8 Fla. L. Weekly Supp. 101a
NOT FINAL VERSION OF OPINION
Subsequent Changes at 8 Fla. L. Weekly Supp. 186a
Insurance — Third-party beneficiaries — Class actions — Certification of class — Plaintiff whose vehicle was damaged in accident with defendant’s insured alleging that insurer breached terms of contract by using non-original equipment manufacturer parts in its estimate because non-OEM parts are inferior per se and not of “like kind and quality” to parts they replaced — Plaintiff’s motion to act as class representative in nationwide class action denied for lack of standing — Use of non-OEM parts is expressly permitted by Florida law, and Florida law requires only that there be disclosure where non-OEM aftermarket crash parts are being used — Florida law would be inapposite to proposed nationwide class because individual insurance policies must be interpreted by laws of state where contract was entered into — Issues raised by complaint not common to all class members — Plaintiff cannot establish that every non-OEM part specified on an estimate by insurer is not of like kind and quality to each and every part misplaced — Plaintiff made no showing that class representation was superior to other available methods for the fair and efficient adjudication of the controversy
Additional ruling in this case at 11 Fla. L. Weekly Supp. 229a
JACQUES CASAS, on behalf of himself and all others similarly situated, Plaintiff, vs. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant. Circuit Court, 17th Judicial Circuit in and for Broward County. Case No. 99-15664 (09). October 17, 2000. Robert Lance Andrews, Judge.
ORDER
THIS CAUSE having come before the Court on the Plaintiff’s Motion to Act as Class Representative in Nationwide Class Action, and the Court having considered same, having heard argument of counsel and reviewing memoranda of law, and being otherwise fully advised in premises, finds and decides as follows:
The Plaintiff filed the instant complaint against the Defendant, alleging breach of the terms of an insurance contract to which he asserts rights as a third-party beneficiary. The Plaintiff is not an insured, but, rather had his vehicle damaged in an accident with an insured of USAA, a Texas corporation. The complaint alleges that USAA breached the terms of the insurance contract by using non-OEM parts in its estimate because non-OEM parts are inferior per se and were not of “like kind and quality” to the parts they replaced, as required.
On May 4, 2000, this Court held a hearing on the issue of Plaintiff’s standing to represent a nationwide class action against USAA. During the hearing, this Court inquired whether the people of the other 49 states, “through their legislature be better at voicing their concern than a Judge in Florida implying or forcing or imposing the law of Florida on the other 49 states.” (Transcript, at p82) The Plaintiff asserted that this Court would be saving judicial resources and “handling a nationwide class action would be no more burdensome for this Court than would the handling of a state class action . . . . [i]t would only be a question of damages.” (Transcript p83) In response to Plaintiff s assertion, this Court stated that:
“although it’s a forum non conveniens argument, I think that the reasoning and the logic would apply to a certification of a national class in reply to the Kinney System Inc. v. Continental, cited at 674 So. 2d 86, Florida Supreme Court 1996, at page 93 where the Supreme Court stated . . . . [t]his is the language, that I want you to address yourself to: “The use of Florida courts to police activities even in the remotest part of the globe is not a purpose for which our judiciary was created. Florida courts exist to judge matters with significant impact upon Florida’s interests, especially in light of the fact that the taxpayers of this state pay for the operation of its judiciary. Nothing in our constitution compels the taxpayers to spend money even for the rankest forum shopping by an out of state interest” . . . . [s]o the Supreme Court is clear . . . . the resources of the State of Florida should be expended to protect Floridians . . . . [h]ow do you square that with your argument that the resources of the State of Florida should be used to protect the individuals in the other 49 states.” (Transcript p99-100)
At the close of the hearing, this Court gave the parties the opportunity to submit memoranda of law on this issue. Plaintiff asserts in his memorandum of law that “[a] close reading of Kinney, along with the applicable case law on class actions, reveals that the Court can, and should, certify the nationwide class action in this case.” (Plaintiff’s Memorandum of Law at p1). The Plaintiff further argues that the Court in Kinney was not addressing in any way the issue before this Court but rather a “concern of litigating cases that should be in foreign countries, [and] the Court, in dicta, stated that `nothing in our law establishes a policy that Florida must be a courthouse for the world, nor that the taxpayers of the State must pay to resolve disputes unconnected with this State’s interest.’ ” (Plaintiff’s Memorandum at p2) The Plaintiff further admonishes that “[w]e must always be careful when applying dicta used in the context of a dispute on one issue to another unrelated issue . . . . [f]requently, such a misapplication results in unintended consequences . . . . Kinney and the forum non convenience concept was not discussing the minimal extra costs of litigating a nationwide class as opposed to just a state class.” (Plaintiff’s Memorandum at p2).
While this Court appreciates the concern of the Plaintiff in applying dicta, the Plaintiff fails to address this Court’s concern that a Florida court should be expending taxpayer dollars to protect the individuals in the other 49 states.” That concern is what made this Court, while acknowledging that it was a forum non conveniens case, determine that the “logic and reasoning” of Kinney was applicable to this matter. The Plaintiff, rather than addressing this issue, merely argues that nationwide class actions have long been recognized as an appropriate and effective means of resolving voluminous related disputes. This Court does not deny that nationwide class actions are appropriate in some cases, however, there has been so such showing here.
The Plaintiff, in reliance of his argument for class certification cites Broin v. Phillip Morris Company, Inc., 641 So.2d 88 (Fla. 3d DCA 1994), for the proposition that despite the fact that “[n]one of the defendants were Florida corporations [and] thousands of plaintiffs had no nexus with Florida . . . . [t]he Court, nevertheless, held that the fact that class members resided in different states and countries did not preclude a national class action [because] [t]he fact remained that the named plaintiff was a Florida resident, and the Court had the power to exercise its nationwide jurisdiction.” (Plaintiff’s Memorandum at p2-3). A review of Broin, however, reveals that one of the defendants, Dosal Tobacco Corp., was indeed a Florida corporation. That fact, in and of itself, makes Broin distinguishable from the matter sub judice.
The Plaintiff further points to the case of OCE Printing v. Mailers Dated Services, 25 Fla. L. Weekly, D1454 (Fla. 2d DCA 2000), asserting that the Court there was faced with “non-resident defendants and many plaintiffs who did not reside in Florida and had no nexus to Florida” and “[o]n appeal, the Court found that such a nationwide certification is appropriate when the claims are based on common-law theories that could be applied nationwide.” (Plaintiff’s Memorandum at p3) The Court in OCE was not dealing with a case based on common-law breach of contract, but claims brought under Florida’s Unfair Trade Practices Act and, as such, the Court refused to certify the class as the Plaintiffs were limited to a Florida class. The Court did state, while distinguishing cases relied upon by the Plaintiffs, that the “plaintiffs in those cases alleged claims under common law theories that could be applied nationwide.” Being mindful that one “must be careful when applying dicta used in the context of a dispute on one issue to another unrelated issue,” a statement that “nationwide certification is appropriate when the claims are based on common-law theories that could be applied nationwide,” this Court declines to apply the dicta in OCE to the matter at bar.
The use of non-OEM parts is expressly permitted by Florida law, provided that such parts “are at least equal in kind and quality to the original parts in terms of fit, quality and performance.” Fla. Admin. Code §624.308. Florida law only requires disclosure where nonoriginal equipment manufacturer aftermarket crash parts are being used. Section 501.33 Florida Statutes.
A review by this Court of the states addressing the issue of non-OEM parts, reveals that the majority have implicitly allowed the use of non-OEM parts but require the insurer to disclose the intention to use such parts in an estimate. The State of Hawaii goes a step further in requiring that the insured or claimant, if they choose the use of an original equipment manufacturer part to “pay the additional cost of the original equipment manufacturer part that is in excess of the equivalent like kind and quality part, unless original equipment parts are required by the vehicle manufacturer’s warranty.” See Hawaii Statutes §431:10C-313.6 (1997). However, this Court knows of no state which explicitly disallows the use of non-OEM parts.
In a case similar to the matter sub judice, our sister Court, the 4th Judicial Circuit in and for Duval County, recently granted summary judgment for USAA on the Plaintiff’s class action claims. Thames v. United Services Automobile Association, No. 98-01324 CA DIV. CV-B (4th Circuit, Duval County 2000) (Unpublished). Although not binding, this Court finds the reasoning to be both persuasive and applicable to the instant matter.
In Thames, the Court found that Plaintiff, a Wisconsin resident, insured under a Wisconsin insurance policy, was not an adequate class representative and her claims were not typical of the class she purported to represent. The Court, in so deciding, reasoned that her insurance policy would have to be interpreted by Wisconsin law, and therefore, she could not represent a class of persons whose policies must be interpreted under Florida law.
Correspondingly, the Plaintiff here seeks to act as a class representative for individuals, nationwide, who are insured by USAA, and who have been in an accident involving a USAA insured. This equates to the insurance contract of all these individuals to being interpreted by a Florida court when, they are governed by the laws of their own states. This is inapposite to Florida law which holds that insurance contracts must be interpreted by the law of the state where the contract was entered into. Suriano v. Brooks, 523 So. 2d 1126 (Fla. 1988). See also Allison v. Liberty Mut. Fire Ins. Co., 704 So. 2d 677 (Fla. 1st DCA 1998).
The Thames Court further found that the issues raised by the Plaintiff’s complaint were not common to all class members because “she cannot possibly establish that each and every non-OEM part specified on an estimate by USAA is not of “like kind and quality” to each and every part replaced . . . . [e]ach non-OEM replacement part must be examined individually to determine whether it complies with the terms of the Insurance Policy and Florida law [and the law of each state].” Thames at 11. “Each class member was involved in separate accidents, used separate repair shops and had their different makes and models of vehicles repaired with different parts . . . . by their very nature, the alleged claims of each of the purported class members are separate and distinct, each arising out of the quality of the specific non-OEM parts used to repair each individual class member’s vehicle.” Id.
Like the Plaintiff in Thames, Mr. Casas cannot possibly establish that each and every non-OEM part specified on an estimate by USAA is not of like kind and quality to each and every part replaced. Furthermore, like Thames, there is nothing in the policy of the USAA insured which prohibits the use of non-OEM parts, so long as the parts “of like kind and quality, less allowance for depreciation and physical deterioration.” “Each of Plaintiff’s “common questions,” however, assume that the use of non-OEM parts per se does not satisfy this criteria . . . . [t]here is no basis for such a generalization.” Thames at 11.
Finally, even if this Court were to find the other prerequisites of Fla. R. Civ. P. 1.220 have been satisfied, the Plaintiff has failed to make the required “superiority” showing. Under Fla. R. Civ. P. 1.220(B)(3) “class representation is superior to other available methods for the fair and efficient adjudication of the controversy.” In determining whether the requisite “superiority” showing has been made, the court should consider “the desirability or undesirability of concentrating the litigation in the forum where the subject action is instituted” and “the difficulties likely to be encountered in the management of the claim or defense on behalf of the class.” R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39 (Fla. 3d DCA 1996). “[W]here, as here, the class contains so many members from so many different states . . . . that it threatens to overwhelm the resources of a state court, it is settled that such a broad-based class is totally unmanageable and cannot be certified.” Id.
Based on the above, this Court finds that the Plaintiff has failed to satisfy his burden under Fla. R. Civ. Pro. 1.220, and therefore, lacks standing to represent a nationwide class action.
Accordingly, it is hereby
ORDERED AND ADJUDGED that the Plaintiff’s Motion to Represent a Nationwide Class Action is DENIED.
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