Sandra Safont, et al., Plaintiffs, v. State Farm Florida Insurance Company, Defendant. (2026)

ORDER

This cause comes before the Court on Magistrate Judge Lisette M. Reid's Report and Recommendation (the “Report”) [ECF No. 159] on the Motion to Certify Class [ECF No. 105] and Motion to Exclude Plaintiff's Expert [ECF No. 123].

When a magistrate judge's report and recommendation is timely objected to, the district court reviews the objected-to portions of the report and recommendation de novo. Wade v. Dep't of Veteran Affs., Case No. 23-cv-20186, 2023 WL 4228182 at *1 (S.D. Fla. June 28, 2023). A party lodging an objection to a report and recommendation “must clearly advise the district court and pinpoint the specific findings that the party disagrees with.” U.S. v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009). Having reviewed the objections [ECF No. 163, 165, 172] and having reviewed the objected-to portions of the Report de novo, and otherwise being fully advised, it is ORDERED AND ADJUDGED that:

1. The Report [ECF No. 159] is AFFIRMED.

2. The Motion to Certify Class [ECF No. 105] is DENIED.

3. The Motion to Exclude Plaintiff's Expert [ECF No. 123] is GRANTED.

DONE AND ORDERED in chambers in West Palm Beach, Florida, this 22nd day of September 2026.

Copies Served:

Jason Kenneth Kellogg

Levine Kellogg Lehman Schneider & Grossman

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Paul Michael Nunez

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Paulino Antonio Nunez, Jr.

Rodriguez Tramont & Nunez

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Email: pan@rtgn-law.com

Marcy Levine Aldrich

Akerman LLP

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Scott Earl Allbright, Jr

Akerman LLP

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Bryan Thomas West

Akerman LLP

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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 1:22-cv-22891-EA

SANDRA SAFONT f/k/a SANDRA S. MARIN, THOMAS BARBATO and YVONNE BARBATO, individually and on behalf of all others similarly situated, Plaintiffs,

v.

STATE FARM FLORIDA INSURANCE COMPANY, Defendant.

REPORT AND RECOMMENDATION

THIS CAUSE came before the Court upon Plaintiffs Thomas and Yvonne Barbato's (collectively “Plaintiffs” or the “Barbatos”) Motion for Class Certification (the “Class Certification Motion”), and Defendant State Farm Florida Insurance Company's (“Defendant” or “State Farm”) Motion to Exclude Plaintiffs’ Expert, Daniel Hughes, and Other Unnamed Experts for Purposes of Class Certification. [ECF Nos. 105, 123]. Both motions are fully briefed. [ECF Nos. 122, 133, 135, 138, 142, 145]. The motions were referred to the Undersigned for a Report and Recommendation ¹ by The Honorable Ed Artau. See [ECF No. 140].

The Court has reviewed the parties’ written submissions, the record, and applicable law. For the following reasons, the undersigned recommends that the Class Certification Motion be DENIED and the Motion to Exclude Expert and Other Unnamed Experts for Purposes of Class Certification be GRANTED.

I. BACKGROUND

A. Factual Background

The only remaining plaintiffs in this case are the Barbatos. The case was originally filed by Sandra Safont. See [ECF No. 1]. Plaintiffs Thomas and Yvonne Barbato joined the lawsuit upon the filing of the first amended complaint. See [ECF No. 15]. Subsequently, Safont filed a voluntary notice of dismissal. See [ECF No. 21].

Plaintiffs sued State Farm for breach-of-contract after State Farm paid a claim under Plaintiffs’ insurance policy but refused to pay interest on the claim. [ECF No. 70]. According to Plaintiffs, a standard homeowners’ insurance policy requires State Farm to pay the homeowner interest on claims it fails to pay within a certain timeframe. Because State Farm failed to pay their claim within that timeframe, they filed suit for breach of contract as lead Plaintiffs to bring a class action on behalf of themselves and other State Farm insureds.

Plaintiffs’ Policy contains a “Loss Payment” provision that states when State Farm must pay interest to its customers on loss payments:

8. Loss Payment. We will adjust all losses with you. We will pay you unless some other person is named in the policy or is legally entitled to receive payment. Loss will be payable:

a. 20 days after we receive your proof of loss and reach agreement with you; or

b. 60 days after we receive your proof of loss and:

(1) there is an entry of a final judgment; or

(2) there is a filing of an appraisal award with us.

If we do not pay or deny a loss within 90 days after we receive notice of an initial, reopened, or supplemental property insurance claim from you and no factors beyond our control would reasonably prevent us from making payment, interest will be paid in accordance with Section 627.70131(5) of the Florida Insurance Code.

[Id. ¶ 10]. “Section 627.70131(5)(a), Fla. Stat. (2017), provides that interest must be included with payments not made within 90 days of notice of loss [and] that if factors beyond an insurer's control reasonably prevent payment from being made within 90 days, then payment must be made within fifteen days of those factors ceasing to exist.” [Id. ¶ 11] (emphasis added).

The principal issue to be resolved in Plaintiffs’ case is whether Defendant was required to tender payment of the appraisal award within fifteen days or sixty days. Plaintiffs’ position is that, in their case, payment should have been tendered within fifteen days—since it was not, then Defendant must pay interest on the award. State Farm's position is that an appraisal award is payable within 60 days after: (1) State Farm receives the insured's proof of loss; and (2) the appraisal award is filed with State Farm.

B. The Class Certification Motion

Defendant insists that class certification is inappropriate as Plaintiffs’ theory seeking an award of damages in the form of interest hinges on a number of variables, such as identifying when an appraisal award is fully executed, when an appraisal award is received by State Farm, when “there are no longer factors beyond the control of [State Farm] which reasonably prevented such payment,” and whether there was “a legal challenge made to the Award,” among others. See generally [ECF No. 122]. As Plaintiffs fail to meet all requirements of Rule 23, Defendant contends that class certification is not practical for this type of claim. [Id.].

II. DISCUSSION

Federal Rule of Civil Procedure 23 governs the certification of class actions. Rule 23(c)(4) provides that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.” Id. For class certification, the named plaintiffs must have standing, and the putative class must satisfy both the requirements of Rule 23(a) and those of one subsection of Rule 23(b). See Cordoba v. DIRECTV, LLC, 942 F.3d 1259, 1267 (11th Cir. 2019). Ascertainability — whether the “proposed class is adequately defined and clearly ascertainable” — “is an implied prerequisite to the requirements of Rule 23.” Cherry v. Dometic Corp., 986 F.3d 1296, 1302 (11th Cir. 2021) (quotation marks and citation omitted). Rule 23(a) itself imposes four requirements — numerosity, commonality, typicality, and adequacy — which ensure, respectively, that the putative class is sufficiently “numerous that joinder of all members is impracticable;” that “there are questions of law or fact common to the class;” that the named plaintiffs’ claims are “typical” of the class's claims; and that the named plaintiffs “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). Rule 23(b)(3), the subsection on which Plaintiffs rely for class certification, requires a court to find that questions of law or fact common to the class predominate over individual questions, and that a class action is superior to other methods of adjudicating the case. See Fed. R. Civ. P. 23(b)(3).

The Court first addresses the adequacy of the class definition, then it addresses ascertainability, then the Rule 23(a) factors,² and lastly the Rule 23(b) requirements. After Defendant initially argued that Plaintiffs’ class definition was vague, among other failings, Plaintiffs amended the Proposed Class to:

All persons legally entitled to receive payment on claims made by persons insured under a residential property insurance policy issued by State Farm Florida Insurance Company (State Farm) with an effective date before March 1, 2023, including such persons who are not residents of Florida, who, on or after September 9, 2017, (1) gave notice of a claim for loss insured under the policy; (2) had the amount of the claim determined by an appraisal award (Award); (3) received payment on the Award from State Farm without a post-Award legal challenge made to the Award; and (4) were sent payment more than 90 days after giving notice of the claim and more than 15 days after the filing of an Award, signed by two or more appraisers with State Farm, but were not paid interest.

[ECF No. 133 at 7].

Specifically, Plaintiffs amended Proposed Class includes people “legally entitled to receive payment” even if they were not insureds under the policy and clarifies that: (1) the people whose Awards were challenged by Defendant do not fall within the class and (2) the alleged 15-day payment deadline begins on the date that Defendant received the Award signed by two or more appraisers. [ECF No. 133].

State Farm has raised a number of challenges to the revised class definition. The Court agrees with Defendant on two of its challenges to the revised class definition. First, the Court finds the phrase “legal challenge” is vague. For example, in their Reply, Plaintiffs explain that the Proposed Class included only those whose award Defendant did not challenge. [ECF No. 133 at 5]. However, in their sur-surreply Plaintiffs contend that “[i]f, after the Award was filed, the Award was challenged (“post-Award legal challenge”) — i.e., either State Farm or the recipient disagreed with the amount of the claim determined by the Award — then the person whose Award was challenged is not part of the class.” [ECF No. 145 at 6–7] (emphasis added). By Plaintiffs’ own admission, the terms can be interpreted in multiple ways and therefore, it is vague. See generally Jeld-Wen, Inc. v. Nebula Glass Int'l Inc., No. 07-22326-CIV, 2008 WL 11333404, at *4 (S.D. Fla. Mar. 12, 2008) (“Because the term ‘patent claims’ can be construed different ways, the Court concludes that it is vague.”).

Second, State Farm notes that the new class definition would exclude Plaintiffs since their appraisal award was signed by an appraiser and an umpire. Plaintiffs argue that the word “appraisers” generically refers to a member of an appraisal panel, which would include an umpire. [ECF No. 145 at 7]. However, the Policy clearly distinguishes between appraisers and an umpire stating that “[i]f the appraisers fail to agree within a reasonable amount of time, they shall submit the differences to the umpire. Written agreement signed by any two of these three shall set the amount of the loss[.]” [ECF No. 70-1 at 17]. Furthermore, just because an umpire might be part of the appraisal panel does not mean that the term appraisers encompasses the umpire, clearly there is a distinction between the two, otherwise the Policy would not have included such language. See generally Taylor v. Certified Legal Funding, Inc., No. 8:18-CV-27-EAK-MAP, 2018 WL 3860243, at *3, n.2 (M.D. Fla. July 3, 2018) (“Notably, although Plaintiff adamantly insists that through his class definition he only meant to include Florida citizens, he nevertheless concedes that his class definition is ‘not the most artfully drafted.’ [ ] Plaintiff is thus reminded that when suing in state court on behalf of a potentially large class and for a lot of money, [he] should plead with scrupulous attention to the consistent meaning of words. A slip of the pen might change the forum.”) (internal citations and quotations omitted).

Based on the deficiencies in the class definition alone, the class should not be certified. Notwithstanding, these deficiencies, the Court will continue its analysis. See Benefield v. Int'l Paper Co., 270 F.R.D. 640, 645 (M.D. Ala. 2010) (noting that “the class has not been sufficiently defined, and the Motion for Class Certification is due to be denied on that basis[;]” but nonetheless examining the other class certification requirements to determine whether a properly defined class could be certified under Rule 23 because the court has “discretion to allow redefinition of the class to cure deficiencies in its definition.”).

Next, “acertainability is an implied prerequisite of Rule 23” that Plaintiffs must satisfy “before the district court can consider whether the class satisfies” Rule 23(a). Cherry, 986 F.3d at 1302 (citation omitted). Initially, Plaintiffs asserted the Proposed Class is ascertainable because class membership is capable of determination based on the following objective criteria:

(i) Did an insured with a residential property insurance policy effective prior to March 1, 2023, make a claim after September 9, 2017?;

(ii) If yes, did that insured's claim go to appraisal and result in an Award?;

(iii) If yes, did State Farm fully pay the Award without making a legal challenge to the award?;

(iv) If yes, did State Farm pay the Award more than 90 days after the insured gave notice and did it take more than 15 days from the date of the Award to sed payment for the Award?; and

(v) If yes, did State Farm pay interest in the Award.

[ECF No. 105 at 8]. Defendant raises the same objections to ascertainability that it raised regarding class definition. [ECF No. 122 at 13]. In addition, Defendant states that the class is not ascertainable because not all of the documents Plaintiffs assert can identify the class—appraisal award, summary of loss form, “we received a loss report” letter, and payment settlement documents—are available in Defendant's electronic system; some documents are in the hands of third parties (attorneys, individual insureds or vendors); and not all appraisals “involve an insured (some are with third parties like assignee water mitigation companies or other vendors).” [Id.]. In sum, Defendant contends “the only way to reliably determine class membership is by reviewing each claim individually to account for all the criteria[,]” which means it will be difficult to manage the class. [Id. at 13–14].

After Plaintiffs redefined the class, Defendant still maintains that it would have “to review almost 90,000 claims to determine whether they were appraised and – if so – ascertain whether they meet the other criteria for class membership.” [ECF No. 142 at 10]. Plaintiffs respond that Defendant cannot overcome their evidence supporting class certification “with hypothetical ‘what if's’ and ‘maybes,’ particularly where the ascertainability standard states that any difficulties in ascertainability ‘will rarely, if ever be dispositive.’ ” [ECF No. 145 at 9].

“[A] proposed class is ascertainable if it is adequately defined such that its membership is capable of determination.” Cherry, 986 F.3d at 1304 (citation omitted). A proposed class may not be “so vague as to be indeterminate,” including by reliance on “vague or subjective criteria.” Id. at 1302–03 (citations omitted). “But membership can be capable of determination without being capable of convenient determination. Administrative feasibility is not an inherent aspect of ascertainability.” Id. at 1303 (emphasis in original).

The Court finds that due to the flaws in the class definition, class membership is not clearly ascertainable. See supra at 5–6. However, the Court is unpersuaded by Defendant's argument that the individualized review of each claim prevents the class from being ascertainable because “administrative difficulties—whether in class-member identification or otherwise—do not alone doom a motion for certification. Indeed, we have made clear that manageability problems will rarely, if ever, be in [themselves] sufficient to prevent certification.” Ewing v. GEICO Indem. Co., No. 5:20-CV-165 (MTT), 2022 WL 1597824, at *6 (M.D. Ga. May 19, 2022) (quoting Cherry, 986 F.3d at 1304). The Court will nonetheless continue its analysis to the Rule 23(a) factors.

1. Rule 23(a) Factors

a. Numerosity: Rule 23(a)(1)

Rule 23(a)(1) requires that “the class [be] so numerous that joinder of all members is impracticable[.]” Fed. R. Civ. P. 23(a)(1). “[W]hile there is no fixed numerosity rule, generally less than twenty-one is inadequate, more than forty adequate, with numbers between varying according to other factors.” Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1553 (11th Cir. 1986) (alteration added; quotation marks omitted). A plaintiff “need not show the precise number of members in the class[,]” Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983) (citations omitted), and numerosity is a “generally low hurdle[,]” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1267 (11th Cir. 2009). But like all Rule 23 prerequisites, the burden to establish numerosity is plaintiffs’, and the court must make “a supported factual finding” on the question. Id. (citation omitted).

Defendant does not challenge numerosity. [ECF No. 122 at 15]. The Court nevertheless analyzes this factor given its obligation to undertake a rigorous analysis of the prerequisites for certification. See Comcast, 569 U.S. at 33 (citation omitted). Plaintiffs argue that this factor is satisfied because the putative class consists of more than forty members. [ECF No. 105 at 9]. Specifically, Plaintiffs explain that during the relevant time period there were 90,716 residential property insurance claims, and an initial sample of 400 of those claims resulted in at least twelve putative class members. [Id.] Thus, Plaintiffs conclude that the estimated number of class members from the 90,716 claims could exceed 2,700. [Id.]. The Court agrees with Plaintiffs and finds that they have met their burden in producing sufficient evidence to establish that the class size in this matter is so numerous that joinder of all members is impracticable. See Williams v. Wells Fargo Bank, N.A., 280 F.R.D. 665, 672 (S.D. Fla. 2012), modified on reconsideration sub nom. Willaims v. Wells Fargo Fin. Services, Inc., No. 11-21233-CIV, 2012 WL 12865256 (S.D. Fla. July 25, 2012) (finding the numerosity requirement was satisfied when the plaintiffs “presented evidence that over 20,000 insurance policies were force-placed by Wells Fargo and QBE from 2009 to 2011 in the State of Florida[,]” and the “evidence was not challenged, nor objected to, by Wells Fargo or QBE.”).

b. Commonality: Rule 23(a)(2)

The Court finds that Plaintiffs have met their burden to establish the commonality requirement. Rule 23(a)(2) requires that there be “questions of law or fact common to the class[.]” Fed. R. Civ. P. 23(a)(2). “Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury,” — not merely “a violation of the same provision of law.” Dukes, 564 U.S. at 349–50 (quotation marks omitted; quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). Commonality assesses the capacity of aggregate litigation “to generate common answers apt to drive the resolution of the litigation; [d]issimilarities within the proposed class” undermine commonality. Dukes, 564 U.S. at 350 (emphasis in original; quotation marks and citation omitted). This means there must be “issues that are susceptible to class-wide proof.” Murray v. Auslander, 244 F.3d 807, 811 (11th Cir. 2001) (citation omitted). Still, even a single common question will suffice, see Dukes, 564 U.S. at 359; and, like numerosity, commonality presents “a low hurdle[,]” Sos v. State Farm Mut. Auto. Ins. Co., No. 21-11769, 2023 WL 5608014, at *16 (11th Cir. Aug. 30, 2023) (quotation marks and citation omitted). “Commonality ‘will often be satisfied in cases of form contracts such as insurance policies, so long as the policy documents are uniform or largely the same throughout the case.’ ” Signor v. Safeco Ins. Co. of Illinois, No. 19-61937-CIV, 2021 WL 1348414, at *4 (S.D. Fla. Feb. 18, 2021), aff'd, 72 F.4th 1223 (11th Cir. 2023) (quoting Mills v. Foremost Ins. Co., 269 F.R.D. 663, 671 (M.D. Fla. 2010)).

Plaintiffs cite the question of “whether the Policy's Loss Payment provision required State Farm to send payment to Plaintiffs and class members within 15 days of an Appraisal Award[.]” [ECF No. 105 at 10]. Plaintiffs insist the question is appropriate for class-wide resolution because if the answer is yes then “all or a significant number of insureds whose payment State Farm did not timely make will be class members.” [Id.]. Defendant asserts that the answer to the question is not “apt to drive the resolution of class member claims” because it “would not resolve whether: (a) any insured is a member of the class; (b) there were any factors that reasonably prevented State Farm from making payment in 15 days; (c) an appraisal award was paid timely or not; (d) interest has already been paid; or (e) an insured has already litigated their claim separately[.]” [ECF No. 122 at 15].

Again, this is a breach of insurance policy case and Plaintiffs contend—and Defendant does not dispute—that the relevant provisions of State Farm's insurance policy apply identically to Plaintiffs and putative class members. [ECF No. 133 at 1]. Thus, whether Defendant had to pay within fifteen days or sixty days is a common question among putative class members. The answer to that question would apply to every member in the class. See Signor, 2021 WL 1348414, at *5; Williams, 280 F.R.D. at 672 (“Here, the ultimate question of liability is whether the force-placed insurance premiums charged to homeowners were unlawfully inflated and excessive. If they were, that same answer will apply to every plaintiff in the class.”).

c. Typicality: Rule 23(a)(3)

Rule 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class[.]” Fed. R. Civ. P. 23(a)(3). “Typicality measures whether a sufficient nexus exists between the claims of the named representatives and those of the class at large.” Vega, 564 F.3d at 1275 (quotation marks and citation omitted). Factual differences do not necessarily preclude typicality, see Loc. 703, I.B. of T. Grocery & Food Emps. Welfare Fund v. Regions Fin. Corp., 762 F.3d 1248, 1259 (11th Cir. 2014) (citation omitted), unless named plaintiffs’ “factual position ․ markedly differs from that of other members of the class[,]” Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1337 (11th Cir. 1984) (alterations added; citations omitted).

Given that the “typicality test is not demanding” the Court finds that the typicality requirement is met because Plaintiffs’ claims and those of the Proposed Class arise from the same conduct and are based on the same legal theory—Defendant allegedly making late payments of the appraisal awards and failing to pay interest on said payment. Romano v. John Hancock Life Ins. Co. (USA), No. 19-21147-CIV, 2022 WL 138663, at *18 (S.D. Fla. Jan. 14, 2022).

d. Adequacy of Representation: Rule 23(a)(4)

Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed R. Civ. P. 23(a)(4). The Rule “encompasses two separate inquiries: (1) whether any substantial conflicts of interest exist between the representatives and the class; and (2) whether the representatives will adequately prosecute the action.” Valley Drug, 350 F.3d at 1189 (quotation marks and citation omitted). A conflict of interest must be “fundamental”; “minor conflicts alone will not defeat” class certification. Id. (quotation marks and citations omitted). To adequately prosecute the action, named plaintiffs must have “[ ]sufficient participation in and awareness of the litigation.” Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 727 (11th Cir. 1987) (alterations added; citations omitted). The adequacy requirement “applies to both the named plaintiff and counsel.” London v. Wal-Mart Stores, Inc., 340 F.3d 1246, 1253 (11th Cir. 2003) (citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997)).

Defendant argues that Plaintiffs do not adequately represent the class because they “do not share many common elements with other members of the putative class and are not typical of those of the putative class, their interests are not consistent with those of the class and render them inadequate as a matter of law.” [ECF No. 122 at 16]. However, there do not appear to exist fundamental conflicts of interest between Plaintiffs or their counsel on the one hand, and the Proposed Class on the other. An inter-class conflict is fundamental and therefore disqualifying, where the same conduct by a defendant harms certain class members and benefits others. See Valley Drug, 350 F.3d at 1189–90. Here, to the extent that Defendant is alleged to have failed to pay interest on late payments of appraisal awards, the claimants would “have the same interest in establishing the liability of” Defendant. Ward v. Dixie Nat. Life Ins. Co., 595 F.3d 164, 180 (4th Cir. 2010) (quotation marks and citation omitted).

Second, because Plaintiffs meet the commonality and typicality requirements, Defendant's argument that Plaintiffs do not adequately represent the absent class members due to their failure to meet those requirements is unsuccessful. Third, Plaintiffs would adequately prosecute this action for the Proposed Class. Class representatives are generally adequate where they actively participate in the case, even if they do not understand class action litigation. See Powers v. Gov't Emps. Ins. Co., 192 F.R.D. 313, 317 (S.D. Fla. 1998) (“[N]amed class representatives [need not] be knowledgeable, intelligent[,] or have a firm understanding of the legal or factual basis on which the case rests in order to maintain a class action.” (citations omitted)). Plaintiffs’ involvement in the case suffices to support the finding of adequacy of representation. See, e.g., [ECF No. 94] (Plaintiffs participated in discovery); [ECF Nos. 105-6, 105-7] (Plaintiffs sat for depositions).

Lastly, Defendant does not challenge counsel's adequacy to represent the interests of the class. Thus, the Court finds Plaintiffs’ counsel is adequate to represent the interests of the Proposed Class and. See Brenner v. Future Graphics, LLC, 258 F.R.D. 561, 568 (N.D. Ga. 2007) (finding the adequacy of representation requirement was met when defendants did not “contest the adequacy of the Class representatives or counsel in this action” and there was no reason to believe “that Class counsel [would] fail to adequately represent the plaintiffs.”). Plaintiffs have thus demonstrated their compliance with Rule 23(a)(4).

The Court concludes that, had the class been adequately defined, Plaintiffs would meet the Rule 23(a) requirements. Therefore, the Court continues its analysis to Rule 23(b)(3).

2. Rule 23(b)(3)

“Rule 23(b)(3) requires (1) questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) a class action be superior to other available methods for fairly and efficiently adjudicating the controversy.” Krukever v. TD Ameritrade, Futures & Forex LLC, 328 F.R.D. 649, 658 (S.D. Fla. 2018) (citing Fed. R. Civ. P. 23(b)(3)). The Court considers each of these prerequisites below.

a. Predominance

“Predominance is perhaps the central and overriding prerequisite for a Rule 23(b)(3) class․ Common issues of fact and law predominate if they have a direct impact on every class member's effort to establish liability and on every class member's entitlement to injunctive and monetary relief.” Krukever, 328 F.R.D. 649, 658 (S.D. Fla. 2018) (internal quotations and citations omitted). “This predominance requirement ‘is met when there exists generalized evidence which proves or disproves an element on a simultaneous, class-wide basis.’ ” Romano, 2022 WL 138663, at *21 (quoting Allapattah Servs., Inc. v. Exxon Corp., 333 F.3d 1248, 1260 (11th Cir. 2003)). At the same time, “[i]t is not necessary that all questions of law or fact be common, but only that some questions are common and that they predominate over individual questions. ․ . In addition, the common questions need not be dispositive of the entire action because predominate as used in the rule should not be equated with dispositive.” Id. (internal citations and quotations omitted).

Plaintiffs argue that common issues predominate over individualized ones because the answer to whether the Policy required Defendant to send payment to Plaintiffs and putative class members within fifteen days of receipt of an appraisal award is the Policy itself. [ECF No. 105 at 15]. Furthermore, Plaintiffs argue that they do not need to calculate damages at this stage or approximate economic loss for all class members before class certification and have offered expert witness Mr. Hughes’ formula for calculating each class member's damages. [Id. at 16].

On the other hand, Defendant maintains that although the “resolution of the ‘15 vs. 60 days’ issue may decide one legal question, it does not resolve the more important issue of whether State Farm is actually liable to any particular class member (or for how much)” because such determination requires factual determinations unique to each insured and a case-by-case analysis. [ECF No. 122 at 17–18]. Defendant then provides four specific individualized issues that may arise.

The Court agrees that individual issues predominate over common ones. For example, the Court would have to engage in an intensive individualized analysis on whether each class member complied with statutory pre-suit requirements. Under Section 627.70152(3) the insured must give pre-suit notice in “all suits” that arise under residential property insurance policies. Fla. Stat. § 627.70152(3). Currently, there is disagreement among Florida courts as to whether this notice requirement applies to actions under policies issued prior to July 1, 2021—the effective date of the statute—with the Third and Fourth DCAs finding it applies retroactively while the Second, Fifth, and Sixth DCAs found it does not. See, e.g., Cantens v. Certain Underwriters at Lloyd's London, 388 So. 3d 242 (Fla. 3d DCA 2024); Smith v. Universal Prop. & Cas. Ins. Co., 396 So. 3d 860 (Fla. 5th DCA 2024). One of the Florida cases is presently before the Florida Supreme Court. See Universal Prop. & Cas. Ins. Co. v. Hughes, No. SC2024-0025, 2024 WL 1714497 (Fla. Apr. 22, 2024). Regardless of what the Florida Supreme Court decides, pre-suit notice would apply to class members with policies that incepted after June 2021.

The Court is wholly unpersuaded by Plaintiffs’ argument that the pre-suit requirement would not apply to Plaintiffs or the putative class members because they did not “file suit” but rather Safont did. [ECF No. 133 at 10–11]. “After section 627.70152’s enactment, an insurer now has a second opportunity to evaluate and pay a claim and to prevent the insured from asserting a cause of action for breach of the insurance policy. Specifically, after the insurer receives a pre-suit notice of intent to litigate, the insurer has an additional 10 business days to accept coverage and pay the claim.” Hughes v. Universal Prop. & Cas. Ins. Co., 374 So. 3d 900, 904 (Fla. 6th DCA 2023). Holding that the pre-suit notice requirement would not apply to Plaintiffs or to putative class members would deprive Defendant of the opportunity the statute was intended to provide. See generally Zequeira v. MMPB Group, LLC, 400 So. 3d 656, 660 (Fla. 3d DCA 2024) (“Regardless of whether a plaintiff would sue as part of a class or individually, he or she would have to provide presuit notice where such notice is required. Nothing changes simply because a class action certification is pending. The presuit notice requirement exists to encourage possible settlement and resolution prior to, and ideally without, litigation.”); Shenandoah Chiropractic, P.A. v. Nat'l Specialty Ins. Co., 526 F. Supp. 2d 1283, 1290 (S.D. Fla. 2007) (“This Court, like the Fifth Circuit, can see the significant practical issues that would arise from allowing class notice when the statute contains clear requirements as to what the notice must contain.”).

Inquiry into which class members provided pre-suit notice to Defendant will require a case-by-case review. In fact, “[o]f the 100 appraised claims, 19 involve situations where written notices of intent to initiate litigation pursuant to Fla. Stat. § 627.70152(3) were served[,]” and “[t]wo involve situations where litigation was filed on or after July 1, 2021 and no written notice of intent to initiate litigation pursuant to Fla. Stat. § 627.70152(3) were served.” [ECF No. 124 ¶ 34]. Even where pre-suit notice was provided, the Court would still have to determine whether the notice complies with the requirements of Section 627.70152(3).

Moreover, whether there were factors beyond State Farm's control that would reasonably prevent it from making payment creates an individualized factual inquiry into each class member's claim. Section 627.70131(5)(a) states that “[a]ny payment of an initial or supplemental claim or portion of such claim made 90 days after the insurer receives notice of the claim, or made more than 15 days after there are no longer factors beyond the control of the insurer which reasonably prevented such payment, whichever is later, bears interest at the rate set forth in s. 55.03.” Fla. Stat. § 627.70131(5)(a) (2017) (emphasis added). Here, the Court would need to evaluate: (1) whether a claim implicated such factors or not; (2) whether the factors were “reasonable”; and (3) whether they were resolved. See J.B. ex rel. Ward v. Wood, No. CIVA 2:06CV755 MHT, 2007 WL 1575975, at *2 (M.D. Ala. May 30, 2007) (“When the factfinder must make findings as to reasonableness, individualized considerations are frequently paramount—not simply as to damages, but to liability as well.”).

In sum, the predominance requirement is not met because questions of law or fact common to the members of the class do not predominate over questions affecting only individual members.

b. Superiority

Rule 23(b) requires a class action to be “superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). The factors relevant to this analysis include:

(A) the class members’ interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

Krukever, 328 F.R.D. at 663. The Court examines each factor below.

Individual Interest and the Extent and Nature of Related Litigation. “Whether putative class members have a significant interest in individually prosecuting their own separate lawsuits is affected by the financial stakes involved in each individual's case․ Thus, [c]lass actions are frequently the superior method for adjudicating a controversy where each class member's damages are minimal and individual lawsuits would be cost prohibitive.” Id. Plaintiffs argue this factor weighs in favor of a finding of superiority because the damages sought by Plaintiffs and class members are relatively small and unlikely to warrant individual suits given the expense of litigation and the resources needed to sue a large insurance company like State Farm. [ECF No. 105 at 18]. On the other hand, Defendant notes that “Plaintiffs are alleging highly individualized and indisputably substantial damages of about $38,000 on their claim alone (not including fees or costs)[,]” and “allege (without any substantiation) that the average claim will be for $10,000.” [ECF No. 122 at 23].

Regarding related litigation, Plaintiffs note that they are aware of only a few other lawsuits that have sought recovery of interest under the Policy due to Defendant's late payment of an appraisal award. [ECF No. 105 at 18]. Thus, it is Plaintiffs’ position that “the paucity of individual lawsuits” support their assertion that “bringing these claims is cost-and time-prohibitive, and that class action is the better vehicle.” [Id. at 19]. In response, Defendant argues that many class members “have already engaged in separate litigation involving their own property claims – seeking property damage and/or interest[,]” and that it is common for Florida insureds to pursue individual claims. [ECF No. 122 at 23]. Further, Defendant states “the rule against splitting a cause of action requires class members [ ] to bring any claims for any damages other than interest in this action or risk losing them.” [Id. at 24]. Defendant maintains that the Proposed Class could preclude class members from seeking other types of relief associated with their claims. [Id.].

The Court finds that both factors weigh against a finding of superiority here. Although the damages sought would not be near six figures, $38,000 is still significant. Cf. Paris v. Progressive Am. Ins. Co., No. 19-21761-CIV, 2020 WL 7039018, at *10 (S.D. Fla. Nov. 13, 2020) (“Class treatment is supported by the consideration that each individual member's financial interest in vindicating their contractual rights in the present case is relatively small, on average around $112.64, in comparison to the cost of litigation a breach of contract case against a large company.”). Further, Plaintiffs have not provided the preliminary or the completed analysis showing that the average damages is approximately $10,000.

In addition, from the initial 100 appraised claims that were reviewed, at least thirty were in litigation and at least six claims that involved litigation were resolved by settlement demonstrating that individual litigation is likely. [ECF No. 125-1 at 13]. Further, as Defendant correctly points out, class members would be entitled to attorney's fees and costs if they prevail, increasing the incentive for individual litigation. See Marino v. Home Depot U.S.A., Inc., 245 F.R.D. 729, 737 (S.D. Fla. 2007) (“Furthermore, a class action is not the superior or only mechanism for resolving the issues involved in this claim. Individual plaintiffs who were not told of the pricing calculations and injured as a result could bring their own suits, as FDUTPA provides attorney's fees to a prevailing plaintiff.”).

Therefore, the Court finds these two factors weigh against a finding of superiority.

The Desirability of this Forum. Plaintiffs argue that bringing the claims in this District is desirable because Plaintiffs reside here, this is the most highly populated District in the state, and it is highly sophisticated and handles many class action cases. [ECF No. 105 at 19]. Defendant does not dispute this. See [ECF No. 122]. The Court recognizes the desirability of concentrating homeowner claims regarding interest in this particular forum. Thus, the Court finds this factor weighs in favor of superiority.

Difficulties in Managing a Class Action. Defendant argues that the class is unmanageable because the resolution of each class member's claim would require individualized factual and legal analysis of multiple issues such as:

(1) whether the claim was even within the class; (2) the ownership of the claim for interest; (3) whether appraisal set the amount payable on the claim or not; (4) whether a payment was truly “late” or not; (5) whether there were “legal challenges” to an appraisal award; (6) whether there were factors that reasonably prevented State Farm from making an appraisal payment within 15 days; (7) what kind of damages (property damage, prejudgment interest, and/or statutory interest) are elected by the class member; (8) whether State Farm already paid interest on the claim or has some other offset; and (9) whether the claim was already in litigation and/or had previously been resolved or settled.

[ECF No. 122 at 26]. In reply, Plaintiffs maintain that the putative class members can be ascertained by State Farm, and that administrative feasibility alone is not sufficient to undermine ascertainability. [ECF No. 133 at 13–17].

The Court finds significant difficulties in managing a class action here. As the Court mentioned, see supra at 14–17, the Court will have to individually assess whether pre-suit notice was given, whether the notice complies with the statute's requirement, and whether factors beyond State Farm's control reasonably prevented them from making payment. In addition, it would take a claim-by-claim review to determine several other issues such as whether the appraisal awards had been litigated or settled, or the exact timing of the payment made to the insured. As explained by Defendant “not all the documents identified by Plaintiffs would [ ] reveal the true timing between when State Farm Florida received the award and when a payment was issued.” [ECF No. 125-1 ¶ 83] (“For example, for claim no. 59-40B0-80B, the file contains a ‘We Received a Loss Report’ letter. [ ] The appraisal award was signed by the insured's appraiser and the umpire on September 7, 2023. [ ] The Payment Settlement document indicates State Farm Florida issued a payment draft on September 27, 2023. [ ] There is a summary of loss form associated with the appraisal payment. [ ] Notably, State Farm did not receive the appraisal award until September 19, 2023, as otherwise indicated in the claim file.”). These difficulties weigh against approval of class certification. See Coastal Neurology, Inc. v. State Farm Mut. Auto. Ins. Co., 271 F.R.D. 538, 545 (S.D. Fla. 2010), aff'd, 458 F. App'x 793 (11th Cir. 2012) (“[A] provider's entitlement to a reimbursement and the permissibility of an edit that reduced that reimbursement would require the Court to scrutinize individually the details of each class member's claim for reimbursement and the corresponding edits. Therefore, management of a class action containing thousands of such claims would prove difficult.”); Pantoja v. Edward Zengel & Son Exp., Inc., No. 10-20663-CIV, 2011 WL 7657382, at *10 (S.D. Fla. Aug. 5, 2011) (“Finally, the management of a class action would likely present more difficulty than managing any similar litigation individually.”).

Because three of the four superiority factors weigh against granting class certification, class treatment is not “superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).

2. The Motion to Exclude Plaintiffs’ Expert

Finally, Defendant urges the Court to disregard Plaintiffs’ expert's report, and any additional expert reports Plaintiffs may present, for purposes of determining whether the class should be certified. Because the Court recommends against class certification for the reasons stated, the undersigned also recommends granting Defendant's motion to exclude Plaintiffs’ expert Daniel Hughes for class certification purposes.

The Court serves as a gatekeeper to the admission of scientific and technical expert evidence. Quiet Technology DC-8 v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1340 (11th Cir. 2003) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 594–95 (1993)). In determining the admissibility of expert testimony, the Court engages in a three-part inquiry to consider whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology used by the expert in reaching his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact to understand the evidence or to determine a fact in issue through the application of scientific, technical or specialized expertise. City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998) (citing Daubert, 509 U.S. at 589). The Eleventh Circuit refers to each of these requirements as the “qualifications,” “reliability,” and “helpfulness” prongs. United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004). While some overlap exists among these requirements, the Court must analyze each one individually. Id.

Plaintiffs rely on Mr. Hughes to show that there would be a methodology for computing class-wide damages. See [ECF No. 105 at 16 n.73, 105-11]. Because Mr. Hughes’ testimony is critical to the element of predominance under Rule 23(b)(3), the Court must examine his report to determine whether the underlying methodology shows some hallmarks of reliability.

Mr. Hughes employed three calculations to determine the amount of interest owed to Plaintiffs and putative class members. The calculations are as follows:

The first interest recovery calculation represents the unpaid interest on the adjusted Award amount (hereinafter the “Adjusted Award Amount”), and it covers the interest period from the date a notice of claim was received under the policy up to the date the Adjusted Award Amount was paid. The formula is as follows:

Calculation No. 1: (Adjusted Award Amount $) × (Interest Days for the Interest Period) × (Daily Interest Rate s. 55.03) = Interest on Adjusted Award Amount $

The second interest recovery calculation represents the “Interest-on-Interest” amount, and it covers the interest period from the date the Adjusted Award Amount was paid through the date of my original expert report, October 28, 2025.15 The formula is as follows:

Calculation No. 2: (Interest on Adjusted Award Amount $) × (Interest Days for the Interest Period) × (Daily Interest Rate s. 55.03) = Interest on-Interest Amount $

The final calculation, which represents the total interest recovery, equals the summation of the previously two calculated interest amounts, shown as follows:

Calculation No. 3: (Interest on Adjusted Award Amount $) + (Interest-on Interest Amount $) = Total Interest Recovery Amount $

[ECF No. 105-11 at 9]. Mr. Hughes then uses the formula to calculate Plaintiffs’ interest recovery amount. [Id. at 10–12]. Specific to putative class members, Mr. Hughes states that he will “supplement [the] analysis by calculating recoveries for the Putative Class Members following class certification and production of the relevant information in a form that allows [him] to identify the necessary information to determine the interest recoveries. Depending on the definition of the class and other considerations, [he] reserve[s] the right to modify [the] recovery methodology.” [Id. at 10].

1. The Reliability Prong

Defendant challenges the reliability of Mr. Hughes’ report arguing that (a) he heavily relied “upon Plaintiffs’ counsel as to what to express as his opinion, (b) is beholden to the Excel program as to how to make calculations as opposed to performing calculations himself, and (c) has merely reviewed the facts of [Plaintiffs’] individual claim without considering the claims of other potential class members.” [ECF No. 123 at 19]. In addition, Defendant argues that Mr. Hughes calculation incorrectly concludes that Plaintiffs’ “total interest recovery” includes both “interest recovery on the original award payment” and “interest-on-interest” (pre-judgment interest) because an insured may only recover pre-judgment interest or statutory interest under Section 627.70131, but not both. [Id. at 13].

At this juncture, “[p]laintiffs need only come forward with plausible statistical or economic methodologies to demonstrate impact on a class-wide basis.” Jerue v. Drummond Co., Inc., No. 8:17-CV-587-TPB-AEP, 2023 WL 6610603, at *6 (M.D. Fla. Aug. 25, 2023), report and recommendation adopted, No. 8:17-CV-587-TPB-AEP, 2023 WL 6586087 (M.D. Fla. Oct. 10, 2023) (internal quotations omitted). The Eleventh Circuit has framed the court's inquiry in this context “as limited to whether or not the proposed methods for computing damages are so insubstantial as to amount to no method at all․ Indeed, [a]t the class certification stage, all that the named plaintiffs ha[ve] to prove [is] that a reliable damages methodology exist[s], not the actual damages plaintiffs sustained.” Id. (internal quotations and citations omitted)

Defendant correctly asserts that under Florida law an insured cannot recover both pre-judgment interest and statutory interest. Section 627.70131(5)(a), provides that:

Within 90 days after an insurer receives notice of an initial, reopened, or supplemental property insurance claim from a policyholder, the insurer shall pay or deny such claim or a portion of the claim unless the failure to pay is caused by factors beyond the control of the insurer which reasonably prevent such payment. Any payment of an initial or supplemental claim or portion of such claim made 90 days after the insurer receives notice of the claim, or made more than 15 days after there are no longer factors beyond the control of the insurer which reasonably prevented such payment, whichever is later, bears interest at the rate set forth in s. 55.03. Interest begins to accrue from the date the insurer receives notice of the claim․ If there is a right to prejudgment interest, the insured shall select whether to receive prejudgment interest or interest under this subsection.

Fla. Stat. § 627.70131(5)(a) (emphasis added); see also Newman v. Am. Home Assurance Co., Inc., No. 22-CV-20979-JB, 2024 WL 1209801, at *6 (S.D. Fla. Mar. 20, 2024), motion to certify appeal denied, No. 22-CV-20979, 2024 WL 1240612 (S.D. Fla. Mar. 22, 2024) (“To be sure, it appears that Plaintiffs cannot recover both prejudgment and statutory interest if they prevail at trial.”). Here, Mr. Hughes concludes that Plaintiffs’ total interest recovery (as of the date of his report) was $38,097.43 ($30,899.34 in statutory interest plus $7,198.09 in pre-judgment interest). Because Mr. Hughes’ formula includes both pre-judgment and statutory interest, it is unreliable.

2. The Helpfulness Prong

To be admissible, an expert's opinion must assist the trier in making a factual determination. “Expert testimony which does not relate to any issue in the case is not relevant and ergo, not helpful.” Daubert, 509 U.S. at 591 (citing Weinstein & Berger ¶ 702[2], at 702–18). “In order for the expert's testimony to be helpful it must lie outside the realm of the lay jurors’ common knowledge.” Frey v. Accessory Brands, Inc., No. 11-60486-CIV, 2012 WL 13005551, at *3 (S.D. Fla. June 1, 2012) (citation omitted).

Defendant argues that Mr. Hughes’ opinion is a basic math computation that does not require an expert's opinion. Plaintiffs reject this argument and explain that Mr. Hughes assessed the damages sought by Plaintiffs and identified the “forensic procedures to determine the variables” needed for the damages calculation. [ECF No. 135 at 7]. It is true that the formula presented by the expert is helpful in determining the interest due to the Plaintiffs. However, for the reasons stated earlier in this Report regarding the difficulties in managing a class action based upon the many variables to be reviewed to determine liability, it does not appear that Mr. Hughes’ analysis or any other expert's analysis would be helpful in calculating damages on a class-wide basis. The expert would still need to be provided with all relevant information necessary for each individual analysis of each individual claim. And the expert's calculation, while of assistance in the mathematical calculation of what Plaintiff is owed once all of the facts are discerned, could be no more helpful in determining all of the variable facts of each individual claim in a class-wide determination.³

V. CONCLUSION

For the foregoing reasons, the Undersigned RECOMMENDS that:

1. Plaintiffs Thomas and Yvonne Barbato's Motion for Class Certification be DENIED due to flaws in the class definition and Plaintiffs’ failure to satisfy the Rule 23(b)(3) predominance and superiority requirements. [ECF No. 105].

2. Defendant State Farm Florida Insurance Company's Motion to Exclude Plaintiffs’ Expert, Daniel Hughes, and Other Unnamed Experts for Purposes of Class Certification be GRANTED. [ECF No. 123].

Pursuant to Local Magistrate Rule 4(b), the parties have fourteen (14) days from the date of being served with a copy of this Report and Recommendation within which to file written objections, if any, with the assigned United States District Judge. Failure to timely file objections shall bar the parties from a de novo determination by the District Judge of an issue covered in the Report and shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions contained in this Report, except on grounds of plain error if necessary in the interest of justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-1.

DONE AND ORDERED in Miami, Florida, this 19th day of August 2026.

[illegible text]

LISETTE M. REID

UNITED STATES MAGISTRATE JUDGE

cc: U.S. District Ed Artau; and

All Counsel of Record

FOOTNOTES

1.   The Court notes that motions to exclude experts are not typically disposed of in a report and recommendation. However, since Defendant's motion to exclude Plaintiffs’ expert is tied to the class certification motion the Court will rule on the motion in this Report.

2.   Before any Rule 23(a) analysis, “the district court must determine that at least one named class representative has Article III standing[.]” Williams v. Reckitt Benckiser LLC, 65 F.4th 1243, 1253 (11th Cir. 2023) (quotation marks and citation omitted). Plaintiffs have standing since they allege Defendant breached their Policy when they were not paid interest on the appraisal award payment. See Gaalswijk-Knetzke v. Receivables Mgmt. Services Corp., No. 8:08-CV-493-T-26TGW, 2008 WL 3850657, at *2 (M.D. Fla. Aug. 14, 2008).

3.   The Court will not address the parties’ arguments regarding unnamed experts because Plaintiffs have stated that they “have not relied on any expert other than Mr. Hughes for certification.” [ECF No. 135 at 18].

ED ARTAU UNITED STATES DISTRICT JUDGE