10 Fla. L. Weekly Supp. 806a
Insurance — Personal injury protection — Class action against insurer alleging withdrawal of medical payments without first obtaining report of physician licensed under same chapter as treating physician whose treatment is sought to be withdrawn, reduced, or denied and failure to pay statutory interest when payment of medical bills was made after 30 days from date insurer received notice of fact of loss and amount of bill — Certification of class — Numerosity requirement is satisfied by stipulation — Commonality is satisfied by consistency of common factual circumstances that plaintiff and class were injured in automobile accidents, and plaintiff and class maintained PIP coverage through insurer that is identical as to no-fault coverage — Typicality is satisfied where plaintiff’s claim is identical to claims of class members — Plaintiff who has retained counsel experienced in mass tort and class action litigation and has no interest antagonistic to that of class meets adequate representation requirement — Class is appropriate for certification under rule 1.220(b)(3) where numerous issues common to the class predominate over individual cases, and class action is superior to other available methods for fair and efficient adjudication of this controversy
LEANDRO DE LA ROSA, Plaintiff, vs. ALLSTATE INDEMNITY COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Dade County, General Jurisdiction Division. Case No. 99-27471 CA 10. June 20, 2000. Margarita Esquiroz, Judge.
[Affirmed at 26 Fla. L. Weekly D2193a.]
ORDER GRANTING CLASS CERTIFICATION
THIS CAUSE coming on to be heard before this Court on April 12, 2000 on Plaintiff’s Motion for Class Certification, and the Court being duly advised in the premises, makes the following conclusions of law set forth below:
Plaintiff brings this action on behalf of himself, individually, and, on behalf of all persons damaged by ALLSTATE as a class, and pursuant to Rule 1.220(b)(3) of the Florida Rules of Civil Procedure, more specifically defined as:
The First Class is defined as:
All persons that are or have been insured by ALLSTATE for PIP coverage that have furnished ALLSTATE with written proof of the fact of a covered loss and of the amount of same for injuries received as a result of the use, maintenance or operation of a motor vehicle which claim arose subsequent to October 1, 1992 and whose claim has not been paid within 30 days of receipt of written notice of loss and the amount of same by ALLSTATE despite ALLSTATE’S failure to first obtain a report within 30 days of written notice of the fact of a covered loss and of the amount of same from a physician licensed under the same chapter as the treating physician whose treatment is sought to be withdrawn, reduced or denied who conducted an examination of the insured, stating that the treatment was not reasonable, related or necessary as required by §627.736(7)(a).
The Second Class is defined as:
All persons that are or have been insured by ALLSTATE for PIP coverage that have furnished ALLSTATE with written proof of the fact of a covered loss and of the amount of same for injuries received as a result of the use, maintenance or operation of a motor vehicle which claim arose subsequent to October 1, 1992 whose claim has not been paid within 30 days of receipt of written notice of loss and the amount of same by ALLSTATE despite ALLSTATE’S failure to first obtain a report within 30 days of written notice of loss and of the amount of same from a physician licensed under the same chapter as the physician whose treatment is sought to be withdrawn, reduced or denied stating that the treatment received was not reasonable, related or necessary.
The Third Class is defined as:
All persons that are or have been insured by ALLSTATE for PIP coverage whose PIP claim was not paid within thirty (30) days after ALLSTATE was furnished with written notice of the fact of a covered loss and the amount of same despite not having “reasonable proof” within 30 days that it was not responsible for payment, and who ALLSTATE failed to pay the statutory interest of 10% per annum for each day after thirty (30) days that ALLSTATE was furnished with written notice of the fact of a covered loss and the amount of same as required by Fla. Stat. §627.736(4)(b) & (c).
Plaintiff and Defendant have agreed to a partial stay of the claims regarding PIP interest based on the pendency of an earlier action filed against Defendant in state court styled Magnetic v. Allstate Indemnity. Co., case number 95-02978 CA 04 and Magnetic v. Allstate Ins. Co., case number 95-10184 CA 04 seeking similar class relief to the extent that the interest claims are based on PIP benefits already paid but without the requisite interest.
Plaintiff requests certification of three classes pursuant to Rule 1.220 of the Florida Rules of Civil Procedure. Certification is appropriate because Plaintiff’s proposed class satisfies the Rule 1.220(a) prerequisites for class certification as well as the Rule 1.220(b)(3) requirements.
THE CLASS SATISFIES THE RULE 1.220(a) PREREQUISITES TO CLASS CERTIFICATION
Rule 1.220(a) of the Florida Rules of Civil Procedure mandates four prerequisites to the maintenance of a class action. The proponent of the class certification must demonstrate the following: numerosity, common issues, typicality of claims and adequate representation. In Re: Amerifirst Securities Litigation, 139 F.R.D. 423 (S.D. Fla. 1991). The foregoing prerequisites have been satisfied by Plaintiff:
A. NUMEROSITY
In order to satisfy the numerosity requirement, the class must be “so numerous that separate joinder of each member is impracticable.” Fla.R.Civ.P. 1.220(a)(1). Defendant has withdrawn any objection to numerosity and, based on that stipulation, the court finds the numerosity requirement satisfied.
B. COMMONALITY
The claims of the Plaintiff as the representative party must raise questions of law or fact common to the questions of law or fact raised by the claim of each member of the potential class. The “threshold of ‘commonality’ is not high . . . Rule 1.220(a) requires only that resolution of the common questions affect all or a substantial number of class members.” Jenkins v. Raymark Indus., 782 F.28 468 (5th Cir. 1986). Commonality may be met where a single common issue runs throughout the claims. Ikonen v. Hartz Mountaim Corp., 122 F.R.D. 258 (S.D. Cal. 1988). Class certification should not be denied merely because the claim of one or more class representatives arises in a factual context that differs somewhat from that of the other plaintiffs. Love v. General Dev. Corp., 555 So. 2d 397 (Fla. 3d DCA 1989); Morgan v. Laborer’s Pension Trust Fund for N. Cal., 81 F.R.D. 669 (N.D. Cal. 1979). The “focus should be on whether the representatives’ claims arise from the same course of conduct that gave rise to the remaining claims and whether the claims are based on the same legal theory.” Riverol v. Arvida/JMB Partners, Case No. 92-21130 (Dade Co. 1993).
In the case at bar, the class members have a similar interest in the relief sought in that they seek PIP payments. The claims of the class members present a common right of recovery under Fla. Stat. §627.736(7)(a) and §627.736(4)(b) and (c) based on ALLSTATE’S conduct that raises common issues for all members. For example, the common issues presented in this case include:
Whether ALLSTATE withdrew medical payments without first obtaining a report of a physician licensed under the same chapter as the treating physician whose treatment is sought to be withdrawn, reduced or denied stating that treatment was not reasonable, related or necessary as required by Fla. Stat. §627.736(7)(a).
Whether ALLSTATE failed to pay statutory interest on medical bills when the payment of the medical bills were made after 30 days from the date that ALLSTATE received notice of the fact of a covered loss and of the amount of same in violation of §627.736(4)(b) & (c), Fla. Stat. (1995).
In the case at bar, the issue of commonality is satisfied by the consistency of the common factual circumstances in the instant case; inasmuch as, (1) DE LA ROSA and the Class were injured in an automobile accident; (2) DE LA ROSA and the Class maintained an automobile insurance policy with PIP coverage through ALLSTATE that is identical as far as the No-Fault Coverage is concerned.
Furthermore, it is well recognized that breach of contract claims are appropriate for class certification where identical clauses from various contracts serve as one of the basis of the action. Love v. General Dev. Corp., 555 So. 2d 397 (Fla. 3d DCA 1989). The insurance contracts in the instant action contain PIP benefit provisions that are substantially similar, if not identical, and are appropriate for class action treatment.
Given the foregoing common questions of law and fact, the commonality requirement is satisfied.
C. TYPICALITY
The representative Plaintiff’s claim must be typical of the claims of the class. Fla.R.Civ.P. 1.220(a)(3). Courts require only that the claims of the representative Plaintiff rest on the same legal and remedial theories as the unnamed members of the class. Jenkins v. Raymark, 782 F.2d 468 (5th Cir. 1986). Accordingly, typicality is not defeated by different amounts of damages among class members and their representatives. Cohen v. Camino Sheridan, Inc., 466 So. 2d 1212 (Fla. 4th DCA 1985).
DE LA ROSA’S claim is identical to the claims of the Class members in that DE LA ROSA’S and the Class’s PIP benefits were withdrawn despite not obtaining a report from a physician licensed under the same licensing chapter who conducted an examination in the municipality where the insured was receiving treatment or resided.
D. ADEQUACY OF REPRESENTATION
The representative party must “fairly and adequately protect and represent the interests of the class.” Fla.R.Civ.P. 1.220(a)(4). Adequacy of representation is a two-part inquiry which requires that: (1) “class counsel must be qualified, experienced and generally able to conduct the litigation; and (2) “class members [and representative the Plaintiff] must not have interests that are antagonistic to one another.” In Re: Drexel Burnham Lambert Group, Inc., 960 F.2d 285 (2d Cir. 1992); See also Jenkins v. Raymark, 782 F.2d 468 (5th Cir. 1986); Griffin v.Carlin, 755 F.2d 1516 (11th Cir. 1985); Hessen v. Metropolitan Dade Co., 513 So. 2d 1330 (Fla. 3d DCA 1987); Port Royal Inc. v. Conboy, 154 So. 2d 734 (Fla. 2d DCA 1963) (interests of Plaintiff must be coextensive with those of the class). Here, class counsel are experienced in mass tort and class action litigation. Counsel have vast experience on a national basis in the representation of classes and in this type of complex insurance litigation. Additionally, the Court has determined that the law firms of John H. Ruiz, P.A. and Robles & Gonzalez, P.A. will skillfully, conscientiously, and vigorously represent the interests of the class. Furthermore, counsel have the necessary financial resources to dedicate to the prosecution of this action. The representative Plaintiff is also committed to the vigorous prosecution of this action. DE LA ROSA has no interest, which is contrary to, or in conflict with those of the unnamed class members.
The pleadings and the papers filed in this cause to date clearly demonstrate that DE LA ROSA is a more than an adequate class representative as she has: (1) aggressively pursued her claim, as well as the claims of others who are similarly situated, as evidenced by the fact that this cause has been aggressively pursued from its inception and he feels a civic responsibility to represent the Class; and (2) has retained counsel with prior and vast experience on a national basis in the representation of classes and in this type of complex insurance litigation. There are no apparent or latent conflicts between DE LA ROSA and the Class. Therefore, DE LA ROSA meets the fourth requirement of adequate representation because he adequately represents the Class and has retained counsel that will adequately represent the Class.
THE REQUIREMENTS FOR CERTIFICATION UNDERRULE 1.220 (b)(3) ARE MET
Plaintiff’s proposed class is appropriate for certification under Rule 1.220(b)(3). Rule 1.220(b)(3) requires that: (1) questions of law or fact common to the class predominate over any questions affecting individual members of the class; and (2) a class action would be superior to other available methods for the fair and efficient adjudication of the controversy. The foregoing requirements are met when applied to Plaintiff’s proposed class.
A. Issues Common to the Class Predominate Over Individual Cases
The predominance inquiry is pragmatic (i.e. whether there are enough common questions to make class treatment worthwhile). See In Re “Agent Orange” Product Liability Litigation, 100 F.R.D. 718 (E.D.N.Y. 1983), cert. den., 465 U.S. 1067 (1984); Wright, Miller & Kane, Federal Practice and Procedure, Civil 2d 1778. Where the action presents a common interest and all members of the class have a similar interest in obtaining the relief sought class certification is appropriate. See Port Royal v. Conboy, 154 So. 2d 734 (Fla. 2d DCA 1963); Love v. General Dev. Corp., 555 So. 2d 397 (Fla. 3rd DCA 1989).
In this case, the predominance requirement is satisfied. Undoubtedly, there are numerous questions of fact and law common to the class. See, Part II.B of this Order. Common questions such as these have been held to predominate over individual questions. See, e.g., Riverol v. Arvida/JMB Partners, Case No. 92-21130 (Dade Co. 1993) (finding predominance and superiority requirements satisfied under nearly identical facts). The common nucleus of operative facts presented by plaintiff satisfies the predominance requirement. Id. (citing 7A Wright, Miller & Kane, Civil 2d 1778; Caruso v. Celsius Insulation Resources, Inc., 101 F.R.D. 530, 533-34 (M.D. Pa. 1984) (common nucleus of operative facts test)). This predominance is supported by the fact that plaintiff’s claim is predicated on a single common premise, to wit: the violation of Fla. Stat. §627.736(7)(a). Accordingly, Plaintiff has satisfied the predominance requirement.
B. Superiority of the Class Action
In the instant matter, a class action is superior to other available methods for the fair and efficient adjudication of this controversy. Class treatment avoids needless duplication of discovery and trial because these proceedings apply uniformly with regard to the proposed class. See In Re: Copley Pharmaceutical, Inc. “Albuterol” Prods. Liability Litig., 158 F.R.D. 485 (D.Wyo. 1994).
As the court reasoned in Riverol:
It is evident that handling the numerous claims involved on an individual basis would be burdensome and inefficient and would require a costly, time consuming and repetitive presentation of the same evidence on common issues in the numerous claims involved. “The very purpose of a class suit is to save a multiplicity of suits, to reduce the expense of litigation, to make legal processes more effective and expeditious, and to make available a remedy that would not otherwise exist.” Frankel v. City of Miami Beach, 340 So.2d 463, 466 (Fla. 1976), quoting Tenney v. City of Miami Beach, 152 Fla. 126, 11 So.2d 188, 189 (1942). The court finds that this purpose would be achieved by class certification of these Country Walk cases.
The same benefits and economies will be achieved here. Thus, class treatment is superior to other methods of handling this controversy.
DEFENDANT’S OBJECTIONS ARE OVERRULED
The Court overrules and denies Defendant’s objections to Plaintiff’s Motion for Class Certification in accordance with and pursuant to the Court’s rulings made at the hearing. The Court overrules and denies Defendant’s objections to Plaintiff’s Motion for Class Certification in accordance with and pursuant to the Court’s oral rulings made at the hearing, as reflected in the hearing transcript.
Accordingly, the Court ORDERS and ADJUDGES as follows:
1. The Court will abate ruling on certification of the first class defined in this Order until further order of this Court. For the reasons expressed at the hearing, as reflected in the hearing transcript, the Court will abate ruling on certification of the first class until further order of this Court.
2. The Court certifies the Second Class defined as:
All persons that are or have been insured by ALLSTATE for PIP coverage that have furnished ALLSTATE with written proof of the fact of a covered loss and of the amount of same for injuries received as a result of the use, maintenance or operation of a motor vehicle which claim arose subsequent to October 1, 1992 whose claim has not been paid within 30 days of receipt of written notice of loss and the amount of same by ALLSTATE despite ALLSTATE’S failure to first obtain a report within 30 days of written notice of loss and of the amount of same from a physician licensed under the same chapter as the physician whose treatment is sought to be withdrawn, reduced or denied stating that the treatment received was not reasonable, related or necessary.
3. The Court also certifies the Third Class defined as:
All persons that are or have been insured by ALLSTATE for PIP coverage whose PIP claim was not paid within thirty (30) days after ALLSTATE was furnished with written notice of the fact of a covered loss and the amount of same despite not having “reasonable proof” within 30 days that it was not responsible for payment, and who ALLSTATE failed to pay the statutory interest of 10% per annum for each day after thirty (30) days that ALLSTATE was furnished with written notice of the fact of a covered loss and the amount of same as required by Fla. Stat. §627.736(4)(b) & (c). As noted supra page 2, this class does not include persons whose interest claims are based on PIP benefits already paid but without the requisite interest.
4. LEANDRO DE LA ROSA is the Class Representative. Subclasses may be created in the future if necessary.
5. The law firms of John H. Ruiz, P.A., Ervin A. Gonzalez, P.A. and Robles & Gonzalez, P.A. shall serve as lead counsel for the Class.
6. Lead counsel shall submit proposed Class Notice within thirty (30) days for Court approval.
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