9 Fla. L. Weekly Supp. 449a
Insurance — Personal injury protection — Medpay — Class action by police officer injured while performing duties — Class certification — Numerosity — Discovery — Abuse of discretion to substantially interfere with officer’s ability to establish numerosity by unduly restricting discovery and not permitting officer to adequately assess the true number of instances in which insurer wrongfully denied medpay coverage based on exclusion of accidents occurring in the course and scope of employment — Reversed and remanded with instructions for expanded discovery
WALTER LOVISEK, Appellant, v. FLORIDA FARM BUREAU GENERAL INSURANCE COMPANY, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 01-059 AP. L.C. Case No. 96-00623 SP-26. Opinion filed: May 28, 2002. An Appeal from County Court, Miami-Dade County, Florida. Counsel: Susan S. Lerner and Keith Chasin, for Appellant. Mark R. Antonelli, for Appellee.
(Before JENNIFER D. BAILEY, MICHAEL B. CHAVIES, and MINDY S. GLAZER, JJ.)
(Per Curiam. CHAVIES, J.) The litigation at issue, commenced in January 1996, relates to LOVISEK’s entitlement to medical payments (“med pay”) benefits payable under an automobile policy issued by FLORIDA FARM BUREAU. LOVISEK was injured while performing his duties as a police officer.
LOVISEK amended his complaint to add a class action count and asked the trial court to certify the class. The trial court restricted LOVISEK’s discovery to two years preceding the date of his December 21,1994 accident and limited him to the inspection of PIP applications for persons who had med pay coverage and who were injured in a car accident while in the course and scope of their employment from January 1,1993 to December 21,1994. In August 1998, LOVISEK filed a Motion to Establish Numerosity, which was denied. Subsequently, LOVISEK’s renewed Motion to Determine Numerosity came before the Court on December 18, 2000. On said date, the Court determined that none of the additional applicants brought forth by LOVISEK qualified for membership within the attempted class, and, thus, denied said motion.
In Whigum v. Heilig-Meyers Furniture Inc., 682 So. 2d 643, 645 (Fla. 1st DCA 1996), the court held that the circuit court had abused its discretion by denying class certification before the buyer had an adequate discovery opportunity. A decision on class certification should be made promptly, but only after the parties have had an adequate opportunity to discover facts necessary to support all of the requirements of a class action. Id. Similarly here, the trial court abused its discretion by not permitting LOVISEK sufficient discovery to accurately assess the true number of instances that FLORIDA FARM BUREAU relied on its exclusion. The trial court substantially interfered with LOVISEK’s ability to establish numerosity by unduly restricting the discovery scope.
Based on the foregoing, this case is reversed and remanded. The Court below is instructed to permit Appellant, LOVISEK, to engage in additional discovery what will give him a fair and full opportunity to establish numerosity. FLORIDA FARM BUREAU admitted that as early as 1991 it was enforcing the exclusion within the policy which resulted in the wrongful denial of med pay benefits. It is hereby ordered that the scope of discovery be extended, to include records since December 21,1989. Additionally, the scope of discovery shall include relevant claimants that even though were eligible for med pay benefits, did not actually make a formal request. Furthermore, the fact that these eligible claimants did not pursue formal requests shall not preclude them from qualification as members of the proposed class action.
REVERSED AND REMANDED WITH INSTRUCTIONS. (JENNIFER D. BAILEY and MINDY S. GLAZER, JJ., concur).
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