NOT FINAL UNTIL TIME EXPI RES 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.

A ppeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Lee County; Sherra Winesett, Judge.

Michael R.N. McDonne ll 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 Enter prises LLC (th e Plaintiffs) appeal an order denying their amended motion for class certific ation. The alleged cause of action in this case is negligence. Although the Plain tiffs sought to determine only the issues of duty and breach of duty in their attempted c lass action, a person does- 2 - not have a cause of action for negligence in the absence of act ual damage. Thus, to establish numerosity and typicality for purposes of this class action, the Plaintiffs needed to show that a sufficient and clearly ascertainable numb er of the proposed class had suffered some compensable damage from the alleged negligenc e. 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 c ertification. 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 Enterp rises LLC suffered any physical damage to their property, which was not adjacent to th e location where the gas line was damaged. Instead, they claim that they lost profits i n their respective businesses because the gas supply to their buildings was interr upted. The Plaintiffs initially sought to certify a class of "[a]ll c ommercial 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 l ine. The Plaintiffs alleged that the class consisted of approximately 1200 members, the num ber 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 certific ation after an evidentiary hearing because, among other reasons, extensive individualized fact-finding would have been necessary to determine who the members of the proposed cla ss were—i.e., those customers who had actually suffered economic losses from the in terrupted gas service.- 3 - The Plaintiffs then brought the amended motion for class certi fication. They attempted to overcome the problem in the first motion by r edefining 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 an d breach of duty. They argued that assuming that they could prove liability in the cla ss action, they would seek

to have individualized determina tions of causation and damages. The Plaintiffs again alleged that the class contained the approximately 1200 custome rs 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 t han themselves had suffered any economic loss. Posen, on the other hand, presente d extensive evidence suggesting that due to the varied nature of their businesses, m any of the commercial customers who experienced an interruption in gas service had no t 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 ex pert accountant explained that m any 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.- 4 - The Plaintiffs' proposed class also included 695 restaurants, i ncluding Lucarelli Pizza & Deli. While it seems logical that a pizza pa rlor that relied on gas to bake its product would be significantly affected by a loss of g as service, Posen presented evidence that showed t hat even among the restaurants, it was unclear how many may have actually suffered any economic loss from the disr uption in gas service. A restaurant owner testified that she only used gas for aesthet ic purposes—for outdoor lamps—and that she suffered no loss of revenue as a result of t he disruption in gas

service. In short, the evidence demonstrated that while many members of the proposed class might have been inc onvenienced by the loss of ga s service, they would be unable to make any claim for a loss of revenue or profit. B ased on this evidence, the trial court concluded that "potent ially a great many class memb ers, 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 no t have a cause of action and would not be proper parties to an action sounding in neglig ence. The amendment did not change the problem the Plaintiffs faced to establish ei ther numerosity or typicality: that the proposed class was overbroad because it in cluded 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 2 012) (holding that the proposed class was overbroad and that the trial court did not a buse its discretion when it concluded that the plaintiff failed to satisfy numerosity be cause the plaintiff's evidence- 5 - 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, 10 93 (Fla. 4th DCA 2003) (holding that the trial court di d not abuse its discretion when it concluded that the plaintiffs failed to satisfy typicality because the proposed cl ass included customers who could not claim any injury or damage); see also Kohen v. Pac. I nv. 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 o f the defendant."). We emphasize that this court is not called upon to determine w hether the complaint stated a cause of action in negligence. From its ear ly origins, the interest protected by a cause of action in negligence was the interest i n one's person and physical property. Thus, the actual damage that was an essenti al 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 summar y judgment in favor of the defendant power company and cont ractor where the commercial plaintiffs brought negligence claims alleging purel y economic damages caused by po wer 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 i n 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 Sto ne's Throw Condo. Ass'n v. Sand Cove Apartments, Inc., 749 So. 2d 520 (Fla. 2d DCA 1999).- 6 - Several years ago, in a case where the livelihood of fishermen was threatened by pollution, the supreme court permitted the fisher men 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 l oss rule has application only in the context of products liability cases. In bringing this lawsuit, the Plaint iffs 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 & 1 340 n.31 (11th Cir. 2012) (declining to apply Curd in a different factual context). In Curd, the court determined that the specific circumstances o f the fishermen justified an expansion of negligence law such that th e 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, th e 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 pro fessionals, fits into a special professional category where the standard of care includ es 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 contr actor or automobile driver that negligently ruptures a gas line, knocks down a powe r pole, or otherwise disrupts utility service. That issue, however, is not within t he scope of review in this nonfinal appeal.- 7 - Affirmed.

MORRIS and SLEET, JJ., Concur.