NOT FINAL VERSION OF OPINION
Subsequent Changes at 30 Fla. L. Weekly D43a
29 Fla. L. Weekly D911b
Insurance — Automobile — Collision — Insured’s action against insurer alleging insurer violated “made-whole” doctrine by returning only a portion of insured’s deductible after insurer recovered from third party’s insurer an amount less than it had paid insured — No error in dismissing action with prejudice on grounds that insured could not state claim for relief and that claims were “inappropriate for class action treatment” in light of district court decision which found that class could not be certified on substantially the same issues as those raised in present case
IFRAIN MONTE DE OCA, Appellant, vs. STATE FARM FIRE AND CASUALTY COMPANY, Appellee. 3rd District. Case No. 3D03-661. L.T. Case No. 01-17650. Opinion filed April 14, 2004. An appeal from the Circuit Court for Miami-Dade County, Eleanor M. Schockett, Judge. Counsel: Diane H. Tutt, for appellant. Akerman Senterfitt and Marcy Levine and Nancy A. Copperthwaite and Jason Kellogg, for appellee.
(Before SHEVIN, RAMIREZ and WELLS, JJ.)
(WELLS, J.) Ifrain Monte de Oca appeals from an final order dismissing his class action complaint against State Farm Fire and Casualty Company with prejudice. For the following reasons, we affirm.
In February 2001, Monte de Oca was involved in an automobile accident with a third party. State Farm, Monte de Oca’s collision insurer, subsequently paid Monte de Oca for the damage he incurred, less $500, the amount of Monte de Oca’s policy deductible. Thereafter, State Farm, pursuant to the subrogation provision of its policy with Monte de Oca, recovered from the third party’s insurer an amount less than it had paid Monte de Oca and returned to Monte de Oca a portion of his deductible.1
In this action, Monte de Oca claims that State Farm has violated the “made-whole” doctrine, and seeks certification of a class comprised of himself and all other State Farm insureds, for whom State Farm provided collision coverage, who were paid by State Farm after their vehicles were damaged in an accident with a third party, and who did not receive 100% of their deductible from the subrogation funds obtained by State Farm from either the third party or the third party’s insurance carrier.
The court below dismissed the action with prejudice on the grounds that Monte de Oca could not state a claim for relief and that Monte de Oca’s claims were “inappropriate for class action treatment.” In light of State Farm Mut. Auto. Ins. Co. v. Kendrick, 822 So. 2d 516 (Fla. 3d DCA 2002), which found that a class could not be certified on substantially the same issues raised here, we are constrained, absent en banc consideration, to affirm. But see Powers v. Gov’t Employees Ins. Co., 192 F.R.D. 313 (S.D. Fla. 1998) (certifying a Florida class consisting of insureds not paid the full amount of their deductibles from their insurer’s subrogation recovery as allegedly required by the made-whole doctrine).
Affirmed.
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1Apparently, the insurers agreed that Monte de Oca was 50% responsible for the accident and agreed that State Farm would “recover” from the third party’s insurer one-half of State Farm’s demand.
