide Mut. Fire Ins. Co. v. AFO Imaging, Inc., ___ So. 3d ___, 2011 WL


      percent of the allowable amount under the participating physicians schedule of
      Medicare Part B. However, if such services, supplies, or care is not reimbursable
      under Medicare Part B, the insurer may limit reimbursement to 80 percent of the
      maximum reimbursable allowance under workers’ compensation, as determined
      under s. 440.13 and rules adopted thereunder which are in effect at the time such
      services, supplies, or care is provided. Services, supplies, or care that is not
      reimbursable under Medicare or workers’ compensation is not required to be
      reimbursed by the insurer.


                                              3
2622311 (Fla. Dist. Ct. App. July 6, 2011).

        On this record, we are compelled to follow the District Court of Appeal and

affirm summary judgment. “[T]he rule is that, absent a decision from the state

supreme court on an issue of state law, we are bound to follow decisions of the

state’s intermediate appellate courts unless there is some persuasive indication that

the highest court of the state would decide the issue differently.” McMahan v.

Toto, 311 F.3d 1077, 1080 (11th Cir. 2002). Even assuming arguendo that we

would have decided the issue in State Farm’s favor, the AFO Imaging Court’s

holding “is and will remain Florida law until such time, if any, as the Florida

Supreme Court has the inclination and opportunity to rule to the contrary.” Id. at

1080.

        In McMahan, this Court had already decided an issue of Florida law and

denied a petition for rehearing before the Florida District Court of Appeal issued a

decision contrary to our ruling on the same issue. Id. at 1080. Because we had not

yet issued the mandate, we held that we had “the authority, power, and duty to

modify our decision to comport with the latest word from the Florida courts” and

so reversed course. Id. at 1081. Similarly here, although we agree that the Florida

Supreme Court could rule contrary to the appellate court’s AFO Imaging decision,

State Farm does not offer and we cannot find a “persuasive indication” that it



                                          4
actually “would” change the law. Id. at 1080 (emphasis added).

      Accordingly, we follow the rule given by the intermediate appellate court

and AFFIRM the district court’s grant of summary judgment to the Clinic.

      AFFIRMED.




                                        5
