Litvak v. Scylla Properties, LLC
| Decision Date | 21 December 2006 |
| Docket Number | No. 1D05-3727.,No. 1D05-2163.,1D05-2163.,1D05-3727. |
| Parties | Kramer A. LITVAK, John B. and Nancy L. McKamey, Carolyn Davis, Joseph Reynes and Michael Thiel, Appellants, v. SCYLLA PROPERTIES, LLC, William D. Clark, Jr. on their behalves and on behalf of others similarly situated and Citizens Property Insurance Corporation, Appellees. |
| Court | Florida District Court of Appeals |
Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola, and Terrie L. Didier of Beggs & Lane, RLLP, Pensacola, for Appellants.
John Beranek of Ausley & McMullen, Tallahassee, and Stuart R. Michelson of the Law Office of Stuart R. Michelson, Fort Lauderdale, for Appellees Scylla Properties, LLC and William D. Clark, Jr., and G. Alan Howard and Robert M. Dees of Milam, Howard, Nicandri, Dees & Gillam, P.A., Jacksonville, for Appellee Citizens Property Insurance Corporation.
In proceedings below, Kramer A. Litvak, John B. and Nancy L. McKamey, Carolyn Davis, Joseph Reynes and Michael Thiel (the Litvak group) sought unsuccessfully to be heard in opposition to a motion to certify a class. We have jurisdiction, not only to review the order denying the Litvak group's motion to intervene as named plaintiffs, but also, since the Litvak group are members of the class— although not named parties—to review the class certification order itself. In certifying the class, the trial court ruled class members like appellants had no ability to opt out. We do not address the merits of the certification order, but we reverse the order denying intervention, vacate the class certification order, and remand for further proceedings.
Scylla Properties, LLC, and William D. Clark, Jr. (Scylla and Clark), brought suit against Citizens Property Insurance Corporation (Citizens) seeking to recover under insurance policies for losses incurred during the 2004 hurricane season. Asserting that a common legal question1 made a class action appropriate, Scylla and Clark filed an amended complaint seeking certification, under Rules 1.220(b)(1) and 1.220(b)(3), Florida Rules of Civil Procedure, of a class that "consist[ed] of all persons who [we]re insured with Citizens and whose homes [we]re located in Florida and were rendered a `total loss' by Hurricanes in 2004, with the exception of those properties located within the jurisdiction of the Fourth District Court of Appeal."
Meanwhile, in separate actions, Mr. Litvak, like some (but not all) of the other members of the Litvak group, had also filed suit against Citizens, seeking recovery individually on first-party claims for losses incurred during the 2004 hurricane season. (Members of the Litvak group who had not already done so, the motion to intervene alleges, had plans to file suit against Citizens.) At a hearing in the Escambia County case Mr. Litvak brought against Citizens, the motion further alleges, Citizens' counsel told him that an order certifying a mandatory class—the order on review in our case No. 1D05-2163—had been entered in the present (Scylla and Clark) case on April 5, 2005.
Less than thirty days later, on May 2, 2005, the Litvak group filed a motion to intervene in the Scylla and Clark case pursuant to Florida Rule of Civil Procedure 1.230. The motion requested "leave to intervene in this matter for all purposes, including the right to appeal the Court's ... Findings and Order Certifying Class." The Litvak group alleged that they were members of the certified class, albeit not named, and asserted: "Litvak does not believe that the issues raised in this matter are best resolved by a class action and will opt out of the class if given the opportunity to do so."2 The motion stated the Litvak group's intent to appeal the order certifying the class, unless it was revised to allow them to opt out.
Although their motion to intervene was still pending, the Litvak group filed a notice of appeal of the order certifying the class on May 5, 2005, thus initiating our case No. 1D05-2163.3 Then on May 9, 2005, the Litvak group filed a motion asking us to relinquish jurisdiction, so that the trial court could rule on its motion to intervene. While the motion to relinquish jurisdiction was pending, the trial court held a hearing on reconsideration of class certification, the Litvak group's motion to intervene, and the motions for summary judgment filed by Citizens and Scylla and Clark.4 Only thereafter did we relinquish jurisdiction.
Once we had relinquished jurisdiction in No. 1D05-2163, the trial court acted on the motion to intervene then pending below, denying it on June 8, 2005. We had resumed jurisdiction in No. 1D05-2163 by the time the Litvak group filed a motion for rehearing in the trial court as to, then a timely notice of appeal of, the order denying the motion to intervene, giving rise to our case No. 1D05-3727. The appeals from the order certifying the class, No. 1D05-2163, and the order denying the motion to intervene, No. 1D05-3727, were consolidated.5 We now reverse the order denying the motion to intervene in No. 1D05-3727 and vacate the order certifying the class in No. 1D05-2163.
The amended complaint alleged a class so numerous that joining all members was impractical6; that the named plaintiffs' claims turned on a common legal question; and that they were typical of the claims of the whole class, in that all members had insurance policies written by Citizens and subject to the Valued Policy Law (VPL), and had suffered total losses caused in part by windstorm. The amended complaint alleged that the class representatives would fairly and adequately protect the interests of the members of the class; that all class members' financial interests were aligned in the litigation; and that class counsel included the lawyer who brought the claim which resulted in the decision in favor of the insureds in Mierzwa v. Florida Windstorm Underwriting Association, 877 So.2d 774 (Fla. 4th DCA 2004). Citizens answered and filed a counterclaim for declaratory relief, seeking a declaration that the VPL was not applicable; and alternatively that, if the VPL was applicable, Citizens was entitled to set off flood insurance payments to plaintiffs.
Citizens and Scylla and Clark filed an agreed motion for class certification, essentially tracking the allegations in the amended complaint, but stating that "[a]lthough Plaintiffs originally brought this action as a class action under Fla. R. Civ. P. 1.220(b)(1) and 1.220(b)(3), Plaintiffs and Citizens agree that this action should be heard as a class action under Fla. R. Civ. P. 1.220(b)(1) and 1.220(b)(2)." Simultaneously the parties jointly filed their stipulation of contested matters as to certification of class.
The parties identified only two issues as contested: whether the class should include owners of insured property lying within the territorial limits of the Fourth District Court of Appeal; and whether the class should be subdivided into three subclasses, based on the extent of damage done by wind. Scylla and Clark sought to exclude cases governed by the Fourth District's decision in Mierzwa, asserting that the insured parties in those cases were already assured that the VPL would apply in their cases. Citizens argued for three subclasses of insured owners whose property the hurricane had rendered a total loss: those whose windstorm damage did not exceed the deductible; those whose windstorm damage did exceed the deductible but caused less than half of the loss; and those whose windstorm damage caused more than half of the total loss. Opposing subclasses altogether, Scylla and Clark argued that plaintiffs whose windstorm damage did not exceed the deductible should simply be excluded from the class.
At the hearing on the motion for class certification, the trial judge raised the possibility of giving putative class members notice and an opportunity to opt out, but ultimately ruled that, although the plaintiffs originally brought the action under Florida Rules of Civil Procedure 1.220(b)(1) and (b)(3), requiring that notice be given to all class members,7 the parties had since agreed, and should be allowed, to proceed with the case as a class action under Rules 1.220(b)(1) and (b)(2). The trial court dispensed with notice and ruled that the class consisted of all persons who were insured by Citizens as to structures deemed a total loss after the 2004 hurricane season, excluding those with properties located within the jurisdiction of the Fourth District Court of Appeal. Finding that all of the class members entered into the same form contract with Citizens, the trial court divided the class into three subclasses based on the part wind damage played in rendering the property a total loss.
The class certification order listed the Rule 1.220(a) requirements for certifying a class: numerosity of claims, commonality of claims, typicality of claims, and fair and adequate representation by the class representatives. Explaining that it had separately considered each of the requirements, the trial court made findings that the case met each requirement.8 The class was certified as follows:
All persons whose Citizens-insured structures were damaged in the 2004 hurricanes by a combination of wind and flood in an amount giving rise to an actual or constructive total loss of the insured structures, other than those whose Citizens-insured structures were located in the counties of Broward, Indian River, Martin, Okeechobee, Palm Beach or St. Lucie.
In keeping with Citizens' request, the class was also divided into three subclasses:
a. insureds whose losses attributable to wind damage were less than their deductible;
b. insureds whose losses [were] attributable to wind damage were in excess of their deductible, but less than 50% of the value of the property; and
c. insureds whose losses attributable to wind damage were in excess of 50%, but less than 100% of the value of the property.
(No provision was made for the...
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