              Case: 14-10001     Date Filed: 02/14/2014    Page: 1 of 13


                                                                           [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 14-10001
                              Non-Argument Calendar
                            ________________________

                       D.C. Docket No. 0:13-cv-61759-WPD



SOUTH FLORIDA WELLNESS, INC.,
individually, and on behalf of all others similarly situated,

                                                                   Plaintiff-Appellee,


                                        versus


ALLSTATE INSURANCE COMPANY,

                                                                Defendant-Appellant.

                            ________________________

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

                                 (February 14, 2014)

Before CARNES, Chief Judge, MARCUS and PRYOR, Circuit Judges.

CARNES, Chief Judge:
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      This appeal brings us the issue of whether the Class Action Fairness Act’s

$5,000,000 amount-in-controversy requirement can be satisfied if the plaintiff

seeks only declaratory relief. If it can be, there is federal jurisdiction in this case.

If it cannot be, there is not. Concluding that a pure declaratory judgment action

could not carry the required jurisdictional freight, the district court remanded the

case to state court. Concluding that a declaratory judgment action can be up to the

task, and that this one is, we reverse.

                                            I.

      In January 2012 Florencio Sanchez was injured in an automobile accident

and received medical treatment at South Florida Wellness, Inc. (Wellness), a

Florida-based healthcare provider. Sanchez was insured by Allstate Insurance

Company under a policy that provided her with personal injury protection (PIP)

coverage, and in connection with treatment that she received there, Sanchez

assigned to Wellness her right to benefits under that policy. Wellness sought

payment of 80% of the amount it had billed Sanchez, but Allstate paid a lower

amount based on its interpretation of Sanchez’s policy. Instead of paying 80% of

the total amount billed, Allstate paid Wellness only 80% of certain amounts set out

in the statutory fee schedule contained in Fla. Stat. § 627.736(5)(a).

      The general rule for PIP coverage in Florida is that an insurance policy must

cover 80% of all reasonable costs for medically necessary treatment resulting from


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an automobile accident, subject to certain limits. See Fla. Stat. § 627.736(1)(a).

That is the payment Wellness sought from Allstate. Florida law also provides,

however, that an insurer may opt out of the general payment rule and instead limit

payment to 80% of a statutory fee schedule. See id. § 627.736(5)(a). Allstate

claims that it opted out of the general payment rule in favor of the more limited

statutory fee schedule approach in its Florida PIP policies, including the one that

covered Sanchez.

      In July 2013, Wellness filed this putative class action in Florida state court,

contending that a recent Florida Supreme Court decision requires any insurer

choosing to limit payments to the statutory fee schedule to clearly and

unambiguously indicate in the insurance policy that it is doing so. See Appellee

Brief at 2; see also Geico Gen. Ins. Co. v. Virtual Imaging Servs., Inc., — So. 3d

—, 2013 WL 3332385, at *8, *10 (Fla. July 3, 2013). Wellness claims that

Allstate failed to do so. Its complaint proposed the following class:

      Any and all health care providers and insureds who submitted claims
      for no-fault benefits under PIP policies which were in effect from
      March, 2008, where Allstate utilized the reimbursement methodology
      pursuant to Florida Statute 627.736(5)(a)2(a-f) (2008) (the fee
      schedule) to limit reimbursement to the provider or the insured where
      the policy did not expressly and unambiguously indicate Defendant’s
      election to limit reimbursement in accordance with Florida Statute
      627.736(5)(a)2 as its sole methodology for payment of No Fault
      claims.




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The complaint seeks no monetary damages. It seeks only a declaration that the

form language Allstate used in the class members’ PIP insurance policies did not

clearly and unambiguously indicate that payments would be limited to the levels

provided for in § 627.736(5)(a).

      Allstate removed the case to federal court in August 2013, asserting that the

Class Action Fairness Act (CAFA), 28 U.S.C. § 1332(d)(2), provided for federal

subject matter jurisdiction over the lawsuit. In support of its claim of federal

jurisdiction, Allstate submitted an affidavit from Tara Watson, an Allstate

employee personally familiar with PIP claim-related business records maintained

by the company. Watson attested that the putative class included over 100

healthcare providers and insureds who had submitted “1,655,733 bills for payment

or reimbursement” of medical expenses based on PIP coverage under Allstate

Florida auto policies during the relevant time period. She calculated that Allstate

had paid out $126,474,216.25 in benefits for those claims based on the fee

schedule in § 627.736(5)(a). She also calculated that if Allstate had not limited

payment based on § 627.736(5)(a), then the putative class members would have

been entitled to $194,651,033.94 in benefits (80% of the billed amounts). Allstate

maintained that the amount in controversy was the difference between those two

figures –– $68,176,817.69 –– because that is the additional amount of benefits the




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putative class members would be eligible to recover in the event that they received

the declaratory judgment.

      Wellness moved to remand the case to state court. It contended that Allstate

had not established that the amount in controversy exceeds $5 million because the

complaint did not seek damages but only a declaration that the language of the

Allstate insurance policies did not clearly and unambiguously adopt the coverage

caps of § 627.736(5)(a), as Florida law requires for them to be effective. While

recognizing a declaration in its favor would entitle the class members to seek

additional payment from Allstate, Wellness nevertheless argued that the financial

effects of the declaratory judgment could not be considered for purposes of

determining the amount in controversy because those effects were too speculative.

      The district court granted the motion to remand. It agreed with Wellness

that “the value of the declaratory relief [was] too speculative” for purposes of

satisfying CAFA’s amount-in-controversy requirement because Allstate had failed

to show that “declaratory judgment in this case will necessarily trigger a flow of

money to [the] plaintiffs.” Allstate, of course, disagrees and contends that it met

its burden of showing that the amount in controversy involving the declaratory

judgment Wellness seeks exceeds $5 million.

                                         II.




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       CAFA grants subject matter jurisdiction to federal district courts over class

actions in which (1) any member of the plaintiff class is a citizen of a state

different from the state of citizenship of any defendant, (2) the aggregate amount in

controversy exceeds $5 million, and (3) the proposed plaintiff class contains at

least 100 members. 1 See 28 U.S.C. § 1332(d)(2), (5)–(6); see also 7A Charles

Alan Wright et al., Federal Practice and Procedure § 1756.2 (3d ed. 2005). Only

the second of those three requirements is at issue in this appeal.

        “We review de novo the district court’s decision to remand a case to state

court for lack of subject matter jurisdiction.” Lowery v. Ala. Power Co., 483 F.3d

1184, 1193 (11th Cir. 2007). Where the plaintiff has not alleged a specific amount

of damages, the defendant seeking removal must establish by a preponderance of

the evidence that the amount in controversy exceeds the jurisdictional minimum.

Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 752 (11th Cir. 2010). A court

may rely on evidence put forward by the removing defendant, as well as

reasonable inferences and deductions drawn from that evidence, to determine

whether the defendant has carried its burden. Id. at 753–54.

       What counts is the amount in controversy at the time of removal. Id. at 751.

It is less a prediction of “how much the plaintiffs are ultimately likely to recover,”

than it is an estimate of how much will be put at issue during the litigation; in other

       1
        CAFA also contains several exceptions to this broad grant of jurisdiction, see 28 U.S.C.
§ 1332(d)(3)–(4), but those exceptions are not at issue in this case.
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words, the amount is not discounted by the chance that the plaintiffs will lose on

the merits. Id. (quotation marks omitted); see also McPhail v. Deere & Co., 529

F.3d 947, 956 (10th Cir. 2008) (“The amount in controversy is not proof of the

amount the plaintiff will recover. Rather, it is an estimate of the amount that will

be put at issue in the course of the litigation.”). Potential developments, such as

“[t]he possibility that the putative class will not be certified, or that some of the

unnamed class members will opt out,” are irrelevant to the jurisdictional analysis.

Pretka, 608 F.3d at 772 (noting that the jurisdictional determination “is based only

on the facts as they exist at the time of removal”).

      We have held that “[f]or amount in controversy purposes, the value of

injunctive or declaratory relief is the value of the object of the litigation measured

from the plaintiff’s perspective.” Morrison v. Allstate Indem. Co., 228 F.3d 1255,

1268 (11th Cir. 2000) (quotation marks omitted). Stated another way, the value of

declaratory relief is “the monetary value of the benefit that would flow to the

plaintiff if the [relief he is seeking] were granted.” Id. For CAFA purposes, we

aggregate the claims of individual class members and consider the monetary value

that would flow to the entire class if declaratory relief were granted. See 28 U.S.C.

§ 1332(d)(6); see also Cappuccitti v. DirecTV, Inc., 623 F.3d 1118, 1122 (11th Cir.

2010); Pretka, 608 F.3d at 772. While absolute certainty is neither attainable nor

required, the value of declaratory or injunctive relief must be “sufficiently


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measurable and certain” to satisfy the amount-in-controversy requirement.

Morrison, 228 F.3d at 1269. That requirement is not satisfied if the value of the

equitable relief is “too speculative and immeasurable.” Cohen v. Office Depot,

Inc., 204 F.3d 1069, 1077 (11th Cir. 2000) (quotation marks omitted); see also

Leonard v. Enter. Rent a Car, 279 F.3d 967, 973 (11th Cir. 2002). It is a matter of

degree.

      In this case, Allstate has carried its burden of establishing an amount in

controversy that exceeds $5 million. Wellness did not provide any evidence to

rebut Allstate’s Watson affidavit or to controvert its calculations. The affidavit

establishes that the declaratory judgment Wellness seeks will determine whether

Allstate made insufficient payments on more than 1.6 million “bills for payment or

reimbursement,” with the amount of the insufficiency exceeding $68 million,

which it will owe the putative class members. That is the amount in controversy,

see McPhail, 529 F.3d at 956, and it is far above the $5 million threshold set by

CAFA.

      In support of its position that the value of the declaratory relief in this case

was too speculative, Wellness points to the multiple events that must occur before

any putative class member could recover additional money from Allstate in the

event that the declaratory judgment goes in favor of the class. Under Florida law, a

party seeking to file a suit to recover PIP benefits must first submit a pre-suit


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demand letter to the insurer for payment of benefits. Fla. Stat. § 627.736(10)(a). If

the insurer rejects that demand for payment, the party may file suit and may be

entitled to additional payment, but only if the relevant factfinder determines that

the treatment in question was (1) related to an accident, (2) medically necessary,

and (3) billed at a reasonable rate. See id. § 627.736(4)(b)(6).

      Wellness argues that with all of those contingencies standing between any

class member and recovery, valuing a declaratory judgment is far too speculative.

That speculation argument rests on two premises. First, it relies on the assumption

that class members armed with a declaratory judgment would not later seek out the

additional payment they are owed. That assumption is contrary to human nature

and the nature of lawyers. Second, the speculation argument asks us to believe

without any basis for doing so that the vast majority of the 1,655,733 bills that

were submitted to Allstate for PIP benefits were (1) unrelated to an accident, (2)

not medically necessary, or (3) for treatments billed at an unreasonable rate.

      Wellness’ speculation argument is itself too speculative. It requires

indulging the kind of “conjecture, speculation, or star gazing” that we have found

inappropriate in analyzing the amount in controversy. See, e.g., Pretka, 608 F.3d

at 754. Although the putative class members might have to take an extra step or




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two after obtaining declaratory relief to get money from Allstate, 2 that does not

mean that determining that the amount in controversy exceeds $5 million is too

speculative of a task. Estimating the amount in controversy is not nuclear science;

it does not demand decimal-point precision. See id. (“The law does not demand

perfect knowledge or depend any less on reasonable inferences and deductions

than we all do in everyday life.”). And the undertaking is not to be defeated by

unrealistic assumptions that run counter to common sense. Given the large number

of medical bills at issue and the significant amount of money at stake, we find it

unlikely that most insureds and medical care providers, who may be collectively

owed $68,176,817.69, would leave the vast majority of that money on the table if a

federal court declared that they were entitled to it. See id.

       There is another consideration. The larger the calculated amount at stake,

the easier it is to be confident that collection contingencies should not count for

much. Cf. Morrison, 228 F.3d at 1270–71 (“What is only merely possible with

respect to one policyholder—a sum of future claims for diminished value with a

present value of $75,000—becomes quite probable with respect to over a million

policyholders. With that many policies alleged to be in effect, we clearly cannot

conclude to a legal certainty that the value of the injunction sought in this case, if
       2
          If the putative class obtained declaratory relief, Allstate might choose to simply pay the
claimants the additional amount owed after determining that it was not worth the cost to litigate
the reasonableness of charges on 1,655,733 different bills. If that did not occur, however, the
putative class members would have to request the additional payment from Allstate and wait for
Allstate to deny the request before they could file suit. See Fla. Stat. § 627.736(10)(a).
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viewed in the aggregate, is too uncertain to satisfy the amount in controversy

requirement.”). The maximum difference in the amount of payments that rides on

the outcome of the declaratory judgment is in excess of $68 million, which is more

than thirteen times the $5 million amount-in-controversy threshold. Even if we

speculated that 90% of that amount would be siphoned off by one contingency or

another –– an extraordinarily unlikely outcome –– more than $6.8 million would

still be at stake.

       Wellness’ reliance on our Leonard decision is misplaced because the facts in

that case are distinguishable from those in this case. The plaintiffs in Leonard

sought, among other things, an injunction to stop the defendant from selling

automobile insurance when it rented cars to customers. See 279 F.3d at 970, 973.

We held that the requested injunctive relief had no value because the plaintiffs had

“always been free to refuse to purchase the insurance offered by the defendants.”

Id. at 973. We could not assign a monetary value to the injunctive relief because

we would have to speculate as to how many future customers might purchase the

optional insurance absent an injunction. See id.

       While the issue in Leonard concerned future transactions that were merely

possible, the issue here concerns past transactions that actually did occur. The

calculations in the Watson affidavit were based on medical treatment that putative

class members had already received and actual bills that had already been incurred.


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Unlike in Leonard, where the plaintiffs could not identify how many future sales

might be affected if we granted injunctive relief, here Allstate is able to identify a

specific number of bills that would be affected by the declaratory relief sought, as

well as a concrete monetary value that the plaintiffs may be eligible to recover if

they obtain relief. Because Watson’s calculations were based on actual

transactions that took place and concrete amounts that were billed, the

$68,176,817.69 figure she calculated is not a number “divined by looking to the

stars.” See Lowery, 483 F.3d at 1215.

       Although members of the putative class might not ultimately recover the full

$68,176,817.69, that possibility does not shut the door on federal jurisdiction. As

we have said before, “the pertinent question [at the jurisdictional stage] is what is

in controversy in the case, not how much the plaintiffs are ultimately likely to

recover.” Pretka, 608 F.3d at 751; see also McPhail, 529 F.3d at 956 (“The

amount in controversy is not proof of the amount the plaintiff will recover. Rather,

it is an estimate of the amount that will be put at issue in the course of the

litigation.”). Here, the amount that will be put at issue is the amount that the

putative class members may be eligible to recover from Allstate in the event that

they obtain declaratory relief.3 That $68,176,817.69 figure exceeds CAFA’s


       3
        Wellness claims that the class members do not stand to gain anything of monetary value
from a declaratory judgment. We disagree. A declaratory judgment would establish that Allstate
provided members of the putative class with insufficient payment on bills that have already been
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amount-in-controversy threshold, and thus the district court erred in concluding

that the threshold was not met.

       For these reasons, we reverse the district court’s order remanding the case to

state court and remand for further proceedings consistent with this opinion.

       REVERSED AND REMANDED.




incurred, and it would give those class members a right to receive additional payment. That right
to additional payment represents “the monetary value of the benefit that would flow to the
plaintiff if the [declaratory relief] were granted.” See Morrison, 228 F.3d at 1268.

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