23 Fla. L. Weekly Supp. 139a
Online Reference: FLWSUPP 2302BERMInsurance — 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
STEVEN M. BERMAN, D.C., P.A. a/a/o Elitanne Chere and others similarly situated (Class Representative), Plaintiff, v. WINDHAVEN INSURANCE COMPANY, Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade County, General Jurisdiction Division. Case No. 11-37140 CA 21. May 28, 2015. Antonio Arzola, Judge. Counsel: Valerie B. Greenberg and Marcy L. Aldrich, Akerman LLP, for Defendant.
CORRECTED ORDER ON DEFENDANT’SMOTION TO DISMISS COUNTS I-VII OFTHE SECOND AMENDED COMPLAINT AND FORREMAND OF COUNT VIII TO COUNTY COURT
On May 6, 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 and reviewed the Motion and file. The Court also accepted a proffer from plaintiff’s counsel1 of the arguments and legal authority the named plaintiff in Manuel V. Feijoo, M.,D., and Manuel V. Feijoo, M.D., P.A., a/a/o Wilfredo Ricardo (Class Representatives) v. Progressive American Insurance Company (Fla., 11th Jud’l Cir.) (Case No. 12-38036 CA 21) [23 Fla. L. Weekly Supp. 138a] relied on at oral argument in opposition to that Defendant’s Motion to Dismiss Counts I-VII of that Second Amended Complaint and for Remand of Count VIII to County Court, 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 WINDHAVEN INSURANCE COMPANY (“WINDHAVEN”) who were denied payment of any benefit under the Personal Injury Protection (“PIP”) provisions of WINDHAVEN’s policy, between November 8, 2006 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 WINDHAVEN 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 WINDHAVEN 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 WINDHAVEN 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 WINDHAVEN alleged or may allege additional defenses to non-payment, other than EUO non-attendance.
(Compl. ¶ 33). On behalf of himself and the putative class/subclasses, the Plaintiff brings counts for breach of contract (Count I-V), declaratory relief (Count VI) and injunctive relief (Count VII). Plaintiff also brings a count for breach of contract for 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, which is a count seeking PIP benefits within the jurisdictional amount of County Court, is remanded to County Court for further proceedings. The Clerk of the Court is hereby instructed to transfer Count VIII to County Court and close Circuit Court case number 11-37140-CA-01.
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1Kenneth B. Schurr and Juan C. Montes, counsel for Steven M. Berman, D.C., P.A. in this matter, are also counsel for Manuel V. Feijoo, M.D., P.A., in the above-referenced matter.
