26 Fla. L. Weekly Supp. 886a
Online Reference: FLWSUPP 2611SMITClass actions — Certification — Insurance — Homeowners — Coverage — Limitation of liability — Reasonable emergency services — Motion for class certification denied in action alleging insurer breached its contract with insured by improperly limiting reimbursement for repair/remediation costs pursuant to policy’s cap on Reasonable Emergency Measures although policy contained all risk coverage with no exclusions or limitations — Class certification is inappropriate where plaintiff seeks monetary damages, not declaratory or injunctive relief; there is no claim that a limited fund exists; and determining whether an insured met class definition would require a file-by-file analysis, an administratively unfeasible method of class determination
911 DRY SOLUTIONS, INC., a/a/o Patria Smith, on behalf of itself and all others similarly situated, Plaintiff, v. HOMEOWNERS CHOICE PROPERTY & CASUALTY INSURANCE COMPANY, INC., Defendant. Circuit Court, 11th Judicial Circuit in and for Miami-Dade. Case No. 2018-009380-CA-30. January 25, 2019. Reemberto Diaz, Judge.
ORDER DENYING CLASS CERTIFICATION
This cause came before the Court on Plaintiff’s the Motion for Class Certification and the Court having reviewed all material filed by the parties, arguments on December 13, 2018, and, being otherwise fully advised in the premises, concludes as follows:
FINDINGS OF FACT
1. Plaintiff brings this action alleging that it provided remediation services as the result of sudden, accidental and covered losses sustained by Homeowners Choice insured Patrian Smith. Plaintiff alleges that Homeowners Choice breached its contract with Smith by improperly applying a policy cap to the remediation claim. Plaintiff brings this action as an assignee of benefits allegedly owed by Homeowners Choice to its insured Smith seeking to recover actual damages arising from the alleged breach of contract.
2. This putative class action centers on the “Reasonable Emergency Measures” provision of a homeowner’s insurance policy originally issued by the Citizens Property Insurance Corporation (“Citizens”). This Policy was assumed and is now administered by Defendant Homeowners Choice. The Reasonable Emergency Measures provision was introduced into the Policy in 2016, following an extensive effort between Citizens, a state agency, and Florida’s Office of Insurance Regulation.
3. The specific portion of the policy at issue is the Other Coverages (“Coverage G”) provisions which set forth the terms and conditions of the Policy’s coverage for Reasonable Emergency Measures. Pursuant to the Policy the company generally agrees to pay such necessary Reasonable Emergency Measures as follows:
a. We will pay up to the greater of $3,000 or 1% of your Coverage A limit of liability for the reasonable costs incurred by you for necessary measures taken solely to protect covered property from further damage, when the damage or loss is caused by a Peril Insured Against.
In the event the insured must undertake measures in excess of that amount, the Policy provides an unambiguous procedure for requesting authorization for additional coverage:
b. We will not pay more than the amount in a. above, unless we provide you approval within 48 hours of your request to us to exceed the limit in a. above. In such circumstance, we will pay only up to the additional amount for the measures we authorize.
If Homeowners Choice fails timely to respond to the insured’s request, the Policy allows the insured to exceed $3,000 or 1% of the insured’s Coverage A limit of liability “up to the cost incurred . . for the reasonable emergency measures necessary to protect the covered property from further damage”:
c. If we fail to respond to you within 48 hours of your request to us and the damage or loss is caused by a Peril Insured Against, you may exceed the amount in a. above only up to the cost incurred by you for the reasonable emergency measures necessary to protect the covered property from further damage.
4. The action is brought pursuant to Florida Rules of Civil Procedure 1.220(b)(A) and (B) on behalf of a class which is defined in the Amended Class Action Complaint as follows:
HCPCIC’s insureds, including assignees of HCPCIC’s insureds such as 911 Dry who are entitled to stand in the shoes of HCPCIC in relation to the cost of Remediation Services that were incurred in relation to a loss that HCPCIC: (1) has already accepted as covered; (2) has already issued payment to the insured or assignee for the covered loss; (3) has already limited reimbursement per the solely stated basis of lawfully doing so per the Policy Cap as set forth under the Additional Coverages section of the policy; (4) has admitted that it maintained a policy of insurance under which Coverage A, plainly and unambiguously contains an “all risk” coverage provision for which no policy exclusion or limitation was asserted or exists; and (5) knew, or should have known, that it was legally obliged to issue full payment for the self-admittedly necessary repair/remediation costs which were incurred by its insureds.
CONCLUSIONS OF LAW
5. Plaintiff has the burden of pleading and proving each and every element required by Rule 1.220. Terry L. Braun, P.A., v. Campbell, 827 So. 2d 261, 265-66 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D1712a]. There must be a sound basis in fact, not supposition, that the requirements of the class action have been satisfied. Baptist Hosp. of Miami, Inc. v. Demario, 661 So. 2d 319, 321 (Fla. 3d DCA 1995) [20 Fla. L. Weekly D2044b]. Further, the Court cannot simply accept the allegations in the Plaintiff’s complaint as true for purposes of class certification. Seminole Cty. v. Tivoli Orlando Assocs. Ltd., 920 So. 2d 818, 822-23 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D522a]. Finally, the Court has undertaken an analysis of the allegations in the complaint in order to determine whether the elements of class action have been met. See Terry L. Braun, 827 So. 2d at 265-66.
6. The Defendant stipulated during the course of the hearing on this matter that numerosity is not disputed in relation to the class.
8. Plaintiff seeks certification of the class in this case based on Rule 1.220(b)(1), Fla. R. Civ. P. Plaintiff seeks actual money damages in this action. It does not seek either declaratory or injunctive relief. Further, there is no claim that a limited fund exists in this case. Rule 1.220(b)(1)(A) is not appropriate for certification when the only relief sought is for money damages. In re Dennis Greenman Secs. Litig., 829 F.2d 1539, 1545 (11th Cir. 1987) (Rule 1.220(b)(1)(A). Additionally, Rule 1.220(b)(1)(B) is only appropriate where a limited fund exists. Ortiz v. Fibreboard Corp., 527 U.S. 815, 834 (1999).
9. In order to maintain a class action, the class sought to be presented must be adequately defined and clearly ascertainable. Alderwoods Grp. Inc., v. Garcia, 119 So. 3d 497, 507 n.8 (Fla. 3d DCA 2013) [38 Fla. L. Weekly D1646a]. Plaintiff must propose an administratively feasible method by which class members may be identified. Wasser v. All Market, Inc., 2018 WL 5629906, at *7 (S.D. Fla. Sept. 26, 2018). A class identification method must provide a manageable process that does not require individualized inquiries. Id.
10. As noted above in Paragraph 4, in order to determine whether an insured meets the class definition, the Court must determine whether the insurer has taken the following steps:
a. Accepted coverage,
b. Issued payment,
c. Limited reimbursement was made solely due to the policy cap,
d. Admitted that the policy plainly and unambiguously contains all risk coverage with no exclusions or limitations existing, and
e. Knew or should have known the it was legally obliged to have paid for necessary remediation without limitation.
These determinations would require a file-by-file analysis in order to determine whether an individual insured meets the definition of the class. Such analysis does not represent an administratively feasible method of defining membership in the class. See Perez v. Metabolite Intl, Inc., 218 F.R.D. 262, 269 (S.D. Fla. Sept. 26, 2003) (“A court should deny class certification where . . . the number of individualized determinations required to determine class membership becomes too administratively difficult.”).
11. As noted in Paragraph 3, in order to determine whether an individual insured even has a claim based upon the “Other Coverages” (Coverage G), the Court will be required to make the following determinations:
a. Was the remediation expense claimed reasonable and necessary?
b. Did the putative class member make a claim to exceed the remediation limit?
c. Did the insurer respond within the forty-eight hour limitation?
d. If payment was made in excess of the remediation limit was the expense reasonable and necessary?
As with the necessity of a file-by-file review in order to define the putative class, such individualized determinations will be required to establish whether an insured has a claim pursuant to the subject policy in the first place.CONCLUSION
Class certification is inappropriate under Rule 1.220 (b)(1)(A) or (B), Fla. R. Civ. P. It is further inappropriate because the proposed class is not administratively feasible. Based upon the foregoing, Plaintiff’s Motion for Class Certification is DENIED
