Summary
finding that plaintiff was an improper class representative, as his claim against insurer was atypical of the class he purported to represent
Summary of this case from Ramon v. the Aries Insurance CompanyOpinion
No. 98-3191
Opinion filed March 10, 1999 JANUARY TERM, A.D., 1999
An appeal from a non-final order of the Circuit Court for Dade County, Margarita Esquiroz, Judge; L.T. No. 97-27588.
Rumberger, Kirk Caldwell, David B. Shelton and Lori J. Caldwell, for appellant.
Robles Gonzalez, and Ervin A. Gonzalez, and John H. Ruiz, for appellee.
Before NESBITT, COPE, and GODERICH, JJ.
Allstate appeals an order granting class certification in the breach of contract suit filed by its insured, Carlos Domato. Domato, the putative class representative, alleged that Allstate habitually withdraws PIP coverage from its insureds without first obtaining an independent medical examination (IME) showing that the claimed medical costs, being challenged by Allstate, were unreasonable or unnecessary. We find that Domato is an improper class representative, as his claim against Allstate is atypical of the class he purports to represent. See Fla.R.Civ.P. 1.220(a); Baptist Hosp. of Miami, Inc. v. Demario, 683 So.2d 641, 643 (Fla. 3d DCA 1996). Unrefuted evidence showed that Allstate did arrange an IME for Domato, but Domato refused to attend the IME. Therefore, Domato has no commonality of interest with a putative class whose complaint, in part, would be that Allstate refused its benefits without an IME. We reverse. Domato's motion for attorney's fees is denied.