Ferreiro v. Philadelphia Indemnity Insurance Company

• Decision Date: 08 March 2006
• Docket Number: No. 3D04-3205.,3D04-3205.
• Parties: Miriam Nancy FERREIRO, individually, and on behalf of all others similarly situated, Appellant, v. PHILADELPHIA INDEMNITY INSURANCE COMPANY, a foreign corporation, Appellee.
• Court: Florida District Court of Appeals

928 So.2d 374

Miriam Nancy FERREIRO, individually, and on behalf of all others similarly situated, Appellant, v. PHILADELPHIA INDEMNITY INSURANCE COMPANY, a foreign corporation, Appellee.

No. 3D04-3205.

District Court of Appeal of Florida, Third District.

March 8, 2006.

Rehearing and Rehearing En Banc Denied March 30, 2006.

Hunter, Williams & Lynch, P.A., Coral Gables, and Christopher Lynch and Steven K. Hunter, for appellant.

Conner & Winters, L.L.C. and James E. Green; Hicks & Kneale, P.A., Susan Y. Marcus, Hollywood, and Mark Hicks, Miami, for appellee.

Before WELLS, SHEPHERD, and CORTIÑAS, JJ.

CORTIÑAS, Judge.

The plaintiff, Miriam Nancy Ferreiro ("Ferreiro"), appeals from a non-final order denying her motion for class certification on the ground that she lacked standing to pursue this class action. We reverse.

In January 1997, Ferreiro rented a car from a Budget Rent A Car facility in Miami, Florida. She purchased an optional Rental Supplemental Liability Insurance Excess Policy ("excess policy") from the defendant, Philadelphia Indemnity Insurance Company ("Philadelphia"). Soon after renting the car and purchasing the excess insurance, Ferreiro was involved in a car accident and was seriously injured.

On June 4, 2001, Ferreiro filed a second amended class action complaint¹ against Philadelphia seeking (1) a declaratory judgment that Ferreiro and other similarly situated individuals are entitled to uninsured or underinsured motorist coverage pursuant to section 627.727(2), Florida Statute (1997),² and (2) damages resulting from her injuries.

The parties do not dispute that the excess policy did not offer Ferreiro uninsured or underinsured motorist coverage. The parties dispute whether Ferreiro has standing to bring a class action against Philadelphia for failing to offer such coverage.

This Court, in Ferreiro v. Philadelphia Indem. Ins. Co., 816 So.2d 140 (Fla. 3d DCA 2002), held that Philadelphia was required by section 627.727(2) to inform Ferreiro that uninsured motorist coverage was available. By mandate issued on July 19, 2002, we directed the trial court to hold Philadelphia to uninsured motorist coverage for Ferreiro.

After this Court's decision in Ferreiro and following remand, Ferreiro filed a Motion for Class Certification seeking to obtain uninsured and underinsured motorist coverage for a "class" she redefined as:

All individuals who purchased [excess policies] from Philadelphia Indemnity Insurance Company in the State of Florida prior to April 1, 2003, and all individuals or entities qualifying as either Class I or Class II insureds, pursuant to § 627.727 Fla. Stat., under said policies.

Philadelphia objected to certification of a class action claiming that Ferreiro lacked standing. The trial court stayed discovery pending resolution on the issue of standing. Subsequently, the trial court denied Ferreiro's motion for class certification on the basis that she lacked standing. However, the trial court ordered that Ferreiro's individual claims would remain pending.

On de novo review, we disagree with the trial court and find that Ferreiro has standing to pursue a class action. See W.S. Badcock Corp. v. Webb, 699 So.2d 859, 861 (Fla. 5th DCA 1997)(holding that a trial court's decision as to whether a plaintiff has standing to bring a class action is reviewed de novo).

The issue of standing is a threshold inquiry which must be made at the outset of the case before addressing whether the case is properly maintainable as a class action. Taran v. Blue Cross Blue Shield of Fla., Inc., 685 So.2d 1004, 1006 (Fla. 3d DCA 1997); Baptist Hosp. of Miami, Inc. v. DeMario, 683 So.2d 641, 643 (Fla. 3d DCA 1996). Thus, in this appeal, we consider only whether Ferreiro has standing to seek class action certification. We do not address Ferreiro's capacity to represent the class as the trial court has not had an opportunity to consider and rule upon this issue. Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987)(holding that a court may address whether the plaintiff has representative capacity only after determining the issue of standing), cert. denied, 486 U.S. 1005, 108 S.Ct. 1729, 100 L.Ed.2d 193 (1988). For the same reasons we do not address issues regarding the scope of the purported class or the merits of the class action.

To satisfy the requirement of standing, the plaintiff must show that a case or controversy exists between the plaintiff and the defendant, and that such case or controversy continues from the commencement through the existence of the litigation. Godwin v. State, 593 So.2d 211 (Fla.1992); Montgomery v. Dep't of Health and Rehabilitative Servs., 468 So.2d 1014 (Fla. 1st DCA 1985). Absent an existing case or controversy between Ferreiro and Philadelphia, there would not be standing to pursue a class action claim or represent a class. See Webb, 699 So.2d at 860. As we have previously held:

[I]f none of the named plaintiffs purporting to represent a class establishes a requisite of a case or controversy with the defendant, none may seek relief on behalf of himself or any other member of the class.

Taran, 685 So.2d at 1006 (quoting O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)).

Philadelphia contends that Ferreiro lacks standing to bring this class action because we previously granted her declaratory relief. In support of its position, Philadelphia relies on Chinchilla v. Star Casualty Insurance Co., 833 So.2d 804 (Fla. 3d DCA 2002), Ramon v. Aries Insurance Co., 769 So.2d 1053 (Fla. 3d DCA 2000), Taran, 685 So.2d at 1006, Baptist Hospital, 683 So.2d at 643, and Syna v. Shell Oil Co., 241 So.2d 458 (Fla. 3d DCA 1970). However, none of those cases support Philadelphia's contention that Ferreiro lacks standing.

For example, in Baptist Hospital, this court did not address the issue of plaintiff's standing to bring a class action and, instead, remanded the case to the trial court for a determination on plaintiff's standing. Baptist Hospital, 683 So.2d at 643.

In Ramon, the plaintiff brought a class action against an automobile insurance company after he was involved in an accident. The plaintiff conceded that the insurer settled all of his claims and that no money was due to him, but, nevertheless, he wanted to pursue the class action "so that the insurer would `change the way they do things.'" Ramon, 769 So.2d at 1054. We concluded that the plaintiff lacked standing because he had already received full payment and, thus, did not have a pending case or controversy with the insurer. Ramon, 769 So.2d at 1055.

In this case, unlike the cases cited by Philadelphia, a final judgment has not been rendered on Ferreiro's claim for damages or on Philadelphia's liability. In fact, the trial court correctly recognized that Ferreiro's individual claims remained pending after the prior appeal. As such, we find that Ferreiro has standing because she continues to have a case or controversy with Philadelphia. See Taran, 685 So.2d at 1006; Ramon, 769 So.2d at 1055.

We note that the dissent confuses judicial review of standing with review of the criteria for certification of a class action. The differences in these inquiries has been described as follows:

Though there is no additional standing requirement for the plaintiff who seeks to represent a class, a proper class action requires a similarity of claims between the named plaintiffs and the class members. This similarity of claims is tested not by principles of standing, but by the application of the Rule 23(a)(3) criteria. If a class action is proper, then by definition the class representative's claims will be typical of the class. Thus the class plaintiff's individual standing, linked to his or her asserted claim, becomes automatically linked to the class claim. Having standing which a class representative shares with the members of a class is another way of saying that the class representative is a proper party to raise a particular issue common to the class. The commonness of issues is an express requirement of Rule 23 and is an attribute of the issue involved, rather than a threshold characteristic of whether the issue meets the constitutional case or controversy test. Accordingly, a plaintiff who meets individual standing requirements possesses [standing] in the constitutional sense, and whether the plaintiff may represent the rights of others depends on the application of Rule 23 tests in the case of a class action[.]

Osgood v. Harrah's Entertainment, Inc., 202 F.R.D. 115, 120-21 (D.N.J.2001)(citing Herbert B. Newberg & Alba Conte, Newberg On Class Actions § 2.05 (3d ed.1992)) (emphasis added).³

Thus, standing is a threshold determination necessary for the maintenance of all actions, including class actions. In this case, the standing requirement is satisfied because there is a pending claim for damages between the parties as well as a pending determination of Philadelphia's liability. Whether plaintiff is a proper class representative or whether there exists similarity of claims between the named plaintiff and the class members are questions addressed not by principles of standing, but, rather, by the application of the requirements for class action certification, namely (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. See Meyer v. CUNA Mut. Group, No. 03-602, 2006 WL 197122, at *14 (W.D.Pa.2006); Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 423 (6th Cir. 1998); Fla. R. Civ. P. 1.220.

Accordingly, we reverse the trial court's determination that Ferreiro lacks standing to bring a class action and remand for further proceedings consistent with this opinion. We express no opinion on the viability of the proposed class action.

WELLS, J., concurs.

1. In her second amended class action complaint, Ferreiro defined the "class" of persons entitled to a declaration of uninsured or underinsured motorist coverage as:

Individuals who have purchased from ...