NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

BAY AREA INJURY REHAB SPECIALISTS)

HOLDINGS, INC., as assignee of Antonette )

Warren, Glenda Herring, and Cassandra )

Hudson, individually, and on behalf of all )

those similarly situated, )

)

Appellants, )

)

v. ) Case No. 2D14-786

)

UNITED SERVICES AUTOMOBILE )

ASSOCIATION, USAA CASUALTY )

INSURANCE COMPANY, and )

GARRISON PROPERTY AND CASUALTY )

INSURANCE COMPANY, )

)

Appellees. )

)

Opinion filed June 10, 2015.

Appeal from the Circuit Court for 

Hillsborough County; Charles Ed 

Bergmann, Judge.

David M. Caldevilla and Michael R. Bray of 

de la Parte & Gilbert, P.A., Tampa; 

J. Daniel Clark of Clark & Martino, P.A., 

Tampa; and Christopher P. Calkin of The 

Law Offices of Christopher P. Calkin, P.A., 

Tampa, for Appellants.

Nancy A. Copperthwaite, Marcy Levine 

Aldrich, and Ross E. Linzer of Akerman 

LLP, Miami; and Leslie E. Joughin III, of 

Akerman LLP, Tampa, for Appellees.
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LaROSE, Judge.

I. INTRODUCTION

Bay Area Injury Rehab Specialists Holdings, Inc. (BAIRS), a health care

provider, appeals a nonfinal order denying class certification of a putative class of 

providers who opted out of a prior class action settlement and dismissing claims for 

declaratory and injunctive relief. We have jurisdiction over class certification and 

injunction issues. See Fla. Const., art. V, § 4(b)(1); Fla. R. App. P. 9.130(a)(3)(B), and 

(a)(3)(C)(vi). We lack jurisdiction over the dismissal of the declaratory relief claim. See

Fla. R. App. P. 9.130(a)(3); Dep't of Corr. v. Ratliff, 552 So. 2d 302, 303 (Fla. 2d DCA 

1989). 

In its lawsuit, BAIRS alleged that the insurance companies (collectively 

referred to as "USAA") routinely rejected valid claims for personal injury protection

("PIP") benefits based on an unlawful requirement that a separate "disclosure and 

acknowledgement form" ( D&A form) be submitted every time an insured patient 

received health care services. BAIRS sought declaratory relief (Count I), injunctive 

relief to compel PIP payments (Count II), and damages (Count III). Further, BAIRS 

sought to proceed for itself and as representative of opt-out class members from a prior 

class action settlement involving similar issues. The earlier class action did not assert 

claims for declaratory or injunctive relief. 

For the reasons explained below, we affirm the trial court's order, with one 

exception; we dismiss the appeal of the order dismissing the declaratory judgment 

count as from a nonfinal, nonappealable order. See Ratliff, 552 So. 2d at 303. 
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II. BACKGROUND

Before BAIRS sued USAA, Steven E. Goodwiller, M.D., as class 

representative, sued USAA in south Florida for unpaid PIP benefits. See § 627.736, 

Fla. Stat. (2013); Steven E. Goodwiller, M.D., P.A. v. USAA, No. 08-15594 (Fla. 17th 

Cir. 2009). Dr. Goodwiller sought monetary relief comparable to what BAIRS would 

later seek in Count III of its Second Amended Class Action Complaint (the complaint). 

In 2009, BAIRS filed its putative class action, alleging that USAA would not pay any PIP

claim without a medical bill accompanied by a D&A form. Because of the similarity of 

issues, USAA moved to stay the BAIRS lawsuit pending resolution of Goodwiller.

BAIRS agreed. Thereafter, the Goodwiller trial court approved a class action settlement 

of Goodwiller. BAIRS and about 292 class members opted out of that settlement; as a 

result, they neither shared in the settlement benefits nor were they bound by any 

adjudications made in the final judgment. See Fla. R. Civ. P. 1.220(d)(2). With 

Goodwiller resolved, the BAIRS lawsuit proceeded. USAA filed motions directed to the 

sufficiency of BAIRS' complaint.

As framed by the trial court, USAA's motions presented two issues: 

"(1) can a proposed class of opt-outs from a previous class action bring a serial class 

action . . . on the same grounds; and (2) can the proposed class of opt-outs bring a 

class action for declaratory and injunctive relief in this matter." Grappling with these

issues, the trial court acknowledged that Goodwiller did not involve claims for injunctive 

or declaratory relief. The trial court recognized, however, that BAIRS' claim for 

damages (Count III) was similar to the monetary claims asserted by Dr. Goodwiller. 
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The trial court concluded that, as a general proposition, BAIRS could seek class action 

certification for claims not raised in Goodwiller. 

Ultimately, the trial court ruled that BAIRS could not represent a class of 

Goodwiller opt-outs seeking the same form of monetary relief adjudicated in the 

Goodwiller class settlement. Accordingly, the trial court struck the class allegations in 

Count III. The trial court stated clearly that BAIRS, as a Goodwiller opt-out, could 

pursue its damages claims on an individual basis. 

The trial court dismissed the declaratory judgment claim raised in Count I, 

with prejudice. The trial court concluded that there was no bona fide controversy about

USAA's ability to condition PIP benefit payments on the submission of a D&A form. The 

trial court cited to a legion of Florida cases addressing the issue. The trial court opined

that this case law and the Goodwiller class settlement mooted the existence of any 

dispute. 

The trial court also concluded that BAIRS could not obtain the injunctive

relief sought in Count II. The trial court found that BAIRS could not demonstrate any 

irreparable harm that could not be remedied by damages. Indeed, by seeking money 

damages in Count III of its complaint, BAIRS, in the trial court's view, conceded that 

injunctive relief requiring USAA to make PIP benefit payments was unnecessary. The 

trial court dismissed Count II, with prejudice.

In dismissing Counts I and II, the trial court also observed that class action 

status was inappropriate for the declaratory and injunctive relief claims, even if they had 

not been raised in Goodwiller. As to both counts, the trial court noted that BAIRS, 

individually and as the putative class representative, sought monetary relief as its 
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predominant form of relief. Thus, class action status was inappropriate for these claims. 

See Rollins, Inc. v. Butland, 951 So. 2d 860, 882 (Fla. 2d DCA 2006); Freedom Life Ins. 

Co. of Am. v. Wallant, 891 So. 2d 1109, 1117 (Fla. 2d DCA 2004).

III. CLASS CERTIFICATION

We review the trial court's decision to grant or deny class certification for 

an abuse of discretion. See Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 98 (Fla. 

2011).

BAIRS argues that the trial court abused its discretion by striking the class 

action allegations of its complaint without allowing class discovery. See Fla. R. Civ. P. 

1.220(d)(1); Frankel v. City of Miami Beach, 340 So. 2d 463, 469 (Fla. 1976) ("[T]rial 

courts should reserve ruling on a motion to dismiss until the party seeking to represent 

or maintain an action against a class has had the opportunity to employ sufficient 

discovery to ascertain the necessary information that must be plead."); KPMG Peat 

Marwick LLP v. Barner, 799 So. 2d 308, 309 (Fla. 2d DCA 2001) (noting information 

needed to satisfy rule 1.220 requirements can be obtained only through discovery);

Commonwealth Land Title Ins. Co. v. Higgins, 975 So. 2d 1169, 1175 (Fla. 1st DCA 

2008) (stating that trial court must allow sufficiently broad discovery to permit realistic 

opportunity to meet class certification requirements). It focuses its argument primarily 

on Count III, the damages claim. BAIRS contends that a class of Goodwiller opt-outs

will avoid a multiplicity of lawsuits, reduce the expense of litigation, make legal 

processes more effective and expeditious, and provide a remedy that would not 

otherwise exist. BAIRS nods to Frankel, 340 So. 2d at 469, where the supreme court 

explained:
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In the average class action the information needed to satisfy the 

requirements of the rule . . . can only be obtained through 

discovery. Consequently, trial courts should reserve ruling on a 

motion to dismiss until the party seeking to represent or maintain an 

action against a class has had the opportunity to employ sufficient 

discovery to ascertain the necessary information . . . .

USAA correctly observes that this is not "the average class action." And, 

because the trial court wanted to avoid serial class actions, we cannot say that any 

amount of class discovery would be relevant to the class action allegations in Count III. 

BAIRS wants to represent a class of providers who opted-out of the Goodwiller class 

settlement. When a putative class member opts out of a class, as it is entitled to do, 

see Fla. R. Civ. P. 1.220(d)(2), it preserves its right to proceed on an individual basis in 

its own subsequent lawsuit. An opt-out is not bound by the resolution of the underlying 

class action. In In re Bridgestone/Firestone, Inc., Tires Products, Liability Litigation, 333 

F.3d 763, 769 (7th Cir. 2003), the Seventh Circuit held:

[A] person who opts out receives the right to go it alone, not to 

launch a competing class action. Preserving the right to litigate 

individually, as one's own champion, is the point of opting out. The 

opt-out avoids any risk of the class's loss on the merits and also 

forswears any opportunity to take advantage of the class's victory.

BAIRS contends that the Supreme Court rejected Bridgestone's reasoning in Smith v. 

Bayer Corp., 131 S. Ct. 2368, 2380 (2011). Not so. Bayer abrogated only 

Bridgestone's holding that denial of class certification binds unnamed class members. 

Bayer, 131 S. Ct. at 2375 n.4. Bayer agreed with In re Bayshore Ford Truck Sales, Inc., 

471 F.3d 1233, 1245 (11th Cir. 2006), and In re General Motors Corp. Pick-Up Truck 

Fuel Tank Products Liability Litigation, 134 F.3d 133, 141 (3d Cir. 1998), that denial of 

class certification prevents courts from binding anyone other than the parties before it 

and does not bind putative class members who cannot be bound when no class is 
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certified. We find Bridgestone's reasoning compelling and easily applied here: a party 

who opts out of a class action retains the right to proceed individually, but not to launch 

a competing class action of opt-outs seeking the same relief resolved on a class basis 

in a prior lawsuit.

Our supreme court has observed that "[t]he purpose of the class action is 

to provide litigants who share questions of law and fact with an economically viable 

means of addressing their needs in court." Johnson v. Plantation Gen. Hosp. Ltd. 

P'ship, 641 So. 2d 58, 60 (Fla. 1994). But the trial court correctly pointed out that the 

class action vehicle contemplates one case that will confer these perceived benefits

upon the class members.

In further support of its argument that a class of opt-outs can be certified, 

BAIRS points us to Harper v. Trans Union, LLC, No. 04-3510, 2005 WL 697490, at *3

n.3 (E.D. Pa. Mar. 24, 2005). In Harper, the court observed that

Rule 23 [the federal counterpart to Rule 1.220] does not explicitly 

bar opt-outs in one class action from bringing a subsequent class 

action and it may be that allowing the opt-outs here to proceed as a 

class will further the purposes of Rule 23 (i.e., to provide for judicial 

economy in the litigation of similar claims).

Id. In this case, the trial court did not ignore the possibility that a second class action of 

Goodwiller opt-outs might conserve judicial resources. In the end, however, the trial 

court properly recognized the evil of serial class actions involving similar issues:

[B]eyond these perceived benefits lay some serious concerns 

which give the Court great pause. First, no authority provided by 

BAIRS, nor found by the Court, reveals precisely where these serial 

class actions would end, if they were allowed. The Court can easily 

imagine a scenario in which, for example, an original class of 1,000 

becomes two classes of 500, becomes four classes of 250, 

becomes eight classes of 125, and so on until the Court hardly has 

a situation better than a single class and individual opt-outs.
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BAIRS argues that even if that scenario could possibly happen, it would 

be far superior to have several class actions than to have 1000 identical individual 

lawsuits clogging the judicial system. The trial court, however, acutely observed that 

serial class actions would promote a marketplace for competing class actions and erode 

the benefits of proceeding in a single class action. The underlying lawsuits could 

proceed ad infinitum. Indeed, these competing class actions would weigh down the 

mechanism of providing litigants with an economically viable means of addressing their 

common claims in court through a single representative action. Instead, as the trial 

court reasoned, litigants may "opt out in favor of a perceived greater benefit in a 

different, competing class action, leaving remaining litigants in the original class action 

with fewer members and the high costs and fees associated with class action."

As is apparent from our discussion, a trial court would normally have 

limited authority to permit a class action of opt-outs. We find it noteworthy that BAIRS 

did not allege any justification or necessity for its decision to opt out of the Goodwiller

class action. Often, parties elect to opt out because their claim for damages has some 

special component or their case is unique for some reason. Those reasons to opt out 

are not good grounds to create another class action. When a party's claim is similar to 

the others in the class, our class-action rules will likely function better if the party has 

incentives to remain in the class action and, if necessary, object to any proposed 

settlement. Although we do not hold in this case that a class action of opt-outs is legally 

impossible, the need for such a class action would seemingly require exceptional 

circumstance. 
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The trial court did not abuse its discretion in concluding that serial class 

actions do not promote the purpose behind class actions. BAIRS cannot proceed on a 

class action basis with any claims adjudicated in Goodwiller, especially those monetary 

claims that are the subject of its claims in Count III. BAIRS, of course, may pursue its 

monetary claims on an individual basis.

IV. INJUNCTIVE RELIEF AND DECLARATORY JUDGMENT

The declaratory relief claim (Count I) and the injunction claim (Count II) 

purport to assert claims not raised or considered in Goodwiller.

We see no error by the trial court in dismissing the declaratory judgment 

claim. Its reasoning is sound. However, the portion of the nonfinal order that dismisses 

Count I is not appealable. See Fla. R. App. P. 9.130(a)(3); Ratliff, 552 So. 2d at 303. 

Accordingly, we dismiss that portion of the appeal involving Count I. 

As for injunctive relief, BAIRS argues that the trial court incorrectly 

determined that monetary recovery was the predominant issue in this case. Therefore, 

BAIRS argues that the trial court abused its discretion by striking the class allegations 

seeking injunctive relief. As we stated in Addison, and as BAIRS agrees, "rule 

1.220(b)(2) requires that the party opposing the class has acted or refused to act on 

grounds applicable to all class members, thereby making final injunctive . . . relief 

appropriate." City of Tampa v. Addison, 979 So. 2d 246, 251 (Fla. 2d DCA 2007). 

Nonetheless, we see no error in the trial court characterizing the class claims in Count II 

as predominantly seeking monetary relief, thus precluding certification of an injunction 

class. See Fla. R. Civ. P. 1.220(b)(2), (3). Moreover, dismissal of Count II is 

adequately supported by the trial court's conclusion that BAIRS failed to state a cause 

of action for injunctive relief. 
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V. CONCLUSION

Having carefully reviewed the record before us, we affirm the trial court's 

decision regarding class certification. BAIRS cannot proceed on a class action basis for 

claims adjudicated in Goodwiller on behalf of a class of Goodwiller opt-outs. The trial 

court did not bar BAIRS from seeking class certification of claims arising postGoodwiller. Additionally, BAIRS is free to pursue its monetary claims against USAA 

individually. 

We dismiss that portion of the order dismissing the declaratory judgment 

claims. In all other respects, we affirm.

Affirmed in part; dismissed in part.

ALTENBERND and NORTHCUTT, JJ., Concur.