THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, APPELLANT,
v.
ALLEN FULLER, APPELLEE
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A class action complaint alleging that insurance companies systematically misrepresented deductible amounts under major medical policies was improperly certified. The court reversed the denial of the insurer's motion to dismiss, holding that fraud and misrepresentation claims are not suitable for class action treatment, and remanded for filing of an individual complaint.
A class action is not permissible where the claims involve fraud and misrepresentation, and where class members have separate commercial transactions with no contractual relationships between them and potentially different defendants. The motion to dismiss was properly granted because the complaint failed to establish a proper basis for class action treatment.
[1] A class action is impermissible when the basis for recovery is alleged fraud and misrepresentation.
[2] A class action is not proper where the claims involve commercial transactions between purported class plaintiffs with no contractual relationship or co-operative enterpri…
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Join FLexlaw to unlock all legal intelligence“the basis upon which recovery is sought by the complaint for each of the members of the defined class is alleged fraud and misrepresentation. For the reasons stated in Osceola Groves v. Wiley, supra, proceeding therefor by class suit is impermissible.”
Establishes the core holding that fraud and misrepresentation claims cannot proceed as class actions
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Join FLexlaw to unlock all legal intelligenceAllen Fuller filed a class action complaint against Equitable Life Assurance Society and other insurance companies, alleging they systematically over-…
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The appellee Allen Fuller filed a complaint against the appellant insurance company, for himself and “all persons similarly situated,” who were described as “insureds under major medical policies with one or more of the defendant insurers which policies provide for the payment by the insurer of all or part of the amount by which covered charges exceed a deductible amount and define the deductible amount as the greater of: (1) a basic deductible, and (2) the amount of benefits provided for such covered charges under other medical expense coverage.”
In addition to proceeding on the basis of a class action as to plaintiffs, the complaint presented a class action as to defendants, by purporting to include as defendants, without naming them, all insurance companies doing business in the State of Florida which had a similar type policy with any such person and who had paid benefits to an insured on the basis set out below.
The gravamen of the action as alleged was that such insurers had systematically over-estimated the amounts to which such insured persons were entitled under their other medical expense coverages; that said practice represented a scheme of the insurers by which they had knowingly and falsely misrepresented to the insureds the amounts to which the latter were entitled under their other coverages, and that thereby the insurers intended to and did defraud the insureds by failing to pay to them portions of the benefits to which they were entitled, and for which the complaint sought recovery. Based on said allegations, recovery of such amounts alleged to have been fraudulently withheld was sought in one count as direct damages, in a second count as money had and received, and in a third count on the additional *569ground of having been a deception in violation of § 626.9S2 Fla.Stat., F.S.A. and a misrepresentation in violation of § 626.956 Fla.Stat., F.S.A.
The defendant insurance company moved to dismiss on the ground that the complaint failed to set forth a proper basis for the class action. The motion was denied and the defendant appealed.
We find the appeal has merit, on authority of Osceola Groves v. Wiley, Fla. 1955, 78 So.2d 700; Port Royal, Inc. v. Conboy, Fla.App.1963, 154 So.2d 734; Gordon Finance, Inc. v. Belzaguy, Fla.App. 1968, 216 So.2d 240; Wilson v. First National Bank of Miami Springs, Fla.App.1971, 254 So.2d 362.
We agree with the contention of the appellant that the basis upon which recovery is sought by the complaint for each of the members of the defined class is alleged fraud and misrepresentation. For the reasons stated in Osceola Groves v. Wiley, supra, proceeding therefor by class suit is impermissible.
Moreover, a class action was not proper where the claims involved were commercial transactions of the several purported class plaintiffs with no contractual relationship between them, with no co-operative enterprise, and where each “plaintiff” would be suing on a separate transaction and perhaps against a separate insurer. Wilson v. First National Bank of Miami Springs, supra. See also, recently decided by this court, Federated Dept. Stores, Inc. v. Pasco, Fla.App.1973, 275 So.2d 46; and Watnick v. Florida Commercial Banks, Inc., Fla.App.1973, 275 So.2d 278. (Opinions filed March 20, 1973.)
Misjoinder of parties is not a basis for dismissal. Rule 1.250 FRCP, 30 F.S.A. A more appropriate motion to have been filed by the defendant would have been one to strike from the complaint the matter relating to the class action. See Gordon Finance, Inc. v. Belzaguy, supra (216 So. 2d at 244-245). However, as was done by the Supreme Court in Osceola Groves v. Wiley, supra, we reverse the order denying the motion to dismiss and remand the cause to the circuit court with direction to permit the filing of an amended complaint presenting the cause of action of the plaintiff Allen Fuller against the defendant The Equitable Life Assurance Society of the United States, with elimination of the class action feature.
It is so ordered.
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Citator
Cited By (13 total)
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Frankel v. City OF Miami Beach, 340 So. 2d 463 (Fla. 1976)…le Co., supra; Dunscombe v. Smith, supra. The district courts have correctly applied the Osceola Groves fraud class action rule in Costin v. Hargraves, 283 So. 2d 375 (Fla. App.1st 1973); Equitable Life Assurance Society of United States v. Fuller, 275 So. 2d 568 (Fla.App.3d 1973) and Hendler v. Rog [*469] ers House Condominium, Inc., 234 So. 2d 128 (Fla.App.4th 1970). However, the district courts have misapplied this limited rule in numerous cases. The precedential origin of each of these can be traced back…
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Harrell v. Hess OIL & Chem. Corp., 287 So. 2d 291 (Fla. 1973)…f action, it should not be dismissed, but that extraneous portions of the complaint should be treated as surplusage. Balbontin v. Porias, 215 So. 2d 732 (Fla.1968); Moore v. Boyd, 62 So. 2d 427 (Fla.1952); Equitable Life Assurance Society v. Fuller, 275 So. 2d 568 (Fla.App.3d 1973); Brown v. Ellingson, 224 So. 2d 391 (Fla.App.2d 1969). In Balbontin v. Porias, supra, the suit was dismissed after the plaintiff failed to amend, as happened in the present case; in reversing the dismissal, we stated that the issue…
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Wittington Condo. Apts., Inc. v. Braemar Corp., 313 So. 2d 463 (Fla. 4th DCA 1975)…erly joined parties, or a motion to strike. See Fla. Civil Practice Before Trial, Sections 11.4 and 11.5, published by Continuing Legal Education of The Florida Bar. See also Equitable Life Assurance Society of United States v. Fuller, Fla.App.1973, 275 So. 2d 568; Wilson v. First National Bank of Miami Springs, Fla.App.1971, 254 So. 2d 362; Gordon Finance, Inc. v. Belzaguy, Fla.App.1968, 216 So. 2d 240. The improper joinder of parties or the insufficiency of the pleadings to allege the proper representative…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Port Royal, Inc. v. Conboy, 154 So. 2d 734 (Fla. 2d DCA 1963)
- Edelblut v. Grady, 78 So. 2d 700 (Fla. 1955)
- Osceola Groves, Inc. v. Wiley, 78 So. 2d 700 (Fla. 1955)
- Federated Dept. Stores, Inc. v. Pasco, 275 So. 2d 46 (Fla. 3d DCA 1973)
- Watnick v. Fla. Commercial Banks, Inc., 275 So. 2d 278 (Fla. 3d DCA 1973)
- Wilson v. First Nat'l Bank OF Miami Springs, 254 So. 2d 362 (Fla. 3d DCA 1971)
- Gordon Fin., Inc. v. Belzaguy, 216 So. 2d 240 (Fla. 3d DCA 1968)