Lucarelli Pizza & Deli v. Posen Construction, Inc.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
LUCARELLI PIZZA & DELI and T.A.S. )
SUNSHINE ENTERPRISES LLC, )
)
Appellants, )
)
v. ) Case No. 2D14-4311
)
POSEN CONSTRUCTION, INC., )
)
Appellee. )
)
Opinion filed August 19, 2015.
Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Lee County;
Sherra Winesett, Judge.
Michael R.N. McDonnell of McDonnell Trial
Law, Naples; and Gary L. Green of Gary L.
Green, P.A., Naples, for Appellants.
Shelley H. Leinicke of Wicker, Smith,
O'Hara, McCoy & Ford, P.A., Fort
Lauderdale, for Appellee.
ALTENBERND, Judge.
Lucarelli Pizza & Deli and T.A.S. Sunshine Enterprises LLC (the Plaintiffs)
appeal an order denying their amended motion for class certification. The alleged
cause of action in this case is negligence. Although the Plaintiffs sought to determine
only the issues of duty and breach of duty in their attempted class action, a person does
not have a cause of action for negligence in the absence of actual damage. Thus, to
establish numerosity and typicality for purposes of this class action, the Plaintiffs
needed to show that a sufficient and clearly ascertainable number of the proposed class
had suffered some compensable damage from the alleged negligence. The trial court
did not err in determining that the proposed class is overbroad and failed in this regard.
We thus affirm the order denying the amended motion for class certification.
On November 11, 2010, Posen Construction was engaged in road
construction on Colonial Boulevard in Fort Myers, Florida. An employee allegedly
damaged a natural gas line, resulting in an interruption of gas service to a sizable
region. Neither Lucarelli Pizza & Deli nor TAS Sunshine Enterprises LLC suffered any
physical damage to their property, which was not adjacent to the location where the gas
line was damaged. Instead, they claim that they lost profits in their respective
businesses because the gas supply to their buildings was interrupted.
The Plaintiffs initially sought to certify a class of "[a]ll commercial gas
users . . . who suffered an interruption in gas services and a resulting loss of business
revenue as a direct and proximate result" of the ruptured gas line. The Plaintiffs alleged
that the class consisted of approximately 1200 members, the number of customers who,
according to a list from the gas company, had lost gas service when the gas line was
ruptured. The trial court denied the first motion for certification after an evidentiary
hearing because, among other reasons, extensive individualized fact-finding would have
been necessary to determine who the members of the proposed class were—i.e., those
customers who had actually suffered economic losses from the interrupted gas service.
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The Plaintiffs then brought the amended motion for class certification.
They attempted to overcome the problem in the first motion by redefining the class as
"all commercial gas users . . . who suffered an interruption in gas service as a direct and
proximate result" of the ruptured gas line and by limiting the issues in the class action
under Florida Rule of Civil Procedure 1.220(d)(4)(A) to duty and breach of duty. They
argued that assuming that they could prove liability in the class action, they would seek
to have individualized determinations of causation and damages. The Plaintiffs again
alleged that the class contained the approximately 1200 customers whose gas service
was interrupted by the ruptured gas line.
Following two evidentiary hearings, the trial court correctly observed that
the class, as redefined, was overbroad and that the Plaintiffs failed to carry their burden
of proving numerosity and typicality under rule 1.220(a). The Plaintiffs did not present
any evidence that a single member of the proposed class other than themselves had
suffered any economic loss. Posen, on the other hand, presented extensive evidence
suggesting that due to the varied nature of their businesses, many of the commercial
customers who experienced an interruption in gas service had not suffered any
economic loss or damage as a result. The Plaintiffs' proposed class of 1200 included
auto repair businesses, bakeries, beauty parlors, funeral homes, offices, retailers,
schools, and banks. Posen's expert accountant explained that many of these
businesses likely only used gas for heating or hot water. The Plaintiffs presented no
evidence to demonstrate how any of these businesses might have suffered a loss of
revenue from the disruption in gas service.
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The Plaintiffs' proposed class also included 695 restaurants, including
Lucarelli Pizza & Deli. While it seems logical that a pizza parlor that relied on gas to
bake its product would be significantly affected by a loss of gas service, Posen
presented evidence that showed that even among the restaurants, it was unclear how
many may have actually suffered any economic loss from the disruption in gas service.
A restaurant owner testified that she only used gas for aesthetic purposes—for outdoor
lamps—and that she suffered no loss of revenue as a result of the disruption in gas
service.
In short, the evidence demonstrated that while many members of the
proposed class might have been inconvenienced by the loss of gas service, they would
be unable to make any claim for a loss of revenue or profit. Based on this evidence, the
trial court concluded that "potentially a great many class members, as currently
defined . . . have suffered no injury." This was not error.
A cause of action in negligence requires proof of actual loss or damage.
Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216, 1227 (Fla. 2010). Thus, the second
effort at a definition of a class included members who would not have a cause of action
and would not be proper parties to an action sounding in negligence. The amendment
did not change the problem the Plaintiffs faced to establish either numerosity or
typicality: that the proposed class was overbroad because it included many members
who did not suffer and would not be able to prove any injury or actual damage. See
Leibell v. Miami-Dade Cty., 84 So. 3d 1078, 1083 (Fla. 3d DCA 2012) (holding that the
proposed class was overbroad and that the trial court did not abuse its discretion when
it concluded that the plaintiff failed to satisfy numerosity because the plaintiff's evidence
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established only that she, and none of the 1399 other proposed members, was part of
the class); Hutson v. Rexall Sundown, Inc., 837 So. 2d 1090, 1093 (Fla. 4th DCA 2003)
(holding that the trial court did not abuse its discretion when it concluded that the
plaintiffs failed to satisfy typicality because the proposed class included customers who
could not claim any injury or damage); see also Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d
672, 677 (7th Cir. 2009) ("[A] class should not be certified if it is apparent that it contains
a great many persons who have suffered no injury at the hands of the defendant.").
We emphasize that this court is not called upon to determine whether the
complaint stated a cause of action in negligence. From its early origins, the interest
protected by a cause of action in negligence was the interest in one's person and
physical property. Thus, the actual damage that was an essential element of the tort
required proof of personal injury or property damage. See, e.g., FMR Corp. v. Boston
Edison Co., 613 N.E.2d 902, 903 (Mass. 1993) (affirming summary judgment in favor of
the defendant power company and contractor where the commercial plaintiffs brought
negligence claims alleging purely economic damages caused by power outages). Over
the last century, courts have occasionally expanded the tort of negligence by creating
duties to protect plaintiffs in situations that do not result in personal injury or property
damage. But this has occurred only when specific circumstances have warranted a
more liberal judicial rule and an expanded duty of care. See, e.g., Monroe v. Sarasota
Cnty. Sch. Bd., 746 So. 2d 530 (Fla. 2d DCA 1999); Sandarac Ass'n v. W.R. Frizzell
Architects, Inc., 609 So. 2d 1349, 1352-53 (Fla. 2d DCA 1992), implied overruling on
other grounds recognized by Stone's Throw Condo. Ass'n v. Sand Cove Apartments,
Inc., 749 So. 2d 520 (Fla. 2d DCA 1999).
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Several years ago, in a case where the livelihood of fishermen was
threatened by pollution, the supreme court permitted the fishermen to recover in
negligence for purely economic losses. Curd, 39 So. 3d 1216. Recently, in Tiara
Condominium Ass'n v. Marsh & McLennan Cos, 110 So. 3d 399, 400 (Fla. 2013), the
court declared that the economic loss rule has application only in the context of
products liability cases. In bringing this lawsuit, the Plaintiffs in this case appear to read
Curd and Tiara Condominium as opening the door to virtually any claim in negligence
for purely economic loss. We are inclined to read these cases more narrowly. See,
e.g., Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1339-40 & 1340 n.31 (11th Cir. 2012)
(declining to apply Curd in a different factual context).
In Curd, the court determined that the specific circumstances of the
fishermen justified an expansion of negligence law such that the standard of care owed
by the fertilizer company to the fishermen was a standard that included a duty to protect
their livelihood. 39 So. 3d at 1228. In Tiara Condominium, the holding limiting the
economic loss rule occurred in the context of the liability of an insurance broker. 110
So. 3d at 400-01. An insurance broker, like other economic professionals, fits into a
special professional category where the standard of care includes a duty to protect the
economic interests of clients or affected parties. We question whether the supreme
court in Curd and Tiara Condominium intended to allow customers of a local utility
company who have suffered only economic loss to sue every contractor or automobile
driver that negligently ruptures a gas line, knocks down a power pole, or otherwise
disrupts utility service. That issue, however, is not within the scope of review in this
nonfinal appeal.
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Affirmed.
MORRIS and SLEET, JJ., Concur.
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