CopyCited 41 times | Published | Supreme Court of Florida | 36 Fla. L. Weekly Supp. 373, 2011 Fla. LEXIS 1574, 2011 WL 2659854
...This appeal arises from a motion for class certification filed in the trial court by Sosa. That motion emanated from a cause of action initiated by Sosa in which Sosa claimed that Safeway Premium Insurance Company ("Safeway") violated sections
627.840(3)(b) and
627.835, Florida Statutes (2003), by knowingly overcharging him an additional service charge of $20 twice in a twelve-month period in two premium finance agreements which he entered into with Safeway....
...That constituted error because, as demonstrated by Glen Cove and Olen Properties, the proper appellate standard of review for a grant of class certification is abuse of discretion. Furthermore, the Third District incorrectly addressed whether Sosa satisfied section 627.835's "knowingly" requirement....
...ida Statutes (2003), and that, due to this violation, he and the putative class members were entitled to the return of the premium finance charges assessed against them by Safeway plus "twice the entire amount of the premium finance charge so paid." § 627.835, Fla....
...arging him the illegal additional service charge on the second premium finance agreement, which presented a live controversy with a redressable injury suitable for adjudication. The trial court also stated that whether the "knowingly" requirement in section 627.835 was fulfilled was a matter to be determined at trial and, hence, not a reason to deny class certification....
...d individually address each individual member's claims, as Safeway could have a different explanation and defense to an alleged knowing violation of section
627.840 for each individual class member. See id. The Third District's ruling also addressed section
627.835's "knowingly" requirement....
...Therefore, Sosa, to meet rule 1.220(a)'s requirements, was required to allege facts that implicated Safeway's specific intent to overcharge not only Sosa, but each class member on an individual basis. See id. Sosa and the individual class members failed to establish a knowing violation of sections
627.840 and
627.835, and, therefore, the Third District concluded that the trial court erred in granting class certification and reversed the trial court's order....
...stating why the trial court's conclusions of law were erroneous, the Third District made its own findings that Sosa and the putative class members did not satisfy the commonality and predominance elements of rule 1.220, and that Sosa failed to meet section 627.835's "knowingly" requirement....
...of discretion standard of review to a trial court order on class certificationexemplified the proper methodology to be employed by an appellate court when it reviews a trial court's order on class certification. Third District's Misapplication of Section
627.835's "Knowingly" Requirement Section
627.835 penalizes a party if it "knowingly" violates section
627.840(3)(b). See §
627.835....
...ediately preceding 12-month period. In such instances, a company may collect the additional charge again if it refinances the customer's policy during the same 12-month period Fla. Admin. Code R. 69O-196.038 (formerly Fla. Admin. Code R. 4-196.038). Section 627.835 states: Any person, premium finance company, or other legal entity who or which knowingly takes, receives, reserves, or charges a premium finance charge other than that authorized by this part shall thereby forfeit the entire premium...
...unlawful finance charge may personally or by her or his legal or personal representative, by suit for recovery thereof, recover from such person, premium finance company, or legal entity twice the entire amount of the premium finance charge so paid. § 627.835 (emphasis added)....
...Survivors Charter Schs., Inc.,
3 So.3d 1220, 1223 (Fla.2009). Black's Law Dictionary defines "knowing," of which "knowingly" is the adverb form, as "[h]aving or showing awareness or understanding; well-informed." Black's Law Dictionary 950 (9th ed. 2009). Thus, a party violates section
627.835 if it, with awareness and understanding of its actions, or through a common and routine billing practice, overcharges another in contravention of chapter 627 of the Florida Statutes....
...The Third District in Sosa erred when it held that the trial court improperly granted Sosa's motion for class certification on the basis that Sosa failed to demonstrate that Safeway knowingly overcharged him in contravention of sections
627.840 and
627.835....
...ement because their claims arose from the same course of conduct and routine billing practice by Safeway and were based on the same legal theory, i.e., Safeway knowingly overcharged Sosa and the class members in contravention of sections
627.840 and
627.835....
...In this case, Sosa and the putative members filed the action against Safeway predicated on a routine course of conduct and common billing practice that Safeway knowingly charged them an additional premium service charge twice in a twelve-month period in contravention of sections
627.840 and
627.835....
...Therefore, commonality was clearly satisfied if true because *111 the common course of conduct and routine business practice by Safeway and the same legal theoryi.e., Safeway overcharging Sosa and the putative class members in contravention of section
627.840 and
627.835served as the basis for all claims....
...y requirement). A common course of conduct and common business practice is, most assuredly, intentional action, and not some freak occasion or accident. Further, the dissent and Third District mischaracterize the effect of the "knowingly" element of section 627.835 on the commonality requirement....
...at, if proven, Safeway's common business practice would have injured Sosa and the putative class members in the same way. See Horne, 533 So.2d at 264. Therefore, the dissent is incorrect in its assertion that an absence of the "knowingly" element of section 627.835 negates satisfaction of the commonality requirement....
...common class questions for Sosa and the putative class members require generalized proof and not individual inquiries or mini-trials. To resolve whether Safeway overcharged Sosa and the putative class members in contravention of sections
627.840 and
627.835, the trial court need only determine whether Safeway was aware of, and understood that, its common course of conduct and routine business billing practice would result in an overcharge to the class members....
...e calculation may be found upon Safeway crediting to each class member the amount of premium finance charges they paid plus twice the amount the class member paid and then subtracting that amount by any amount that has been credited or refunded. See § 627.835, Fla....
...might vary from that of the other class members, this did not serve as a bar to a finding of typicality. See id. In this case, the claims of Sosa and the putative class members are based on the same legal theorya violation of sections
627.840 and
627.835that arose from the same course of conduct that caused a similar injurySafeway overcharging Sosa and the putative class members an additional service charge of $20 twice in a twelve-month period....
...lass members. His interests were not antagonistic to those of the rest of the class. On the contrary, they paralleled the interests of the class members, as he and the class members sought redress from Safeway based on alleged violations of sections
627.835 and
627.840....
...Rather, Sosa's economic injury for which he may pursue redress is in the form of a damage recovery of the entire premium finance charge plus twice the amount of the premium finance charge assessed by Safewaywhich is the damage award provided under section
627.835. More specifically, section
627.840 permits a premium finance company to charge an individual a maximum additional service charge of $20 in a twelve month period. Section
627.835 provides that any person who unlawfully charges a premium finance charge owes the person to whom they assessed the overcharge the entire premium finance charged plus twice the entire amount of the premium charge so paid....
...whose individual duration was for six months. It is alleged that by doing so, Safeway violated section
627.840. If Sosa successfully proves this violation at trial, Safeway will owe Sosa and the members of the class the damage award allocated under section
627.835....
...l requirement. CONCLUSION The Third District in Sosa erred by not applying the abuse of discretion standard of review to the trial court's order granting class certification, and by conflating its class certification review by incorrectly addressing section 627.835's "knowingly" requirement during its examination of whether Sosa satisfied rule 1.220's requirements and failing to consider the common course of conduct and routine billing practice that produce an alleged statutory violation....
CopyCited 2 times | Published | Florida 3rd District Court of Appeal | 2009 Fla. App. LEXIS 2876, 2009 WL 928434
...the customer's policy has been canceled due to nonpayment within the immediately preceding 12-month period. §
627.840(3)(b), Fla. Stat. (2002). Sosa claims that he and other Safeway customers are entitled to certain specific damages provided for in section
627.835 because Safeway billed them and accepted more than one twenty-dollar additional charge within a twelve-month period in violation of section
627.840(3)(b). Section
627.835 states: Any person, premium finance company, or other legal entity who or which knowingly takes, receives, reserves, or charges a premium finance charge other than that authorized by this part shall thereby forfeit the entire premium...
...unlawful finance charge may personally or by her or his legal or personal representative, by suit for recovery thereof, recover from such person, premium finance company, or legal entity twice the entire amount of the premium finance charge so paid. §
627.835, Fla. Stat. (2002) (emphasis added). In order for Sosa to state an individual cause of action and one which qualifies for class certification pursuant to section
627.840(3)(b), based on damages specified in section
627.835, the premium finance company must have knowingly charged or accepted the additional twenty-dollar premium finance charge unauthorized by statute. By the very terms of section
627.835, Sosa's Motion for Class Certification is insufficient on its face and subject to dismissal for failure to allege facts demonstrating that Safeway "knowingly" billed or received the additional premium finance charge from its customers....
...ng of an application. Sosa personally has not alleged any individual facts showing intentional actions by Safeway or on behalf of potential members of the class sufficient to demonstrate a cause of action for damages under sections
627.840(3)(b) and
627.835, Florida Statutes (2002), for knowingly collecting an excess finance charge sufficient to meet the commonality requirement of a class action....
...ents received by Safeway after February 16, 2001, is whether Safeway's manual system failed to accomplish a service charge adjustment that should have been accomplished, and, if so, whether the failure was a "knowing[]" failure within the meaning of section 627.835 of the Florida Statutes....
...Section
627.840(3)(b), Florida Statutes (2002), allows a premium finance company to charge a maximum of $20 per year as an additional service charge. A premium finance company that knowingly charges more than the statutorily permitted amount is liable for damages pursuant to section
627.835, Florida Statutes (2002)....
