23 Fla. L. Weekly Supp. 934a
Online Reference: FLWSUPP 2309DARDInsurance — Health — Civil procedure — Class actions — Motion for certification of class of “eligible individuals” who applied for individual health insurance coverage from insurer and who were either declined coverage due to pre-existing condition or were issued policy with exclusions or riders precluding coverage for pre-existing conditions, in violation of section 627.6487, is denied — Numerosity — Where interrogatory responses relied upon by plaintiffs do not indicate number of potential class members without speculation, and plaintiffs themselves are not “eligible individuals” under statute, numerosity requirement is not satisfied — Commonality — Plaintiffs have not met commonality requirement where statute is clear and unambiguous, and none of plaintiffs fall within definition of “eligible individual” — Typicality and adequacy requirements are not met where plaintiffs are not “eligible individuals” under statute — There is no predominant question of law common to class; and, if there is common question, it does not predominate over individual issues of each class member — Class action is not superior method of adjudicating claims where there are numerous factual issues regarding each class member’s eligibility under statute — Plaintiffs do not have standing to bring declaratory judgment claim on behalf of class, as they are not members of putative class
DONNA ARDUINI, DEBORAH SHOOTER, and KIM WALLANT, on behalf of themselves and all others similarly situated, Plaintiffs, v. BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC., a Florida corporation, Defendant. Circuit Court, 15th Judicial Circuit in and for Palm Beach County, Circuit Civil Division. Case No. 50-2011-CA-000364XXXXMB, Division “AD”. February 25, 2016. Gregory M. Keyser, Judge. Counsel: Jeff Liggio and Michael R. Santana, Liggio Benrubi, P.A., West Palm Beach; Steven Earle, Earle & Smith, Orlando; and Louis Silber, Silber, Valente & Davis, West Palm Beach, for Plaintiffs. Timothy J. Conner, Jennifer A. Mansfield, and Raymond F. Treadwell, Holland & Knight LLP, Jacksonville, for Defendant.
[Editor’s note: Final Summary Judgment published at 23 Fla. L. Weekly Supp. 929a.]
ORDER DENYING CLASS CERTIFICATION
THIS CAUSE came for hearing before the Court on Plaintiffs’, Donna Arduini, Deborah Shooter, and Kim Wallant, on behalf of themselves and all others similarly situated, Motion for Class Certification (“Plaintiffs’ Motion”) (D.E. #69). Defendant, Blue Cross and Blue Shield of Florida, Inc., (“BCBSF”) submitted a Response in Opposition to Plaintiffs’ Motion (“Defendant’s Response”) (D.E. #82), and Plaintiffs filed a Reply Memorandum in Further Support of their Motion (“Plaintiffs’ Reply”] (D.E. #86). The Court has reviewed and considered the record presented, including all pleadings, all of the evidence submitted, answers to interrogatories, depositions, affidavits, testimony from Plaintiff, Donna Arduini, as well as her husband, Lawrence Arduini, at the hearing, the parties’ legal memoranda and all citations of legal authority, and citations of supplemental authority submitted by the Plaintiffs following the hearing on this Motion, and argument of counsel on behalf of the parties. Based upon all of the above, the Court makes findings of fact and conclusions of law as follows:
INTRODUCTION
1. Plaintiffs, Donna Arduini (“Arduini”), Deborah Shooter (“Shooter”), and Kim Wallant (“Wallant”), are individuals who applied for individual health insurance policies from Defendant, Blue Cross Blue Shield of Florida, Inc., between 2006 and 2010.
2. In their Amended Class Action Complaint (“Amended Complaint”), Plaintiffs allege they were “eligible individuals” who were entitled to obtain individual health insurance policies from BCBSF pursuant to Section 627.6487, Florida Statutes, without any limitations of coverage based on their preexisting conditions. Plaintiffs allege that BCBSF violated Section 627.6487 by declining coverage to Deborah Shooter and Kim Wallant, and by restricting coverage through exclusionary riders to Donna Arduini, based on Plaintiffs’ preexisting conditions. Plaintiffs seek monetary, injunctive and declaratory relief on behalf of a class of Floridians.
3. Plaintiffs move to certify the following class:
All Floridians who applied for individual health insurance from BCBSF, who qualified as “eligible individuals” as defined by § 627.6487, Florida Statutes, who had “creditable coverage” as defined by § 627.6561(5)(a), and whom BCBSF either [i] declined to insure on the basis that they had preexisting condition(s), or [ii] insured but with exclusions or riders precluding coverage for their preexisting condition(s).
Plaintiffs suggest that this proposed class may be split into two subclasses, based on the two scenarios listed in the last requirement for class membership:
1) A sub-class of all Floridians who applied for individual health insurance from BCBSF who qualify as “eligible individuals” as defined by §627.6487, who had “creditable coverage” as defined by §627.6561(5)(a), who BCBSF declined to insure on the basis that they had pre-existing condition(s), and;
2) A sub-class of all Floridians who applied for individual health insurance from BCBSF who qualify as “eligible individuals” as defined by §627.6487, who had “creditable coverage” as defined by §627.6561(5)(a), who BCBSF insured, but with exclusions or riders precluding coverage for their pre-existing condition(s).
4. Plaintiffs contend that Blue Cross Blue Shield of Florida, Inc. (hereinafter “BCBSF”), has failed to comply with the provisions of Florida Statute §627.6487, by refusing to insure some class members because they had pre-existing conditions, or agreeing to insure other class members, but excluding coverage for their pre-existing conditions. As a result, Plaintiffs contend that BCBSF breached its contract with those class members that it issued a contract to. Plaintiffs also seek a declaratory decree as to those class members who were issued contracts that excluded coverage for their pre-existing conditions, as well as for class members who BCBSF refused to issue a contract to, because they had pre-existing conditions. According to the Plaintiffs, the above issues affect thousands of Floridians who had “creditable coverage” as defined by Section 627.6487 and Section 627.6561(5), who applied for a policy of individual health insurance with BCBSF, who had less than a sixty-three (63) day gap in coverage, who BCBSF either refused to insure based upon their pre-existing conditions, or did insure, but excluded coverage for their pre-existing conditions. Plaintiffs contend that this situation presents a common question of law and fact and should be litigated as a class action. Plaintiffs assert that the purpose of this action is to provide compensation to thousands of Floridians.
5. BCBSF opposes class certification on numerous grounds, including that Plaintiffs’ proposed class action should not be certified because Plaintiffs do not fit within the definition of their own proposed class; that Plaintiffs have not satisfied their burden to establish each required element of Rule 1.220, Florida Rules of Civil Procedure; that Plaintiffs do not have standing; and that Florida law does not grant Plaintiffs or any proposed class member a private right of action to enforce the provisions of § 627.6487 against an insurer like BCBSF.
BACKGROUND FACTS
Donna Arduini
6. At the time Plaintiff, Donna Arduini, applied for individual insurance coverage from BCBSF she was eligible for and covered under a group health insurance plan through her husband’s company in Pennsylvania. See Donna Arduini Deposition pages 11, 16, 37, 40-41, 57-58, February 26, 2013.
7. Donna Arduini’s husband purchased group coverage through the Pennsylvania Builders Association Benefits Trust (the “Pennsylvania Builders Trust”), of which he was a member. See Lawrence Arduini Deposition pages 10-11, February 26, 2013. He added Ms. Arduini to his company’s group policy around 1981. Id. at pages 11-12.
8. In 1990, Ms. Arduini began living six months each year in Florida and six months in Pennsylvania. See Donna Arduini Deposition at pages 7-8, 22. Then, when she and her husband sold their farm in Pennsylvania, Ms. Arduini moved to Florida permanently. Id. at pages 10, 13. She has not resided in Pennsylvania since the beginning of 1998. Id. at pages 9, 22.
9. Mr. Arduini then went to the offices of Abacoa Insurance Agency in early December 2006, and requested an appointment with an agent in order to apply for individual health insurance for Ms. Arduini, and a Medicare Supplement policy for himself. See Lawrence Arduini Deposition pages 30-31.
10. An agent came to the Arduinis’ home on December 5, 2006, met with them for “a little better than an hour,” assisted them with completing an application for individual health insurance for Ms. Arduini, and explained the entire process to them, including that underwriting would be required and that certain conditions of Ms. Arduini might be excluded from coverage by a permanent rider to the policy. See Lawrence Arduini Deposition pages 34-39, 45-46, Exhibit 2; Donna Arduini Deposition pages 21-38.
11. At the time of applying for individual coverage, both of the Arduinis were aware that an individual policy might not cover certain medical conditions. See Lawrence Arduini Deposition page 38; Donna Arduini Deposition pages 19-20, 24.
12. One of the questions on the policy application for individual insurance asked Donna Arduini, “Will this policy replace any other hospital or medical insurance or HMO coverage, including group coverage, currently in force? (If “Yes”, please complete and submit a Replacement of Insurance notice, form #8422, along with all applicable Certificate of Creditable Coverage.)” See Donna Arduini Deposition page 23, Exhibit 2 at 1; Lawrence Arduini Deposition pages 35-36. Donna Arduini answered “Yes” to this question regarding current coverage and attached a Replacement of Insurance notice to her policy application. See Donna Arduini Deposition pages 23, 29-30, Exhibit 2 at 1, 7. The Replacement of Insurance notice listed her Pennsylvania group policy as the one being replaced and stated that the reason she was applying for the BCBSF individual policy was that it “will cost less” than her group policy. See Lawrence Arduini Deposition pages 43-45; Donna Arduini Deposition pages 30-31, Exhibit 2 at 7. Ms. Arduini represented that premiums for her group policy would be paid “until [a] new policy is issued.” See Donna Arduini Deposition page 32, Exhibit 2 at 7.
13. Donna Arduini testified that she and her husband could have continued with their group policy instead of switching to an individual policy in Florida. See Donna Arduini Deposition pages 33, 35.
14. BCBSF offered Donna Arduini an individual policy with two exclusionary riders disclaiming coverage for services related to “the colon” and to any “cyst, tumor, or new growth of the ileum or colon.” See Donna Arduini Deposition pages 47-52, 66 & Exhibits 5-6 (riders excluding coverage). Through the following language, BCBSF explained Ms. Arduini’s BCBSF policy to her related to the nature of the exclusionary riders:
This Contract excludes coverage for expenses for Health Care Services related to any Condition excluded from coverage by a Rider that is part of this Contract.
Riders issued with a Contract are permanent. . . .
See Sections 3-5 Conditions Excluded by Rider in the BCBSF policy of insurance for Donna Arduini attached as Exhibit D to the Plaintiffs’ Amended Complaint.
15. Mr. Arduini, who had a general power of attorney for Ms. Arduini, signed these exclusionary riders on behalf of Ms. Arduini, acknowledging that Ms. Arduini understood and agreed that her insurance contract did not cover, and did not provide benefits for, any medical services as stated in the riders. See Lawrence Arduini Deposition pages 13-14, 20-21, 54-55, Exhibits 5-6. Ms. Arduini recalled being advised that there was a rider on her individual policy with respect to the colon. See Donna Arduini Deposition pages 48-50.
Deborah Shooter
16. Plaintiff, Deborah Shooter, had group health insurance coverage through her husband’s employer when he worked as the Project Safety Manager on the construction of the Amway Center in Orlando, Florida. See Deborah Shooter Deposition pages 27, 33-34, July 25, 2012; William Shooter Deposition pages 6-7, 10-11, July 25, 2012. Her husband’s job ended on or about October 31, 2010, when the Amway Center was completed. See Deborah Shooter Deposition pages 27-28, 34; William Shooter Deposition pages 11-13. As a result, their coverage under his employer’s group health plan was set to end on November 1, 2010. See Deborah Shooter Deposition pages 36-38, Exhibit 1; William Shooter Deposition pages 13-14, Exhibit 1.
17. In the weeks leading up to November 1, 2010, Deborah Shooter and her husband shopped for individual policies with several insurance companies, but they felt the premiums were too high. See Deborah Shooter Deposition pages 43-49. They were also concerned because they had already satisfied a $5,000.00 deductible for the calendar year and wanted credit for that. See Deborah Shooter Deposition pages 48, 51. The insurance companies they shopped indicated they would need to go through medical underwriting in order to apply for individual coverage. See Deborah Shooter Deposition page 48.
18. On their last day of group coverage, November 1, 2010, the Shooters visited a BCBSF retail store in Winter Park, Florida, and filled out an application for a 30-day temporary policy of individual insurance which did not require her to give a medical history or go through any medical underwriting prior to issuance. See Deborah Shooter Deposition pages 41-43, 65-67, Exhibit 2. When they got home that day, however, Deborah Shooter decided she did not like the 30-day temporary policy because it did not meet their needs, other than that it was “inexpensive.” See Deborah Shooter Deposition page 77. Ms. Shooter determined instead to purchase the COBRA continuation of coverage they had previously been offered as a result of their expiring group coverage. See Deborah Shooter Deposition pages 49, 52, 69.
19. Deborah Shooter called BCBSF to cancel the temporary policy and seek a refund of the initial premium which had been charged to her Visa card. See Deborah Shooter Deposition pages 52, 77-79. She also wrote a letter to BCBSF, dated November 3, 2010, formally expressing her desire to cancel her individual policy and requesting a refund of her premium. See Deborah Shooter Deposition pages 84-86, Exhibit 4. In accordance with her request, BCBSF retroactively cancelled the temporary policy and issued Deborah Shooter a full refund. See Deborah Shooter Deposition pages 78, 87; William Shooter Deposition page 26.
20. Deborah Shooter and her husband purchased the COBRA continuation coverage offered through Mr. Shooter’s former employer and maintained it throughout her husband’s unemployment, which lasted approximately 7 months. See Deborah Shooter Deposition pages 51-52, 54-55; William Shooter Deposition pages 18, 28. The Shooter’s COBRA coverage was effective from November 1, 2010, until June 1, 2011. See Deborah Shooter Deposition pages 27-28, Exhibit 3. The Shooters terminated their COBRA coverage when Mr. Shooter found a job in Maryland working as a consultant for a company doing safety work for the District of Columbia Water and Sewer Authority, at which time they purchased coverage through his new employment. See Deborah Shooter Deposition pages 27-28, 31, 81-82, Exhibit 3; William Shooter Deposition pages 5, 18-19.
21. The Shooters never had any gap in coverage, and never had any health insurance claim denied for lack of coverage. See Deborah Shooter Deposition pages 96-98.
Kim Wallant
22. At the time Plaintiff, Kim Wallant applied for an individual policy with BCBSF in March 2010, she was covered under a group policy through her husband’s employer. See Kim Wallant Deposition pages 13, 30, February 27, 2013. On February 8, 2010, her husband’s employer notified him that it would no longer pay the premiums for dependent coverage under its group plan, effective March 1, 2010; it would only continue paying his premiums. See Kim Wallant Deposition pages 20-24, Exhibit 2. The new premium to continue insuring Kim Wallant and her daughter under the group plan would be $987.34 per month. See Kim Wallant Deposition page 21, Exhibit 2. Beginning March 1, 2010, Kim Wallant paid the new premium to continue the group coverage for herself and her daughter. See Kim Wallant Deposition page 24.
23. On March 12, 2010, Kim Wallant applied for an individual health insurance policy from BCBSF to cover herself and her daughter, and to replace their coverage under the group plan. See Kim Wallant Deposition pages 19-20, 29, Exhibit 1. She stated on her application that the reason for wanting to replace her current group coverage was the “cost of coverage.” See Kim Wallant Deposition pages 31-32, Exhibit 1 at 4. She also indicated that her current group coverage was still active and paid through March 31, 2010, listing both the Group Number and Policy ID Number on the application. See Kim Wallant Deposition pages 30-31, Exhibit 1 at 4.
24. Following the medical underwriting stage, BCBSF rejected Kim Wallant’s application for an individual policy due to her pre-existing conditions. See Kim Wallant Deposition pages 39-40, Exhibit 3. In an effort to have BCBSF reconsider its decision, Kim Wallant provided additional medical records to BCBSF. See Kim Wallant Deposition pages 44-45, Exhibit 4. BCBSF responded in a letter dated May 25, 2010, upholding its decision to decline coverage based on her pre-existing conditions. See Kim Wallant Deposition pages 45-46, Exhibit 5.
25. During the time that Ms. Wallant was applying for individual coverage from BCBSF, she maintained her coverage under the group policy through her husband’s employer. See Kim Wallant Deposition page 46.
26. Kim Wallant eventually purchased an individual policy from Aetna, effective August 1, 2010, that covered her, her husband, and her daughter. See Kim Wallant Deposition pages 17-18, 26-27, 46. The Wallant’s group coverage did not terminate until August 1, 2010, the same day her new Aetna policy went into effect. See Kim Wallant Deposition pages 47-48. She had no gap in coverage, and no health care claims were denied. See Kim Wallant Deposition pages 24, 48, 68.
CLASS CERTIFICATION REQUIREMENTS
27. The movant for class certification bears the burden of establishing all the requirements of Rule 1.220, Florida Rules of Civil Procedure. Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 106 (Fla. 2011) [36 Fla. L. Weekly S373a]; InPhyNet Contracting Servs., Inc. v. Soria, 33 So. 3d 766, 771 (Fla. 4th DCA 2010) [36 Fla. L. Weekly D2256a] (citing Chase Manhattan Mortg. Corp. v. Porcher, 898 So. 2d 153, 156 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D684a]).
Florida Rule of Civil Procedure 1.220 provides:
Before any claim or defense may be maintained on behalf of a class by one party or more suing or being sued as the representative of all the members of a class, the court shall first conclude that (1) the members of the class are so numerous that separate joinder of each member is impracticable, (2) 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, (3) the claim or defense of the representative party is typical of the claim or defense of each member of the class, and (4) the representative party can fairly and adequately protect and represent the interests of each member of the class.
These requirements are commonly referred to as follows:
(1) The class must be so numerous that individual joinder of all members in impractible. (“Numerosity”);
(2) Questions of law or fact common to the class must exist. (“Commonality”);
(3) The claims or defenses of the proposed class representatives must be typical of the claims or defenses of the class (“Typicality”);
(4) The proposed class representatives (Plaintiffs herein) and their attorneys must fairly and adequately protect the interest of the class (“Adequacy of Representation”).
28. In addition to meeting those four preliminary requirements contained in Rule 1.220(a), Plaintiffs must also satisfy one of the three conditions set forth in the requirements in the subdivisions of Rule 1.220(b). At the hearing on Plaintiff’s Motion for Class Certification, counsel for Plaintiffs indicated that they were only relying on Rule 1.220(b)(3) in support of Plaintiff’s motion. Rule 1.220(b)(3) requires that questions of law or fact common to the members of the class predominate over any questions effecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy, and specifically provides:
Rule 1.220(b) Claims and Defenses Maintainable. A claim or defense may be maintained on behalf of a class if the court concludes that the [four] prerequisites of subdivision (a) are satisfied, and that:
. . .
(3) the claim or defense is not maintainable under either subdivision (b)(1) or (b)(2), but the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, and class representation is superior to other available methods for the fair and efficient adjudication of the controversy. The conclusions shall be derived from consideration of all relevant facts and circumstances, including (A) the respective interests of each member of the class in individually controlling the prosecution of separate claims or defenses, (B) the nature and extent of any pending litigation to which any member of the class is a party and in which any question of law or fact controverted in the subject action is to be adjudicated, (C) the desirability or undesirability of concentrating the litigation in the forum where the subject action is instituted, and (D) the difficulties likely to be encountered in the management of the claim or defense on behalf of a class.
29. “The trial court must conduct a ‘rigorous analysis’ to determine whether class certification is warranted.” InPhyNet, 33 So. 3d at 771 (quoting Execu-Tech Bus. Sys., Inc. v. Appleton Papers. Inc., 743 So. 2d 19, 21-22 (Fla. 4th DCA 1999) [24 Fla. L. Weekly D126b]). “Such an analysis entails the court ‘looking beyond the pleadings and, without resolving disputed issues, determining how disputed issues might be addressed on a class-wide basis.’ ” Freedom Life Ins. Co. of America v. Wallant, 891 So.2d 1109, 1114 (Fla. 4th DCA 2004) [30 Fla. L. Weekly D110c] (quoting Stone v. Compuserve Interactive Servs., Inc., 804 So. 2d 383, 387 (Fla. 4th DCA 2001) [26 Fla. L. Weekly D2369b]).
30. In particular, the court focuses on whether the plaintiffs could develop a reasonable methodology to show through generalized, class-wide proof that the defendant’s actions unlawfully impacted each individual class member. Execu-Tech, 743 So. 2d at 20-22. In other words, if “the purported class representatives can prove their own individual cases and, by doing so, necessarily prove the cases for each one of the other members of the class,” class certification may be proper. Wallant. 891 So.2d at 1114 (quoting Bouchard Transp. Co. v. Updegraff, 807 So. 2d 768, 771 (Fla. 2d DCA 2002) [27 Fla. L. Weekly D437a]).
31. Resolution of the class certification issue “should be made carefully on the basis of sufficient information, because the granting of class certification considerably expands the dimensions of the lawsuit and commits the court and the parties to much additional labor, over and above that entailed in an ordinary private lawsuit.” Terry L. Braun, P.A. v. Campbell, 827 So. 2d 261, 265-66 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1712a] (quoting Baptist Hosp. of Miami. Inc. v. Demario, 661 So. 2d 319, 321 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D2044b]); see also Sosa, 73 So. 3d at 117 (the decision on whether or not to certify a class should be made carefully and on the basis of sufficient information).
32. “Actual, not presumed, compliance with the rule is required.” InPhyNet, 33 So. 3d at 771. Such stringent requirements are necessary because “[t]he class-action device was designed as ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 155 (1982) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979)).
Elements of the Claims
33. Plaintiffs’ claims for breach of contract and for declaratory judgment in the Amended Complaint are premised on Plaintiffs’ allegations that BCBSF violated Florida Statute Section 627.6487. Section 627.6487 provides that a health insurer that offers individual health insurance in Florida may not, with respect to an “eligible individual” who desires to enroll in individual health insurance coverage: “(1)(a) decline to offer such coverage to, or deny enrollment of, such individual; or (b) impose any preexisting condition exclusion with respect to such coverage.” Florida Statute § 627.6487(1).
34. The term “eligible individual” is specifically defined in Section 627.6487(3) as follows:
(3) For the purposes of this section, the term “eligible individual” means an individual:
(a) 1. For whom, as of the date on which the individual seeks coverage under this section, the aggregate of the periods of creditable coverage, as defined in s. 627.6561(5) and (6), is 18 or more months; and
2. a. Whose most recent prior creditable coverage was under a group health plan, governmental plan, or church plan, or health insurance coverage offered in connection with any such plan; or
b. Whose most recent prior creditable coverage was under an individual plan issued in this state by a health insurer or health maintenance organization, which coverage is terminated due to the insurer or health maintenance organization becoming insolvent or discontinuing the offering of all individual coverage in the State of Florida, or due to the insured no longer living in the service area in the State of Florida of the insurer or health maintenance organization that provides coverage through a network plan in the State of Florida;
(b) Who is not eligible for coverage under:
1. A group health plan, as defined in s. 2791 of the Public Health Service Act;
2. A conversion policy or contract issued by an authorized insurer or health maintenance organization under s. 627.6675 or s. 641.3921, respectively, offered to an individual who is no longer eligible for coverage under either an insured or self-insured employer plan;
3. Part A or part B of Title XVIII of the Social Security Act; or
4. A state plan under Title XIX of such act, or any successor program, and does not have other health insurance coverage;
(c) With respect to whom the most recent coverage within the coverage period described in paragraph (a) was not terminated based on a factor described in s. 627.6571(2)(a) or (b), relating to nonpayment of premiums or fraud, unless such nonpayment of premiums or fraud was due to acts of an employer or person other than the individual;
(d) Who, having been offered the option of continuation coverage under a COBRA continuation provision or under s. 627.6692, elected such coverage; and
(e) Who, if the individual elected such continuation provision, has exhausted such continuation coverage under such provision or program.
Each of these statutory prerequisites must be met before a person can be considered an “eligible individual.” Plaintiffs allege they each satisfy the requirements to be an “eligible individual,” and they seek to represent a class of “eligible individuals” for whom BCBSF allegedly failed to comply with Section 627.6487.
35. The Court now turns to the requirements of Rule 1.220 to determine whether Plaintiffs have met their burden of establishing the appropriateness of class certification as applied to their two causes of action and their proposed class definition.
Four Requirements of Rule 1.220(a)
Numerosity
36. Plaintiffs contend that “BCBSF’s interrogatory responses from several years ago, which represents only part of the proposed class period, show that there are thousands of class members.” See Plaintiffs’ Motion at page 26. BCBSF denies that the Plaintiffs’ interrogatory responses give any indication as to the number of people who fit the definition of Plaintiffs’ proposed class, and argues that the proposed class does not meet the numerosity requirement.
37. To sustain the numerosity requirement, “[n]o specific number and no precise count are needed.” Sosa, 73 So. 3d at 114. “Rather, class certification is proper if the class representative does not base the projected class size on mere speculation.” Id.
38. The Court has reviewed the interrogatory responses contained in Defendant, Blue Cross Blue Shield of Florida, Inc.’s, Answers to Plaintiffs’ First Set of Interrogatories, and does not find that BCBSF has sufficiently indicated the number of proposed class members who qualified as “eligible individuals” that BCBSF either refused to enroll in a guaranteed issue policy, or to whom coverage was extended, but with exclusionary riders. The Court does not find there are interrogatory answers that show what the number of potential class members might be in the Plaintiffs’ proposed class without speculation.
39. Plaintiffs’ proposed class definition can be broken down into the following parts:
1) All Floridians;
2) who applied for individual health insurance from BCBSF;
3) who qualified as “eligible individuals” as defined by § 627.6487;
4) who had “creditable coverage” as defined by § 627.6561(5)(a); and
5) whom BCBSF either
(a) declined to insure on the basis that they had preexisting condition(s), or
(b) insured but with exclusions or riders precluding coverage for their preexisting condition(s).
40. Although the interrogatory responses tell how many people applied for individual health insurance policies from BCBSF from 2005 through 2011 (part 2 of the above definition of the proposed class), the interrogatory responses do not indicate which applicants were “Floridians” (part 1 of the above definition of the proposed class) and do not address many of the factors necessary to show that an applicant for individual coverage was an “eligible individual” as defined by Section 627.6487(3) (part 3 of the above definition of the proposed class), or had “creditable coverage” as defined by Section 627.6561(5)(a) (part 4 of the above definition of the proposed class).
For example, the interrogatory responses do not indicate how many applicants had at least 18 months of “creditable coverage” as required by Section 627.6487(3)(a)1, how many applicants’ most recent prior creditable coverage was of a type listed under Section 627.6487(3)(a)2, or how many applicants might have been eligible for another type of coverage at the time they applied for an individual policy.
While the interrogatory responses advise which applicants for underwritten policies said they were replacing existing coverage, this information alone is insufficient to indicate which applicants qualified as “eligible individuals” as defined by Section 627.6487 or who had “creditable coverage” as defined by Section 627.6561(5) (a).
Furthermore, the interrogatory responses from BCBSF, and specifically the answer to Interrogatory no. 6, do not indicate which applicants BCBSF declined to insure on the basis they had preexisting condition(s) (part 5(a) of the above definition of the proposed class). While BCBSF provided the total number of applications it had rejected, it explicitly stated in answer to Interrogatory no. 6 that the number provided included applications rejected for reasons that did “not have anything to do with the applicant’s medical history,” and it appears that to identify these applicants rejected due to medical underwriting would require a manual review of tens of thousands of applicants’ files.
41. Accordingly, Plaintiffs’ lack of sufficient evidence presented at the hearing on this Motion regarding how many applicants were Floridians who qualified as “eligible individuals” with “creditable coverage” and were declined coverage based on their preexisting conditions, causes Plaintiffs’ estimate of the class size to be based on speculation. The Court cannot determine, from the interrogatory answers offered, whether there would be any class members based on an alleged violation of Section 627.6487, especially when the Court has found that the named Defendants in this lawsuit are not “eligible individuals” as defined in Section 627.4687 and do meet the offered definitions of the proposed class and sub-classes.
The Fourth District Court of Appeals has definitively stated, “Numerosity also requires a class definition that allows a court to reasonably ascertain if a person or entity is a member of the class.” Canal Ins., 41 So. 3d 375, 377 (citing Olen Props. Corp. v. Moss, 981 So. 2d 515, 519 (Fla. 4th DCA 2008) [33 Fla. L. Weekly D1024b]).
Based upon the evidence presented, there are too many individual factors that inform a person’s eligibility under Section 627.6487 for class membership to be reasonably ascertainable. The record indicates that this Court cannot ascertain the number of members in the proposed class without first completing an individualized review of each applicant’s health insurance history.
42. Accordingly, the Court finds that from the record presented, class certification fails on both aspects of the numerosity requirement, as the Court cannot determine whether the members of the class would be so numerous as to support class certification, and the proposed class and sub-classes as defined have not been shown to be reasonably ascertainable.
Commonality
43. The focus of the commonality requirement is on “whether the class members predicated their claims on the same common course of conduct by the defendant and the same legal theory.” Sosa, 73 So. 3d at 110 (emphasis in original).
Although the threshold for finding commonality is not high, the core of the requirement is satisfied only “if the questions linking the class members are substantially related to the resolution of the litigation, even if the individuals are not identically situated.” Id. at 107-08. More specifically, the commonality prong requires “that the subject of the class action presents a question of common or general interest.” Id. at 107 (emphasis in original). Ultimately, “the commonality requirement is aimed at determining whether there is a need for, and benefit derived from, class treatment.” Id.
44. Plaintiffs contend that the primary issue common to all class members is the meaning of Florida Statute Section 627.6487. In addition, Plaintiffs identify a second issue they argue is common to all class members — whether BCBSF complied with Florida Law when it either rejected class members because of their preexisting condition(s), or issued coverage to them, but excluded coverage for their preexisting condition(s) by use of medical exclusionary rider(s).
BCBSF responds that there is no legitimate dispute as to the meaning of Florida Statute Section 627.6487. BCBSF contends that the dispute is whether Section 627.6487 applies to these Plaintiffs. BCBSF contends that the dispute involves whether these Plaintiffs qualify as “eligible individuals,” not over any particular legal theory arguing what is the plain meaning of Section 627.6487.
45. Based upon the record presented, the Court finds that the Plaintiffs have not met the commonality requirement. The Court finds that Section 627.6487 is clear and unambiguous, and that none of named Plaintiffs fall within the definition of “eligible individual” set forth in this statute.
46. To the extent the parties conflict on their interpretations of Section 627.6487(3)(d) and (e) regarding the requirement to elect and exhaust COBRA continuation coverage (which the Court has determined is a clear and unambiguous requirement for a person to be an “eligible individual”), this dispute is not common to the entire proposed class. Among the named Plaintiffs these provisions only affect Deborah Shooter’s eligibility.
47. Thus, the Court finds based upon the evidence and authority presented that there is no common issue of law that needs to be resolved on behalf of the entire class, and thus no benefit from class treatment of Plaintiffs’ legal theory. It appears to the Court that there are numerous individual factual issues that distinguish potential class members and suggest a more individualized review and consideration of a potential class member’s situation and issues would be required, and these individualized issues do not benefit from class treatment.
Typicality
48. Typicality means “the claim or defense of the representative party is typical of the claim or defense of each member of the class.” Florida Rules of Civil Procedure 1.220(a). “The key inquiry . . . is whether the class representative possesses the same legal interest and has endured the same legal injury as the class members.” Sosa, 73 So. 3d at 114
“The test for typicality is not demanding and focuses generally on the similarities between the class representative and the putative class members. Id. “[T]he typicality requirement is satisfied when there is a strong similarity in the legal theories upon which those claims are based and when the claims of the class representative and class members are not antagonistic to one another.” Id. at 114-15.
49. Plaintiffs argue that typicality exists because “[a]ll claims are based on the same theory that [BCBSF] did not comply with Florida Statutory mandates when an applicant for individual coverage who had creditable coverage with less than a 63 day gap when it either rejected them for coverage or issued coverage to them with exclusionary riders because of their pre-existing condition(s).” See Plaintiffs’ Motion at pages 29-30.
BCBSF responds that Plaintiffs have vastly oversimplified the law by suggesting the only requirement for “guaranteed issue” individual coverage is “creditable coverage with less than a 63 day gap.” In addition, BCBSF argues that the ways in which BCBSF issues or does not issue insurance coverage can vary enormously.
50. Based upon the evidence and arguments presented, the Court finds that the named Plaintiffs, Donna Arduini, Deborah Shooter, and Kim Wallant, are not “eligible individuals” under Florida Statute Section 627.6487 and, therefore, the typicality requirement for class certification is not met. These named Plaintiffs do not possess the same legal interest and have not endured the same alleged legal injury as the proposed class members. The Court also agrees that the evidence presented demonstrates that the alleged conduct by BCBSF toward the proposed class members will vary greatly depending upon the particular factual situation, medical history, insuring history and underwriting information obtained for each individual proposed class member.
Adequacy
51. Plaintiffs suggest they are adequate to represent the class because each of them was treated in a similar fashion by BCBSF and “wrongfully denied coverage . . . due to their respective preexisting conditions.” See, Plaintiffs’ Motion at pages 30-31.
52. “Adequacy of representation requires that a class representative be a part of the class and possess the same interest and suffer the same injury as the class members.” Wallant, 891 So.2d at 1115-16 (internal quotations omitted)(emphasis supplied).
53. BCBSF argues that Plaintiffs are not adequate representatives because they are not part of the proposed class. In particular, BCBSF contends that the named Plaintiffs were not “eligible individuals” under Section 627.6487 at the time they applied for individual policies.
Plaintiffs object to this argument as one centering on the case’s merits, which they argue are inappropriate to consider at the class certification stage. However, the Court finds that the Court “may consider evidence on the merits of the case as it applies to the class certification requirements.” Sosa, 73 So. 3d at 105; see also Wallant, 891 So. 2d at 1114-15 (A court may “consider evidence on the merits of the case . . . in determining whether the prerequisites for class certification have been established.”).
54. The Court has today entered a Final Summary Judgment in this lawsuit granting Defendant’s Motion For Summary Judgment against Donna Arduini, Deborah Shooter and Kim Wallant, finding Donna Arduini, Deborah Shooter and Kim Wallant were not “eligible individuals” entitled to attempt a lawsuit against BCBSF for alleged violation of Florida Statute §624.6487. [ 23 Fla. L. Weekly Supp. 929a] Therefore, the Court finds that Donna Arduini, Deborah Shooter and Kim Wallant are not adequately qualified to be certified as class representatives of the Plaintiffs’ proposed class.
Requirements of Rule 1.220(b)(3) of the Florida Rules of Civil Procedure
55. At the hearing on the Plaintiffs’ Motion for Class Certification, counsel for Plaintiffs indicated that they were solely relying on Rule 1.220(b)(3) of the Florida Rules of Civil Procedure in support of their Motion. Accordingly, the Court will only address that portion of Rule 1.220.
Subdivision (b)(3) of Rule 1.220
56. 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.” InPhyNet, 33 So. 3d at 771. While the predominance requirement parallels the commonality requirement under rule 1.220(a), the predominance requirement in subdivision (b)(3) is more stringent because common questions must not only exist, but also predominate and pervade. Sosa, 73 So. 3d at 111; InPhyNet, 33 So. 3d at 771-72.
a) There is no predominant question common to the class.
57. For the reasons more fully explained above, the Court finds that the record and evidence presented for this case does not present an issue of statutory construction or interpretation common to the class sufficient to support the Rule 1.220(b) requirements for class certification. Even though Plaintiffs claim BCBSF violated Section 627.6487, neither party has raised a question of statutory construction that the record and evidence would demonstrate as common to the entire proposed class.
b) Even if there is a common question, it does not predominate over the individual issues for each class member.
58. “Common issues of fact and law predominate if they ‘have a direct impact on every class member’s effort to establish liability’ that is more substantial than the impact of individualized issues in resolving the claim or claims of each class member.” InPhyNet, 33 So. 3d at 772 (quoting Sacred Heart Health Systems Inc. v. Humana Military Healthcare Services, Inc., 601 F.3d 1159, 1170 (11th Cir. 2010) [22 Fla. L. Weekly Fed. C658a]).
A class representative establishes predominance “if he or she demonstrates a reasonable methodology for generalized proof of class-wide impact.” Sosa, 73 So. 3d at 112. “A class representative accomplishes this if he or she, by proving his or her own individual case, necessarily proves the cases of the other class members.” Id. “If a class representative must still present a great deal of individualized proof or argue individualized legal points to establish most or all of the elements of his claims, class certification is not appropriate.” InPhyNet, 33 So. 3d at 772.
59. The Court finds that one issue central to resolving each class member’s claims is whether the individual class member is an “eligible individual” under Section 627.6487. For Plaintiffs to prove that each individual class member is an “eligible individual” requires a multi-step analysis:
Determining whether an applicant for individual health insurance has obtained at least 18 months of aggregate “creditable coverage” is the first step of the analysis. Florida Statute §624.6487(3) (a)1.
The second step is to determine whether the applicant’s “most recent prior creditable coverage” was under a group health plan, governmental plan, or church plan, or offered in connection with any such plan; or under an individual plan issued in Florida which coverage was terminated for certain approved reasons. Florida Statute §624.6487(3)(a)2.
The next steps in this analysis require an individualized assessment of evidence regarding each applicant’s other potential options for health insurance coverage at the time of applying, the reason the applicant lost his or her “most recent coverage,” and whether the applicant has exhausted any available continuation of coverage benefits. Florida Statute § 627.6487(3)(b)-(e).
The Court agrees with the Defendant’s position that this multi-step process of determining whether a class member is an “eligible individual” illustrates that there is no apparent common question that predominates over the individual issues for each potential class member.
60. Plaintiffs contend there will be no burdensome individualized process because “Florida Blue has already identified and categorized the thousands of class members from its own computerized records when it answered the interrogatories . . . .” See Plaintiffs’ Reply at pages 15-16 and Defendant, Blue Cross Blue Shield of Florida, Inc., Answers to Plaintiffs’ First Set of Interrogatories.
61. The Court has reviewed these interrogatory responses submitted in evidence and does not find that BCBSF has already identified the class members. The interrogatory responses do not indicate which applicants met the qualifications to be “eligible individuals,” such as, which applicants had 18 months of “creditable coverage” with no gaps in coverage of 63 days or more, which applicants lost their most recent coverage due to fraud or failure to pay premiums, which applicants had the option to obtain coverage under a group policy, under a conversion policy, or under the Social Security Act, which applicants could have elected COBRA continuation benefits, which applicants had not yet exhausted their COBRA continuation benefits, etc. The interrogatory responses appear to the Court to be deficient for the purpose of identifying class members or eliminating the individual analysis of potential class member’s applications and file information relevant to all of the issues in this lawsuit. Also, there is the individualized issue of what damages, if any, each class member may have suffered. Based on the evidence and arguments presented, the amount of any damages, including whether damages exist at all, would have to be determined on a fact specific and individual basis. This militates against class treatment.
62. While the Court has found that the named Plaintiffs have not proved their own eligibility under Section 627.6487, even if the Plaintiffs could be successful as they alleged in proving their own eligibility under Section 627.6487, Plaintiffs do not thereby “necessarily prove the cases of the other class members.” Sosa, 73 So. 3d at 112. The Court finds from the record evidence presented, that sorting through each of the qualifiers and disqualifiers for eligibility under Section 627.6487 for each proposed individual class member would turn this potential class action into a series of “mini-trials on liability” that make it inappropriate for class treatment. See InPhyNet, 33 So. 3d at 773 (“Rather than being susceptible to class-wide proof, this case will ultimately require the very sort of mini-trials on liability which this court has explained are inappropriate for class treatment.”).
63. For those reasons, the Court finds that the individual issues regarding each class member’s eligibility under Section 627.6487 will predominate over any common issue. For the reasons more particularly described above, Plaintiffs have failed to establish that questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class, to meet the requirements of Rule 1.220(b)(3) of the Florida Rules of Civil Procedure and, therefore, have failed to meet a requirement of class certification.
c) A class action is not the superior method of adjudicating these claims.
64. The next prerequisite for class certification under Rule 1.220(b)(3) is that class representation must be “superior to other available methods for the fair and efficient adjudication of the controversy.”
The three factors a court considers when deciding whether a class action is the superior method of adjudicating a controversy are: (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 a class action cause of action is manageable. Sosa, 73 So. 3d at 116.
In deciding the issue of class certification, a court must envision how a class action trial would actually proceed. Humana, Inc. v. Castillo, 728 So. 2d 261, 266 (Fla. 2d DCA 1999) [24 Fla. L. Weekly D210a].
65. Due to the numerous factual questions involved in determining each class member’s eligibility under Section 627.6487, and then the separate question of damages, the Court concludes that the alleged claims are not manageable as a class action. The record evidence indicates that those individualized issues presented are matters requiring extensive proof and are individual issues necessary to determine to impose liability on BCBSF regarding each class member, and are more than “administrative burdens”.
66. Accordingly, despite the considerations of economic viability and expense of separate litigation, the Court finds that a class action is not the superior method of adjudicating these claims attempting to be presented in this lawsuit.
Lack of Standing for Declaratory Judgment Claim
67. The Court must also consider the “threshold inquiry in a motion for class certification [on] whether the class representative has standing to represent the putative class members.” Sosa, 73 So. 3d at 116.
As more fully detailed in the Final Summary Judgment [23 Fla. L. Weekly Supp. 929a] entered today in favor of the Defendant, BCBSF, and against the named Plaintiffs, the Court finds that the Plaintiffs, Donna Arduini, Deborah Shooter and Kim Wallant, do not have standing to bring their declaratory judgment claim as they are not qualified to be members of the putative class.
As discussed above, the facts alleged by Plaintiffs are not sufficient to demonstrate an ongoing case or controversy with regard to their rights under Section 627.6487, which is required for the Plaintiffs to pursue a declaratory judgment claim.
For the foregoing reasons, it is thereupon
ORDERED AND ADJUDGED that Plaintiffs’ Motion for Class Certification is hereby DENIED.
