Taran v. Blue Cross Blue Shield of Florida, Inc.

• Decision Date: 08 January 1997
• Docket Number: No. 96-1099,96-1099
• Citation: 685 So.2d 1004
• Parties: 22 Fla. L. Weekly D135 Adam TARAN, Eric Michalowsky, on their own behalf and on behalf of all class members similarly situated, Appellants, v. BLUE CROSS BLUE SHIELD OF FLORIDA, INC., a Florida corporation, Principal Mutual Life Ins. Co., an Iowa corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1004

685 So.2d 1004

22 Fla. L. Weekly D135

Adam TARAN, Eric Michalowsky, on their own behalf and on behalf of all class members similarly situated, Appellants, v. BLUE CROSS BLUE SHIELD OF FLORIDA, INC., a Florida corporation, Principal Mutual Life Ins. Co., an Iowa corporation, Appellees.

No. 96-1099.

District Court of Appeal of Florida Third District.

Jan. 8, 1997.

Kozyak Tropin & Throckmorton and David P. Milian, Miami; Roger S. Kobert, Coral Gables, for appellants.

Bunnell, Woulfe, Kirschbaum, Keller & McIntyre and Nancy W. Gregoire and W. Edward McIntyre, Ft. Lauderdale; Jones Foster Johnston & Stubbs and Scott G. Hawkins, West Palm Beach, for appellees.

Before COPE, GERSTEN and SHEVIN, JJ.

COPE, Judge.

Adam Taran and Eric Michalowsky appeal a summary final judgment entered against them on their complaint against appellees Principal Mutual Life Insurance Co. and Blue Cross Blue Shield of Florida, Inc. We affirm.

Plaintiffs Taran and Michalowsky filed class action complaints against defendants Principal and Blue Cross, alleging that the insurance companies had charged excessive health insurance premiums to their Florida insureds in violation of sections 627.641, 627.6415, 627.6575, and 627.6578, Florida Statutes (1995) ("Newborn Statutes"), which regulate the health insurance coverage and rates for newborn children, adopted children, and foster children. ¹ Plaintiff Taran's health insurance was provided by Principal and plaintiff Michalowsky's health insurance was provided by Blue Cross.

Defendants Principal and Blue Cross moved for summary judgment. The insurers filed affidavits showing that the insurance charges for plaintiffs Taran and Michalowsky were correct under the Newborn Statutes. The insurers requested summary judgment on plaintiffs' individual claims, and summary judgment establishing that plaintiffs did not have standing to pursue a class action on behalf of other insureds, since these plaintiffs had not suffered any cognizable injury.

Plaintiffs did not offer any affidavits or other evidence to contradict the insurers' position that plaintiffs had not been overcharged. Instead plaintiffs argued that, as a matter of law, the trial court was required to consider first the question of whether to certify a class. According to the plaintiffs, only after deciding whether a class should be certified could the trial court consider the question of the plaintiffs' individual standing. The trial court disagreed, reasoning that the plaintiffs must have standing in order to be able to proceed with the class action. The court entered summary judgment in favor of defendants, and plaintiffs have appealed.

We affirm the summary judgment on authority of Baptist Hospital of Miami, Inc. v. DeMario, 683 So.2d 641 (Fla. 3d DCA 1996). In that case, the trial court proceeded to consideration of class certification without resolving a substantial challenge that had been raised with respect to the class plaintiff's standing. In quashing the trial court order, this court observed that if the class plaintiff "were determined to have no standing, he obviously would have no right to continue to pursue discovery on behalf of a putative class whose rights, unlike his own, remain to be litigated." Id.; see also 1 Herbert Newberg & Alba Conte, Newberg on Class Actions [hereinafter Newberg on Class Actions ] § 2.05 (1992), and cases cited therein. "[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." O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674, 682 (1974) (footnote and citations omitted).

As stated in Newberg on Class Actions:

Care must be taken, when dealing with apparently standing-related concepts in a class action context, to analyze individual standing requirements separately and apart from [Federal] Rule [of Civil Procedure] 23 class prerequisites. Though the concepts appear related, in that they both seek to measure whether the proper party is before the court to tender the issues for litigation, they are in fact independent criteria.... Because individual standing requirements constitute a threshold inquiry, the proper procedure when the class plaintiff lacks individual standing is to dismiss the complaint, not to deny the class for inadequate representation. The class issues are not reached in this instance. ²

1 Newberg on Class Actions § 2.09, at 2-57 (footnotes omitted; emphasis added). Summary judgment was permissible in these circumstances.

Plaintiffs contend that the trial court erred by precluding class discovery until it was determined whether plaintiffs had standing. The trial court prohibited class discovery but allowed discovery on the plaintiffs' individual claims and on plaintiffs' standing. There was no abuse of discretion in this ruling. See Baptist Hospital of Miami v. DeMario, 683 So.2d 641.

Plaintiffs argue, however, that precluding class discovery pending determination of plaintiffs' standing runs counter to Frankel v. City of Miami Beach, 340 So.2d 463 (Fla.1977). We disagree. The Frankel court outlined the general...