Sullivan et. al v. Government Employees Insurance Company

Filing 152

ORDER granting in part and denying in part 119 Plaintiffs' Amended Motion to Certify Class. See Order for details. Signed by Judge Paul G. Byron on 4/4/2019. (JRJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

MAURICE JONES, ANTHONY C. COOK
and MICAH BELLAMY,
Plaintiffs,
v.

Case No: 6:17-cv-891-Orl-40LRH

GOVERNMENT
EMPLOYEES
INSURANCE COMPANY and GEICO
GENERAL INSURANCE COMPANY,
Defendants.
/
ORDER
Before the Court are Plaintiffs’ Amended Motion for Class Certification (Doc. 119
(“Motion”)) and responsive filings (Docs. 129, 134, 140). The Court held a hearing on the
Motion (Doc. 151); this Order follows.
I.

BACKGROUND
In this case, six named Plaintiffs 1 bring suit on behalf of two putative classes

against Defendants, Government Employees Insurance Company, GEICO General
Insurance Company, and GEICO Indemnity Company (collectively, “GEICO” or
“Defendants”). (Doc. 71). Plaintiffs, who were insureds of GEICO, claim that GEICO
failed to pay mandatory title transfer fees and license plate transfer fees (“title and tag
transfer fees”) on first-party total loss auto insurance claims. (Id. ¶¶ 1–5). Plaintiffs

1

Elizabeth Sullivan, Anthony Cook, Wilson Santos, Maurice Jones, Anthony Lorenti,
and Ashley Barrett (collectively, “Plaintiffs”). (Doc. 71, p. 1).

maintain that GEICO’s failure to pay these fees constitutes a breach of contract and
violates state law. (Id.).
The GEICO insurance policies covering the putative class members’ total loss
claims (the “Policies”) had identical essential terms. (Doc. 71, ¶¶ 14–20). Critically, the
Policies define actual cash value (“ACV”) as “the replacement cost of the auto or property
less depreciation or betterment.” (Doc. 71-1, p. 13; Doc. 119-3, p. 12; Doc. 114-4, p. 13).
Because title and tag transfer fees are mandatory costs associated with the purchase or
lease of a replacement vehicle after a total loss, these fees are included in “replacement
cost” and must be paid under the Policies. (Doc. 119, p. 2; Doc. 119-1). Despite being
contractually obligated to pay them, it is GEICO’s practice to not pay title and tag transfer
fees on total loss claims. (Doc. 119-7, pp. 5–6).
Accordingly, Plaintiffs seek to certify Florida and multi-state classes of similarlysituated individuals to recover unpaid title and tag transfer fees after total loss events.
(Doc. 119, p. 1). GEICO opposes, advancing numerous arguments as to why Plaintiffs ’
Motion should be denied in its entirety.
II.

STANDARD OF REVIEW
“Questions concerning class certification are left to the sound discretion of the

district court.” Griffin v. Carlin, 755 F.2d 1516, 1531 (11th Cir. 1985). To certify a class
action, the moving party must satisfy a number of prerequisites. First, the movant must
demonstrate the named plaintiffs have standing and the class is clearly ascertainable.
Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1304 (11th Cir. 2012); Vega v. T-Mobile USA,
Inc., 564 F.3d 1256, 1265 (11th Cir. 2009). Second, the putative class must meet all four
requirements enumerated in Federal Rule of Civil Procedure 23(a). Id. Those four

2

requirements are “numerosity, commonality, typicality, and adequacy of representation.”
Id. (quoting Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1188 (11th Cir.
2003)). Third, the putative class must fit into at least one of the three class types defined
by Rule 23(b). Id. Relevant to this case, Rule 23(b)(3) permits certification of a class
where (1) common questions of law or fact predominate over questions affecting class
members individually, and (2) a class action is the superior method for resolving these
common questions. Id. A party moving for certification of a Rule 23(b)(3) class in this
Court also faces the added hurdle of proposing a cost-effective means of providing notice
to putative class members. M.D. Fla. R. 4.04(b).
Certifying a class involves “rigorous analysis of the [R]ule 23 prerequisites.” Vega,
564 F.3d at 1266 (quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996)).
This inquiry is not a merits determination, though the Court “can and should consider the
merits of the case [only] to the degree necessary to determine whether the requirements
of Rule 23 will be satisfied.” Id. (quoting Valley Drug, 350 F.3d at 1188 n.15).
III.

DISCUSSION
A.

The Proposed Florida Class

Plaintiffs seek to certify the following Florida Class pursuant to Federal Rule of Civil
Procedure 23(a) and (b)(3):
All Florida residents insured for PPA [private passenger auto] physical
damage coverage by [GEICO] who suffered a first-party loss of a covered
owned (i.e., not leased) vehicle at any time during the five (5) years prior to
the filing of this lawsuit through the date of class certification, whose claims
were adjusted by a Defendant as a total loss claim, whose claims resulted
in payment by a Defendant of a covered claim, and who were not paid title
fees and/or license plate transfer fees.
(Doc. 119, p. 12–13).

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1.

Standing

To proceed with certification of this class, named Plaintiffs must have standing.
Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1321 (11th Cir. 2008). Prior to summary
judgment, these elements are not particularly onerous and will be satisfied by “general
factual allegations of injury resulting from the defendant’s conduct.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561 (1992). The parties do not dispute this threshold inquiry,
and the Court’s independent review finds that named Plaintiffs have standing.
2.

Ascertainability

“Before a district court may grant a motion for class certification, a plaintiff seeking
to represent a proposed class must establish that the proposed class is adequately
defined and clearly ascertainable.” Little, 691 F.3d at 1304; see also John v. Nat'l Sec.
Fire & Cas. Co., 501 F.3d 443, 445 (5th Cir. 2007). To prove ascertainability, “the class
definition [must] contain[] objective criteria that allow for class members to be identified in
an administratively feasible way.” Karhu v. Vital Pharm., Inc., 621 F. App’x 945, 946 (11th
Cir. 2015). “Identifying class members is administratively feasible when it is a
‘manageable process that does not require much, if any, individual inquiry.’” Id. (quoting
Bussey v. Macon Cty. Greyhound Park, Inc., 562 F. App’x 782, 787 (11th Cir. 2014) (per
curiam)). 2 The plaintiff must offer more than general assertions that class members can
be identified through the defendant’s records; “the plaintiff must also establish that the
records are in fact useful for identification purposes, and that identification will be

2

“Unpublished opinions are not controlling authority and are persuasive only insofar as
their legal analysis warrants.” Bonilla v. Baker Concrete Const., Inc., 487 F.3d 1340,
1345 (11th Cir. 2007).

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administratively feasible.” Id. at 948. The Court “need not know the identity of each class
member before certification; ascertainability requires only that the [C]ourt be able to
identify class members at some stage of the proceeding.” Id. at 952 (Martin, J.,
concurring) (quoting Newberg on Class Actions § 3.3 (5th ed.)). In Roth v. GEICO Gen.
Ins. Co., the Southern District of Florida found a parallel class of insureds with leased
vehicles covered by GEICO policies was ascertainable. 3
Plaintiffs maintain that the Florida class is ascertainable, and in support submit a
declaration from economist Jeffrey O. Martin. (Doc. 119-5 (“Martin Decl.”)). Mr. Martin
sets out a multi-layer, semi-automatic methodology for identifying class members by
reference to ten data indicators from GEICO’s data and third-party title information. (Id.).
Defendants argue that Plaintiffs have not proven ascertainability because they
cannot differentiate between owned vehicles (part of the class) and leased vehicles (not
part of the class). (Doc. 129, pp. 3–6). GEICO maintains that the Martin declaration is not
entitled to consideration because it was untimely filed and, even if it were considered, it
does not articulate a sufficiently reliable method for identifying owned vehicles “resulting
in a class that is both under and over inclusive.” 4 (Id.). GEICO also challenges
ascertainability on the ground that Plaintiffs have not excluded claims where GEICO paid
insureds title and tag transfer fees. (Id. at p. 7).

3

No. 16-62942-Civ, Doc. 165, p. 7 n.1 (S.D. Fla. May 3, 2018) (“Roth”); see also Roth,
Doc. 267, p. 3 (“[T]he Court finds that a simple back-and-forth process to vet the final
list of class members and their damages amounts is not overly burdensome and will
result in a final proposed judgment suitable for entry by the Court. The Court will refer
this matter to the magistrate judge to supervise this process.”).

4

Prior to this hearing, the Magistrate Judge denied Defendant’s objection to the
timeliness of Mr. Martin’s disclosure.

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In their Reply brief, Plaintiffs maintain that—even before applying Mr. Martin’s
methodology—the class is 98.17% ascertained, and the remaining 1.83% of claims
represent a de minimis amount. (Doc. 134, p. 2). And after applying Mr. Martin’s
methodology, the Florida class can be identified with greater certainty. (Id.). GEICO does
not dispute this characterization in its Surreply, and instead only challenges
ascertainability as to the multi-state proposed class. 5 (Doc. 140).
On this record, it appears that the class is ascertainable. An identification rate
exceeding 98% assures the Court that the class is ascertainable, if not already
substantially ascertained. Further, Plaintiffs identify a thorough methodology for
identifying classmembers through the Martin declaration. In short, Plaintiffs met their
burden of showing that the class can be ascertained by objective criteria in an
administratively feasible way. See Karhu, 621 F. App’x at 946. 6
3.

Numerosity

Numerosity requires that “the class is so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). The general rule is that more than forty members
is sufficient to demonstrate that joinder is impracticable. Marcus v. BMW of N. Am., LLC,
687 F.3d 583, 595 (3d Cir. 2012). While the party seeking certification need not identify
the exact number of members in the proposed class, she cannot rest on “mere allegations

5

However, during the hearing GEICO advanced numerous challenges to Mr. Martin’s
methodology, which the Court will address in the context of a Daubert challenge. In
deciding Plaintiff’s motion, based upon the record thus far, the Court is satisfied that
Mr. Martin has articulated ascertainability via his analysis.

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That the class is not perfectly defined at this stage does not preclude certification. See
id. at 952. To the extent there is slight over- and under-representation of owned vehicle
insureds in the class, the Court is confident that the parties can cooperate in a “simple
back-and-forth process to vet the final list.” See Roth, Doc. 267, p. 3.

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of numerosity.” Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983).
Rather, the movant must provide the court with sufficient proof to support a reasoned
finding that the certified class would meet the numerosity requirement. Vega, 564 F.3d at
1267.
Plaintiffs assert that “there are approximately 199,485 class members for the class
period up through July 13, 2018,” per GEICO’s records. (Doc. 119, p. 14 (citing Doc. 1195, ¶ 8)). Defendants do not challenge numerosity. (Doc. 129). This requirement is easily
met. See Marcus, 687 F.3d at 595.
4.

Commonality

Commonality requires that “there are questions of law or fact common to the class.”
Fed. R. Civ. P. 23(a)(2). This prerequisite does not demand that all questions of law or
fact be common among the class members, only that all members base their claims on a
common contention that is “capable of classwide resolution.” Wal-Mart Stores, Inc. v.
Dukes, 564 U.S. 338, 349–50 (2011). One common question of law or fact is sufficient so
long as answering the question is central to determining the validity of all of the class
members’ claims and will aid in the resolution of the case. Id. at 359.
Plaintiffs maintain that all claims share a common question of law: “whether GEICO
breached the ‘form’ insurance Policies by failing to pay title or tag transfer fees on Florida
first-party PPA [owned] vehicle total loss claims.” (Doc. 119, p. 12). GEICO argues that
Plaintiffs’ supposed common question can only be answered on a claim-by-claim basis
because the value of each claim depends on the insured having a valid Florida license
plate at the time of the loss and the insured incurring Florida tag and title fees in the
purchase of a replacement vehicle. (Doc. 129, pp. 7–8).

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The Court finds that Plaintiffs have satisfied commonality. The question of whether
GEICO breached its contractual obligations to insureds by not paying title or tag transfer
fees is common to all putative classmembers and “capable of classwide resolution.” See
Dukes, 564 U.S. 338, 349–50. Though Defendants protest that some classmembers paid
more than $79.85 and some (who did not replace their vehicle) paid nothing does not
affect Defendants’ responsibility to pay mandatory title and tag transfer fees to all insureds
that suffered a PPA total loss claim. In any event, Defendants’ merits challenge is best
addressed at the summary judgment stage or at trial. See Vega, 564 F.3d at 1266.
Commonality is met.
5.

Typicality

Typicality demands that “the claims or defenses of the representative parties are
typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). This element of
certification “focuses on the similarity between the named plaintiffs’ legal and remedial
theories and the theories of those whom they purport to represent.” Mullen v. Treasure
Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir. 1999) (quoting Lightbourn v. Cty. of El
Paso, 118 F.3d 421, 426 (5th Cir. 1997)), cert. denied, 528 U.S. 1159 (2000). The named
plaintiffs’ claims do not need to be identical to the claims of the absent class members,
but they should “share the same essential characteristics” such that it would make sense
for the plaintiffs to act as the class’s representatives. Haggart v. United States, 89 Fed.
Cl. 523, 534 (Fed. Cl. 2009) (quoting Curry v. United States, 81 Fed. Cl. 328, 335 (Fed.
Cl. 2008)).
In support of the typicality requirement, Plaintiffs contend that the class Plaintiffs ’
claims were insured by materially identical GEICO policies, the named Plaintiffs suffered

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a total PPA loss, and GEICO allegedly breached the Polices in the same way—by failing
to pay mandatory title and tag transfer fees. (Doc. 119, p. 17). GEICO disagrees, arguing
that each classmember will need to engage in an individual analysis to determine fees
owed. (Doc. 129, p. 9). 7
The named Plaintiffs’ claims are typical of the putative class. Like the putative
Florida classmembers’ claims, named Plaintiffs’ claims involve the alleged breach of
identical contractual provisions pursuant to GEICO’s standard practice. (Doc. 119-3, pp.
12–15; Doc. 119-4, pp. 12–15; Doc. 119-7, pp. 5–6). Because the classmembers’ claims
are approximately identical and proving the named Plaintiffs’ claims would necessarily
prove claims classwide, typicality is met. See Kornberg v. Carnival Cruise Lines, 741 F.2d
1332, 1337 (11th Cir. 1984) (“[Typicality is met] if the claims or defenses of the class and
the class representative[s] arise from the same event or pattern or practice and are based
on the same legal theory.”); Haggart, 89 Fed. Cl. at 534.
6.

Adequacy of Representation

The final Rule 23(a) element, adequacy of representation, requires that “the
representative parties will fairly and adequately protect the interests of the class.” Fed. R.
Civ. P. 23(a)(4). Adequacy of representation refers both to the named plaintiff who intends

7

GEICO relies on DWFII Corp. v. State Farm Mut. Auto. Ins. Co., 271 F.R.D. 676 (S.D.
Fla. 2010), to support its argument that typicality is not met where each “member of
the putative class would have to engage in” an individualized analysis involving
“different policyholders, different medical services, different billing codes, and different
defenses.” Id. at 688. DWFII is inapposite. Although the case at bar involves different
policyholders, far fewer individualized inquiries are implicated by this case.
Defendants allegedly breached contracts with identical material terms by engaging in
a uniform policy to not pay mandatory title and tag transfer fees. This is not a case
involving myriad “medical services, different billing codes, and different defenses.”
See DWFII, 271 F.R.D. at 688.

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to represent the absent class members and to the lawyers who intend to serve as class
counsel. London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1253 (11th Cir. 2003).
Regarding the latter, class counsel will adequately represent the class if they are
“qualified, experienced, and generally able to conduct the proposed litigation.” Griffin v.
Carlin, 755 F.2d 1516, 1533 (11th Cir. 1985). This requires the court to evaluate a number
of factors, including counsel’s knowledge and experience with class action litigation,
counsel’s knowledge and experience with the substantive law governing the class’s
claims, the resources available to counsel to pursue the class’s claims, the quality of
counsel’s litigation efforts so far, and any other relevant factor speaking to counsel’s
ability to represent the class’s legal interests. See 1 NEWBERG ON CLASS ACTIONS §§ 3:73–
3:79 (5th ed. 2011).
As to the adequacy of the proposed class representative, a named plaintiff will be
adequate as long as (1) she is qualified, and (2) she has no substantial conflict of interest
with the class. Valley Drug, 350 F.3d at 1189. A named plaintiff is qualified if she holds a
basic understanding of the facts and legal theories underpinning the lawsuit and is willing
to shoulder the burden of litigating on the class’s behalf. See New Directions Treatment
Servs. v. City of Reading, 490 F.3d 293, 313 (3d Cir. 2007). At the certification stage,
inquiry into a proposed representative’s qualifications is not especially stringent. See
Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 727 (11th Cir. 1987) (stating that
certification should only be denied for inadequate representation where the plaintiff’s lack
of knowledge and involvement with the case essentially amounts to abdication of her role
in the case), cert. denied, 485 U.S. 959 (1988). A named plaintiff will have a substantial
conflict of interest which precludes her from acting as class representative when her

10

interests are so antagonistic to the interests of the absent class members that she cannot
fairly pursue the litigation on their behalf. See Griffin, 755 F.2d at 1533; Carriuolo v. Gen.
Motors Co., 823 F.3d 977, 989 (11th Cir. 2016).
Defendants challenge adequacy of representation, principally arguing that named
Plaintiffs cannot adequately represent the class because some classmembers may have
incurred different fees or no fees at all if they did not replace the lost vehicle. (Doc. 129,
p. 9). The Court disagrees. First, GEICO points to scant evidence that the fees paid by
named Plaintiffs and putative classmembers differed. Second, GEICO does not address
Plaintiffs’ rebuttal, that GEICO was obligated to pay title and transfer fees regardless of
whether the vehicle was replaced, negating some of the alleged variation in claim value.
The Court finds the named Plaintiffs are adequate class representatives. The Court
does not perceive any conflicts of interest between Plaintiff and the putative class.
Additionally, Plaintiffs’ counsel is qualified under Rule 23(g)(1) to represent the class.
Class counsel is experienced in litigating class actions and has recently enjoyed success
in class actions nearly identical to this case. (See Doc. 119-1).
7.
In addition

Predominance and Superiority
to demonstrating standing and satisfying Rule 23(a)’s four

prerequisites, a plaintiff must show that the putative class she wishes to certify falls into
at least one of Rule 23(b)’s three class types. Rule 23(b)(3) affords class status where (1)
“the questions of law or fact common to class members predominate over any questions
affecting only individual members,” and (2) “a class action is superior to other available
methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

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These two elements are referred to as “predominance” and “superiority,” respectively,
and the Court discusses them in turn.
a.

Predominance

Predominance refers to the class’s cohesion as a whole and examines whether
adjudication of members’ individual interests on a classwide basis would be appropriate.
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). In determining
predominance, the district court assesses the issues of law and fact likely to arise during
the litigation and weighs whether issues common to the class predominate over issues
which are unique to each individual class member. Id. at 622–23 & n.18. Ultimately,
predominance revolves around the quality, rather than the quantity, of the class members’
shared interests. Stillmock v. Weis Mkts., Inc., 385 F. App’x 267, 272 (4th Cir. 2010).
Where the litigation is defined by individualized inquiries regarding the defendant’s
possible liability to each class member, predominance is lacking and certification should
be denied. Sacred Heart Health Sys., Inc. v. Humana Military Healthcare Servs., Inc., 601
F.3d 1159, 1170 (11th Cir. 2010). However, where the class members seek answers to
the same questions and those answers would “have a direct impact on every class
member’s effort to establish liability,” common issues predominate and certification
should be granted. Id. (quoting Vega, 564 F.3d at 1270) (internal quotation marks and
emphasis omitted).
Defendants overstate both the number of individual issues and the potential
difficulties they may cause. For instance, “thousands of individual file-by-file reviews”
(Doc. 129, p. 11) will not be required to address insureds who were paid some amount of
title or tag transfer fees. Rather, damage awards to classmembers who received partial

12

payment (the number of which GEICO fails to mention) can be mechanically set off by
the amount paid. See, e.g., Brown v. Electrolux Home Prod., Inc., 817 F.3d 1225, 1239
(11th Cir. 2016) (“[I]ndividual damage calculations generally do not defeat a finding that
common issues predominate.”). GEICO’s challenge to the flat $79.85 Plaintiffs seek for
the class is likewise unpersuasive. Plaintiffs maintain that the minimum combined title and
tag transfer fees assessed in Florida is $79.85. The Amended Complaint, class definition,
and Plaintiffs’ briefs are consistent on the point that Plaintiffs only seek to recover this
minimum mandatory amount on behalf of the class. That some classmembers may have
incurred slightly more fees levied by municipal governments has little bearing on the
merits of Plaintiffs’ case. Defendants remaining arguments fail to move the needle and
are rejected out of hand. Predominance is easily met.
b.

Superiority

Superiority refers to whether the class action mechanism “would be the best or the
fairest way” to resolve the parties’ dispute when compared to available alternatives. Ungar
v. Dunkin’ Donuts of Am., Inc., 68 F.R.D. 65, 148 (E.D. Pa. 1975), rev’d on other grounds,
531 F.2d 1211 (3d Cir. 1976), cert. denied, 429 U.S. 823 (1976). Determining superiority
requires the court to evaluate the four factors enumerated by Rule 23(b)(3). See Vega,
564 F.3d at 1278. These four factors are: (1) the class members’ interests in individually
controlling the prosecution of their own claims, (2) the extent and nature of litigation
already initiated by individual class members, (3) the desirability of concentrating litigation
in a single forum, and (4) whether there will be difficulties in managing a class action.
Fed. R. Civ. P. 23(b)(3)(A)–(D).

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Defendants’ superiority argument lacks merit. According to Defendants, the Court
will need to hold “[t]housands of mini-trials” to determine (i) who is in the class, (ii) whether
title and tag fees are owed, and (iii) if so, in what amount. (Doc. 129, pp. 12–13). Not so.
Class membership can be ascertained by reference to GEICO’s data and title records.
Further, Defendants have not shown that an insured must actually incur title and tag fees
to be entitled to the same under the Policies. And as to amount, Plaintiffs proffer that they
seek $79.85 per classmember, which represents the minimum title and tag transfer fees
in Florida.
Tellingly, Defendants ignore the other three factors identified by Rule 23(b)(3) and
indeed the very purpose of class action litigation. “The class[ ]action device was designed
as ‘an exception to the usual rule that litigation is conducted by and on behalf of the
individual named parties only.’” Gen. Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 155
(1982) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). Class actions
mitigate against the unlikelihood that individuals will pursue small claims “by aggregating
the relatively paltry potential recoveries into something worth someone’s . . . labor.”
Amchem Prods., 521 U.S. at 617 (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338,
344 (1997)). The case at bar exemplifies the class action purpose. Plaintiffs seek to certify
a class to vindicate approximately 200,000 $79 claims. Defendants’ assertion that
“individual actions” would be the fairest way to resolve the parties’ dispute cannot be
taken seriously. The implied expectation that droves of individuals within the putative
class would, absent class certification, engage lawyers to pursue $79 claims defies logic.
See Thorogood v. Sears, Roebuck & Co., 547 F.3d 742, 744 (7th Cir. 2008) (“If every
small claim had to be litigated separately, the vindication of small claims would be rare.”);

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see also Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 813 (1985) (noting that class
actions often involve “an aggregation of small individual claims, where a large number of
claims are required to make it economical to bring suit”).
Reference to the Rule 23(b)(3) factors erases all doubt that superiority is met: (1)
the class members’ interest in controlling the prosecution of these relatively small claims
is low; (2) Plaintiffs have invested substantial time and resources into litigating this action,
and several other related class actions are ongoing or already completed; (3) combining
the large number of small claims by Florida classmembers in this Court is highly desirable;
and (4) there will not be substantial difficulties in litigating these claims together. See Fed.
R. Civ. P. 23(b)(3).
Thus, the class action method provides a superior method for resolving the parties’
dispute, as compared to the available alternatives.
B.

The Eight-State Class

Plaintiffs also seek to certify the following eight-state class of individual plaintiffs:
Residents of the states of Connecticut, Indiana, Maine, New Hampshire,
New Jersey, New York, Vermont, and Wyoming insured for PPA physical
damage coverage by [Geico] who suffered a first-party loss of a covered
vehicle at any time during the applicable statute of limitations in each state
through the date of class certification, whose claims were adjusted by a
Defendant as a total loss claim, whose claims resulted in payment by a
Defendant of a covered claim, and who were not paid title and tag fees
mandated on the purchase of a private passenger auto.
(Doc. 134, p. 10). Plaintiffs initially proposed a forty-nine state class (Doc. 119, p. 22), but
narrowed the proposition to eight states in their Reply brief. (Doc. 134, p. 10). Plaintiffs
purportedly chose these eight states after learning through discovery that Defendants ’
use substantially similar policy language in these states and “[n]one of these states has

15

any unique state law statute or regulation requiring or precluding payment of title and tag
fees as part of ACV.” (Doc. 134, pp. 8–10).
In arguing for certification of the eight-state class, Plaintiffs generically assert that
“[n]one of these eight states ha[ve] any unique state law statute or regulation requiring or
precluding payment of title and tag fees as part of ACV.” (Doc. 134, pp. 9–10). Plaintiffs
offer no citations to authority showing that each state charged mandatory tag and title
transfer fees—a prerequisite to a claim that Defendants owed putative classmembers
such fees. 8 Without this information, the Court cannot find that Plaintiffs established
commonality or typicality as to the multi-state class.
Plaintiffs have likewise failed to show that the numerosity requirement is met as to
the multi-state class. (Doc. 134). While the Court suspects numerosity would be easily
met, it is Plaintiffs’ burden to affirmatively establish all Rule 23 prerequisites are satisfied.
Plaintiffs’ motion to certify a multi-state class is thus due to be denied.
IV.

CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Plaintiffs’ Amended Motion for Class Certification (Doc. 119) is GRANTED
IN PART and DENIED IN PART.
2. The Court hereby certifies a class (the “Florida Class”) pursuant to Fed. R.
Civ. P. 23(b)(3) consisting of the following:
All Florida residents insured for PPA [private passenger auto]
physical damage coverage by [Geico] who suffered a first-party loss
of a covered owned (i.e., not leased) vehicle at any time during the

8

Defense counsel raised several additional cogent objections to certification of the
multi-state class, including whether the various state law governing the interpretation
of contracts favors Plaintiff or Defendant, and whether each state and county charges
a tag fee.

16

five (5) years prior to the filing of this lawsuit through the date of class
certification, whose claims were adjusted by a Defendant as a total
loss claim, whose claims resulted in payment by a Defendant of a
covered claim, and who were not paid title fees and/or license plate
transfer fees.
3. Elizabeth Sullivan, Anthony Cook, Wilson Santos, Maurice Jones, Anthony
Lorenti, and Ashley Barrett are hereby certified as representatives of the
Florida Class.
4. Bradley W. Pratt, Esq., Pratt Clay, LLC, Tracy L. Markham, Esq., Avolio &
Hanlon, P.C., Andrew Lampros, Esq., Hall & Lampros, LLP, Christopher
Lynch, Esq., Christopher J. Lynch, P.A., Christopher Hall, Esq., Hall &
Lampros, LLP, Edmund A. Normand, Esq., and Normand Law PLLC are
hereby certified as Class Counsel pursuant to Rule 23(g)(1).
5. On or before April 15, 2019, the parties shall jointly file for approval by the
Court a proposed notice to Florida Class members; alternatively, if the
parties cannot agree on a proposed notice, Plaintiffs shall file a proposed
notice on or before [same day], and Defendants shall file any objections
within three (3) days of the filing of Plaintiffs’ proposed notice.
DONE AND ORDERED in Orlando, Florida on April 4, 2019.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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