AMERICAN MEDICAL SECURITY v. ADDISON (2001)

District Court of Appeal of Florida,Fourth District.

AMERICAN MEDICAL SECURITY, a corporation, and United Wisconsin Life Insurance Company, a corporation, Appellants, v. Evelyn ADDISON, Bonita Axel, Mary Diem, Lorraine Epton, Margee A. Gaudreau, Jack Hodgkin, Joan M. Howell, Carol S. Levy, Barbara MacDonald, Joan M. Potter, Mary I. Rogers, Marcia L. Smith, Renee Thornton, and David S. Turner, on behalf of themselves and all others situated, Appellees.

No. 4D00-4114.

Decided: October 17, 2001

John Beranek of Ausley & McMullen and Harry O. Thomas and Karen Asher Cohen of Katz, Kutter, Haigler, Alderman, Bryant & Yon, P.A., Tallahassee, for appellants. Jeffrey M. Liggio of Liggio, Benrubi & Williams, P.A., West Palm Beach and Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellees. Rochelle Bobroff, Washington, D.C., and Stacey Mullins of Romano, Eriksen & Cronin, West Palm Beach, for Amicus Curiae AARP.

This is a non-final appeal from an order certifying a class action which we have jurisdiction to review under rule 9.130(a)(3)(C)(vi), Florida Rule Appellate Procedure. The lawsuit arises out of group health insurance plans in which the insurer is appellant United Wisconsin and the administrator is appellant American Medical. Appellee plaintiffs allege that the defendants violated Florida Statutes when they cancelled policies without properly offering replacement coverage.

Although the only order entered in this case which is appealable as a non-final appeal is the order certifying this as a class action, the first two issues raised by defendants involve alleged errors in the court's denial of the defendants' motion to dismiss.

The motion to dismiss asserted that after this suit was filed, the Florida Department of Insurance instituted administrative proceedings against United Wisconsin based on the same violations alleged by plaintiffs and that the Department had primary jurisdiction over the claims raised in this case both as to United Wisconsin and American Medical. The problem is that a trial court's non-final order as to this issue is not subject to non-final review and must wait until final disposition of the case. South Lake Worth Inlet Dist. v. Town of Ocean Ridge, 633 So.2d 79, 86 (Fla. 4th DCA 1994).

We accordingly do not have jurisdiction to review that issue or other issues raised by defendants in their motions to dismiss which do not involve the propriety of class certification. We agree with plaintiffs that the trial court did not err in certifying this as a class action as to both United Wisconsin and American Medical. Affirmed.

PER CURIAM.

WARNER, KLEIN and SHAHOOD, JJ., concur.

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