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Filing# 180912287 E-Filed 08/31/2023 02:19:04 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH CIRCUIT COURT
IN AND FOR BROWARD COUNTY, FLORIDA
CIVIL DIVISION
PRESGAR IMAGING OF CMI NORTH, LC,
and BEACHES OPEN MRI OF TAMARAC,
LLC, as and on behalf of
assignees,individually, CONSOLIDATED
all situated
similarly persons,
Case Nos.: CACE-20-010138 (02)
Plaintiffs, CACE-20-013306 (18)
CACE-20-014759 (21)
VS CACE-20-014646 (14)
LM GENERAL INSURANCE COMPANY, et.
al.,
Defendants.
PLAINTIFFS' MOTION FOR FINAL APPROVAL OF PROPOSED
CLASS ACTION SETTLEMENT AGREEMENT AND ENTRY OF FINAL JUDGMENT
Presgar Imaging of
Pursuant to Florida Rule of Civil Procedure 1.220, Plaintiffs, CMI
North, LC, and Beaches Open MRI of Tamarac, LLC, as assignees, and on behalf of
individually,
all similarlysituated persons, move on the followinggrounds for final approval of the parties'
class action settlement agreement and for entry of a final order and judgment.
1. These four consolidated class actions relate to a statewide disputeover the amount
...
of personalinjuryprotection("PIP'')coverage available under insurance policiesissued by the
Defendants in the State of Florida. Specifically,
the Defendants contend that their insurance
policiesonly provide up to $10,000 in PIP coverage for medical expenses, but Plaintiffs contend
that the insurance policiesprovide up to $12,500 in PIP coverage for medical expenses.
2. On June 21,2022, the partiescommenced settlement negotiations
initially
entering
into a bindingclass action settlement term sheet and then,ultimatelyenteringinto a formal written
"Class Action Settlement Agreement" on February 27, 2023, resolving the above-styled class
actions.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/31/2023 02:19:01 PM.****
3 On February 28, 2023, the partiesfiled their "Joint Motion for Preliminary
Approval of Class Action Settlement," and a copy ofthe "Class Action Settlement Agreement" is
attached to that motion.
4. On March 1, 2023, this Court conducted a hearing on the "Joint Motion for
PreliminaryApproval of Class Action Settlement."
5. On March 7, 2023, this Court granted that motion in its "Order Preliminarily
Approving Class Settlement." Among other things,that orlen (a)certified a class in this action
solelyfor settlement purposes, (b)preliminarilyapproved the proposed settlement as set forth in
the settlement agreement, (c) ordered that notice be provided to potentialclass members, (d)
class members with an opportunityeither
providedpotential to exclude themselves from or to
objectto the proposed settlement,and (e) set a final fairness hearing for September 18, 2023 at
2:00 p.m.
6. On May 11, 2023, this Court entered its "Order Amending Prior Order
Approving Class Settlement,"which specifiedthe email notice form to be provided
Preliminarily
by the class administrator to the class members.
potential
7. On June 13, 2023, this Court entered is second "Order Amending Prior Order
PreliminarilyApproving Class Settlement," which extended certain deadlines set forth in the
"Order Preliminarily
Approving Class Settlement."
Class Notice
8 KCC Class Action Services LLC, a nationallyrecognized class action settlement
was retained to administer the provisionofthe class notice as directed in the Court's
administrator,
"Order PreliminarilyApproving Class Settlement." The Class Administrator provided notice to
the settlement class as directed by the Court. See Declaration of Monica Murray filed June 30,
2
2023. The details o f the notice program are summarized below and also set forth in detail in the
in support ofthis motion.
Class Administrator's Report filed separately
9- The Class Administrator timely served the class notice in the form approved by the
Court to the members of the settlement class.
10. The Class Administrator's Report also details the opt-out exclusion requests.
11. No class members objectedto the settlement agreement.
..
12. Paragraph 19 of the Court's "Order PreliminarilyApproving Class Settlement'
states, "Potential Class Members who submit timely and valid requests for exclusion in the manner
set forth in the U.S. Mail Class Notice and the Settlement Agreement shall be excluded from the
Settlement Class. Such Persons shall have no rights
under the Proposed Settlement,shall not share
in any distribution of funds under the Proposed Settlement,and shall not be bound by or otherwise
affected by the Proposed Settlement or by any Final Order and Judgment approving the Proposed
Settlement." Thus, with the exceptionofthose class members who have excluded themselves from
the settlement class by submittingtimely opt-out forms, the final order and judgment shall bar all
members of the settlement class from making a demand or prosecutinga lawsuit or other
proceeding,or otherwise pursuing claims released by the settlement agreement.
Class Certification
13. Plaintiffs request the Court to enter an order grantingfinal certification of the
settlement class in conjunctionwith entry of final approval of the proposed settlement set forth in
the settlement agreement.
14. For purposes of settlement of this action,and pursuant to Florida Rule of Civil
the proposed final order and judgment should certifythis action as a class
Procedure 1.220(b)(3),
action on behalf of the followingsettlement class:
3
All persons and/or entities
(a) Who arean assignee of an insured under a Florida
automobile insurance Policy issued by any ofthe Defendants
that provides coverage for PIP;
(b) Who provided services to an insured that was actuallyor
covered under the PIP coverage afforded to the
potentially
insured;
(c) Who filed a claim for PIP benefits with one or more of the
Defendants;
(d) Who did not receive payment of all or a portion of the
claimed amount due to the applicable Defendant's
determination that PIP benefits that otherwise may have
been afforded for the claim had been exhausted upon the
payment of $10,000 in PIP benefits rather than $12,500 in
PIP benefits;and
(e) Whose claim was based upon services provided to the
insured during the time period of June 19, 2015, through
March 7,2023.
Excluded from the Settlement Class are: (1)any in-house or outside
counsel for Defendants and the immediate family members of such
Persons; (2) employees of Defendants; (3) any members of the
judiciaryassigned to the Lawsuit and their staff;(4) the Parties'
counsel in the Lawsuit; (5)any Persons with PIP claims which have
already been fullypaid or resolved, whether by direct payment,
arbitration,release,or judgment, based upon the applicablePolicy
affording $12,500 in potentialmaximum PIP benefits rather than
$10,000 in potentialmaximum PIP benefits;(6) any PIP claims of
Persons who have provided any of the Defendants with a release of
such PIP claims; (7) any PIP claims that are the subjectof any
lawsuit pending priorto March 7,2023; and (8)any Persons and/or
claims otherwise excluded by Paragraphs 45,47, and/or 53(b) ofthe
Settlement Agreement.
15. The proposed final order and judgment should also finallyapprove Plaintiffs'
undersigned counsel of record as counsel for the settlement class ("ClassCounsel") for purposes
of setthngthis action.
4
16. Under Rule 1.220, the requirements of class certification are divided into two
subsections,Rules 1.220(a)and 1.220(b).For a class to be certified,
each of the four requirements
of Rule 1.220(a),as well as one of the requirements of Rule 1.220(b),must be satisfied. As
established below, Plaintiffs request that the Court find for purposes ofthe settlement ofthis action
(and only for such purposes, and without an adjudicationon the merits or a determination of
whether a class should or could be certified ifthe settlement is not approved or does not otherwise
become final),that the requirementsof the Florida Rules of Civil Procedure and any other
applicablelaw have been met.
Numerositv
17. Rule 1.220(a)(1)requiresthat "the members of the class are so numerous that
separate joinder of each member is impracticable."If the moving party establishes there are at
least 40-50 class members, a presumption arises that separate joinder of each member in
impracticable.See e.g., Terry L. Braun, P.A. v. Campbell, ST1 So.2d 261, 266 (Fla.5th DCA
2002); Consol. Rail Corp. v. Town Hyde Park, 47 F.3d 473,483 (2d Cir. 1995); Cox v. Am. Cast
Iron Pipe Co., 784 F.2d 1546, 1553 (llth
Cir. 1986),cert. den., 479 U.S. 883 (1986).
18. Here, the Class Administrator's Report confirms that the settlement class contains
hundreds of identified members. The numerosity requirementis,therefore,satisfied for purposes
ofthis settlement class.
Commonalitv
19. The next inquiryunder Rule 1.220(a)(2)
is commonality. Commonality is whether
party raises questionsof law or fact
"the claim or defense of the representative common to the
questionsof law or fact raised by the claim or defense of each member of the class." Rule 1.220
does not require denial of class certification "merely because the claim of one or more class
5
arises in a factual context that varies somewhat from that of other plaintiffs."
representatives
Powell v. River Ranch Prop. Owners Ass'n, Inc., 522 So.2d 69, 70 (Fla.2d DCA 1988),rev. den.,
531 So.2d 1354 (Fla. 1988). "Commonality requires that there be at least one issue whose
number of the putativeclass
resolution will affect all or a significant members." In re Checking
Account Overdraft Litig.,No. 1 :09-MD-02036-JLK, 2011 WL 2258458, *2 (S.D.Fla. 2011).
20. Here, the Plaintiffs' claims are common to the claims of the settlement class
members because they all arise from the Defendants' allegedpracticeof incorrectly
contending
that PIP benefits had exhausted. Thus, the commonality requirement is satisfied for purposes of
the settlement class.
Tvnicalitv
21. Rule 1.220(a)further requires"the claim or defense of the representative
party" to
be "typicalof the claim or defense of each member of the class." See, e.g., Powell, 522 So.2d at
70.
22. Here, the claims of Plaintiffs and all class members arise from the same course of
contendingthat PIP
allegedconduct with respect to the Defendants' allegedpracticeof incorrectly
benefits had exhausted. Thus, the typicality
requirementis satisfied for purposes ofthe Settlement
Class.
Adequacy
23. "The adequacy o f representationrequirement is met if the named representatives
have interests in common with the proposed class members and the representatives
and their
attorneys will properlyprosecute the class action." Broin v PhillipMorris Companies,
qualified
Inc.,641 So.2d 888, 892 (Fla.3d DCA 1994), rev. den., 654 So.2d 919 (Fla.1995).
6
24. Here, Plaintiffs share a common interest with the settlement class members in that
they all seek to establish their claims againstthe Defendants concerning their allegedpracticeof
incorrectlycontending that PIP benefits had exhausted. Additionally,Plaintiff and the settlement
class members are representedby experienced and competent counsel. Thus, adequacy of
is
representation satisfied for purposes of the settlement class.
Rule 1.220(b)(3)
25. Rule 1.220(b)(3)requiresthat: (1) "the questionsof law or fact common to the
party and the claim or defense of each
claim or defense of the representative member ofthe class
predominate over any questiono f law or fact only individual members o f the class,"and
affecting
is superior to other available methods for the
(2) "class representation fair and efficient
adjudicationofthe controversy."
26. To determine whether common issues predominate,courts assess whether "issues
..
which are subjectto generalizedproof predominate over issues that requireindividualized proof.'
Powers v. GEICO, 192 F.R.D. 313, 318 (S.D. Fla. 1998). The common core issues concern the
Defendants' allegedpracticeof incorrectlycontending that PIP benefits had exhausted. See
Morgan v. Coats, 33 So.3d 59, 66 (Fla.2d DCA 2010). The Defendants deny that they incorrectly
contended that PIP benefits had exhausted. However, to avoid the inconvenience and expense of
defendingthese claims, the Defendants entered into the settlement agreement, and therefore,such
individualized issues will not predominate if this settlement is finallyapproved.
27. Rule 1.220(b)(3)
lists four factors to consider in determiningwhether a class action
is the superiormethod of adjudicating (a)the respectiveinterest of each member of
the dispute:
the class individually the prosecutionof separate claims or defenses; (b) the nature and
controlling
extent of to which any member of the
any pending litigation class is a party and in which any
7
questionof law or fact controverted in the subjectaction is to be adjudicated;
(c)the desirability
of concentratingthe litigation
or undesirability in the forum where the subjectaction is instituted;
and (d) the difficulties likelyto be encountered in the management of the claim or defense on
behalf of the class. Here, these factors demonstrate that a single class action is superiorto
adjudicatinghundreds of similar claims in courts across the State of Florida with the risk of
differingoutcomes and inconsistent judgments. Additionally,the partiesfind it desirable to
- and conclude their settlement
concentrate the existinglitigation - in this forum. Finally,the
Court must assess superiorityin the context of the proposed class settlement,and therefore the
Court need not consider manageabilityissues that might have materialized had the case proceeded.
See Amchem Prods, Inc. v. Windsor, 521 US. 591,620 (1997).
The Settlement
28. Florida Rule of Civil Procedure 1.220(e)"requiresthat a court approve any
voluntarydismissal or compromise of a class action lawsuit after notice and hearing." Dreidame
v.
VillageCenter Cmo'. Dev. Dist., No. 2007-CA-3177, 2008 WL 7079074 (Fla.5th Cir. Ct. 2008).
"Court approvalof such matters is a matter of discretion." Andrews v. Ocean Reef Club, Inc., No.
WL 563622, *3 (Fla.19 th
Cir. Ct. 1993). "When exercisingits discretion,
a court should always review the proposed settlement in lightof the strong judicialpolicy that
favors settlements." Id. When a class action claim is to be compromised or settled,Rule 1.220(e),
Fla. R. Civ. P.,requiresthe approval ofthe court after notice and hearing.The court grants approval
when the settlement is fair and reasonable and procedurallyproper. The court considers nine
factors:
(1) the complexity and duration ofthe litigation;
(2)the reaction o f the class to the settlement;
(3)the stage ofthe proceedings;
(4)the risks of establishing
liability;
8
(5)the risks of establishing
damages;
(6)the risks of maintaininga class action;
(7)the ability o f the defendants to withstand a greater judgment;
(8) the range o f reasonableness of the settlement in lighto f the best recovery; and
(9) the range of reasonableness of the settlement in lightof all the attendant risks of
litigation.
Grosso v. Fid. Nat. Title Ins. Co., 983 So.2d 1165, 1173 (Fla.3d DCA 2008). The same criteria
are used in federal courts. See Medical & Chiropractic Clinic, Inc., v. KMH Cardiology Centres
Incorporated, 2017 WL 2773932 (M.D. Fla. June 1, 2017). Here,
consideration o f all those factors confirms that the settlement agreement is fair and reasonable,
and procedurally proper.
29. To approve a class action settlement,a court must find that the settlement is "fair,
adequate and reasonable and is not the product of collusion between the parties." Bennett v.
Behring Corp.,737. F.2D 9%1, 9%6 Olm Cir. 19%41 see also Ramos v. PhilipMorris Companies,
743 So.2d 24, 31 (Fla.3d DCA 1999) (applyingthe "fair,adequate and reasonable" standard to
evaluate a class action settlement):Andrews, 1993 WL 563622 at *3 (same). In this case, the
proposed settlement satisfies these requirements.
Final Approval of the Settlement Should be Granted
30. The settlement agreement was negotiated at arm's-length and is free from any
indicia of fraud or collusion. The terms were negotiatedfollowinga motion to dismiss, discovery,
formal mediation and several further months of negotiations
between experienced counsel. The
settlement agreement is therefore the result of an educated assessment of the strengthsand
weaknesses of the claims and defenses present in the lawsuit. See Andrews, 1993 WL 563622 at
*3 (notingthat in evaluatingwhether a proposed settlement is fair,adequate,and reasonable, "[t]he
court can relyupon the judgment of experiencedcounsel").
9
31. Generallyspeaking,the settlement agreement provides for reasonable payment of
cash directly
to the class members for 85% of the amount that would have been paid to the class
member if PIP benefits had been exhausted at $12,500 instead of $10,000. Without the proposed
settlement,class members otherwise received $0.00 for any claims for PIP benefits that exceeded
$10,000 in total claims.
32. The attorneys' fees and expenses award and the class representativeincentive
award are being paid separately
by the Defendants and will not be set off againstrelief to the class
members of the settlement class. See Altamonte *rings Imaging, 12 So.3d at 857 (affirmingtrial
court's judgment approving class action settlement because, in part, the class representative
incentive award and attorneys'fees award were paid by defendant "and not from the sums
recoverable by class members").
33. The settlement agreement provides for automatic relief to the class members
without the necessityof a claims process. Settlement relief is received simply by being a class
member.
34. The notice program implemented by the class administrator is extensive and
satisfies the requirements of due process. The class administrator sent direct mail notice to
members of the settlement class and this notice provided the opportunityfor members of the
settlement class to (a)request exclusion from the settlement class,(b)objectto the terms of the
settlement,and (c)appear at the fairness hearing scheduled by the court. Consequently, a full and
fair opportunityhas been provided to members of the settlement class to inquireabout, comment
in the settlement agreement
on, objectto, avoid, or participate and the approvalprocess.
35. Finally,the response (or lack thereof)by members of the settlement class to the
notice ofthe settlement agreement further reflects that it is fair,reasonable, and adequate.Indeed,
10
no member of the settlement class has lodged an objectionto the settlement agreement, and only
a small percentage of class members elected to opt-out.
36. Accordingly, all applicablecriteria for final approval of the proposed Settlement
Agreement are satisfied in this case.
WHEREFORE, the Plaintiffs respectfullyrequest that the Court grant final approval of
the proposed settlement agreement and enter the proposed final order and judgment approving
class action settlement.
[Attorney's signature appears on the following page.]
11
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoingdocument has been
served through Florida Court's E-FilingPortal upon the followingparties:Gary
Electronically J.
Guzzi and Antonio Morin, Akerman LLP, Miami, FL
33131 (gary. guzzi@akerman.coml
Antonio.morin@akerman.com; maria.revoredo@akerman.com) on August 31, 2023.
Thomas J. Wenzel, FBN 104117
CZIDY-
J. Daniel Clark,FBN 106471
STEINGER, GREENE & FEINER CLARK & MARTINO, P.A.
2727 NW 62r nd
Street 3407 W. Kennedy Boulevard
Fort Lauderdale, FL 33309 Tampa, FL 33609
Telephone: 954-491-7701 Telephone:813-879-0700
Fax: 954-634-8312 Primary email: dclark@clarkmartino.corn
Email: pleadings@injurylawyers.com Secondary email: jliza@clarkmartino.com
Chad Bar, FBN 55365 David M. Caldevilla,FBN 654248
CHAD BARR LAW de la PARTE GILBERT, MCNAMARA &
238 N. Westmonte Dr., Suite 200 CALDEVILLA P.A.
Altamonte Springs,FL 32714 Post Office Box 2350
Telephone: 417-599-9036 Tampa, FL 33601-2350
corn
Primary email: service@chardbarrlaw. Telephone: 813-229-2775
Secondary email: chad@chadbarrlaw.corn rm.com
Primary email: dcaldevilla@dgfii
Secondary email: com
COUNSEL FOR PLAINTIFF
12
Preview
Filing# 180912287 E-Filed 08/31/2023 02:19:04 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH CIRCUIT COURT IN AND FOR BROWARD COUNTY, FLORIDA CIVIL DIVISION PRESGAR IMAGING OF CMI NORTH, LC, and BEACHES OPEN MRI OF TAMARAC, LLC, as and on behalf of assignees,individually, CONSOLIDATED all situated similarly persons, Case Nos.: CACE-20-010138 (02) Plaintiffs, CACE-20-013306 (18) CACE-20-014759 (21) VS CACE-20-014646 (14) LM GENERAL INSURANCE COMPANY, et. al., Defendants. PLAINTIFFS' MOTION FOR FINAL APPROVAL OF PROPOSED CLASS ACTION SETTLEMENT AGREEMENT AND ENTRY OF FINAL JUDGMENT Presgar Imaging of Pursuant to Florida Rule of Civil Procedure 1.220, Plaintiffs, CMI North, LC, and Beaches Open MRI of Tamarac, LLC, as assignees, and on behalf of individually, all similarlysituated persons, move on the followinggrounds for final approval of the parties' class action settlement agreement and for entry of a final order and judgment. 1. These four consolidated class actions relate to a statewide disputeover the amount ... of personalinjuryprotection("PIP'')coverage available under insurance policiesissued by the Defendants in the State of Florida. Specifically, the Defendants contend that their insurance policiesonly provide up to $10,000 in PIP coverage for medical expenses, but Plaintiffs contend that the insurance policiesprovide up to $12,500 in PIP coverage for medical expenses. 2. On June 21,2022, the partiescommenced settlement negotiations initially entering into a bindingclass action settlement term sheet and then,ultimatelyenteringinto a formal written "Class Action Settlement Agreement" on February 27, 2023, resolving the above-styled class actions. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/31/2023 02:19:01 PM.**** 3 On February 28, 2023, the partiesfiled their "Joint Motion for Preliminary Approval of Class Action Settlement," and a copy ofthe "Class Action Settlement Agreement" is attached to that motion. 4. On March 1, 2023, this Court conducted a hearing on the "Joint Motion for PreliminaryApproval of Class Action Settlement." 5. On March 7, 2023, this Court granted that motion in its "Order Preliminarily Approving Class Settlement." Among other things,that orlen (a)certified a class in this action solelyfor settlement purposes, (b)preliminarilyapproved the proposed settlement as set forth in the settlement agreement, (c) ordered that notice be provided to potentialclass members, (d) class members with an opportunityeither providedpotential to exclude themselves from or to objectto the proposed settlement,and (e) set a final fairness hearing for September 18, 2023 at 2:00 p.m. 6. On May 11, 2023, this Court entered its "Order Amending Prior Order Approving Class Settlement,"which specifiedthe email notice form to be provided Preliminarily by the class administrator to the class members. potential 7. On June 13, 2023, this Court entered is second "Order Amending Prior Order PreliminarilyApproving Class Settlement," which extended certain deadlines set forth in the "Order Preliminarily Approving Class Settlement." Class Notice 8 KCC Class Action Services LLC, a nationallyrecognized class action settlement was retained to administer the provisionofthe class notice as directed in the Court's administrator, "Order PreliminarilyApproving Class Settlement." The Class Administrator provided notice to the settlement class as directed by the Court. See Declaration of Monica Murray filed June 30, 2 2023. The details o f the notice program are summarized below and also set forth in detail in the in support ofthis motion. Class Administrator's Report filed separately 9- The Class Administrator timely served the class notice in the form approved by the Court to the members of the settlement class. 10. The Class Administrator's Report also details the opt-out exclusion requests. 11. No class members objectedto the settlement agreement. .. 12. Paragraph 19 of the Court's "Order PreliminarilyApproving Class Settlement' states, "Potential Class Members who submit timely and valid requests for exclusion in the manner set forth in the U.S. Mail Class Notice and the Settlement Agreement shall be excluded from the Settlement Class. Such Persons shall have no rights under the Proposed Settlement,shall not share in any distribution of funds under the Proposed Settlement,and shall not be bound by or otherwise affected by the Proposed Settlement or by any Final Order and Judgment approving the Proposed Settlement." Thus, with the exceptionofthose class members who have excluded themselves from the settlement class by submittingtimely opt-out forms, the final order and judgment shall bar all members of the settlement class from making a demand or prosecutinga lawsuit or other proceeding,or otherwise pursuing claims released by the settlement agreement. Class Certification 13. Plaintiffs request the Court to enter an order grantingfinal certification of the settlement class in conjunctionwith entry of final approval of the proposed settlement set forth in the settlement agreement. 14. For purposes of settlement of this action,and pursuant to Florida Rule of Civil the proposed final order and judgment should certifythis action as a class Procedure 1.220(b)(3), action on behalf of the followingsettlement class: 3 All persons and/or entities (a) Who arean assignee of an insured under a Florida automobile insurance Policy issued by any ofthe Defendants that provides coverage for PIP; (b) Who provided services to an insured that was actuallyor covered under the PIP coverage afforded to the potentially insured; (c) Who filed a claim for PIP benefits with one or more of the Defendants; (d) Who did not receive payment of all or a portion of the claimed amount due to the applicable Defendant's determination that PIP benefits that otherwise may have been afforded for the claim had been exhausted upon the payment of $10,000 in PIP benefits rather than $12,500 in PIP benefits;and (e) Whose claim was based upon services provided to the insured during the time period of June 19, 2015, through March 7,2023. Excluded from the Settlement Class are: (1)any in-house or outside counsel for Defendants and the immediate family members of such Persons; (2) employees of Defendants; (3) any members of the judiciaryassigned to the Lawsuit and their staff;(4) the Parties' counsel in the Lawsuit; (5)any Persons with PIP claims which have already been fullypaid or resolved, whether by direct payment, arbitration,release,or judgment, based upon the applicablePolicy affording $12,500 in potentialmaximum PIP benefits rather than $10,000 in potentialmaximum PIP benefits;(6) any PIP claims of Persons who have provided any of the Defendants with a release of such PIP claims; (7) any PIP claims that are the subjectof any lawsuit pending priorto March 7,2023; and (8)any Persons and/or claims otherwise excluded by Paragraphs 45,47, and/or 53(b) ofthe Settlement Agreement. 15. The proposed final order and judgment should also finallyapprove Plaintiffs' undersigned counsel of record as counsel for the settlement class ("ClassCounsel") for purposes of setthngthis action. 4 16. Under Rule 1.220, the requirements of class certification are divided into two subsections,Rules 1.220(a)and 1.220(b).For a class to be certified, each of the four requirements of Rule 1.220(a),as well as one of the requirements of Rule 1.220(b),must be satisfied. As established below, Plaintiffs request that the Court find for purposes ofthe settlement ofthis action (and only for such purposes, and without an adjudicationon the merits or a determination of whether a class should or could be certified ifthe settlement is not approved or does not otherwise become final),that the requirementsof the Florida Rules of Civil Procedure and any other applicablelaw have been met. Numerositv 17. Rule 1.220(a)(1)requiresthat "the members of the class are so numerous that separate joinder of each member is impracticable."If the moving party establishes there are at least 40-50 class members, a presumption arises that separate joinder of each member in impracticable.See e.g., Terry L. Braun, P.A. v. Campbell, ST1 So.2d 261, 266 (Fla.5th DCA 2002); Consol. Rail Corp. v. Town Hyde Park, 47 F.3d 473,483 (2d Cir. 1995); Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (llth Cir. 1986),cert. den., 479 U.S. 883 (1986). 18. Here, the Class Administrator's Report confirms that the settlement class contains hundreds of identified members. The numerosity requirementis,therefore,satisfied for purposes ofthis settlement class. Commonalitv 19. The next inquiryunder Rule 1.220(a)(2) is commonality. Commonality is whether party raises questionsof law or fact "the claim or defense of the representative common to the questionsof law or fact raised by the claim or defense of each member of the class." Rule 1.220 does not require denial of class certification "merely because the claim of one or more class 5 arises in a factual context that varies somewhat from that of other plaintiffs." representatives Powell v. River Ranch Prop. Owners Ass'n, Inc., 522 So.2d 69, 70 (Fla.2d DCA 1988),rev. den., 531 So.2d 1354 (Fla. 1988). "Commonality requires that there be at least one issue whose number of the putativeclass resolution will affect all or a significant members." In re Checking Account Overdraft Litig.,No. 1 :09-MD-02036-JLK, 2011 WL 2258458, *2 (S.D.Fla. 2011). 20. Here, the Plaintiffs' claims are common to the claims of the settlement class members because they all arise from the Defendants' allegedpracticeof incorrectly contending that PIP benefits had exhausted. Thus, the commonality requirement is satisfied for purposes of the settlement class. Tvnicalitv 21. Rule 1.220(a)further requires"the claim or defense of the representative party" to be "typicalof the claim or defense of each member of the class." See, e.g., Powell, 522 So.2d at 70. 22. Here, the claims of Plaintiffs and all class members arise from the same course of contendingthat PIP allegedconduct with respect to the Defendants' allegedpracticeof incorrectly benefits had exhausted. Thus, the typicality requirementis satisfied for purposes ofthe Settlement Class. Adequacy 23. "The adequacy o f representationrequirement is met if the named representatives have interests in common with the proposed class members and the representatives and their attorneys will properlyprosecute the class action." Broin v PhillipMorris Companies, qualified Inc.,641 So.2d 888, 892 (Fla.3d DCA 1994), rev. den., 654 So.2d 919 (Fla.1995). 6 24. Here, Plaintiffs share a common interest with the settlement class members in that they all seek to establish their claims againstthe Defendants concerning their allegedpracticeof incorrectlycontending that PIP benefits had exhausted. Additionally,Plaintiff and the settlement class members are representedby experienced and competent counsel. Thus, adequacy of is representation satisfied for purposes of the settlement class. Rule 1.220(b)(3) 25. Rule 1.220(b)(3)requiresthat: (1) "the questionsof law or fact common to the party and the claim or defense of each claim or defense of the representative member ofthe class predominate over any questiono f law or fact only individual members o f the class,"and affecting is superior to other available methods for the (2) "class representation fair and efficient adjudicationofthe controversy." 26. To determine whether common issues predominate,courts assess whether "issues .. which are subjectto generalizedproof predominate over issues that requireindividualized proof.' Powers v. GEICO, 192 F.R.D. 313, 318 (S.D. Fla. 1998). The common core issues concern the Defendants' allegedpracticeof incorrectlycontending that PIP benefits had exhausted. See Morgan v. Coats, 33 So.3d 59, 66 (Fla.2d DCA 2010). The Defendants deny that they incorrectly contended that PIP benefits had exhausted. However, to avoid the inconvenience and expense of defendingthese claims, the Defendants entered into the settlement agreement, and therefore,such individualized issues will not predominate if this settlement is finallyapproved. 27. Rule 1.220(b)(3) lists four factors to consider in determiningwhether a class action is the superiormethod of adjudicating (a)the respectiveinterest of each member of the dispute: the class individually the prosecutionof separate claims or defenses; (b) the nature and controlling extent of to which any member of the any pending litigation class is a party and in which any 7 questionof law or fact controverted in the subjectaction is to be adjudicated; (c)the desirability of concentratingthe litigation or undesirability in the forum where the subjectaction is instituted; and (d) the difficulties likelyto be encountered in the management of the claim or defense on behalf of the class. Here, these factors demonstrate that a single class action is superiorto adjudicatinghundreds of similar claims in courts across the State of Florida with the risk of differingoutcomes and inconsistent judgments. Additionally,the partiesfind it desirable to - and conclude their settlement concentrate the existinglitigation - in this forum. Finally,the Court must assess superiorityin the context of the proposed class settlement,and therefore the Court need not consider manageabilityissues that might have materialized had the case proceeded. See Amchem Prods, Inc. v. Windsor, 521 US. 591,620 (1997). The Settlement 28. Florida Rule of Civil Procedure 1.220(e)"requiresthat a court approve any voluntarydismissal or compromise of a class action lawsuit after notice and hearing." Dreidame v. VillageCenter Cmo'. Dev. Dist., No. 2007-CA-3177, 2008 WL 7079074 (Fla.5th Cir. Ct. 2008). "Court approvalof such matters is a matter of discretion." Andrews v. Ocean Reef Club, Inc., No. WL 563622, *3 (Fla.19 th Cir. Ct. 1993). "When exercisingits discretion, a court should always review the proposed settlement in lightof the strong judicialpolicy that favors settlements." Id. When a class action claim is to be compromised or settled,Rule 1.220(e), Fla. R. Civ. P.,requiresthe approval ofthe court after notice and hearing.The court grants approval when the settlement is fair and reasonable and procedurallyproper. The court considers nine factors: (1) the complexity and duration ofthe litigation; (2)the reaction o f the class to the settlement; (3)the stage ofthe proceedings; (4)the risks of establishing liability; 8 (5)the risks of establishing damages; (6)the risks of maintaininga class action; (7)the ability o f the defendants to withstand a greater judgment; (8) the range o f reasonableness of the settlement in lighto f the best recovery; and (9) the range of reasonableness of the settlement in lightof all the attendant risks of litigation. Grosso v. Fid. Nat. Title Ins. Co., 983 So.2d 1165, 1173 (Fla.3d DCA 2008). The same criteria are used in federal courts. See Medical & Chiropractic Clinic, Inc., v. KMH Cardiology Centres Incorporated, 2017 WL 2773932 (M.D. Fla. June 1, 2017). Here, consideration o f all those factors confirms that the settlement agreement is fair and reasonable, and procedurally proper. 29. To approve a class action settlement,a court must find that the settlement is "fair, adequate and reasonable and is not the product of collusion between the parties." Bennett v. Behring Corp.,737. F.2D 9%1, 9%6 Olm Cir. 19%41 see also Ramos v. PhilipMorris Companies, 743 So.2d 24, 31 (Fla.3d DCA 1999) (applyingthe "fair,adequate and reasonable" standard to evaluate a class action settlement):Andrews, 1993 WL 563622 at *3 (same). In this case, the proposed settlement satisfies these requirements. Final Approval of the Settlement Should be Granted 30. The settlement agreement was negotiated at arm's-length and is free from any indicia of fraud or collusion. The terms were negotiatedfollowinga motion to dismiss, discovery, formal mediation and several further months of negotiations between experienced counsel. The settlement agreement is therefore the result of an educated assessment of the strengthsand weaknesses of the claims and defenses present in the lawsuit. See Andrews, 1993 WL 563622 at *3 (notingthat in evaluatingwhether a proposed settlement is fair,adequate,and reasonable, "[t]he court can relyupon the judgment of experiencedcounsel"). 9 31. Generallyspeaking,the settlement agreement provides for reasonable payment of cash directly to the class members for 85% of the amount that would have been paid to the class member if PIP benefits had been exhausted at $12,500 instead of $10,000. Without the proposed settlement,class members otherwise received $0.00 for any claims for PIP benefits that exceeded $10,000 in total claims. 32. The attorneys' fees and expenses award and the class representativeincentive award are being paid separately by the Defendants and will not be set off againstrelief to the class members of the settlement class. See Altamonte *rings Imaging, 12 So.3d at 857 (affirmingtrial court's judgment approving class action settlement because, in part, the class representative incentive award and attorneys'fees award were paid by defendant "and not from the sums recoverable by class members"). 33. The settlement agreement provides for automatic relief to the class members without the necessityof a claims process. Settlement relief is received simply by being a class member. 34. The notice program implemented by the class administrator is extensive and satisfies the requirements of due process. The class administrator sent direct mail notice to members of the settlement class and this notice provided the opportunityfor members of the settlement class to (a)request exclusion from the settlement class,(b)objectto the terms of the settlement,and (c)appear at the fairness hearing scheduled by the court. Consequently, a full and fair opportunityhas been provided to members of the settlement class to inquireabout, comment in the settlement agreement on, objectto, avoid, or participate and the approvalprocess. 35. Finally,the response (or lack thereof)by members of the settlement class to the notice ofthe settlement agreement further reflects that it is fair,reasonable, and adequate.Indeed, 10 no member of the settlement class has lodged an objectionto the settlement agreement, and only a small percentage of class members elected to opt-out. 36. Accordingly, all applicablecriteria for final approval of the proposed Settlement Agreement are satisfied in this case. WHEREFORE, the Plaintiffs respectfullyrequest that the Court grant final approval of the proposed settlement agreement and enter the proposed final order and judgment approving class action settlement. [Attorney's signature appears on the following page.] 11 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoingdocument has been served through Florida Court's E-FilingPortal upon the followingparties:Gary Electronically J. Guzzi and Antonio Morin, Akerman LLP, Miami, FL 33131 (gary. guzzi@akerman.coml Antonio.morin@akerman.com; maria.revoredo@akerman.com) on August 31, 2023. Thomas J. Wenzel, FBN 104117 CZIDY- J. Daniel Clark,FBN 106471 STEINGER, GREENE & FEINER CLARK & MARTINO, P.A. 2727 NW 62r nd Street 3407 W. Kennedy Boulevard Fort Lauderdale, FL 33309 Tampa, FL 33609 Telephone: 954-491-7701 Telephone:813-879-0700 Fax: 954-634-8312 Primary email: dclark@clarkmartino.corn Email: pleadings@injurylawyers.com Secondary email: jliza@clarkmartino.com Chad Bar, FBN 55365 David M. Caldevilla,FBN 654248 CHAD BARR LAW de la PARTE GILBERT, MCNAMARA & 238 N. Westmonte Dr., Suite 200 CALDEVILLA P.A. Altamonte Springs,FL 32714 Post Office Box 2350 Telephone: 417-599-9036 Tampa, FL 33601-2350 corn Primary email: service@chardbarrlaw. Telephone: 813-229-2775 Secondary email: chad@chadbarrlaw.corn rm.com Primary email: dcaldevilla@dgfii Secondary email: com COUNSEL FOR PLAINTIFF 12