National Continental Insurance Co. v. Perez

897 So. 2d 492, 2005 Fla. App. LEXIS 86, 2005 WL 53240

• Court: District Court of Appeal of Florida
• Decided: January 12, 2005
• Docket: No. 3D03-1062
• Status: Published

Opinion

WELLS, Judge.

Insurer National Continental Insurance Company appeals an order granting class certification to a group of insureds, including Hector Perez, Jr., who claim that after their insurer’s recovery from third parties, insureds were not fully compensated for their losses where their insurer returned only a prorated portion of their collision deductibles, calculated considering insureds’ contributory negligence. In Monte De Oca v. State Farm Fire and Cas. Co., Consol. Nos.03-661, 03-1468, 897 So.2d 471, 2004 WL 2955008(Fla. 3d DCA December 22, 2004), we clarified that an automobile insurer will not be held to have violated the made-whole doctrine where it returns to its contributorily negligent insured a properly calculated prorated portion of insured’s collision deductible after recovery in a subrogation action.

While the trial court did not abuse its discretion by confining its ruling to the only matter properly before it, certification of class, the analysis as set out in Monte de Oca, resolves this case and demonstrates why the order under review must be reversed.

Reversed and remanded.