Insurance class certification affirmed, merits avoided

Because a ruling for defendant on the merits of plaintiffs' claims makes it unlikely that a court will certify a class action, some Florida courts (and Federal courts in particular) have tended to decide pivotal merits issues prior to deciding class certification issues.  In a departure from that tendency, a Florida appeals court affirmed a trial court order certifying an insurance class in Commonwealth Land Title Ins. Co. v. Higgins (Fla. 1st DCA, Feb. 7, 2011).   

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In Commonwealth, the insureds were homeowners who sued their title company, alleging they were not provided a discount title insurance rate, known as the “reissue rate,” when they refinanced their homes.  The title insurer argued that, if the trial court were to rule in its favor on the merits of the case -- that Florida law places the burden on the homeowners to determine when the reissue rate applied -- then there would be no "common questions of law" and the class could not be certified.

O&P Insurance Class Actions and the Predominance Test

Hurricanes have long tails. Six years after the 2004 hurricane season, class actions are being actively litigated on the issue of general contractor's overhead and profit ("O&P"). In a just-released opinion, Mills v. Foremost Insurance Company, a Tampa federal trial court has denied certification of an O&P class action, principally reasoning that O&P claims could not meet the "predominance" test of the class action rules.