19 Fla. L. Weekly Supp. 543a
Online Reference: FLWSUPP 1907SCHIInsurance — Homeowners — Class action — Certification — Motion for certification of class in action against property insurer that failed to pay general contractor’s overhead and profit as part of actual cash value claims is denied — Plaintiff has failed to prove numerosity where evidence of class size is speculative and over-inclusive, plaintiff has provided no proof that joinder of each class member is impracticable, and ascertaining putative class members would require protracted individual inquiries — Plaintiff has failed to satisfy commonality requirement where putative common questions would depend on individual facts of each policy and claim — Typicality is lacking where record lacks evidence that plaintiff made ACV claim, proof of plaintiff’s claim would not necessarily prove any other putative class member’s claim, and insurer has unique defenses to plaintiff’s claim — Adequacy requirement is not met where record demonstrates that plaintiff lacks knowledge of status and factual basis for his claim or claims of putative class members and is incapable of prosecuting or controlling litigation, and that counsel demonstrated extreme lack of diligence and unprecedented lack of communication with putative class members — Failure to seek class certification until more than five years after case commenced further renders plaintiff and counsel inadequate — Predominance requirement of rule 1.220(b)(3) is not met where plaintiff has not demonstrated existence of industry-wide “three trades rule” that would be applicable to all members of putative class — Multitude of individual issues and inquiries required demonstrates that class action would be unmanageable
MATTHEW SCHIRMER and NANCY BALDWIN, Plaintiffs, v. CITIZENS PROPERTY INSURANCE CORPORATION, Defendant. Circuit Court, 6th Judicial Circuit in and for Pinellas County, Civil Division. Case No. 05-3974-CI. March 2, 2012. Honorable George M. Jirotka, Judge. Counsel: Leonard E. Ireland, Clayton-Johnston, P.A., Gainesville and Matthew R. Danahy, Danahy & Murray, P.A., Tampa, for Plaintiffs. Farrokh Jhabvala & Ari H. Gerstin, Jorden Burt LLP, Miami and Christopher D. Marone, Marone Law Group, P.L.C., Saint Petersburg, for Defendant.
ORDER DENYING PLAINTIFFS’ MOTIONFOR CLASS CERTIFICATION
This matter came before the Court upon Plaintiffs’ Motion for Class Certification (“Class Certification Motion”), filed November 15, 2010. The Court has reviewed the file, including Plaintiffs’ Motion for Class Certification and Memorandum of Law in Support Thereof, Citizens Property Insurance Corporation’s Response in Opposition to Plaintiffs’ Motion for Class Certification, Citizens Property Insurance Corporation’s Statement of Relevant Undisputed Facts in Opposition to the Class Certification Motion, Plaintiffs’ Reply Memorandum in Support of Motion to Certify Class, Amended Supplemental Memorandum of Citizens Property Insurance Corporation in Opposition to Plaintiffs’ Motion for Class Certification, Plaintiffs’ Memorandum in Opposition to Amended Supplemental Memorandum of Citizens Property Insurance Corporation in Opposition to Plaintiffs’ Motion for Class Certification, and Plaintiffs’ Trial Brief. On November 30, 2011, the Court held a day-long hearing and heard testimony with regard to Plaintiffs’ Class Certification Motion provided by four witnesses: Matthew Schirmer, Francis Robson, Alfred Canitia and Raymond Walton.1 The November 30, 2011 hearing was continued to December 27, 2011 when the Court heard additional evidence in the form of selected portions of the affidavits of Anne Olson and Robert Sellers and portions of the deposition testimony of William Steelman which were read into the record by Citizens’ counsel, and selected portions of William Steelman’s deposition testimony which were read into the record by plaintiffs’ counsel.2 The Court has also reviewed all exhibits submitted by the parties, the supplemental authority submitted by the parties, and the written closing arguments by both sides. Based upon its review of all of the written materials, the file, and the testimony elicited at the November 30 and December 27, 2011 Hearing, the Court concludes that Plaintiffs’ Class Certification Motion should be denied for the reasons that follow.INTRODUCTION
This is a class action in which Citizens Property insurance Corporation (“Citizens”) has been sued by a putative class of its Florida insureds, who allege they all made claims for actual cash value (“ACV”) benefits under their respective policies, but had not been paid for a general contractor’s overhead and profit as part of their ACV claim payments. The original and Amended Complaints were filed in the names of Matthew Schirmer and his mother, Nancy Baldwin, as the named plaintiffs and putative class representatives. However, on January 18, 2011, Plaintiffs filed Plaintiffs’ Motion to Withdraw Nancy Baldwin as Named Plaintiff and Appoint Matthew Schirmer as Sole Class Representative (“Motion to Withdraw”), stating that “at this time Ms. Baldwin is no longer willing to serve as a class representative and has expressed her desire to withdraw as a party plaintiff.” Attached to the Motion to Withdraw was a “Durable Limited Power of Attorney” by which Nancy Baldwin purported to appoint Matthew Schirmer as her attorney to handle her claim against Citizens and the “resulting class action claim.” The Court heard argument on Plaintiffs’ Motion to Withdraw and, by its Order dated March 25, 2011, denied the Motion to Withdraw.
On April 11, 2011, Plaintiffs filed their Motion for Substitution of Assignee as Plaintiff and Notice of Voluntary Dismissal of Plaintiff Nancy Baldwin’s Only Claim (“Motion for Substitution”). Plaintiffs subsequently filed on November 29, 2011 a Motion to Amend Complaint for Breach of Contract, Demand for Jury Trial, And Class Allegations (as to Class Definition only) (“Motion to Amend”). The Court heard argument on Plaintiffs’ Motion to Amend on November 30, 2011, and by its Order dated December 21, 2011, granted Plaintiffs’ Motion to Amend to allow the proposed change to the class definition. Because Nancy Baldwin had voluntarily dismissed her claim against Citizens, the December 21 Order ordered that “[a]ll references to Nancy Baldwin as a party plaintiff to this action and to Nancy Baldwin’s claim against Citizens Property Insurance Corporation are hereby deleted [from the Amended Complaint], except that Nancy Baldwin may be identified as a former co-owner of the property.” Accordingly, Nancy Baldwin having voluntarily dismissed her claim against Citizens, and plaintiffs’ counsel having advised this Court at the November 30 hearing that Nancy Baldwin’s “complaint or her action has been dismissed and it will stay dismissed” (Tr. at 21),3 the only remaining plaintiff and putative class representative in this case is Matthew Schirmer.FINDINGS OF FACT
1. The class action Complaint was filed on June 10, 2005.
2. The Amended Complaint for Breach of Contract, Demand for Jury Trial and Class Allegations was filed on February 8, 2006.
3. In September 2004, Matthew Schirmer (“Schirmer”) and his mother, Nancy Baldwin (“Baldwin”), jointly owned the property located at [Editor’s Note: Address Omitted], Dunedin, Florida (the “Property”). Tr. at 39 (Schirmer).
4. Citizens issued an insurance policy to Schirmer and Baldwin (Policy No. FRJD0630966-01) (the “Policy”), which provided coverage to the Property in accordance with the Policy’s terms and conditions. See. Am. Compl., Ex. A.
5. In September 2004, the Property was damaged by Hurricane Jeanne. Tr. at. 40 (Schirmer).
6. Schirmer hired Leonard Baumann (“Baumann”) and Florida State Insurance Adjusters to submit a claim to Citizens on his behalf and assist with the adjustment of his claim. Tr. at 40-41; Schirmer 25, 27; Baumann 12.4
7. Baumann assigned the matter to an independent contractor, Francis Robson. Baumann 9, 16.
8. Schirmer does not recall any conversations with Baumann after he hired him, and does not recall ever having had any communications with Robson. Schirmer 38-39; Tr. at 80 (Robson).
9. Citizens paid the plaintiffs $8,011.17 by a check dated January 3, 2005. See Am. Compl. ¶ 12 & Ex. C thereto; Tr. at 42 (Schirmer).
10. Schirmer does not recall if any contractor or his public adjustors, Baumann and Robson, ever prepared an estimate for repairs to the Property from Hurricane Jeanne, or an inventory of damaged items. Schirmer 38, 44, 75.
11. Plaintiffs’ Class Certification Motion was filed on November 15, 2010.
12. During the period 2002 through 2006, Citizens contracted with more than one hundred adjusting companies to provide claims adjusting services to Citizens as and when needed, usually immediately prior to, during or immediately after a major storm at hurricane. Olson Affidavit (Exhibit F to Citizens’ Response in Opposition to Plaintiffs’ Motion for Class Certification (Dec. 13, 2010) (“Olson Aff.”) ¶ 5.
13. During the period 2002 through 2006, Citizens had the services of more than one thousand independent adjusters who prepared initial estimates of property damage subsequent to storms or hurricanes. Citizens usually provided no more than one day’s training to these adjusters prior to or during a catastrophe. These independent adjusters came to Citizens With the training they received from their own companies and their prior experiences with adjusting losses, including overhead and profit. Olson Aff. ¶ 5; Tr. at 214 (Walton: “I think we had maybe 180 team leads and about 2000 adjusters.”).
14. In the same period, 2002 through 2006, Citizens also used a small number of its own employees who were trained and licensed as adjusters to prepare initial estimates of damage to the property of its insureds. Olson Aff. ¶ 5.
15. In some, but not all, claims relating to property damage (including, but not limited to the 2004 Hurricanes), a general contractor may be reasonably expected or anticipated to oversee the work of a number of subcontractors. In such cases, the reasonable “cost” to repair damaged property may include charges for the general contractor’s overhead and profit. However, if the job does not call for the services of several subcontractors — and as a consequence does not require an overseer — then an allowance for overhead and profit need not be included in the reasonable cost to repair the property. Olson Aff. ¶ 6.
16. There are situations when multiple subcontractors may be expected or anticipated to be involved but an overseer, or general contractor, would not be required, and there would be no basis in such cases for including an allowance for general contractor’s overhead and profit in the estimate. Olson Aff. ¶ 6.
17. There may be circumstances where only two trades may be required to repair the insured’s home, but based on the circumstances of the loss, the services of a general contractor may be needed. Tr. at 206-07 (Walton).
18. There may be circumstances where three trades or more may be necessary to repair the insured’s home, but a general contractor may not be needed. Tr. at 207 (Walton).
19. The decision as to whether a general contractor would be reasonably expected or anticipated on a given claim — and whether overhead and profit would be payable — cannot be determined solely from the number of subcontractor trades involved, and calls for the exercise of judgment by the adjuster. Accordingly, whether a general contractor would be reasonably expected or anticipated to be involved in the repairs can only be decided by reviewing each property damage claim individually, and conclusions regarding one claim cannot be automatically applied to another claim. Olson Aff. ¶ 7; Tr. at 205-06 (Walton: adjuster has a responsibility to use his or her good judgment and consider all of the circumstances in adjusting a claim); Steelman 134 (“every claim is considered on its own merits and everything has to be considered . . . that could impact a claim payment or the likelihood of a general contractor being required”).
20. The decision to include a general contractor’s overhead and profit on any potential claim is an individual field adjuster’s decision subject to review and approval or disapproval by Citizens as to what is necessary to indemnify a policyholder for a loss based upon all of the facts of each particular claim or loss. Olson Aff. ¶ 9; Tr. at 156 (Canitia).
21. Every property, policyholder, and claim is unique, and each adjuster must rely on his or her own training and experience to assess a variety of considerations in determining whether the services of a general contractor are reasonably expected or anticipated to be involved in the repair of the property damage, including but not limited to, local market conditions, the individual circumstances of each claim, the local practices of contractors and general contractors, and the availability of the specific subcontractor trades needed to make the repairs to the specific property in the specific geographical location. Olson Aff. ¶ 8; Tr. at 168 (Canitia, although the principles of handling a claim remain the same, “every claim is unique in and of itself”).
22. Whether overhead and profit was merited as part of any claim “depends upon the individual circumstance,” and the need for a general contractor depends upon the circumstances of each claim. Steelman 102, 131-33.
23. Citizens determined and paid overhead and profit on a case-by-case basis, and to determine how much overhead and profit was withheld from any insured would require. “pull[ing] the estimates and review[ing] that line item.” Lowe 69, 82;5 Canitia 68-69, 72 (to determine if and how much overhead and profit was withheld on any individual claim would require a “manual[ ]” review of “each individual file” on a “case-by-case-basis.”).
24. Not every claim involves overhead and profit, and the retrieval of relevant documents from claim files is a manual process. Walton 89, 92, 117.
25. Some of Citizens’ claim files have more than one estimate. Olson Aff. ¶ 18.
26. A review of Schirmer’s claim reveals no indication that he made a claim for ACV benefits, or he “disregarded” the policy’s replacement cost loss settlement provision, or he limited his claim to ACV damages. Olson Aff. ¶ 15.
27. Schirmer’s claim reveals he was paid recoverable depreciation, which is not due to be paid as part of an ACV claim. Olson Aff. ¶ 16; Tr. at 82-83, 85 (Robson); 162-63 (Canitia).
28. Citizens paid Schirmer a total amount of $8,011.17, which is $225.21 more than what Schirmer’s payment would be on an ACV basis including overhead and profit. Olson Aff. ¶ 16.
29. Citizens will have defenses to certain putative class members’ claims, such as: whether putative class members who initially made claims for ACV damages subsequently made claim for RCV benefits and were paid overhead and profit as part of their RCV payments; whether putative class members were paid their policy limits; whether all relevant policy terms and conditions have been satisfied by putative class members; whether the claim was resolved by mediation or appraisal; whether there was possible fraud or misrepresentation with regard to the claim; whether the specific policy was a commercial or residential policy; and other defenses dependent on the specific circumstances of an individual claim. Olson Aff. ¶¶ 17, 19.
30. Citizens’ claim files are stored electronically, but the system only provides pictures and images of the documents in the claim files and does not have the capability of allowing the user to conduct a general document search, nor does it allow the user to conduct a word or term search, such as for “overhead and profit,” in order to extract documents relevant to class certification, Sellers Affidavit (filed Oct. 11, 2010) (“Sellers Aff.”) ¶ 6.
31. A search of Citizens’ stored documents would require each electronic claim file to be manually opened, and then each document within the file would have to he manually opened and reviewed in the search for relevant materials. Sellers Aff. ¶ 6.
32. There are over 640,000 claim files and over 18.5 million images stored by Citizens. It will take at least 19,271 person days, at a cost of $8,479,185 to review all of Citizens’ claim files. Sellers Aff. ¶ 6.
33. A search of other systems used by Citizens, such as the EPAS system which recorded payments made to insureds on property claims, “legacy tapes,” emails, and the Claim Tracking System, will necessitate substantial additional amounts of time and cost. Sellers Aff. ¶¶ 7-10.
34. The total estimate of time and cost for reviewing the data available to Citizens to locate documents relating to overhead and profit payments to insureds is approximately 183,575 hours at a cost of $10,096,625, not including time and cost for selecting and copying possibly relevant documents and review of those documents by Citizens’ counsel. Sellers Aff. ¶ 29.
35. The relevant provision of Schirmer’s policy, which was issued on Citizens’ policy form DP 00 03 07 88 (Exhibit K to Citizens’ Response in Opposition to Plaintiffs’ Motion for Class Certification (Dec. 13, 2010)) (p. 7 of 9) (admitted as Plaintiff’s Exhibit 1 at the Class Certification Hearing, Tr. 40, 49) (“Pl’s Ex. 1”), is as follows:
5. Loss Settlement. Covered property losses are settled as follows:***
b. ***
(5) You may disregard the replacement cost loss settlement provisions and make claim under this policy for loss or damage to buildings on an actual cash value basis. You may then make claim within 180 days after loss for any additional liability on a replacement cost basis.
36. Citizens’ Homeowners form HO 00 03 04 91, has the same language as the Schirmer’s policy, except that it is in paragraph 3(b)(5). Exhibit L to Citizens’ Response in Opposition to Plaintiffs’ Motion for Class Certification (Dec. 13, 2010) (p. 11 of 18) (admitted as Ex. 30 at the Class Certification Hearing, Tr. 192). However, Citizens’ policy Endorsement form CIT 23 10 05, Exhibit M to Citizens’ Response in Opposition to Plaintiffs’ Motion for Class Certification (Dec. 13, 2010) (p. 7 of 12), deletes paragraph 3(b)(5) from form HO 00 03 and replaces it with the following:
(5) If the dwelling where loss or damage occurs has been vacant for more than (30) consecutive days before the loss or damage, we will:
(a) Not pay for any loss or damage caused by any of the following perils,. even if they are Covered Causes of Loss:
* * *
(b) Reduce the amount we would otherwise pay for a covered loss by 15%.
Dwellings under construction are not considered vacant.
37. Citizens’ Commercial-Residential Wind Only Policy form CIT CR2 7/02, Exhibit N to Citizens’ Response in Opposition to Plaintiffs’ Motion for Class Certification (Dec. 13, 2010), section 6d (p. 14-15) (admitted as Ex. 22 at the Class Certification Hearing, Tr. 184-85), states in the relevant provision:
6. Loss Settlement. Covered property losses are settled after application of the deductible and coinsurance penalty, if any, as follows:
* * *
d. You may make a claim for loss or damage covered by this insurance on an actual cash value basis instead of on a replacement cost basis. In the event you elect to have loss or damage[ ] settled on an actual cash value basis, you may still make a claim for the additional coverage this Optional Coverage provides if you notify us of your intent to do so within 180 consecutive days after our payment of loss or damage, or first payment of loss or damage, if more than one payment in any one loss.
38. Citizens’ Dwelling Wind Only policy form CIT DW2 07/04, Exhibit O to Citizens’ Response in Opposition to Plaintiffs’ Motion for Class Certification (Dec. 13, 2010) (p. 19) (admitted as Exs. 24, 25 at the Class Certification Hearing, Tr. 186-88), states in pertinent part:
(5) You may disregard the replacement cost loss settlement provisions and make claim under this policy for loss or damage to buildings on an actual cash value basis. You may then make claim within 180 consecutive days after loss for any additional liability according to Condition 6.e., Loss Settlement, Dwelling Buildings.
39. Schirmer does not recall if he ever saw the Property before he purchased it, if he was involved in identifying the Property for purchase, the year in which the Property was purchased, or what he paid for it. Schirmer 12-13, 15.
40. The Property was subsequently sold to an entity called MJS Assets, Inc., in which Schirmer was a part-owner, but he does not recall when MJS Assets re-sold the Property, nor who the buyer was, nor the amount for which the Property was sold. Schirmer 19-20.
41. Schirmer does not recall if he ever made improvements or repairs to the Property prior to Hurricane Jeanne, and does not recall ever seeing the damage to the Property, or inspecting the Property after the hurricane. Schirmer 22, 26, 29, 36; Tr. at 55.
42. Schirmer paid monies to his step father, Brent Baldwin, for repairs to the Property, but does not recall if Mr. Baldwin ever made any repairs to the Property. Schirmer 37, 46.
43. At the time of his deposition on September 9, 2010, Schirmer did not know what his own claims in this case are, did not know if he made a claim for ACV payments, and was ignorant of the Complaint and the Amended Complaint. Tr. at 56-58, 59, 61.
44. Schirmer does not know if he ever made an ACV claim for the Property. Tr. at 56; Schirmer 44.
45. Schirmer did not ask Baumann or Robson to submit an ACV claim to Citizens. Tr. at 56-57, 61; Schirmer 44, 90-91, 99-100.
46. Baumann did not know if he or Florida State Insurance Adjusters made a claim on Schirmer’s behalf for ACV payment. Baumann 21-22, 26-27, 30.
47. Robson did not make a claim for ACV payment on Schirmer’s behalf. Robson 15.
48. Schirmer never told Baumann that he wished to disregard the replacement cost loss settlement provisions of his policy. Tr. at 55-56, 62; Schirmer 90-91, 99-100.
49. Schirmer’s sole knowledge about the claim he is asserting in this case and the relief he is seeking on his own behalf comes from his public adjuster and attorney. Tr. at 57, 61; Schirmer 64-65, 127.
50. At his deposition, Schirmer could not recall if he had ever seen the original Complaint, and he did not know if that document represented the law suit he had commenced against Citizens. Tr. at 61; Schirmer 82.
51. At his deposition, Schirmer did not recall ever seeing the Amended Complaint, and did not know if it represented his law suit against Citizens. Tr. at 61; Schirmer 86.
52. At his deposition, Schirmer was not familiar with the term “overhead and profit,” and did not know what “overhead” and “overhead and profit” meant, except for what his attorney had told him. Tr. at 57; Schirmer 96-99.
53. Schirmer does not know how much money he is claiming in this case on his individual claim. Schirmer 65, 100-101.
54. At his deposition, Schirmer did not know if he was designated as a class representative in the Amended Complaint, and did not recall if he agreed to represent a class in this action. Tr. at 59-60; Schirmer 66-67.
55. Schirmer has no knowledge of any pleadings, motions and orders in this case. Schirmer 128-46.
56. Schirmer met one of his attorneys, Mr. Danahy, for the first time on the day of his deposition, some five years after this case was commenced, and had never met Mr. Ireland, his other attorney. Tr. at 58.
57. Schirmer does not recall if he paid any money to his attorneys, undertook no research in selecting his attorneys, did not inquire into their experience as class action counsel, did not interview any other attorneys, did not know what type of law his attorneys practice, and did not know if his attorneys had ever handled another class action. Schirmer 49, 58-60.
58. Robson called Mr. Danahy to ask if the nonpayment of overhead and profit “was actionable,” and Mr. Danahy “took it to the insureds and the insureds hired Danahy and Murray.” Robson 15-16; Tr. at 87.
59. Schirmer could not recall if he had more than ten communications in all with his attorneys since this case was filed. Schirmer 76-77.
60. At his deposition, Schirmer could did not recall if he ever participated in any decisions regarding the prosecution of this case or if he ever set forth any strategies for the prosecution of this case. Schirmer 79-80; Tr. at 62.
61. Schirmer and his brother, Nathan Schirmer, resolved their overhead and profit claim in the case of Matthew Schirmer & Nathan Schirmer v. Citizens Property Insurance Corp., No. 05-3976-CI (Fla. Cir. Ct. Pinellas County) on an individual basis and without a class proceeding. Tr. at 51-52 (Schirmer). Walton and Canitia testified that insureds could bring overhead and profit claims in individual proceedings without the need for a class action. Tr. at 209-10 (Walton); 159 (Canitia).
62. Prior to her deposition on October 10, 2011, Baldwin had never seen notices for her depositions that were set for September 10, 2010 and October 10, 2011. Baldwin 9-10.
63. Baldwin did not know her deposition was previously scheduled for September 10, 2010. Baldwin 9-10.
64. Baldwin first spoke with Mr. Danahy on October 7, 2011, and first met him on the day of her reset deposition, October 10, 2011. Baldwin 10-11. Baldwin testified she has no fee agreement with Danahy or Danahy & Murray. Baldwin 11, 22.
65. Baldwin has never met or spoken with Mr. Ireland, and he has never provided her with legal representation in the past, and is not providing her with legal representation at this time. Baldwin 12.
66. Baldwin has never met or spoken with anyone else at Danahy & Murray and Clayton-Johnston. Baldwin 12.
67. Baldwin has never received any written communication from any of the plaintiffs’ counsel. Baldwin 35-36.
68. Baldwin did not know what her deposition was about before she came to the deposition. Baldwin 14.
69. Baldwin did not know she was a party to this lawsuit and was never made aware that she was named as a plaintiff or as a putative class representative in this action against Citizens. Baldwin 14, 37.
70. Baldwin has never seen the Complaint and the Amended Complaint filed in this case. Baldwin 38, 40.
71. Baldwin did not participate in any way in preparing the Complaint, and did not provide plaintiffs’ counsel with any information that resulted in the preparation of the Complaint. Baldwin 48-49.
72. Baldwin had no involvement in preparing the Amended Complaint, and did not provide any information to anyone that resulted in the preparation of the Amended Complaint. Baldwin 50.
73. Baldwin has never asked Citizens to pay her on an Actual Cash Value basis. Baldwin 42.
74. Baldwin never read the Interrogatory responses submitted on her behalf, lacks knowledge of the specific interrogatory responses, admits she did not have knowledge of the interrogatory responses before she signed the responses, and admits she is not aware that any of the information provided in the Interrogatory responses is true and correct. Baldwin 44-46, 51.
75. Baldwin cannot remember ever seeing the responses to the requests for admissions that were served and filed on her behalf, and did not provide any information that resulted in the preparation of those responses. Baldwin 51-52.
76. Baldwin is not aware of any documents that were sent to her over the past five years that were either served on Citizens or filed in the case. Baldwin 56.
77. Baldwin does not know what a class action is, does not know what the duties of a class representative are, and has not been told how the putative class in this case is defined. Baldwin 55.
78. Baldwin has not participated in any way in decisions relating to this lawsuit, and was not aware that decisions were being made in this suit on her behalf. Baldwin 56.
79. Baldwin does not know that her claim against Citizens was voluntarily dismissed from this case. Baldwin 57.
80. Baldwin had no involvement in the decision to voluntarily dismiss her claim in this case that had been asserted for the preceding five years. Baldwin 57.
81. Baldwin has never seen the Motion for Substitution of Assignee as Plaintiff and Notice of Voluntary Dismissal of Plaintiff Nancy Baldwin’s Claim. Baldwin 57-58.
82. Baldwin had no input or involvement in, and no communications whatsoever with plaintiffs’ counsel regarding, the information contained in the Motion for Substitution of Assignee as Plaintiff and Notice of Voluntary Dismissal of Plaintiff Nancy Baldwin’s Claim. Baldwin 57-58.
83. Baldwin had no involvement in authorizing the filing of the Motion for Substitution of Assignee as Plaintiff and Notice of Voluntary Dismissal of Plaintiff Nancy Baldwin’s Claim. Baldwin 58.
84. Prior to filing this action, Plaintiffs’ counsel filed at least 31 individual overhead and profit suits against Citizens. See Plaintiffs’ Third Request to Produce (dated Dec. 1, 2006) and Plaintiffs’ Amended Verified Answers to Defendant’s First Set of Interrogatories (dated Nov. 17, 2006) (Comp. Exhibit B to Citizens’ Response in Opposition to Plaintiffs’ Motion for Class Certification (Dec. 13, 2010)).
85. Individual insureds are able to bring overhead and profit claims on an individual basis and without a class action. Tr. at 51-52 (Schirmer); 159 (Canitia); 209-10 (Walton).
CLASS CERTIFICATION STANDARDS
“Before a class action can be certified, the trial court must conduct a rigorous analysis to determine that the elements of rule 1.220, the class action rule, have been met.” Rollins, Inc. v. Butland, 951 So. 2d 860, 867 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1790a] (citation omitted). “[A]ctual, not presumed, conformance” with the requirements of Rule 1.220 “remains . . . indispensable.” Baptist Hosp. of Miami v. Demario, 661 So. 2d 319, 321 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D2044b] (citation omitted); Fla. Health Scis. Ctr., Inc. v. Elsenheimer, 952 So. 2d 575, 581 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D624b] (“it is insufficient for the trial court to accept the allegations in the Plaintiffs’ complaint as true for purposes of the class certification.”). “This analysis does not permit courts to be ‘generous or forgiving’ of failures of proof or to engage in speculation as to [class certification] requirements.” Mills v. Foremost Ins. Co., 269 F.R.D. 663, 669 (M.D. Fla. 2010).
The trial court must conclude that a plaintiff has established the “threshold requirements” in Florida Rule 1.220(a), which are that “(1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) the claim raises questions of law or fact common to each member of the class, (3) the claim of the representative party is typical of the claim of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of other members of the class.” Rollins, 951 So. 2d at 867-68. “These requirements are commonly referred to as the numerosity, commonality, typicality, and adequacy of representation elements of class certification.” Id. at 868 (citation omitted). In addition to meeting the requirements of Rule 1.220(a), a plaintiff must also satisfy one of the three subdivisions of Rule 1.220(b). Id.; see also Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 106 (Fla. 2011) [36 Fla. L. Weekly S373a]. The subdivision relevant to this case is subsection (b)(3) because Schirmer seeks certification under that subsection. Rule 1.220(b)(3) requires that common questions of law or fact predominate over any individual questions and the class action be superior to other available methods for a fair and efficient adjudication of the controversy. Rollins, 951 So. 2d at 868. The predominance requirement of subsection (b)(3) is “more stringent” than the commonality requirement of Rule 1.220(a) because common questions must “pervade.” Id. Where certification is requested under Rule 1.220(b)(3), as it is here, “a trial court must envision how a class action trial would proceed.” Id. at 870.
The party moving to certify the class has the burden of pleading and proving the propriety of class certification. Id. at 868; see also Sosa, 73 So. 3d at 106, There must be an “evidentiary basis to support an order certifying a class.” Rollins, 951 So. 2d at 868 (citing Ernie Haire Ford, Inc. v. Gilley, 903 So. 2d 956, 959 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D488a]). The proper focus of the trial court is on whether the requirements of Rule 1.220 have been met and not on whether the moving party will prevail on the merits. Id.
“Class actions are an exception to the general rule that litigation is conducted by, and on behalf of, individual named parties only.” KIA Motors Am. Corp. v. Butler, 985 So. 2d 1133, 1135-36 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D1529b]; see also Wal-Mart Stores v. Dukes, 131 S. Ct. 2541, 2550 (2011) [22 Fla. L. Weekly S1167a].6 Because the members of a class are “absent” from and do not control the litigation but will be bound by any judgment issued in the case, and the case is litigated “on their behalf” by class representatives, a heightened vigilance is necessary “to ensure due process for absent class members.” Rattray v. Woodbury County, 614 F.3d 831, 835 (8th Cir. 2010) (citing, Hansberry v. Lee, 311 U.S. 32, 41 (1940)). Likewise, the due process rights of class action defendants, including the right to assert specific defenses to the claims of the absent class members, must be respected. Wal-Mart, 131 S. Ct. at 2561 (“a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its . . . defenses to individual claims”); Rollins, 951 So. 2d at 874 (“Florida courts may not certify a class action . . . if the effect of class certification is to deprive one or more of the parties of their right to substantive due process of law.”).
CONCLUSIONS OF LAW
The Amended Complaint (“Am. Compl.”) asserts a claim for breach of contract in Count I, and asserts claims on behalf of a putative class in Count II. The claims are based on the “Loss Settlement” provision of Schirmer’s Policy, which states in relevant part: “You may disregard the replacement cost loss settlement provisions and make claim under this policy for loss or damage to buildings on an actual cash value basis. You may then make claim within 180 days after loss for any additional liability on a replacement cost basis.” Am. Compl. ¶ 8; Pl’s Ex. 1 (p. 7 of 9).
The Class Certification Motion (p.2) proposes the following class definition:
All persons and entities who within four years prior to December 31, 2006 were:
a. insured under a policy of insurance issued in Florida by Citizens Property Insurance Corporation (Citizens); and
b. who have made a claim for policy benefits under Coverage “A” as a result of a covered loss causing damage to insured’s real property insured by said policies; and
c. who were paid on an Actual Cash Value basis and have disregarded the replacement cost loss settlement provisions of the policy and limited their claim for loss or damage to structures to Actual Cash Value (ACV) damages; and
d. who have been subject to the practice of Citizens of withholding and failing to pay an amount equal to the standard general contractor’s overhead and profit of twenty percent (20%) on losses in which Citizens’ estimate, or that of its independent adjuster, indicate the anticipated involvement of at least three trades as part of insured’s covered property loss.
I. THE RULE 1.220(a) ELEMENTS
1. Numerosity: Rule 1.220(a) — the numerosity requirement — requires that Schirmer prove that “the members of the class are so numerous that separate joinder of each member is impracticable.” Fla. R. Civ. P. 1.220(a); Rollins, 951 So. 2d at 867. The proposed class definition includes all “persons and entities” who, (1) during the four years prior to December 31, 2006 were insured under a policy issued by Citizens, (2) made a claim for policy benefits under the policy’s Coverage “A” as a result of “a covered loss,” (3) “disregarded” the policy’s replacement cost loss settlement provision, (4) were paid on an ACV basis, (5) limited their claims to ACV damages, (6) with regard to whose claims Citizens’ or its independent adjusters’ estimates of loss expected or anticipated that at least three trades would be involved as part of the covered property loss, (7) with regard to whose claims a general contractor was expected or anticipated to be involved in the particular claims or repair jobs, and (8) who were not paid a general contractor’s overhead and profit.
Schirmer seeks to prove numerosity through the testimony of Walton, Citizens’ former director of “Daily” claims. Tr. at 181.7 Walton testified that the number of “Catastrophe” claims Citizens handled for the 2004 and 2005 hurricanes alone were between 250,000 and 300,000, there were between 50,000 to 100,000 “Daily” claims during and prior to that same time, that on all claims filed prior to the change in Citizens’ procedures in October 2005 overhead and profit was withheld and not paid as a matter of policy unless and until the insured submitted proof a general contractor was hired. Class Certification Motion at 18. Similarly, at the Class Certification Hearing, Walton estimated that “between 2004 and 2007” there were in excess of one hundred thousand “Daily” claims, and in the years 2004 through 2007 there were in excess of 300,000 catastrophe claims. Tr. at 193-94. Walton also testified that Citizens had “a policy or procedure” of withholding payment of overhead and profit “unless the policyholder had an executed contract from a general contractor.” Tr. at 194-95. Walton estimated that overhead and profit was withheld on approximately one thousand claims on the “Daily” side and “in excess of a hundred thousand” on the “Catastrophe” side, Tr. at 197-98.
Upon cross-examination, Walton agreed that the estimated numbers he had provided included persons who would not be entitled to any payment because the amount of damage was less than the deductible under the person’s insurance policy, or there was no coverage for the loss, or whose claim was denied for other reasons, or whose claim was resolved in litigation and who provided a release to Citizens, or who later submitted a claim for replacement cost benefits, or whose claims were resolved in mediation or appraisal, or whose claims did not even concern property damage but related to other coverages such as for “theft.” Tr. at 207-12. Walton also admitted that on the “Daily” side, after October 1, 2005, there were only “isolated incidents” in which replacement cost was not paid. Tr. at 212-13. Thus, Walton’s estimate that overhead and profit was withheld on approximately one thousand claims on the “Daily” side and “in excess a hundred thousand” on the “Catastrophe” side appears to be over-inclusive. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 593 (1997) (class certification rule is designed to “block[ ] unwarranted or overbroad class definitions”).
Aside from over-inclusiveness, Schirmer’s proof also does not identify how many persons or entities (1) made a claim for policy benefits under the policy’s Coverage “A” as a result of “a covered loss,” (2), “disregarded” the policy’s replacement cost loss settlement provision, (3) limited their claims to ACV damages, (4) were paid on an ACV basis, (5) with regard to whose claims Citizens’ or its independent adjusters’ estimates of loss expected or anticipated that at least three trades would be involved as part of the covered property loss, and (7) with regard to whose claims a general contractor was expected or anticipated to be involved. Thus, Schirmer has failed to prove numerosity. See, e.g., Sosa, 73 So. 3d at 114 (“It is well-settled that, while a plaintiff is not required to plead the exact number of persons included in a proposed class, a plaintiff is precluded from relying on speculation as to class size.”) (citation omitted); Canal Ins. Co. v. Gibraltar Budget Plan, 41 So. 3d 375, 377-78 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1690b] (denying class certification because it took “a giant ‘leap of logic’ ” from plaintiffs’ overbroad proof of numerosity to conclude that the class was so numerous that separate joinder of each member was impracticable); State Farm Mut. Auto. Ins. Co. v. Kendrick, 822 So. 2d 516, 517 (Fla. 3d DCA 2002) [27 Fla. L. Weekly D1521a] (denying class certification for failure to prove numerosity because “appeal to common sense” is “insufficient to meet the burden of proving numerosity”).
Schirmer has also provided no proof that “joinder of each member is impracticable.” See Rollins, 951 So. 2d at 867. Although “impracticable” does not mean impossible, numerosity is only satisfied if the plaintiff demonstrates that it would be difficult to join all the members of the class. Welcome v. Arvida Cmty. Sales, Inc., 2004 WL 2340249, *3 (Fla. 4th Cir. Ct. Sept. 13, 2004) [11 Fla. L. Weekly Supp. 1055a]. To evaluate the impracticability of joinder, courts look to five factors: 1) judicial economy arising from avoiding multiple-actions; 2) the geographic dispersion of members of the proposed class; 3) the financial resources of those members; 4) the ability of the members to file individual suits, and 5) requests for prospective relief that may have an effect on future class members. See Terry L. Braun, P.A. v. Campbell, 827 So. 2d 261, 266 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1712a].
Schirmer provided no proof regarding any of these factors. However, the record demonstrates that insureds are able to file individual suits seeking payment of overhead and profit, and there is no need to concentrate all overhead and profit cases against Citizens in this Court and this action. See Plaintiffs’ Third Request to Produce (Dec. 1, 2006) and Plaintiffs’ Amended Verified Answers to Defendant’s First Set of Interrogatories (Nov. 17, 2006) (listing at least 31 individual overhead and profit cases against Citizens brought by plaintiffs’ counsel in various counties across Florida); see also Tr. at 51-52 (Schirmer’s testimony that he and his brother resolved their overhead and profit claim in Matthew Schirmer & Nathan Schirmer v. Citizens Property Insurance Corp, No. 05-3976-CI (Fla. Cir. Ct., Pinellas County) on an individual basis and without a class proceeding); 159 (Canitia’s testimony that insureds could bring overhead and profit claims without a class action); 209-10 (Walton’s testimony that insureds’ overhead and profit claims were brought and resolved on an individual basis). In sum, Schirmer has not met his burden of proving that joinder of each putative class member is impracticable.
Schirmer also fails to demonstrate that the putative class members are reasonably ascertainable. “Numerosity . . . requires a class definition that allows a court to reasonably ascertain if a person or entity is a member of the class.” Canal Ins. Co., 41 So. 3d. at 377. Ascertainability is a “threshold requirement,” and mandates that members of the class be “ascertainable without a prolonged and individualized analytical struggle.” Gibbs Props. Corp. v. Cigna Corp., 196 F.R.D. 430, 442 (M.D. Fla. 2000); Gilman v. John Hancock Variable Life Ins. Co., 2003 WL 23191098, *5 (Fla. Cir. Ct. Oct. 20, 2003). Where “multiple determinations about the owners of policies issued during the class period must be made to ascertain class membership,” the case is not appropriate for class treatment. Gilman, 2003 WL 23191098, at *6.
On its face, Schirmer’s class definition necessitates at least eight protracted inquiries to identify policyholders who (1) during the four years prior to December 31, 2006 were insured under a policy issued by Citizens, (2) made a claim for policy benefits under the policy’s Coverage “A” as a result of “a covered loss,” (3) “disregarded” the policy’s replacement cost loss settlement provision, (4) were paid on an ACV basis, (5) limited their claims to ACV damages, (6) with regard to whose claims Citizens’ or its independent adjusters’ estimates of loss expected or anticipated that at least three trades would be involved as part of the covered property loss, (7) with regard to whose claims a general contractor was expected or anticipated to be involved in the particular claims or repair jobs, and (8) who were not paid a general contractor’s overhead and profit. Additional individualized inquiries will be necessary to determine which putative class members merited 10% as overhead and 10% as profit.
Moreover, the undisputed evidence is that individual proof by each putative class member will be essential with respect to some or all of the above eight inquiries to ascertain class membership. See Olson Aff. ¶ 14 (“The identification of Citizens’ insureds who meet the definition in the Class Certification Motion necessarily entails multiple individual inquiries unique to each individual . . . .”); Lowe 69, 82 (Citizens determined and paid overhead and profit on a “case-by-case basis,” and to determine how much overhead and profit had been withheld from any insured would require “pull[ing] the estimates and review[ing] that line item”); Walton 92, 117 (not every claim involved overhead and profit; and the retrieval of relevant documents from claim files was “a manual process”), 89 (“manually review each file”); Canitia 68-69, 72 (to determine if and how much overhead and profit had been withheld on any individual claim would require a “manual[ ]” review of “each individual file” on a “case-by-case basis”); Steelman 102, 131-34 (whether overhead and profit would be merited as part of any claim “depends upon the individual circumstance,” and the need for a general contractor depends upon the circumstances of each claim).
The need for individualized claim-by-claim inquiry is illustrated by the evidence that Schirmer’s claim file includes no indication that he made a claim for ACV benefits, or that he “disregarded” the policy’s replacement cost loss settlement provision,” or that he limited his claim to ACV damages. Olson Aff. ¶ 15. The record evidence also is that Schirmer was “paid on RCV basis, not on ACV basis.” Id.8 Thus, establishing Schirmer’s own membership in the putative class raises individualized issues specific to him, the resolution of which may necessitate a mini-trial.
Additional inquiries on a class-member-by-class-member basis will be essential to establish whether a class member who made an initial claim for ACV benefits subsequently made claim or received payment on a replacement cost basis, including payment of overhead and profit, and all such individuals would have to be excluded from the class. Olson Aff. ¶ 17. Claimants on “total losses” also would have to be excluded on a class member-by-class member basis because they would have been paid the policy limits and would not have a claim for benefits beyond the policy limits. Id.; see also Mills, 269 F.R.D. at 676 (acknowledging defense to class certification based on loss being a “total loss”). Putative class members who resolved their claims by appraisal or mediation also would have to be excluded. These individual inquiries would be multiplied because claims files may include more than one estimate by Citizens or its independent adjusters, necessitating further inquiries to establish the proper estimate for determining class membership. Olson Aff. ¶ 18.
The uncontroverted evidence also demonstrates that the claim-file-by-claim-file search that would be necessary to ascertain class membership is a protracted, manual and extremely costly process. The undisputed testimony is that although Citizens’ claim files are stored electronically, the system only provides pictures and images of the documents in the claim files and “does not have the capability of allowing the user to conduct a general document search through the Image Right program, nor does it allow the user to conduct a word or term search such as ‘overhead and profit’ in order to extract relevant documents contained in claim files or documents.” Sellers Aff. ¶ 6. Thus, “[a] search of stored documents would require each electronic claim file to be manually opened, and then each document within the file would have to be manually opened and reviewed in the search for relevant materials.” Id. Because there are over 640,000 files and over 18.5 million images stored, it is estimated it would take at least 19,271 person days, at a cost of $8,479,185 to review all of the claim files. Id. A search of other systems used by Citizens, such as the EPAS system which recorded payments made to insureds on property claims; “legacy tapes,” emails, and the Claim Tracking System, would necessitate substantial additional amounts of time and cost. Id. ¶¶ 7-10. In sum, the total estimate of time and cost for “review[ing] the data available to Citizens” to locate documents relating to overhead and profit payments to insureds was 183,575 hours at a cost of $10,096,625, excluding time and cost for selecting and copying possibly relevant documents and review of those documents by Citizens’ counsel. Id. ¶ 29.
Additional individual inquiries will also be necessary to determine which of Citizens’ insureds had policy terms materially similar to the terms of Schirmer’s policy, so that proof by Schirmer of his own claim would automatically prove the claims of all putative class members. Notwithstanding Walton’s testimony that the “Loss Settlement” terms of some of Citizens’ other policy forms are the “same or similar” to that of Schirmer’s Policy, see Tr. at 186-92, a review of those same policy forms demonstrates differences that may be material in this litigation. For example, Citizens’ Homeowners form HO 00 03 04 91, has the same language as the plaintiffs’ policy, but Citizens’ policy Endorsement form CIT 23 10 05 deletes that term and replaces it with a completely different term. See Exhibits L, M to Citizens’ Response in Opposition to Plaintiffs’ Motion for Class Certification. To take another example, Citizens’ Commercial-Residential Wind Only Policy form CIT CR2 7/02 allows a replacement cost claim subsequent to an initial claim if the insured notifies Citizens “within 180 consecutive days after our payment of loss or damage, or first payment of loss or damage, if more than one payment in any one loss.” See Exhibit N to Citizens’ Response in Opposition to Plaintiffs’ Motion for Class Certification. Schirmer’s Policy, however, permits insureds who made an initial claim to later seek replacement cost benefits if Citizens is notified of that election “within 180 days after loss.” Thus, the wording of the “Loss Settlement” provision in Schirmer’s Policy is different from that in policy forms issued to other insureds. Another example of a policy form in the record that has terms materially different from the plaintiff’s policy is Citizens’ Dwelling Wind Only policy form CIT DW2 07/04, which states in pertinent part: “You may disregard the replacement cost loss settlement provisions and make claim under this policy for loss or damage to buildings on an actual cash value basis. You may then make claim within 180 consecutive days after loss for any additional liability according to Condition 6.e., Loss Settlement, Dwelling Buildings,” See Exhibit O to Citizens’ Response in Opposition to Plaintiffs’ Motion for Class Certification.
The differences in policy terms illustrated by these examples are significant for class certification because Schirmer seeks class certification only of those insureds whose policies have the specific language in paragraph 5(b)(5) of his Policy, and because the proposed class definition necessitates the exclusion of all of Citizens’ insureds who initially may have demanded ACV benefits but subsequently demanded or received replacement cost benefits. Whether an insured timely demanded replacement cost benefits and, consequently must be excluded from the putative class, would have to be decided in accordance with the terms of that insured’s policy, not Schirmer’s. Thereby, the differences in policy terms add a further layer of individualized inquiries to the issue of class ascertainability.
Nor does it avail plaintiff’s motion for class certification that Schirmer is willing to accept whatever Citizens decides as to these issues. That attempt to avoid the multitude of individualized factual issues that render ascertainability highly problematic fails for at least two reasons: First, it does not avoid the necessary individualized inquiries raised by plaintiff’s proposed class definition, such as determining who made a claim for ACV benefits, who ignored their respective policies’ replacement cost provisions, who was paid on an ACV basis, who limited the claim to ACV damages, and whose policy terms are the same or “substantially” the same as those in plaintiff’s policy; and second, plaintiff’s willingness to accept Citizens’ determinations of these and other issues derogates from plaintiff’s fiduciary duty to the putative class members to protect their interests and implicates their constitutional due process rights, as discussed below under “Predominance.” See, e.g., Wal-Mart Stores, 131 S. Ct. at 2558-59; Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d 827, 830-31 (7th Cir. 2011); Rattray, 614 F.3d at 836.
In sum, hundreds or thousands of mini-trials will be necessary to determine which of Citizens’ insureds are proper members of the putative class. Mills, 269 F.R.D. at 679 (difficulty of ascertaining class membership in a virtually identical case presented a “grim outlook” due to the need for a claim-by-claim analysis); Rollins, 951 So. 2d at 880 (necessity for claim-by-claim analysis raised the specter that a trial with due regard to the defendant’s substantive rights “could not be completed during the lives of the current participants”). Schirmer has failed to meet his burden of demonstrating numerosity for the above reasons.
2. Commonality: The commonality requirement is met if the Court “shall” “conclude that . . . the claim or defense of the representative party raises questions of law or fact common to the questions of law or fact raised by the claim or defense of each member of the class . . . .” Fla. R. Civ. P. 1.220(a)(2). To meet this burden, Schirmer must show that his claim and the claims of all putative class members
. . . depend upon a common contention . . . [which] must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.
What matters to class certification . . . is not the raising of common ‘questions’ — even in droves — but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.
Wal-Mart, 131 S. Ct. at 2551 (emphasis in original; internal quotations and citation omitted). Thus, commonality is not satisfied where plaintiffs fail to demonstrate a “common right of recovery based on the same essential facts.” Kendrick, 822 So. 2d at 517 (emphasis added; internal quotations and citation omitted). “[T]he commonality requirement is aimed at determining whether there is a need for, and benefit derived from, class treatment.” Sosa, 73 So. 3d at 107. “Where both liability and damages depend on individual factual determinations, resolution of [putative class members’] claims can only be decided on an individual basis which is inconsistent with the commonality requirement for class actions.” Braun, 827 So. 2d at 267.
Schirmer contends that commonality has been satisfied here because he and the putative class members share common facts: “each is an insured under a policy of insurance issued in Florida by Citizens; each of these policies of insurance contains the following ACV provision, or a provision which is so similar as to have no distinction; (“You may disregard the replacement cost loss settlement provision and make claim under this policy for loss or damage to buildings on an actual cash value basis”); each made a claim for policy benefits as a result of a covered loss causing damage to the insured’s real property insured by said policy while said policy was in force and effect; each made a claim for ACV and disregarded the replacement cost loss settlement provision of the policy; and each ha[s] been subject to Citizens’ practice of withholding and failing to pay an amount for general contractor’s O&P on losses in which three or more categories of trades will be needed to make repairs as identified by Citizens’ own estimate of the damages.” Class Certification Motion at 19-20. Schirmer further contends that a common fact is “Citizens’ practice of withholding and failing to pay an amount for general contractor’s O&P.” Class Certification Motion at 22. At the Class Certification Hearing, Schirmer’s witnesses testified as to Citizens’ alleged business practice of not paying overhead and profit with ACV payments. See Tr. at 72, 103-05, 111-12, 114-19, 194-95.
Schirmer’s evidence fails to satisfy the commonality requirement. As demonstrated above, some of Citizens’ insurance policies have “Loss Settlement” provisions that are materially different from that in Schirmer’s policy, necessitating individual inquiries as to whether the specific terms of a given class member’s “Loss Settlement” provision were met. Moreover, whether any individual disregarded the replacement cost provision of that individual’s policy, or made a claim for ACV benefits, or limited his or her claim to ACV benefits would entail additional individual inquiries. Whether a given putative class member’s claim estimate anticipated the services of a general contractor, and whether Citizens failed to pay that class member an appropriate amount for general contractor’s overhead and profit would raise further individual inquiries (see discussion of “Predominance” below), as would Citizens’ defenses to Schirmer’s and putative class members’ claims. See, e.g., Wal-Mart, 131 S. Ct. at 2561 (“a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its . . . defenses to individual claims”); Rollins, 951 So. 2d at 874 (“Florida courts may not certify a class action under rule 1.220 if the effect of class certification is to deprive one or more of the parties of their right to substantive due process of law.”).
Nor is it of any avail that Citizens had an alleged “business practice” for some time during the class period of not paying overhead and profit with ACV claim payments. As discussed in more detail in the “Predominance” section of this order, it is “impermissible” to rely on evidence of a “business practice” to support class certification. Rollins, 951 So. 2d at 873-75; Andrews v. AT&T, 95 F.3d 1014, 1023 (11th Cir. 1996) (an allegation of an overall business practice cannot form an “overarching common issue” sufficient to certify a class); Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1006 (11th Cir. 1997). In sum, the answers to the putative “common” questions identified by Schirmer would depend on the individual facts of each individual’s claim. The “answers” Schirmer would provide to prove his own claim would not resolve any issue that is “central to the validity of each one of the [putative class members’] claims in one stroke.” See Wal-Mart, 131 S. Ct. at 2551. Accordingly, commonality is lacking.
3. Typicality: “Rule 1.220(a)(3) requires that in order for a plaintiff to qualify as a class representative, the plaintiff’s claim must be typical of the claim of each member of the class. ‘[T]ypicality . . . compels an examination of the relationship of the class representative’s claim to the claims of the class members.’ ” Atlanta Cas. Co. v. Open MRI of Pinellas, Inc., 911 So. 2d 135, 138 (Fla. 2d DCA 2005) [30 Fla. L. Weekly D1256c] (citations omitted). Typicality is lacking where there are unique defenses to the plaintiff’s claim. To preclude class certification, the defendant need not establish that the class representative’s claim ultimately will be defeated by the unique defense. Rather, “class treatment will generally be denied if a unique defense is even arguably present.” Gilman, 2003 WL 23191098, at *9; Cheatwood v. Barry Univ. Inc., 2001 WL 1769914, *8 (Fla. 9th Cir. Ct. Dec. 26, 2001); see also State of Alaska v. Suburban Propane Gas Corp., 123 F.3d 1317, 1321 (9th Cir. 1997) (when named plaintiffs are subject to unique defenses which could skew the focus of litigation, courts properly exercise their discretion by denying class certification); Weikel v. Tower Semiconductor Ltd., 183 F.R.D. 377, 392 (D.N.J. 1998) (plaintiff is not a proper class representative if a potential defense exists to his claim because “[d]efenses which are unique to an individual named plaintiff may have the effect of prejudicing members of the proposed class”).
Here, an analysis of the relationship of Schirmer’s claim to the putative class members’ claims demonstrates that each class member will have to individually prove his or her claim. To prove his own claim for breach of contract, Schirmer must prove that (1) during the four years prior to December 31, 2006, he was an insured under a policy issued by Citizens, (2) he made a claim for policy benefits under the policy’s Coverage “A” as a result of “a covered loss,” (3) he “disregarded” the policy’s replacement cost loss settlement provision, (4) he was paid on an ACV basis, (5) he limited his claim to ACV damages, (6) Citizens’ or its independent adjuster’s estimate of his loss expected or anticipated that at least three trades would be involved as part of the covered property loss, (7) a general contractor was expected or anticipated to be involved in the Schirmer’s claim, and (8) Schirmer was not paid a general contractor’s overhead and profit.
However, as discussed above, the record lacks any evidence that Schirmer made an ACV claim, or limited his claim to an ACV claim, or that he disregarded the RCV provision of his policy, or that he was paid on an ACV basis. See Olson Aff. ¶ 15 (Schirmer was paid on RCV basis); Schirmer 90-91, 99-100; Frank Robson 15; Leonard Baumann 30; Tr. at 55-56 (Schirmer does not know if he made an ACV claim and never told his public adjuster he wanted to reject RCV benefits); Tr. at 83-84 (Robson testifying that Schirmer was paid “recoverable depreciation” as part of his claim payment, which is consistent with RCV benefits and inconsistent with an ACV payment); Tr. at 162 (Canitia testifying that payment of recoverable depreciation to Schirmer was “an error”). Thus, whether Schirmer limited his claim to ACV benefits, disregarded RCV benefits, and received payment on an ACV or RCV basis will have to be decided by a jury.
More importantly for the typicality analysis, even if Schirmer were to prove his own claim, he would not thereby “necessarily prove” any other putative class member’s claim. By proving that he was an insured under a Citizens policy during the class period, Schirmer would not necessarily prove that any other putative class member was also an insured under a policy issued by Citizens during that period. By proving that he limited his claim to ACV benefits, Schirmer would not automatically prove that any other class member similarly limited that class member’s claim to ACV benefits. Similar considerations apply to the other elements of the proposed class definition. Citizens would be entitled to assert defenses specific to each putative class member based on the specific circumstances of that putative class member’s policy. In sum, an individualized analysis of each putative class member’s claim would be essential to determine which putative class members, if any, had a valid claim for payment of overhead and profit. As plaintiff’s witnesses testified, “the decision as to what items were overhead and profit items and what items were not overhead and profit items” were decisions made by the individual adjusters who wrote the damages estimates. Tr. at 75 (Robson). It is undisputed that Citizens hired a few thousand independent adjusters from more than one hundred different companies to review damage and prepare initial estimates. Olson Aff. ¶ 5; Tr. at 214 (Walton). Thus, review of each putative class member’s estimate would be essential, and trials for thousands of putative class members would be unavoidable. Accordingly, typicality is lacking.
Aside from the above considerations, typicality also is lacking here because Citizens has unique defenses to Schirmer’s claim. The undisputed evidence is that Schirmer was overpaid for ACV damages because Citizens included payment for recoverable depreciation in Schirmer’s claim payment. See Defendant’s Motion for Summary Judgment at pp. 4-5 (September 11, 2009) (“SJ Motion”); Am. Compl., Ex. D; Tr. at 83-85 (Robson); Olson Aff. ¶ 16.9 Recoverable depreciation is paid as part of replacement cost benefits, and is not due as part of an ACV payment. Tr. at 82-84 (Robson); Olson Aff. ¶ 16. The evidence shows that if Citizens had made payment to Schirmer on an ACV basis, including overhead at 10% and profit at 10%, he would have received a total of $7,785.96. See SJ Motion at ¶ 20; Olson Aff. ¶ 16. Citizens, however, paid Schirmer $8,011.17. Citizens contends that it thereby overpaid Schirmer by $225.21 when compared with payment on an ACV basis including the overhead and profit Schirmer has demanded in this action. Id. at ¶ 21; Olson Aff. ¶ 16. According to Citizens, it paid Schirmer an amount sufficient to cover overhead at 10% and profit at 10% on his purported ACV claim. Olson Aff. ¶ 16. Schirmer’s witnesses appear to corroborate Citizens’ position. Robson, Schirmer’s public adjuster, testified that Citizens’ payment of recoverable depreciation as part of Schirmer’s claim payment may have been because Citizens’ independent adjuster “was trying to make up for the fact that she didn’t pay for overhead and profit.” Tr. at 85 (Robson). Canitia, another witness called by Schirmer, testified that he considered the payment of recoverable depreciation as part of Schirmer’s claim payment to be “an error.” Tr. at 162.
Whether Citizens’ overpayment to Schirmer is characterized as “an error,” or as an attempt “to make up for . . . overhead and profit,” Citizens’ defense that Schirmer was overpaid on his individual claim and Schirmer’s contention that Citizens waived that defense, are unique to Schirmer and raise factual questions that will necessitate a trial. See Mills, 269 F.R.D. at 680 (“The possibility that the . . . claims paid by [the insurer] include sufficient funds for the hire of a general contractor in the repair or replacement of the insured’s home remains a quite viable defense, and one that can only be determined on an individual basis, and only through claim by claim analysis.”).10
Similarly, Citizens’ defense that there is no evidence that Schirmer “disregarded” his Policy’s replacement cost loss settlement provision and limited his claim to ACV damages is a defense specific to Schirmer’s claim and can only be resolved by a factfinder based on the facts specific to Schirmer’s breach of contract claim. Whether Citizens ultimately prevails on its unique defenses to Schirmer’s claim is not relevant. The presence of those defenses has the potential of skewing the trial in this case, and compels the conclusion that typicality is lacking.
4. Adequacy: Before a court may certify a class action, the court “shall first conclude that . . . (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.” Fla. R. Civ. P. 1.220(a)(4). The “adequacy” requirement “is essential to due process.” In re Am. Med. Sys., Inc., 75 F.3d 1069, 1083 (6th Cir. 1996). Adequacy “requires . . . close scrutiny, because the purpose of [sub-section (a)(4)] is to ensure due process for absent class members, who generally are bound by a judgment rendered in a class action.” Rattray, 614 F.3d at 835 (citing Hansberry v. Lee, 311 U.S. 32, 41 (1940)); Gilman, 2003 WL 23191098, at *9. “[T]he adequacy requirement . . . mandates an inquiry into . . . the willingness and ability of the representatives to take an active role in and control the litigation and to protect the interests of absentee [class members].” Berger v. Compaq Computer Corp., 257 F.3d 475, 482 (5th Cir. 2001) (citation omitted); Cheatwood v. Barry Univ., Inc., 2002 WL 4629, *4 (Fla. 9th Cir. Ct. Jan. 1, 2002) (“court depart[s] from the correct standard” if it “fail[s] to assess the [class] representative’s own qualification ‘to take an active role in and control the litigation’ ”); Olen Props. Corp. v. Moss, 981 So. 2d 515, 520 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1024b] (adequacy requires that “the representatives and their qualified attorneys will properly prosecute the action.”).
Adequacy “require[s] the class representatives to possess a sufficient level of knowledge and understanding to be capable of controlling or prosecuting the litigation.” Berger, 257 F.3d at 482-83. “[T]he fulfillment of this requirement ‘is not to be presumed in the absence of specific proof to the contrary.’ ” Brodeur v. Dale E. Peterson Vacations, Inc., 7 So. 3d 567, 569 (Fla. 1st DCA 2009) [34 Fla. L. Weekly D481a] (quoting City of Tampa v. Addison, 979 So. 2d 246, 253-54 (Fla. 2d DCA 2007) [32 Fla. L. Weekly D1866a]). The inquiry into adequacy is twofold: (1) whether class counsel are qualified, experienced, and generally able to conduct the proposed litigation, and (2) whether the class representative demonstrates the ability and willingness to represent the interests of the rest of the class. Sosa, 73 So. 3d at 115 (citing City of Tampa, 979 So. 2d at 255); Hoyte v. Stauffer Chem. Co., 2002 WL 31892830 *43 (Fla. 6th Cir. Ct. 2002); Cheatwood, 2002 WL 4629, at *4. “A finding of adequacy must include specific factual findings that the class representatives are knowledgeable as to the status and underlying legal basis of their claims, that they are willing and able to pay the cost of notifying the class members and other costs, that they will diligently pursue all claims and that their interests are not antagonistic to those of the class.” Cheatwood, 2001 WL 1769914, at *9 (citations omitted).
Plaintiff’s motion for class certification offers only the conclusory statement that “Matthew Schirmer ha[s] no conflicts with the proposed class members, and seek[s] the identical remedies of twenty percent (20%) O&P, declaration and injunctive relief. [He has] assisted counsel herein and ha[s] pledged to continue to do so, as confirmed by Matthew Schirmer.” Class Certification Motion at 24. Similarly, at the class certification hearing, Schirmer stated that he “agree[d] to fulfill all duties necessary to advance the class,” “to . . . protect the interests of the members of the class,” that he believed he was “a suitable class representative” and had no interest “antagonistic or contrary to that of the other class members.” Tr. at 49. Schirmer offered no evidence as to his knowledge of the status and factual basis for his claims or that he has diligently pursued the claims and interests of the putative class members. Thereby, Schirmer failed to meet his burden as to adequacy.
Moreover, the evidentiary record in this case, which has been litigated for almost six years, demonstrates that Schirmer lacks knowledge of the status and factual basis of the claims in this case, has not controlled or participated actively in its litigation, and has left the litigation to his lawyers. Schirmer is a licensed attorney, Tr. at 38; Schirmer 6-7, 8-10, but is ignorant of any of the factual details regarding the Property. He does not recall if he ever saw the Property before he purchased it, the year in which he purchased it, or what he paid for it. Schirmer 12-13, 15. The Property was subsequently sold to an entity called MJS Assets, Inc., in which Schirmer was a part-owner, but he does not recall when MJS Assets re-sold the Property, nor who the buyer was, nor the amount for which the Property was sold. Id. at 19-20. Mr. Schirmer does not recall if he ever made improvements or repairs to the Property prior to Hurricane Jeanne, and does not recall ever seeing the damage to the Property, or inspecting the Property after the hurricane. Schirmer 22, 26, 29, 36; Tr. at 55. He paid his step father, Brent Baldwin, for repairs to the Property, but does not recall if Mr. Baldwin ever made any repairs to the Property. Schirmer 37, 46.
At the time of his deposition on September 9, 2010, more than five years after this case was commenced, Schirmer did not know what his own claims in this case are or if he made a claim for ACV payments, and was ignorant of the Complaint, the Amended Complaint, and the various proceedings in this case. Tr. at 56-58, 59, 61. Schirmer hired Baumann of Florida State Insurance Adjusters to assist with the adjustment of his claim that is at issue here, but he did not recall any conversations with Baumann after he hired him, and did not recall ever having had any communication with Robson, who actually adjusted Schirmer’s claim. Schirmer 25, 27, 38-39; Baumann 12; Tr. at 55. Nor did Schirmer provide any testimony that his public adjusters had submitted an ACV claim to Citizens, or that he had requested them to do so. Schirmer 44, 90-91, 99-100; Tr. at 56-57, 61. Although the Amended Complaint admits that Citizens paid Schirmer $8,011.17, and attaches a copy of the check (see Am. Compl. ¶ 12 & Ex. C thereto), Schirmer testified he did not recall receiving any payment from Citizens for damage to the Property. Schirmer 43-45, 95-96. He also did not recall if any contractor or his public adjusters ever prepared an estimate for repairs to the Property. Schirmer 38, 44, 75. Schirmer could not confirm the allegation in the Amended Complaint that he had “disregarded” the replacement cost loss settlement provisions of his policy. Schirmer 90-91, 99-100.
Schirmer could not recall if he had ever seen the original Complaint, and he did not know if that document represented the law suit he had commenced against Citizens. Schirmer 82; Tr. at 61. Likewise, Schirmer did not recall ever seeing the Amended Complaint, and did not know if it represented his law suit against Citizens. Schirmer 86; Tr. at 61. He was not sure, even after reviewing the Amended Complaint, that he was asserting a claim against Citizens for overhead and profit, and claimed he was not familiar with the term “overhead and profit,” and did not know what “overhead” and “overhead and profit” meant, except for what his attorney had told him. Id. at 96-99. Even though the Amended Complaint alleges damages for breach of contract in the amount of $2,695.06, Mr. Schirmer testified he did not know how much money he was claiming in this case on his individual claim. Id. at 65, 100-101. Schirmer’s deposition testimony demonstrates that his sole knowledge of factual and legal issues in this case came from his public adjuster and attorney. Schirmer 64-65, 127; Tr. at 61.11
Schirmer’s ignorance of this case extends to its class aspects. At his deposition, Schirmer did not know if he was designated as a class representative in the Amended Complaint, and did not recall if he agreed to represent a class in this action. Id. at 66-67; Tr. at 59-60. He had no knowledge of any pleadings, motions and orders in this case. Id. at 128-46. Schirmer’s disinterestedness is epitomized by the fact that he met Mr. Danahy, one of his attorneys, for the first time on the day of his deposition, some five years after this case was commenced, and had never met Mr. Ireland, his other attorney. Tr. at 58. He did not recall if he paid them any money, undertook no research in selecting his attorneys, did not inquire into their experience as class action counsel, did not interview any other attorneys, did not know what type of law his attorneys practice, and he did not know if his attorneys had ever handled another class action. Id. at 49, 58-60. Indeed, the uncontroverted testimony is that Schirmer did nothing to locate counsel. Instead, Mr. Danahy initiated the first contact with Schirmer.12 Schirmer could not recall if he had more than ten communications in all with his attorneys since this case was filed. Schirmer 76-77. At his deposition, Schirmer testified he did not recall if he ever participated in any decisions regarding the prosecution of this case or if he ever set forth any strategies for the prosecution of this case. Id. at 79-80; Tr. at 62.
In sum, Schirmer fails to meet the adequacy requirement of Rule 1.220(a)(4) because he lacks any knowledge or understanding of his own claim or the claims of the putative class, and the limited understanding he has comes solely from his counsel or public adjusters. Berger, 257 F.3d at 482-83; Kelley v. Mid-Am. Racing Stables, Inc., 139 F.R.D. 405, 409-11 (W.D. Okla. 1990). Schirmer also fails the adequacy test because his total lack of knowledge and understanding of the case renders him incapable of prosecuting or controlling this litigation. Berger, 257 F.3d at 482-83; Bodner v. Oreck Direct, LLC. 2007 WL 1223777, *1-2 (N.D. Cal. Apr. 25, 2007) (plaintiff, who met his attorney in person for the first time the day before his deposition and whose knowledge regarding the matter came from his attorneys, does not meet “the threshold typicality or adequacy requirements”); Ogden v. AmeriCredit Corp., 225 F.R.D. 529, 533-34 (N.D. Tex. 2005) (plaintiff, who does not understand the action and much of whose knowledge comes from counsel, fails to meet the adequacy requirement); Hoyte, 2002 WL 31892830, at *43 (plaintiffs inadequate where they have failed to demonstrate the ability to take an active role in and control the litigation); Darvin, 610 F. Supp. at 257.13 That conclusion is compelled by Schirmer’s testimony that he has not participated in any decisions regarding this litigation and has not directed his counsel in the litigation of the case. Ogden, 225 F.R.D. at 535; Umsted v. Intelect Commc’ns, Inc., 2003 WL 79750, *2 (N.D. Tex. Jan. 7, 2003).
The adequacy requirement also requires an examination of the qualifications and ability of putative class counsel. City of Tampa, 979 So. 2d at 253-54; Berger, 257 F.3d at 482. “The responsibility [a putative class representative] seeks to assume is a great one, and [his] corresponding commitment to the cause and to the class must be equally great.” Ogden, 225 F.R.D. at 536. Among a putative class representative’s fiduciary obligations to putative class members is the duty to pursue their interests diligently and vigorously. Rattray, 614 F.3d at 836.
The undisputed testimony is that Mr. Danahy first met Schirmer only on the morning of Schirmer’s deposition, which was more than five years after this case had been commenced, and Mr. Ireland had never met or spoken with Schirmer at that point. Tr. at 58; Schirmer 49, 58-60. Nor did putative class counsel prepare Schirmer for his class deposition. Tr. at 60-61 (“I did not prepare for that deposition . . . .”). Likewise, Nancy Baldwin, who was a named plaintiff and putative class representative in this case from its inception until the voluntary dismissal of her claim against Citizens on April 11, 2011, testified that there was no communication at all between putative class counsel and her at any time until the eve of her October 10, 2011 deposition. Yet, counsel filed numerous papers with the Court supposedly on behalf of Baldwin, including two complaints, discovery responses, and even a voluntary dismissal of Baldwin’s claim. Baldwin testified that:
· She had never seen notices for her depositions that were set for September 10, 2010 and October 10, 2011. Baldwin 9-10.
· She did not know her deposition was previously scheduled for September 10, 2010. Baldwin 9-10.
· She first spoke with Mr. Danahy on Friday, October 7, 2011, and first met him only on the day of her deposition, October 10, 2011. Baldwin 11, 22.
· She has never met or spoken with Mr. Ireland. Baldwin 12.
· She has never met or spoken with anyone else at Danahy & Murray and Clayton-Johnston. Baldwin 12.
· She has never received any written communication from any of the plaintiffs’ counsel. Baldwin 35-36.
· She did not know what her deposition was about before she came to the deposition. Baldwin 14.
· She did not know she was a party to this lawsuit and was never made aware that she was named as a plaintiff or as a putative class representative in this action against Citizens. Baldwin 14, 37.
· She has never seen the Complaint and the Amended Complaint filed in this case. Baldwin 38, 40.
· She did not participate in any way in preparing the Complaint, and did not provide plaintiffs’ counsel with any information that resulted in the preparation of the Complaint. Baldwin 48-49.
· She had no involvement in preparing the Amended Complaint, and did not provide any information to anyone that resulted in the preparation of the Amended Complaint. Baldwin 50.
· She has never asked Citizens to pay her on an Actual Cash Value basis. Baldwin 42.
· She never read the Interrogatory responses submitted on her behalf, lacks knowledge of the specific interrogatory responses, admits she did not have knowledge of the interrogatory responses before she signed the responses, and admits she is not aware that any of the information provided in the Interrogatory responses is true and correct. Baldwin 44-46, 51.
· She cannot remember ever seeing the responses to the requests for admissions that were served and filed on her behalf, and did not provide any information that resulted in the preparation of those responses. Baldwin 51-52.
· She is not aware of any documents that were sent to her over the past five years that were either served on Citizens or filed in the case. Baldwin 56.
· She does not know what a class action is, does not know what the duties of a class representative are, and has not been told how the putative class in this case is defined. Baldwin 55.
· She has not participated in any way in decisions relating to this lawsuit, and was not aware that decisions were being made in this suit on her behalf. Baldwin 56.
· She does not know that her claim against Citizens was voluntarily dismissed from this case, and had no involvement in the decision to dismiss her claim, Baldwin 57.
· She has never seen the Motion for Substitution of Assignee as Plaintiff and Notice of Voluntary Dismissal of Plaintiff Nancy Baldwin’s Claim. Baldwin 57-58.
· She had no input or involvement in the information contained in the Motion for Substitution of Assignee as Plaintiff and Notice of Voluntary Dismissal of Plaintiff Nancy Baldwin’s Claim. Baldwin 57-58.
· She had no involvement in authorizing the filing of the Motion for Substitution of Assignee as Plaintiff and Notice of Voluntary Dismissal of Plaintiff Nancy Baldwin’s Claim. Baldwin 58.
· She had no communications whatsoever with plaintiffs’ counsel regarding the information in the Motion for Substitution of Assignee as Plaintiff and Notice of Voluntary Dismissal of Plaintiff Nancy Baldwin’s Claim. Baldwin. 58.
Schirmer’s and Baldwin’s testimonies demonstrate an extreme lack of diligence by plaintiffs’ counsel, and an unprecedented lack of communication with putative class plaintiffs. The conduct of plaintiffs’ counsel over the course of six years that this case has been in litigation necessitates the conclusion that they have failed to meet the standards of adequacy under Rule 1.220(a)(4).
Putative class counsel’s conduct also disregarded the rules requiring attorneys to “promptly inform” their clients of any decision or circumstance that may require the client’s informed consent, to “reasonably consult with the client about the means by which the client’s objectives are to be accomplished,” and to “keep the client reasonably informed about the status of the matter.” Florida Rules of Professional Conducts Rule 4-1.4(a). These Rules also place upon counsel the duty to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Id., Rule 4-1.4(b). The Comment to Rule 4-1.4 explains that “[r]easonable communication between the lawyer and the client is necessary for the client to effectively participate in the representation.” The Comment adds: “In some situations — depending on both the importance of the action under consideration and the feasibility of consulting with the client — this duty will require consultation prior to taking action.” See, e.g., Florida Bar v. Jasperson, 625 So. 2d 459 (Fla. 1993) (attorney violated Rules Regulating the Florida Bar by filing document with court for a client he had never met or advised); Wein v. Master Collectors, Inc., 1995 WL 550475, *4 (N.D. Ga. Aug. 16, 1995) (where plaintiff was not given the opportunity to review the complaint before it was filed, and did not know anything about the progression of the case, counsel’s failure to keep the plaintiff apprised of basic events in the lawsuit was basis for finding lack of adequacy and denial of class certification). In Wein, the court held that the plaintiff and plaintiff’s counsel failed to meet the adequacy requirement for class certification because the plaintiff was not given the opportunity to review the complaint before it was filed, and counsel had failed to keep the plaintiff apprised of basic events in the lawsuit. Wein, 1995 WL 550475, at *4. Based on those facts, the Wein Court denied class certification.
The facts established by Schirmer’s and Baldwin’s testimony are far more extensive and egregious than the facts in Wein. Not only did putative class counsel not give Baldwin any opportunity to review the Complaint and Amended Complaint, they failed to keep her apprised of basic events in this lawsuit and they filed numerous papers on Baldwin’s behalf without her authorization and without her ever agreeing to be, or even knowing she was, named as a plaintiff and putative class representative. Based on the undisputed record in this case, this Court finds that putative class counsel fail to meet the adequacy requirement.
This Court’s adequacy conclusions are further compelled by Schirmer’s and his counsel’s failure to seek class certification until more than five years after the case was commenced. The “failure to move to certify with alacrity undermines confidence in the zeal with which [a putative class representative] would represent the interests of absent class members.” Rattray, 614 F.3d at 836 (citing E. Texas Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 405 (1977)). “A failure of the putative class representative to assure the court that it will vigorously pursue the interests of class members is a sufficient basis to deny certification.” Id.; see also Fla. R. Civ. P. 1.220 (d)(l) (requiring determination of class representation “[a]s soon as practicable after service of any pleading alleging the existence of a class under this rule . . . .”).
In Rattray, just six months had elapsed from the filing of the amended complaint to the filing of the class certification motion, and only fourteen months had passed from the filing of the original complaint to the filing of the class certification motion. Rattray, 614 F.3d at 836. Yet, both the U.S. District Court and the Eighth Circuit Court of Appeals found those delays to be more than sufficient to conclude that the plaintiff was not an adequate class representative. Id. Similarly, in Lyon v. State of Arizona, 80 F.R.D. 665 (D. Ariz. 1978), the plaintiffs’ complaints had been pending for one and three years without any class certification motion having been filed. Id. at 667. On that ground alone, the court granted the defendant’s motion to dismiss the class allegations finding that the plaintiffs’ delay in seeking class certification “demonstrates that they are not fairly and adequately protecting the interest of the class . . . .” Id.; see also In re Folding Carton Antitrust Litig., 88 F.R.D. 211, 214-15 (N.D. III. 1980) (two-and-a-half-year delay sufficient to find plaintiffs lacked adequacy).
Here, the original class action Complaint was filed in June 2005, and the Amended Complaint was filed in February 2006. The Class Certification Motion, however, was filed on November 15, 2010, more than five years after the original Complaint, and more than four years and nine months after the filing of the Amended Complaint. The failure of Schirmer and putative class counsel to seek certification in a timely manner also renders them inadequate under Rule 1.220(a)(4).
II. THE RULE 1.220(b) ELEMENTS
In addition to the Rule 1.220(a) requirements, Schirmer must also satisfy the requirements of Rule 1.220(b)(3), the subdivision under which he has filed his Class Certification Motion. Rule 1.220(b)(3) requires that common questions of law or fact predominate over any individual questions of the separate members and the class action must be superior to other available methods for a fair and efficient adjudication of the controversy, and be manageable. Because certification is requested under Rule 1.220(b)(3), the “trial court must envision how a class action trial would proceed.” Rollins, 951 So. 2d at 870 (quoting Humana v. Castillo, 728 So. 2d 261, 266 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D210a]).
1. Predominance: Rule 1.220(b)(3) requires that the proponent of the class demonstrate “not only that common questions exist, but that those common questions predominate over individual questions . . . .” Rollins, 951 So. 2d at 870. The trial court also “must determine whether the purported class representatives can prove their own individual cases and, by so doing, necessarily prove the cases for each one of the thousands of other members of the class. If they cannot, a class should not be certified.” Id.; Sosa, 73 So. 3d at 112 (class representative demonstrates predominance “if he or she, by proving his or her own individual case, necessarily proves the cases of the other class members”) (citing Seminole Cnty. v. Tivoli Orlando Assocs. Ltd., 920 So. 2d 818, 824 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D522a](emphasis in original).
Simply claiming that common questions of law or fact exist is legally insufficient to prove predominance because “the predominance requirement in subsection (b)(3) ‘is more stringent [than the commonality requirement] since common questions must pervade.’ ” Rollins, 951 So. 2d at 868. The necessity of individualized proof or testimony from each class member to prove an essential element of the cause of action defeats class certification. Nat’l Sec. Fire & Cas. Co. v. DeWitt, 2011 WL 5607802, *14 (Ala. Nov. 18, 2011). Citizens’ defenses must be included in the analysis. Where individual questions predominate, a class action fails the predominance requirement. Rollins, 951 So. 2d at 870; Tivoli, 920 So. 2d at 824 (need to establish liability on a case by case basis defeats predominance and class certification must be denied).
Schirmer attempts to prove that common issues predominate over individual issues by relying on two contentions: first, that Citizens’ had an alleged business practice of not paying overhead and profit with ACV payments, see Tr. at 72, 103-05, 111-12, 114-19, 194-95; and second, that Schirmer’s acceptance of Citizens’ damages estimates with regard to the number of trades likely or anticipated to be involved in the putative class members’ repairs avoids the predominance issues exposed in Mills, see Tr. at 43-44; Class Certification Motion at 2, 4, 28, 31.
Schirmer’s reliance on Citizens’ alleged business practice is misplaced because the law in this district is that it is “impermissible” to rely on evidence of a “business practice in support of class certification. Rollins, 951 So. 2d at 873-75. In Rollins, the extermination company was sued in a putative class action that alleged claims arising from the company’s contractual undertakings relating to the control of subterranean termites. Id. at 865. The trial court granted plaintiffs’ class certification motion, relying on the defendant company’s alleged “business practice.” Id. at 865, 873-75 (the circuit court “recognized the hurdle these individual issues of fact posed for class certification” and sought to “obviate the need for individual proof” by accepting proof of defendant’s “alleged pattern and practice . . . .”). The Second District rejected “the circuit court’s solution,” and reversed the class certification order, explaining that:
. . . authorizing class-wide proof to be made based on alleged company-wide pervasive schemes and business practices is not only inconsistent with established Florida precedent, but it also has the potential to deny the [defendant company] substantive due process of law.
Id. at 873-74. The Rollins Court added: “[C]ollective proof cannot satisfy the class members’ burden”, and it rejected “administrative convenience” and “fairness” as justifications for using proof of a pattern of conduct to establish liability with respect to all class members at trial. Id. at 874. Moreover, “if the [putative class representatives] are permitted to establish the putative class members’ claims by proof of common schemes or patterns of behavior, the [defendants] will be unable to defend against individual claims where there may be no liability. By any standard, this would amount to a violation of substantive due process of law.” Id. “It follows that Florida courts may not certify a class action under rule 1.220 if the effect of class certification is to deprive one or more of the parties of their right to substantive due process of law.” Id.; Andrews, 95 F.3d, at 1023 (an allegation of an overall business practice cannot form an “overarching common issue” sufficient to certify a class); Jackson, 130 F.3d at 1006.
Rollins makes Schirmer’s reliance on evidence of Citizens’ alleged “business practice” untenable.14 Like the defendant in Rollins, Citizens has a due process right to raise defenses to each putative class member’s claim. These defenses include that a putative class member did not have a valid policy during the class period, or did not have a claim under Coverage A, or did not disregard the replacement cost provision of the policy, or did not make and limit himself or herself to an ACV claim, or did not warrant the services of a general contractor, or resolved his claim by mediation or appraisal, or received the policy limits, or made a supplemental claim for replacement cost benefits, and others. See, e.g., Olson Aff. ¶ 19. For these reasons, Schirmer’s contention that Citizens had an alleged “business practice” of not paying overhead and profit as part of ACV payments fails to meet his burden of demonstrating that common issues predominate over individual issues.
Schirmer’s effort to demonstrate predominance and obtain class certification by simply acquiescing in the determinations allegedly made by Citizens or its adjusters regarding the numbers of trades anticipated to be necessary for the class members’ repairs likewise falls apart on scrutiny. Schirmer owes a fiduciary duty to the putative class members to protect their interests to the hilt, and his willingness to give up the interests of putative class members implicates that fiduciary duty as well as the class members’ constitutional due process rights. See, e.g., Back Doctors Ltd. v. Metro. Prop. & Cas. Ins. Co., 637 F.3d. 827, 830-31 (7th Cir. 2011); Wal-Mart Stores, 131 S. Ct. at 2558-59; Rattray, 614 F.3d at 836. Thus, Schirmer’s purported acceptance of Citizens’ determinations as to the number of trades cannot prove predominance.
Moreover, even if Schirmer’s acceptance of Citizens’ determinations of the number of trades were legally consistent with Schirmer’s fiduciary duty to the putative class and did not raise issues regarding the possible violation of the putative class members’ due process rights, predominance would still not be proven. The reason is that individualized inquiries are inherent in the so-called “three-trades rule” itself, as concluded by Mills. In Mills, policyholders of Foremost Insurance Company sued for overhead and profit payments. Like Schirmer, “the Millses advance[d] a ‘three trades rule’ in order to determine whether or not a general contractor was reasonably likely to be needed,” and the Millses specifically accepted the determination of the number of trades expected or anticipated to be involved in a given insured’s claim as stated in the insurer’s estimates. 269 F.R.D. at 668, 671, 676.15 The Mills Court found that “[e]ven if a ‘three trades rule’ were to be employed as the standard . . . the application of such a rule still does not fully answer the question of whether or not a general contractor being needed was reasonably likely.” Id. at 676. The reason is that different class members could take different positions regarding the likelihood that a general contractor would be needed: one putative class member could “argue that it was reasonable under the circumstances that a general contractor would have been needed to repair or replace their covered mobile home from damage caused by the 2004 Florida Hurricanes because three or more trades were needed, and under the custom and practice within the insurance industry, the “three trades rules” applies. Id. However, a fellow class member could take a different position and argue:
that it was reasonably likely a general contractor would have been needed to repair or replace his or her covered loss because, although only one trade was needed, the extent of the damage was severe and complex thus making it reasonably likely a general contractor would be needed. Keeping with the hypothetical, the first class member claimant would receive GCOP under the Millses’ “three trades rule” while the second hypothetical class member claimant would not receive GCOP . . . [because of the] lack of the trades required under a “three trades rule” for payment of GCOP . . . . Thus, even though the second class member plaintiff’s extensive damage made it reasonably likely under the circumstance that a general contractor would be required to repair or replace the damaged mobile home: the second claimant would none the less not be entitled to GCOP under a “three trades rule.”
Id. at 676-77. The Mills Court concluded that the so-called “three trades rule” did not eliminate the need for individual inquiries to determine if the services of a general contractor would be required, and concluded that predominance was lacking:
The above example provides as an illustration of how the use of a “three trades rule” will still leave the question of whether a general contractor was reasonably likely to be needed in the repair or replacement of a class member’s damaged mobile home in the balance, and if a “three trades rule” were to be followed, then predominance certainly does not exist as the above example demonstrates. For the interests of the first hypothetical class member and the interests of the second hypothetical class member diverge.
Id. at 677.
The Mills Court also found predominance to be lacking because the “damages across the class cannot be computed by ‘some formula, statistical analysis, or ether easy or essentially mechanical method’ ” and the insurer will have the right to raise individualized defenses to each putative class member’s damages claim. Id.
In essence, one putative class member[ ] will face an asserted defense by Foremost that the loss payment issued to the insured was in excess while another putative class member will face the defense that the insured fraudulently submitted their claim, while another will face the defense that because the mobile home was a total loss a general contractor was never needed. In light of such a scenario, the putative class members while having similar interests, would . . . need to set forth separate and distinct extrinsic evidence in order to refute the defenses raised by Foremost. Such individualized proof leads this Court to find the lack of predominance in the instant case.
Id. The Mills Court also observed that “several courts have reached the same conclusion, that is, post-hurricane claim adjustments are not appropriate for class treatment due to the individualized facts of each claim.” Id.16
The undisputed evidence in this case is materially similar to that in Mills. The treatise cited by Schirmer, James J. Markham, Ed., Property Loss Adjusting (Ins. Inst. of Am., 2d ed. 1995), explains that: “General contractors perform several services. The primary ones are to coordinate, schedule, and supervise the activities of the various subcontractors. Contractors customarily add a percentage to the total estimate to cover their overhead and profit.” Id. at 8. The treatise adds: “However, little scheduling or coordinating is usually required on a loss involving three trades, such as roofing, drywall, and painting. The insured might be willing to deal directly with roofing and decorating subcontractors in many cases.” Id. at 8-9. Thus, where the three trades are roofing, drywall and painting, no general contractor may be needed or anticipated, and no payment of a general contractor’s overhead and profit is necessary. See also Olson Aff ¶ 6 (“there are situations when multiple subcontractors may he expected or anticipated to be involved but an overseer, or general contractor, would not be required, and there would be no basis in such cases for including an allowance for general contractor’s overhead and profit in the estimate. Whether a general contractor would be reasonably expected or anticipated to be involved in the repairs can only be decided by reviewing each property damage claim individually, and conclusions regarding one claim cannot be automatically applied to another claim.”).
Similarly, Steelman testified that the need for a general contractor depended upon the circumstances of each claim, and that overhead and profit may even be paid by Citizens for claims for which the services of a general contractor would not be anticipated based upon the circumstances of the claim, including its location and the condition of the property before and after the loss. Steelman 130-32. Depending on the location and other details of a specific claim, overhead and profit might even be paid on a claim involving just one trade. Steelman 132-33.
[E]very claim is considered on its own merits and everything has to be considered based upon those things, based upon everything that could potentially impact a claim. And we have to consider anything that could impact a claim payment or the likelihood of a general contractor being required and not required as far as a claim — as far as a payment goes.
Steelman 134-35. Steelman concluded:
So it’s such a complex issue that I guess every claim just has to be opened up and looked at individually to figure out what’s going on and the payments that have been made, the limits, to figure out what potentially could be paid additionally on any individual claim.
Steelman 151.
The undisputed evidence in this case also is that during the relevant period of “2002 through 2006, Citizens contracted with more than one hundred adjusting companies to provide claims adjusting services to Citizens” and that “more than one thousand independent adjusters . . . prepared initial estimates of property damage subsequent to storms or hurricanes” for Citizens. Olson Aff. ¶ 5; Tr. at 214 (Walton testifying, “I think we had maybe 180 team leads and about 2000 adjusters.”). “These independent adjusters came to Citizens with the training they received from their own companies and their prior experiences with adjusting losses, including overhead and profit,” and received little additional training by Citizens before preparing loss estimates for Citizens. Olson Aff. ¶ 5. And, as testified by plaintiff’s witnesses, each adjuster made the decision as to what items of loss “were overhead and profit items and what items were not . . . .” Tr. at 75-76 (Robson); 120-21 (Canitia).17
As summed up by Ms. Olson:
During the four year period ending on December 31, 2006, the decision as to whether a general contractor’s overhead and profit should have been included in the calculation of Actual Cash Value benefits would be dependent on a detailed evaluation of the circumstances of each individual claim. Because every property, policyholder, and claim is unique, each adjuster must rely on his or her own training and experience to assess a variety of considerations in determining whether the services of a general contractor were reasonably expected or anticipated to be involved in the repair of the property damage, including but not limited to, local market conditions, the individual circumstances of each claim, the local practices of contractors and general contractors, and the availability of the specific subcontractor trades needed to make the repairs to the specific property in the specific geographical location.
In my experience regarding Citizens claims handling, each loss is different, and no two claims are identical. Each loss must be adjusted and reviewed on its own merits based on the policy form, the applicable state laws and regulations, the nature, type and extent of damages, and the nature and type of repairs. No one fact is determinative of the repair cost of the loss, including whether overhead and profit should be included as an element of the claim. Neither the insurance policies issued by Citizens (including the policy issued to the plaintiffs), nor industry practice, automatically require the services of a general contractor whenever three or more building trades are expected or anticipated to be involved in a claim or repair job. Ultimately, the decision to include a general contractor’s overhead and profit on any potential claim or repair job is an individual claim adjuster’s decision subject to review and approval or disapproval by Citizens as to what is necessary to indemnify a policyholder for a loss based upon all of the facts of each particular claim or loss,
Olson Aff. ¶¶ 8-9.
In sum, Schirmer has not demonstrated the existence of an industry-wide “three trades rule” that would be applicable to each and every putative class member in this case. To the contrary, whether overhead and profit are merited by any specific individual’s claim, and the amount to be applied for overhead and profit, are facts that can only be determined on an individual-by-individual basis. These individual inquiries are additional to the individual inquiries discussed above for ascertainability purposes. Taken together, as they must be, the individual issues overwhelm any common issues there may be, and predominance is lacking.
2. Superiority and Manageabitity: Rule 1.220(b)(3) also requires a class action to be manageable and superior to other proceedings, Hess Corp. v. Grillasca, 27 So. 3d 684, 687 (Fla. 2d DCA 2009) [34 Fla. L. Weekly D2629b]. “[T]o find superiority, a court must find all other methods of resolving the issues in a case to be inferior to a class action.” KIA Motors, 985 So. 2d at 1141 (quoting Sanneman v. Chrysler Corp., 191 F.R.D. 441, 455 (E.D. Pa. 2000)). In Sosa, the Florida Supreme Court explained that the superiority requirement requires proof that the class proceeding is the most manageable and efficient way to resolve the individual claims of each class member. 73 So. 3d at 116. Sosa identifies three factors to consider in deciding whether a class action is the superior method of adjudicating a controversy: (1) whether a class action would provide the class members with the only economically viable remedy; (2) whether there is a likelihood that the individual claims are large enough to justify the expense of separate litigation; and (3) whether the class action is manageable. Id. The class representative bears the burden of proving all three requirements. Id. at 106.
The evidence in this case is as follows: First, as to whether a class action would provide the class members with the only economically viable remedy, plaintiff offers no evidence to support the contention that the individual claims in this case are not sufficiently large to justify separate litigation, and thereby fails to meet his burden. Aside from that failure, plaintiff’s own proof is that his attorneys have brought at least 31 individual actions asserting overhead and profit claims for Citizens’ insureds without the necessity of a class proceeding, demonstrating that this class action does not provide the putative class members with the only economically viable remedy. See Plaintiffs’ Third Request to Produce (dated Dec. 1, 2006) and Plaintiffs’ Amended Verified Answers to Defendant’s First Set of Interrogatories (dated Nov. 17, 2006) (Comp. Exhibit B to Citizens’ Opp. Memo.). Indeed, at the class certification hearing, the plaintiff testified that he and his brother were able to resolve the companion lawsuit to this case against Citizens without a class proceeding. Tr. at 51-52.18 See also Tr. at 159 (Canitia); 209-10 (Walton).
Moreover, as the Mills Court found, plaintiff can recover costs and fees under Florida Statute § 627.428. Mills, 269 F.R.D. at 680-81; Am. Compl. pp. 5-6, 11; see also Fla. Stat. § 57.041 (providing “all . . . legal costs” to party recovering judgment). The Mills Court concluded that the identical argument advanced by the Mills plaintiffs was “in a word, wrong.” Mills, 269 F.R.D. at 681.19
Schirmer also cannot meet the second prong of the superiority requirement because his proof and case law demonstrate that overhead and profit claims are unquestionably large enough to be brought individually, given the provisions of Fla. Stat. § 627.428, as discussed above. See also Goff, 999 So. 2d at 686-90 (individual action seeking payment of general contractor’s overhead and profit on a hurricane claim). Individual overhead and profit claims are plainly large enough to justify individual litigation.
Finally, the manageability analysis “encompasses the whole range of practical problems that may render the class format inappropriate for a particular suit.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164 (1974). To determine if this requirement of Rule 1.220 has been met, “a trial court must envision how a class action trial would proceed.” Hess, 27 So. 3d at 687; Rollins, 951 So. 2d at 870. “[T]he trial court must determine whether the purported class representatives can prove their own individual cases and, by so doing, necessarily prove the cases for each one of the thousands of other members of the class. If they cannot, a class should not be certified.” Id. Where, as here, an individualized inquiry is necessary to ascertain class membership and to determine liability and damages, class certification would “impose an excessive managerial burden” on the Court. Zimmerman v. Bell, 800 F.2d 386, 390 (4th Cir. 1986); see also Peoples v. Am. Fidelity Ins. Co., 176 F.R.D. 637, 642 (N.D. Fla. 1998) (these types of insurance determinations are “question[s] of tremendous complexity and difficulty”).
Viewed from the perspective of how this case would be tried, the evidence overwhelmingly demonstrates that there are a multitude of individualized issues, and that this case is an assortment of thousands of cases “masquerading as a class action.” See Rollins, 951 So. 2d at 879-80 (“Viewed from the perspective of how the case could be tried, this matter is an assortment of 65,000 mini-trials masquerading as a class action.”). Given Walton’s estimate of 250,000 to 300,000 catastrophe claims for the 2004 and 2005 hurricane seasons alone, Class Certification Motion at 18, or even his estimate of 101,000 provided at the November 30 Hearing, Tr. at 197-98, each of those claims would have to be manually located and pulled from Citizens’ database and individually evaluated to determine which satisfied the various elements of the class definition. Citizens’ defenses to those individuals’ claims would raise additional individualized inquiries and necessitate resolution on an individualized basis. Putative class members who had fewer than three trades but believed their losses merited the services of a general contractor would necessitate additional litigation. The exclusion of individuals who, subsequent to their ACV claims demanded and received replacement cost settlements, or whose claims were resolved by appraisal or mediation, or who suffered total losses and were paid their respective policy limits, or who were paid their respective policy limits for other reasons, or against whose claims Citizens had specific other defenses, would create additional litigation. A trial of the proposed class action with a due regard for Citizens’ substantive rights and the provisions of the Evidence Code “could not be completed during the lives of the current participants.” See Rollins, 951 So. 2d at 880. This proposed class action is unmanageable. Id.; Hess, 27 So. 3d at 687 (“If individual questions predominate, a class action trial is unmanageable.”).
CONCLUSION
For the reasons stated above, Plaintiffs’ Motion for Class Certification is denied.
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1Francis Robson was Schirmer’s public adjuster; Alfred Canitia was a former independent contractor supervising some of Citizens’ claims litigation; and Raymond Walton was the former director of claims for Citizens.
2Anne Olson is Assistant Director of Claims for Citizens; Robert Sellers is Citizens’ Vice President of Strategy and Enterprise Architecture; and William Steelman is Citizens’ former quality assurance and training manager.
3The transcript of the November 30, 2011 class certification hearing is cited herein as “Tr.”
4Citations to deposition transcripts in the record are by the deponent’s name and relevant page number.
5Charlie Lowe is Citizens’ director of claims.
6Both parties agree that Florida’s class action rule is based on Federal Rule of Civil Procedure 23 and that Florida courts may look to federal cases as persuasive authority. See also Terry L. Braun, P.A. v. Campbell, 827 So. 2d 261, 266 n.4 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1712a] (citing Cheatwood v. Barry University, Inc., 2002 WL 4629 (Fla. 9th Cir. Ct. Jan. 1, 2002)).
7“Daily” claims “would be your normal fires, water losses from either a refrigerator or a washing machine, things of that nature:” Tr. at 98-99 (Canitia). “Cat” or “Catastrophe” claims were “hurricane-related” claims. Tr. at 98 (Canitia).
8The undisputed record is that neither plaintiff nor his public adjusters advised Citizens that he was disregarding the replacement cost provision of their policy and was limiting his claim to ACV damages. See Schirmer 90-91, 99-100; Frank Robson 15; Leonard Baumann 30; Tr. at 55-57, 61-62.
9This Court denied Citizens’ Summary Judgment Motion without giving any reasons. See Order dated Jan. 29, 2010 (attached as Exhibit Q to Citizens’ Response in Opposition to Plaintiffs’ Motion for Class Certification). Plaintiffs’ defense to Citizens’ Summary Judgment Motion was that Citizens had waived the defense. See Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment (Jan. 5, 2010) (attached as Exhibit R to Citizens’ Response in Opposition to Plaintiffs’ Motion for Class Certification.) “[T]he Supreme Court of Florida has held that the question of waiver is usually a fact question.” Walther v. Mirabella, 367 So. 2d 704, 704 (Fla. 2d DCA 1979) (citing Stephenson v. Stephenson, 52 So. 2d 684 (Fla. 1951)); see also Starlite Servs., Inc. v. Prudential Ins. Co. of Am., 418 So. 2d 305, 306-07 (Fla. 5th DCA 1982) (“The general rule is well established that the doctrine of waiver and estoppel based upon the conduct or action of the insurer (or his agent) is not applicable to matters of coverage . . . .”) (emphasis in original).
10The issue of whether Schirmer was overpaid also implicates Schirmer’s standing. Under Florida law, the inquiry as to a plaintiff’s standing is a “threshold inquiry” and “must be addressed and answered” as part of the typicality inquiry. United Auto. Ins. Co. v. Diagnostics of S. Fla., Inc., 921 So. 2d 23, 25 (Fla. 3d DCA 2006) [31 Fla. L. Weekly D211a]; Neighborhood Health P’ship, Inc. v. Fischer, 913 So. 2d 703, 706 (Fla. 3d DCA 2005) [30 Fla. L. Weekly D2449b] (“The standing of the class representative is a threshold inquiry that must be addressed and answered in determining commonality and typicality of a class.”); Baptist Hosp. of Miami, Inc. v. Demario, 683 So. 2d 641, 643 (Fla. 3d DCA 1996) (reversing class certification order where trial court proceeded to consider class certification without resolving a challenge to the class plaintiff’s standing). Litigating the issue of Schirmer’s standing would be yet another issue unique to him.
11At his deposition Schirmer testified that virtually all of his knowledge about this case came from his attorneys and public adjusters, and that he had no independent knowledge of this case. See Schirmer 45-46, 64-65, 66, 68-69, 96-97, 108-09, 110-11, 115-27, 138-43. Throughout his deposition, Schirmer invoked the attorney-client privilege to thwart Citizens’ efforts to discover even basic factual information regarding this case. Schirmer’s unwillingness to cooperate and provide legitimate discovery may itself be a basis for finding him an inadequate class representative. Darvin v. Int’l Harvester Co., 610 F. Supp. 255, 257 (S.D.N.Y. 1985).
12Robson, plaintiff’s public adjuster, testified that he called Mr. Danahy to ask if the nonpayment of overhead and profit “was actionable,” and Mr. Danahy “took it to the insureds and the insureds hired Danahy and Murray.” Robson 15-16.
13“Class action lawsuits are intended to serve as a vehicle for capable and committed advocates to pursue the goals of the class members through counsel, not for capable, committed counsel to pursue their own goals through those class members.” Hoyte, 2002 WL 31892830, at *43; In re AEP ERISA Litig., 2008 WL 4210352, *2-5 (S.D. Ohio Sep. 8, 2008) (“named representatives are still required to be more than window dressing or puppets for class counsel,” and finding plaintiffs’ lack of involvement in the prosecution of the case and knowledge of allegations asserted on his and the putative class’s behalf renders him inadequate as a class representative “even under the most lenient standard”) (citation omitted).
14Schirmer’s proof of Citizens’ alleged “business practice” relies largely on Citizens’ Claims Guides and its Catastrophe Claims Guide; see Tr. at 103-05, 110-12, 135. However, these very documents caution that “[t]he application of principles and guidelines described in this guide will differ in each claim depending on its unique facts and circumstances.” Tr. at 150, 153. Thus, Citizens’ claims guides support the need for individualized inquiry to determine if a general contractor was anticipated to be necessary in any given claim. The evidence also is that none of Citizens’ claims guides even mentions a “three trades rifle.” Tr. at 152-54.
15A general contractor’s overhead and profit would never be payable unless the services of a general contractor were required. See, e.g., Class Certification Motion at 4 (describing the putative class in this case as person whose repairs, among other things, “required the services of a general contractor based upon the fact that each required the utilization of three or more trades in order to complete the repairs”).
16Like Mills, two other recent decisions have denied class certification for overhead and profit claims. See Nat’l Sec. Fire & Cas. Co. v. DeWitt, 2011 WL 5607802, *14 (Ala. Nov. 18, 2011); Lindas v. First Floridian Auto & Home Ins. Co., No. 2008-CA-19910-O, slip op., at 4, (Fla. 9th Cir. Ct. Oct. 13, 2010).
17The evidence in this case includes invoices by Brent Baldwin, Schirmer’s step-father, for post-hurricane repairs to the Property and another property jointly owned by Schirmer and his brother. Those invoices demand an additional 20% for “overhead” for “emergency” repairs, nothing for profit, and may involve fewer than three separate trades. See Comp. Ex. W, attached to Citizens’ Response in Opposition to Plaintiffs’ Motion for Class Certification.
18The settled suit was Matthew Schirmer & Nathan Schirmer v. Citizens Property Insurance Corp., No. 05-3976-CI (Fla. Cir. Ct., Pinellas County),
19Plaintiff’s citation to Goff v. State Farm Fla. Ins. Co., 999 So. 2d 684 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D2833a] is to no avail because Goff was an individual case, not a class case, further demonstrating that overhead and profit claims are large enough to be brought on an individual basis.
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