23 Fla. L. Weekly Supp. 138a
Online Reference: FLWSUPP 2302RICAInsurance — Personal injury protection — Class actions — Counts of class action complaint for breach of contract, declaratory relief, and injunctive relief on part of class of insureds and their assignees who have been denied PIP benefits based on insureds’ alleged failure to attend examinations under oath are dismissed for failure to state cognizable claims and due to predominance of individualized questions — Count for breach of contract for individual damages within jurisdictional limit of county court is remanded to county court
MANUEL V. FEIJOO, M.D., AND MANUEL V. FEIJOO, M.D., P.A., a/a/o WILFREDO RICARDO (Class Representatives), Plaintiffs, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County, General Jurisdiction Division. Case No. 12-38036 CA 21. April 13, 2015. Antonio Arzola, Judge. Counsel: Valerie B. Greenberg and Marcy L. Aldrich, Akerman LLP, for Defendant.
ORDER ON DEFENDANT’S MOTION TODISMISS COUNTS I-VII OF THESECOND AMENDED COMPLAINT AND FORREMAND OF COUNT VIII TO COUNTY COURT
On March 10, 2015, the Court conducted a hearing on Defendant’s Motion to Dismiss the Counts I-VII of the Second Amended Complaint and for Remand of Count VIII to County Court (the “Motion”). The Court heard argument of counsel, reviewed the Motion and file, and was otherwise fully advised. It is therefore ORDERED and ADJUDGED as follows:
1. The proposed class in this Action is defined as:
MAIN CLASS DEFINITION (All class members)
The class consists of all insureds, and assigns of insureds of PROGRESSIVE AMERICAN INSURANCE COMPANY (“PROGRESSIVE”) who were denied payment of any benefit under the Personal Injury Protection (“PIP”) provisions of PROGRESSIVE’s policy, between March 29, 2005 and January 1, 2013, based on the insured’s alleged failure to attend an examination under oath (“EUO”).
SUB-CLASSES:
(All class members will also be part of one of the sub-classes below)
Sub-class A:
Class members that have submitted a valid pre-suit demand notice and where PROGRESSIVE only asserts a defense to non-payment based on the EUO non-attendance.
Sub-class B:
Class members that have submitted a pre-suit demand notice and where PROGRESSIVE alleges or may allege additional defenses to non-payment, other than EUO non-attendance.
Sub-class C:
Class members that have not submitted a pre-suit demand notice and where PROGRESSIVE’s [sic] asserts a defense to non-payment based on the EUO non-attendance.
Sub-class D:
Class members that have not submitted a pre-suit demand notice and where PROGRESSIVE alleged or may allege additional defenses to non-payment, other than EUO non-attendance.
(Compl. ¶ 33). On behalf of themselves and the putative class/subclasses, the Plaintiffs bring counts for breach of contract (Count I-V), declaratory relief (Count VI) and injunctive relief (Count VII). Plaintiffs also bring a count for breach of contract for their individual damages (Count VIII).
2. For reasons set forth in Defendant’s Motion and at oral argument on the Motion, the Court finds that the Second Amended Class Action Complaint, in Counts I-VII, fails to state a cognizable claim for breach of contract, for declaratory relief or for injunctive relief on behalf of the Plaintiffs and/or the putative class.
3. For reasons set forth in Defendant’s Motion and at oral argument on the Motion, the Court finds that the necessary and individualized questions associated with the underlying insurance claims of the class will predominate in this Action and render this Action inappropriate for class action treatment as a matter of law.
4. Counts I-VII are dismissed with prejudice. Count VIII is remanded to County Court for further proceedings.
