# Third District Court of Appeal

State of Florida

Opinion filed September 16, 2015.

Not final until disposition of timely filed motion for rehearing.

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No. 3D14-3137

Lower Tribunal No. 11-18732

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### Celebrity Cruises, Inc.

, Appellant,

vs.



### Jerry Rankin, M.D., et al.

,

Appellees

An Appeal from a non-final order from the Circuit Court for Miami-Dade

County, Jorge E. Cueto

, Judge.

Mase, Lara, P.A., and Richard D. Lara, Cameron W. Eubanks

, and Lauren

DeFabio, for appellant.

Meister Law, LLC, and Michael F. Guilford, P.A.; Russo Appellate Firm,

P.A., and Elizabeth K. Russo and Christopher J. Bailey, for appellees.

Before SALTER, FERNANDEZ, and LOGUE, JJ.

LOGUE, J.,Celebrity Cruises, Inc. (“Cruise Line”), appeals an order certifying a class of

doctors who worked under contract with the Cruise Line. For the reasons explained

below, we affirm.

FACTS AND PROCEDURAL HISTORY

According to the complaint, the Cruise Line contracted with the Doctors to

pay them a commission on “total medical revenues.” When paying commissions,

however, the Cruise Line excluded revenues generated by the sale of medications.

The underlying dispute, therefore, is whether the Doctors were contractually

entitled to commissions on medication sales.

In internal emails, the Cruise Line’s management team discussed whether

doctors subject to the contract were entitled to commissions on medication sales:

According to the signed contracts, physicians’ commission should be

on total medical revenue (procedure and medication sales) as opposed

to commission on procedure only. Since current medical settlement

pays commission on procedure only, the difference needs to be

calculated based on what is stated in the contract (commission on total

revenue) for the contract period stated in the contract.

Please prepare retro pay amount as lump sum payment, and this needs

to take place as soon as possible.

The Doctors filed suit, alleging a breach of contract and seeking class

certification under Florida Rule of Civil Procedure 1.220(b)(3). In opposition to

class certification, the Cruise Line argued that common issues would not

predominate over individual ones: “[A]n analysis of each individual physician’s

2understanding of the terms of their agreement with [the Cruise Line]

. . . will

necessarily overwhelm any issues that could be deemed common to this class.”

The Cruise Line submitted depositions of several class members in an

attempt to support its contention. The depositions reflected that one physician was

unaware of the relevant contract term until recently, another physician was aware

of the term but assumed the Cruise Line did not pay a commission on medication

sales, and yet another physician claimed that every physician knew he or she was

contractually entitled to a commission on medication sales. An additional point

raised by the Cruise Line concerned the timing of each physician’s objections to

the alleged failure to pay commissions on medication sales, as some voiced

concerns shortly after signing their contracts, while others did not object until the

filing of the lawsuit.

After a hearing on the motion for class certification, the trial court granted

the motion and certified the following class definition:

All ship physicians of [the Cruise Line] who worked during the time

period of September 17, 2004, to December 31, 2009, and had

contracts that provided for payment based upon a commission on total

medical revenue without a specific exclusion for medication/medicine

that were not paid a percentage of the medication/medicine sales.

This appeal followed.

ANALYSIS

3“[A]n appellate court reviews a trial court’s grant of class certification for an

abuse of discretion.” Sosa v. Safeway Premium Fin. Co.

, 73 So. 3d 91, 102 (Fla.

2011). Of course, that discretion is to be applied within the structure of rule 1.220.

Id. at 103. At the class certification stage, the inquiry does not focus on whether

the class representatives will prevail at trial. Id. at 105. “Instead, the focus is on

whether a litigant’s claim is suited for class certification and whether the proposed

class provides a superior method for the fair and efficient adjudication of the

controversy.” Porsche Cars N. Am., Inc. v. Diamond

, 140 So. 3d 1090, 1095 (Fla.

3d DCA 2014) (quotations and citation omitted). “However, if consequential to its

consideration of whether to certify a class, a trial court may consider evidence on

the merits of the case as it applies to the class certification requirements.” Sosa

, 73

So. 3d at 105.

The prerequisites to class certification are well known: numerosity;

commonality; typicality; and adequate representation. Fla. R. Civ. P. 1.220(a). In

addition to meeting these threshold requirements, the class must fall within one of

the three different types of class actions established in rule 1.220(b). Sosa

, 73 So.

3d at 106; Diamond

, 140 So. 3d at 1095.

This case was plead as a (b)(3) class action. “In a (b)(3) class action, not all

issues of fact and law are common, but common issues predominate over

individual issues.” Id. at 1095-96 (citing Fla. R. Civ. P. 1.220(b)(3)). This occurs

4“when, considering both the rights and duties of the class members, the proof

offered by the class representatives will necessarily prove or disprove the cases of

the absent class members.” Id. at 1096. As the Florida Supreme Court explained in

Sosa :

[A] class representative establishes predominance if he or she

demonstrates a reasonable methodology for generalized proof of

class-wide impact. A class representative accomplishes this if he or

she, by proving his or her own individual case, necessarily proves the

cases of the other class members.

73 So. 3d at 112 (internal citation omitted). The Court added that the class

representative’s case must not merely raise a common question; the proof of the

class representative’s case must also “answer the question.” Diamond

, 140 So. 3d

at 1096 (citing Sosa

, 73 So. 3d at 111). The United States Supreme Court has

echoed this sentiment:

What matters to class certification

. . . is not the raising of common

‘questions’

— even in droves

— but, rather the capacity of a classwide

proceeding to generate common answers apt to drive the resolution of

the litigation. Dissimilarities within the proposed class are what have

the potential to impede the generation of common answers.

Wal

– Mart Stores, Inc. v. Dukes

, 131 S. Ct. 2541, 2551 (2011) (citation omitted).

In this case, common issues predominate over individual ones. This is not a

case where the class members seek commissions or bonuses based upon unwritten

contracts with potentially different terms for different class members. See, e.g.

,

InPhyNet Contracting Servs., Inc. v. Soria

, 33 So. 3d 766, 773 (Fla. 4th DCA

52010) (holding common issues did not predominate over individual issues in an

action against a staffing agency for failure to pay bonuses, where no written

statement of obligation existed). Nor is this a case where the class members failed

to allege the existence of a common contract under which the company employed

all class members. See, e.g.

, Vega v. T-Mobile USA, Inc.

, 564 F.3d 1256, 1272

(11th Cir. 2009).

Instead, here, the breach of contract claim is based on the Cruise Line’s

refusal to pay the class members who were the beneficiaries of the identical written

contractual provision. The case poses the same basic legal question for all class

members: whether, according to the signed contracts, the Doctors’ commissions

should be based on total medical revenue, or whether the revenue from the sale of

mediations should be excluded. The answer to this question will essentially resolve

the core dispute between the Cruise Line and the class members.

Of course, individual issues remain. The damage calculation, for example,

will be different for each class member, although it appears the same, mechanical

method can be used to calculate the class member’s damages. In these

circumstances, individual damage calculations do not predominate over the

common issue of liability under the contract. See Morgan v. Coats

, 33 So. 3d 59,

66 (Fla. 2d DCA 2010) (“[A]lthough there will be some factual variations among

the claims of each class member, those variations go to the determination of each

6class member’s damages rather than to the elements of the claims. The actual

claims are based on the same legal theories and are based on the same course of

conduct by the sheriff.”). Likewise, if questions of waiver and awareness of the

existence of their contractual right to the commission exist for individual class

members (and we are not clear how those issues serve in this case to defeat a

contractual claim), those issues can be resolved expeditiously within the context of

the class action in the same manner that individual damages are resolved. Those

individual issues do not stop the interpretation of the core contractual provision

from predominating here. See Sosa

, 73 So. 3d at 111 (“Florida courts have held

that common questions of fact predominate when the defendant acts toward the

class members in a similar or common way.”).

For these reasons, we affirm the trial court’s decision to certify the class.

7