DEFENDANTS’ ANSWER AND DEFENSES TO THE THIRD …

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-21761-CIV-DIMITROULEAS

MICHAEL PARIS, as Personal Representative of the Estate of HENRY PARIS, JR., deceased, CHRISTIE HEGEL, and ROLANDO HERNANDEZ,

Plaintiffs,

v.

PROGRESSIVE AMERICAN INSURANCE COMPANY and PROGRESSIVE SELECT INSURANCE COMPANY,

Defendants. _______________________________________/

DEFENDANTS’ ANSWER AND DEFENSES TO THE THIRD AMENDED CLASS ACTION COMPLAINT FOR DAMAGES

Defendants Progressive American Insurance Company (“Progressive American”) and

Progressive Select Insurance Company (“Progressive Select”) (collectively, “Defendants”) hereby

file this Answer and Defenses to the Third Amended Class Action Complaint (“Complaint”) filed

by Plaintiffs Michael Paris, as the Personal Representative of the Estate of Henry Paris, Jr.

(“Paris”), Christie Hegel (“Hegel”), and Rolando Hernandez (“Hernandez”) (collectively,

“Plaintiffs”), deny all allegations not expressly admitted (including any allegations containing

headings), and answer the allegations of the numbered paragraphs of the Complaint as follows:

NATURE OF THE ACTION

1. This is a class action lawsuit by Plaintiffs Michael Paris, as Personal Representative of the Estate of Henry Paris, Jr., and Rolando Hernandez, who were both named insureds under a Progressive American automobile policy issued for private passenger auto physical damage including comprehensive and collision coverage, which requires payment of “Actual Cash Value”

Case 1:19-cv-21761-WPD Document 101 Entered on FLSD Docket 03/23/2020 Page 1 of 37

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or ACV. This class action lawsuit is also brought by Plaintiff Christie Hegel, who was the named insured under a Progressive Select automobile policy issued for private passenger auto physical damage including comprehensive and collision coverage, which requires payment of “Actual Cash Value” or ACV.

ANSWER: Progressive American and Progressive Select admit that Plaintiffs purport to

assert a class action but deny that Plaintiffs are entitled to any such relief and deny that a

class should be certified in this action. Progressive American admits that Henry Paris, Jr.

and Rolando Hernandez were named insureds under Progressive American insurance

policies but states that those policies are the best evidence of their content and denies any

inconsistent allegations. Progressive Select admits that Christie Hegel was a named insured

under a Progressive Select insurance policy but states that the policy is the best evidence

of its content and denies any inconsistent allegations. Progressive American and

Progressive Select are without knowledge or information sufficient to form a belief as to

the truth of the remaining allegations in Paragraph 1 and therefore deny the same.

2. Defendants are large private passenger auto insurance carriers operating in Florida, according to the Florida Office of Insurance Regulation 2017 Annual Report. Exhibit A (FLOIR 2017 Annual Report) at pg. 84. One of the coverages Defendants offer is comprehensive and collision coverage. Upon information and belief, Defendants systematically underpaid not just Plaintiffs but thousands of other putative Class Members amounts. Defendants owe its insureds for ACV losses for total loss vehicles insured with comprehensive and collision coverage.

ANSWER: Progressive American and Progressive Select admit that they are private

passenger automobile carriers in Florida and offer comprehensive and collision coverage.

Progressive American and Progressive Select are without knowledge or information

sufficient to form a belief as to the truth of the allegation that they are large carriers in

Florida and therefore deny the same. Progressive American and Progressive Select deny

the remaining allegations of Paragraph 2.

3. This lawsuit is brought by Plaintiffs on behalf of themselves and all other similarly situated insureds that have suffered damages due to Defendants’ practice of refusing to pay full


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ACV mandatory regulatory taxes, costs and fees (Full Total Loss Payment or “FTLP”) to first-party total-loss insureds on physical damage policies containing comprehensive and collision coverages.


bring a lawsuit as alleged but deny Plaintiffs are entitled to any relief sought and deny the

remaining allegations of Paragraph 3.

4. The failure to pay FTLP to first-party total losses owed to the Progressive insureds pursuant to the policy language is a breach of the policy and violates Florida law.

ANSWER: Progressive American and Progressive Select deny the allegations of

Paragraph 4.

JURISDICTION AND VENUE

5. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(d)(2),

because (a) the Plaintiffs are members of the putative classes which consist of at least 100 members

and he and the Defendants are citizens of different states; (b) the amount-in-controversy exceeds

$5 million dollars exclusive of interest and costs; and (c) none of the 1332 exceptions apply to this

claim.

ANSWER: The allegations in Paragraph 5 constitute legal conclusions to which no

response is required. To the extent that a response is required, Progressive American and

Progressive Select deny that Plaintiffs’ claims have any merit, deny that this case is suitable

for class treatment, and deny that Plaintiffs or the purported class are entitled to any relief

whatsoever.

6. Venue is proper in this Court because a substantial portion of the acts and course of conduct giving rise to the claims alleged occurred within the district and the Defendants are subject to personal jurisdiction in this district.

ANSWER: The allegations in Paragraph 6 constitute legal conclusions to which no

response is required. To the extent that a response is required, Progressive American and


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Progressive Select admit that venue is proper in the Southern District of Florida with

respect to Hegel’s and Hernandez’s individual claims and that there is personal jurisdiction

over Progressive American and Progressive Select in this District, but Progressive

American and Progressive Select deny any allegations that venue is proper in the Southern

District of Florida with respect to Paris’s individual claim.

THE PARTIES

7. At all times material hereto, the deceased, Henry Paris, Jr., was domiciled in Pinellas County, Florida, and was a citizen of the State of Florida.

ANSWER: Progressive American and Progressive Select are without sufficient

knowledge and information to form a belief as to the truth of the allegations of Paragraph

7 and therefore deny the same.

8. At all times material hereto, Christie Hegel is and was domiciled in Miami-Dade County and is a citizen of the State of Florida.




9. At all times material hereto, Rolando Hernandez is and was domiciled in Miami-Dade County and is a citizen of the State of Florida.




10. At all times material hereto, the Defendants are and were foreign corporations located in the State of Ohio, incorporated in Ohio, and authorized to transact insurance in the State of Florida. Defendants are both incorporated in Ohio with principal office and headquarters located at 6300 Wilson Mills Road, Mayfield, Ohio 44143. Exhibit B (Composite Corporate Records of Defendants).

ANSWER: Progressive American and Progressive Select admit the allegations of


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Paragraph 10, except that they note that the correct name of the municipality is Mayfield

Village, Ohio.

AMOUNT-IN-CONTROVERSY

11. Defendants are part of an insurance group that was the 3rd largest physical damage auto insurer in Florida based on premiums written. Exhibit C (Market Share Report) pg. 362.




12. Defendant Progressive American wrote almost $1.4 billion dollars in premiums in the calendar year 2016. Ex. A at 84. Defendants’ loss ratio (claims made divided by premiums earned) is approximately 72% and the ratio in claim payment for physical damage (as opposed tobodily injury and physical damage liability) is approximately 46.5%. Under those numbers, Defendant Progressive American, as a single entity, paid approximately $468 million in physical damage claims.


attach the Florida Office of Insurance Regulation 2017 Annual Report as Exhibit A (“2017

Annual Report”). The 2017 Annual Report is the best evidence of its content, and

Progressive American and Progressive Select deny any inconsistent allegations.

13. According to the Insurance Information Institute, the average loss paid on a physical damage claim is approximately $2800. Based on this average loss claim, Defendant Progressive American paid approximately 167,400 physical damage claims in 2016 alone.

ANSWER: Progressive American and Progressive Select are without knowledge and

information sufficient to form a belief as to the truth of the allegations of the first sentence

of Paragraph 13 and therefore deny the same. Progressive American and Progressive Select

deny the allegations of the second sentence of Paragraph 13.

14. Total losses are approximately 18% of all auto physical damage claims. (See CCC Information Services, Inc., “What’s Driving Total Loss Frequency?” (www.cccis.com/whats-driving-totalloss-frequency/). Defendant paid approximately 30,162 total-loss claims in 2016 alone.


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information sufficient to form a belief as to the truth of the allegations of the first sentence

of Paragraph 14 and therefore deny the same. Progressive American and Progressive Select

deny the allegations of the second sentence of Paragraph 14.

15. During the relevant time period, the State of Florida imposed a mandatory minimum title transfer fee of $75.25 and a mandatory tag transfer fee of $4.60, for a total of $79.85, not including any other mandatory taxes, costs or fees. Plaintiffs’ claim, as further set out herein, alleges that Defendants’ contract obliges it to include FTLP, including title and tag transfer fees, to its insureds (including Plaintiffs) in the event of a total loss, and that Defendants nevertheless uniformly decline to include such fees, thereby breaching its contract with every putative class member. 30,162 multiplied by $79.85 is $2,408,435.70 thus constituting the amount-in-controversy in 2016 alone for tag and title transfer alone as to Progressive American alone. Multiplied by the five-year relevant time period, the amount-in-controversy easily exceeds $10 million dollars as to a single Defendant entity for tag and title transfer alone, not including attorney’s fees or pre-judgment interest or any other damages or forms of relief.

ANSWER: Progressive American and Progressive Select admit that the State of Florida

has title and tag transfer fees for vehicles. Progressive American and Progressive Select

deny the remaining allegations of Paragraph 15.

16. This does not take into account Progressive Select’s (which is approximate in size to Progressive American) underpayment of sales tax, or any other form of relief.

ANSWER: Progressive American and Progressive Select deny that there was any

“underpayment of sales tax.” Progressive American and Progressive Select are without

knowledge and information sufficient to form a belief as to the truth of the remaining

allegations of Paragraph 16 and therefore deny the same.

17. Thus, the fact that the amount-in-controversy exceeds $5,000,000 is plainly stated on the fact of the documents and is “readily deducible” from these pleadings. Lowery v. Ala. Power Co., 483 F.3d 1184, 1211 (11th Cir. 2007).


information sufficient to form a belief as to the truth of the allegations of Paragraph 17 and

therefore deny the same.


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FACTUAL ALLEGATIONS

18. Defendants’ standardized policy language as to comprehensive and collision coverage for ACV of total loss vehicles is present in every auto policy issued by Defendants in Florida.

ANSWER: Progressive American and Progressive Select admit that certain aspects of the

policies contain standardized text but state that the individual policies of each insured, as a

whole, may differ on an insured-by-insured basis, including by negotiating individualized

coverage through endorsements. Accordingly, Progressive American and Progressive

Select deny the categorical allegation that the same standardized policy language is present

in every Progressive American and Progressive Select auto policy they issue in Florida.

Moreover, to the extent Plaintiffs purport to characterize or restate information contained

in Progressive American’s and Progressive Select’s form automobile insurance policies for

Florida, or the specific policies for each insured, the policies are the best evidence of their

content, and Progressive American and Progressive Select deny any inconsistent

allegations. Progressive American and Progressive Select deny the remaining allegations

in Paragraph 18.

19. The policy language used in Policies issued by Progressive American and Progressive Select is standardized in all relevant and material ways.









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in Paragraph 19.

20. ACV includes an obligation to pay FTLP for total loss vehicle comprehensive and collision coverage.


Paragraph 20.

Plaintiff Paris

21. At all times material hereto, Henry Paris, Jr. insured a 2004 Jaguar XJ8, VIN # [redacted]6787 (“Paris’ Insured Vehicle”).

ANSWER: Progressive American admits that Henry Paris, Jr. purchased a Florida auto

policy from Progressive American, and that Paris’ Insured Vehicle was a covered vehicle

under the policy. Progressive American and Progressive Select are without knowledge or

information sufficient to form a belief as to the truth of the remaining allegations in

Paragraph 21 and therefore deny the same.

22. At all times material hereto, Plaintiff insured the 2004 Jaguar XJ8 under an insurance policy issued by Defendant Progressive American. Exhibit D (composite Policy-related documents) at 2 (Paris Declaration Page).

ANSWER: Progressive American admits that Exhibit D to the Complaint appears to be a

copy of the Policy issued to Henry Paris, Jr. (the “Paris Policy”) but denies any allegations

inconsistent with the same. Progressive American and Progressive Select are without

knowledge or information sufficient to form a belief as to the truth of the remaining

allegations in Paragraph 22 and therefore deny the same.


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23. On or about December 1, 2017, Henry Paris, Jr. was involved in a fatal accident while operating Paris’ Insured Vehicle. As a result of said accident, his Estate filed a claim for property damage with Defendants, claim number [redacted]47-01.

ANSWER: Progressive American admits that a first-party total loss claim was submitted

for an accident which occurred on or about December 1, 2017, but denies that the claim

number referenced in Paragraph 23 was assigned to the claim. Progressive American and

Progressive Select are without knowledge or information sufficient to form a belief as to

the truth of the remaining allegations in Paragraph 23 and therefore deny the same.

24. Following the filing of said claim, Defendant Progressive American determined that Paris’ Insured Vehicle was a total loss with a base value of $6,324.94.


Paragraph 24.

25. The base value was calculated by a third-party vendor, Mitchell International (“Mitchell”), which bases vehicle valuations on the cost to purchase similar vehicles with similar conditions and mileage. No amount for title transfer fee, tag transfer fee, or any other mandatory fee was included. (See Exhibit E) (Paris Valuation Report)

ANSWER: Progressive American and Progressive Select admit that Paris purports to

characterize information contained in the Valuation Report for his total loss claim. The

Valuation Report is the best evidence of its content, and Progressive American and

Progressive Select deny any inconsistent allegations.

26. Defendant included an amount for sales tax, $421.86, and deducted $500.00 for the deductible, and paid $6,119.54 as the ACV payment. (See Exhibit F) (Paris Settlement Summary)

ANSWER: Progressive American and Progressive Select admit that Exhibit F to the

Complaint appears to be a copy of the Settlement Summary for Paris’ total loss claim. The

Settlement Summary is the best evidence of its content, and Progressive American and



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27. Defendant Progressive American’s payment of $6,119.54 — and not the FTLP (full total loss payment) including mandatory transfer fees — constituted a breach of its insurance policy.


Paragraph 27.

Plaintiff Hegel

28. At all times material hereto, Plaintiff Christie Hegel leased a Lexus IS 200t, VIN # [redacted]6932 (“Hegel’s Insured Vehicle”).

ANSWER: Progressive Select admits that Hegel purchased a Florida auto policy from

Progressive Select and that Hegel’s Insured Vehicle was a covered vehicle under the policy.

Progressive American and Progressive Select are without knowledge or information

sufficient to form a belief as to the truth of the remaining allegations in Paragraph 28 and


29. At all times material hereto, Ms. Hegel insured Hegel’s Insured Vehicle under a policy issued by Progressive Select. (See Exhibit G) (Hegel Verification of Insurance)

ANSWER: Progressive Select admits that Exhibit G to the Complaint appears to be a copy

of the Verification of Insurance issued to Hegel but denies any allegations inconsistent with

the same. Progressive American and Progressive Select are without knowledge or



30. On or about March 25, 2018, Ms. Hegel was involved in a motor vehicle accident while operating Hegel’s Insured Vehicle. As a result of said accident, Ms. Hegel filed a claim for property damage, claim number [redacted]39-01.

ANSWER: Progressive Select admits that Hegel submitted a first-party total loss claim

for an accident which occurred on or about March 25, 2018, which was assigned the claim

number referenced in the Complaint. Progressive American and Progressive Select are

without knowledge or information sufficient to form a belief as to the truth of the remaining


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allegations in Paragraph 30 and therefore deny the same.

31. Following the filing of said claim, Defendant Progressive Select determined that Hegel’s Insured Vehicle was a total loss with a base value of $33,080.96.


Paragraph 31.

32. The base value was calculated by a third-party vendor, Mitchell, which bases vehicle valuations on the cost to purchase similar vehicles with similar conditions and mileage. The Valuation Report indicated betterment of $320.00. (See Exhibit H) (Hegel Valuation Report)

ANSWER: Progressive American and Progressive Select admit that Hegel purports to

characterize information contained in the Valuation Report for her total loss claim. The



33. Defendant then applied the deductible of $500.00 and added sales tax in the amount of $156.48 for a total settlement amount of $33.057.44. Exhibit I (Hegel Settlement Summary). $156.48 is a gross underpayment of the sales tax owed on the vehicle. No amount for tag/title transfer fees was included in the settlement amount.

ANSWER: Progressive Select admits that Exhibit I to the Complaint appears to be a copy

of the Settlement Summary for Hegel’s total loss claim. The Settlement Summary is the

best evidence of its content, and Progressive American and Progressive Select deny any

inconsistent allegations. Progressive American and Progressive Select deny that there was

any underpayment.

34. Defendant Progressive Select’s payment of $33,057.44 — and not the FTLP, including full payment of sales tax and payment of tag and title transfer fee amounts — constitutes a breach of its insurance policy.


Paragraph 34.

Plaintiff Hernandez


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35. At all times material hereto, Plaintiff Rolando Hernandez leased a 2016 Lexus NX 200t F Sport, VIN # [redacted]9735 (“Hernandez Insured Vehicle”).

ANSWER: Progressive American admits that Hernandez purchased a Florida auto policy

from Progressive American, and that the Hernandez Insured Vehicle was a covered vehicle

under the policy. Progressive American and Progressive Select are without knowledge or



36. At all times material hereto, Mr. Hernandez insured his vehicle under a policy issued by Progressive American. Exhibit J (Hernandez Declaration Sheet).

ANSWER: Progressive American admits that Exhibit J to the Complaint appears to be a

copy of the Declarations Page issued to Hernandez but denies any allegations inconsistent

with the same. Progressive American and Progressive Select are without knowledge or



37. On or about October 23, 2017, Mr. Hernandez was involved in a motor vehicle accident after which Hernandez’s Insured Vehicle was declared a total loss. As a result of said accident, Mr. Hernandez filed a claim for property damage, claim number [redacted]41-01.

ANSWER: Progressive American admits that Hernandez submitted a first-party total loss

claim for an accident which occurred on or about October 23, 2017, which was assigned

the claim number referenced in the Complaint. Progressive American and Progressive

Select are without knowledge or information sufficient to form a belief as to the truth of

the remaining allegations in Paragraph 37 and therefore deny the same.

38. Following the filing of said claim, Defendant Progressive American determined that Hernandez’s Insured Vehicle was a total loss with a base value of $40,960.08.


Paragraph 38.


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39. The base value was calculated by a third-party vendor, Mitchell, which bases vehicle valuations on the cost to purchase similar vehicles with similar conditions and mileage. The Valuation Report applied a “Condition Adjustment” of $40.65 and an “After Market Parts Adjustment” of $400.00, for an adjusted vehicle value of $41,400.73. Then, the deductible of $500.00 was applied to the adjusted vehicle value, for a “Settlement Value” of $40,900.73. (See Exhibit K) (Hernandez Valuation Report)

ANSWER: Progressive American and Progressive Select admit that Hernandez purports

to characterize information contained in the Exhibit K, which purports to be the Valuation

Report for Hernandez’s total loss claim. The Valuation Report is the best evidence of its


allegations.

40. No amounts for sales tax, transfer fees, or registration fees were included in the Hernandez Valuation Report.

ANSWER: Progressive American and Progressive Select admit that Hernandez purports

to characterize information contained in the Valuation Report for his total loss claim. The



41. Subsequently, Progressive American issued a breakdown of a payment, which incorporated the amounts listed in the Hernandez Valuation Report. To the adjusted vehicle value ($41,400.73), Progressive American added only $142.56 in sales tax — a mere 0.34% of the adjusted vehicle value for Hernandez’ Insured Vehicle. $142.56 is a gross underpayment of the sales tax owed on the vehicle. No amount for tag/title transfer fees was included in the settlement amount. Exhibit L (Hernandez Settlement Summary).

ANSWER: Progressive Select admits that Exhibit L to the Complaint appears to be a copy

of the Settlement Summary for Hernandez’s total loss claim. The Settlement Summary is

the best evidence of its content, and Progressive American and Progressive Select deny any

inconsistent allegations. Progressive American and Progressive Select deny that there was

any underpayment.


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42. Defendant Progressive American’s payment of $41,043.29 — and not the FTLP, including full payment of sales tax and payment of tag and title transfer fee amounts — constituted a breach of its insurance policy.


Paragraph 42.

State of Florida Taxes and Fees

43. Sales tax is a mandatory cost that must be paid to replace any vehicle in the State of Florida.

ANSWER: Progressive American and Progressive Select admit that Florida law imposes

a state sales tax of 6% for owned vehicles. Progressive American and Progressive Select

deny any allegation or characterization inconsistent with Florida law. Progressive

American and Progressive Select deny the remaining allegations in Paragraph 43.

44. Title transfer fees and tag transfer fees are both mandatory applicable fees that must be paid to replace any vehicle in the State of Florida.

ANSWER: Progressive American and Progressive Select admit that Florida has title

transfer and tag transfer fees for vehicles. Progressive American and Progressive Select

deny the remaining allegations in Paragraph 44.

45. Florida law requires that all vehicles be properly titled in order to be legally driven on Florida roadways. Fla. Stat. Ann. § 320.02 (“every owner or person in charge of a motor vehicle that is operated or driven on the roads of this state shall register the vehicle in this state.”). The fee to transfer title to a vehicle is, at minimum, $75.25.

ANSWER: Progressive American and Progressive Select admit that Florida law requires

vehicles to be titled and registered. Progressive American and Progressive Select are

without knowledge and information sufficient to form a belief as to the truth of the

remaining allegations of Paragraph 45 and therefore deny the same. To the extent that

Paragraph 45 purports to quote Fla. Stat. § 320.02, the statute is the best evidence of its



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allegations. Progressive American and Progressive Select deny any remaining allegations

in Paragraph 45.

46. Florida law requires that all vehicles have proper license plate (or tag) in order to be legally driven on Florida roadways. Fla. Stat. Ann. § 320.0609. The fee to transfer license plate or tag is $4.60.

ANSWER: Progressive American and Progressive Select admit that Florida law requires

vehicles to have a proper license plate. Progressive American and Progressive Select are


remaining allegations of Paragraph 46 and therefore deny the same. To the extent that

Paragraph 46 purports to characterize Fla. Stat. § 320.0609, the statute is the best evidence

of its content, and Progressive American and Progressive Select deny any inconsistent

allegations. Progressive American and Progressive Select deny any remaining allegations

in Paragraph 46.

47. Insureds, including the Plaintiffs, are owed, at minimum, 1) title transfer fees of $75.25, plus 2) tag transfer fees of $4.60, plus 3) sales tax in an amount equal to 6% of the base vehicle value (plus local surtaxes).


Paragraph 47.

48. In breach of its contract with Plaintiffs, Defendants did not pay a settlement amount equaling title transfer fee + tag transfer fee + 6% sales tax in making the ACV payment for Plaintiffs’ total loss and thus did not make the FTLP.


Paragraph 48.

49. Plaintiffs paid all premiums owed and otherwise satisfied all conditions precedent such that their insurance policy was in effect and operational at the time of the accident.

ANSWER: Progressive American and Progressive Select admit that Henry Paris, Jr.,

Hegel, and Hernandez paid all premiums. Progressive American and Progressive Select are


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remaining allegations of Paragraph 49 and therefore deny the same.

THE PROGRESSIVE INSURANCE POLICY

50. The relevant insurance policy language is materially identical as to all Plaintiffs and all putative class members. Both Defendants utilize the same applicable Policy forms and language.












in Paragraph 50.

51. The insurance policy (Ex. D) under the section entitled “Part IV, Damage to a Vehicle” (p. 23), states that “Collision” coverage means they will pay for the sudden, direct and accidental loss to a covered auto, including an attached trailer; or non-owned auto; and its custom parts or equipment, resulting from collision.”

ANSWER: Progressive American and Progressive Select admit that the Paris Policy

includes a section entitled “Part IV – Damage to a Vehicle,” and that it defines “Collision.”

Further answering, Progressive American and Progressive Select state that the Paris Policy

is a written document that is the best evidence of its content. Progressive American and


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Progressive Select deny the allegations in Paragraph 51 to the extent Plaintiffs misquote or

mischaracterize the language of the document. Progressive American and Progressive

Select deny any remaining allegations in Paragraph 51.

52. The “insured auto” or “covered auto” is defined, inter alia, as the auto listed in the declarations page. Id. at 1.


defines “covered auto.” Further answering, Progressive American and Progressive Select

state that the Paris Policy is a written document that is the best evidence of its content.

Progressive American and Progressive Select deny the allegations in Paragraph 52 to the

extent Plaintiffs misquote or mischaracterize the language of the document. Progressive

American and Progressive Select deny any remaining allegations in Paragraph 52.

53. In the same section, under a provision entitled “Limits of Liability” (Id. p. 28), the Policy states that the “limit of liability for loss to a covered auto... is the actual cash value of the stolen or damaged property at the time of the loss reduced by the applicable deductible.”


includes a provision entitled “Limits of Liability.” Further answering, Progressive

American and Progressive Select state that the Paris Policy is a written document that is

the best evidence of its content. Progressive American and Progressive Select deny the

allegations in Paragraph 53 to the extent Plaintiffs misquote or mischaracterize the

language of the document. Progressive American and Progressive Select deny any

remaining allegations in Paragraph 53.

54. “Property damage” is defined, in relevant part, as “physical damage to, destruction of, or loss of use of tangible property.” Id. at 2.


defines “property damage.” Further answering, Progressive American and Progressive

Select state that the Paris Policy is a written document that is the best evidence of its


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content. Progressive American and Progressive Select deny the allegations in Paragraph 54

to the extent Plaintiffs misquote or mischaracterize the language of the document.

Progressive American and Progressive Select deny any remaining allegations in

Paragraph 54.

55. There is no difference, for purposes of the duty to pay ACV on a first-party total loss claim, between a collision total-loss claim and a comprehensive total-loss claim.

ANSWER: Progressive American and Progressive Select state that the Paris Policy is a

written document that is the best evidence of its content. Progressive American and

Progressive Select deny the allegations in Paragraph 55 to the extent Plaintiffs misquote or

mischaracterize the language of the document, and Progressive American and Progressive

Select deny that a collision claim is the same as a comprehensive claim. Progressive

American and Progressive Select deny any remaining allegations in Paragraph 55.

56. ACV is not specifically defined in the policy.


Paragraph 56.

57. Clearly, then, the policy language does not further define ACV as including: (1) any provision excluding state and local regulatory fees or taxes from ACV; (2) any provision deferring payment of the ACV state or local regulatory fees or taxes for any purpose whatsoever; (3) any provision requiring an insured to obtain a replacement vehicle; (4) any provision requiring the insured to first obtain a replacement vehicle as a condition precedent to receiving ACV state and regulatory fees and taxes; or (5) any provision linking the amount of ACV state and regulatory fees and taxes to a particular replacement vehicle and the corresponding state or local regulatory fees and taxes on said replacement vehicle.


Paragraph 57.

58. The policy language applies to all covered autos irrespective of ownership interests – whether owned, financed or leased, insured autos are considered “owned” for purposes of the policy. Id. at 2.

ANSWER: Progressive American and Progressive Select admit that a leased, financed, or


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owned vehicle can be a covered auto under their respective auto policies. Further

answering, Progressive American and Progressive Select state that the Paris Policy is the

best evidence of its content, and Progressive American and Progressive Select deny the

allegations in Paragraph 58 to the extent Plaintiffs misquote or mischaracterize the

language of the document. Progressive American and Progressive Select deny any

remaining allegations in Paragraph 58.

PAYMENT OF MANDATORY TAXES AND FEES

59. Florida law is clear that courts cannot limit the scope of a term, if it is not defined in the policy, to a narrow definition that benefits the insurer; in fact, if policy language is susceptible to more than one reasonable interpretation, it is construed in the light that would grant coverage, i.e. to the benefit of the insured and against the insurer. Travelers Indem. Co. v. PCR Inc., 889 So. 2d 779 (Fla. 2004).

ANSWER: Paragraph 59 purports to characterize Travelers Indem. Co. v. PCR Inc., 889

So. 2d 779 (Fla. 2004); this decision is the best evidence of its content, and Progressive

American and Progressive Select deny any inconsistent allegations. Progressive American

and Progressive Select deny all remaining allegations in Paragraph 59.

60. The 11th Circuit interpreted Florida law concerning ACV policies as requiring payment of costs reasonably likely to be incurred upon replacement. Mills v. Foremost Insurance Co., 511 F.3d 1300, 1306 (11th Cir. 2008).

ANSWER: Paragraph 60 purports to characterize Mills v. Foremost Ins. Co., 511 F.3d

1300, 1306 (11th Cir. 2008); this decision is the best evidence of its content, and

Progressive American and Progressive Select deny any inconsistent allegations.

Progressive American and Progressive Select deny all remaining allegations in

Paragraph 60.

61. Defendants’ Policies promise to provide the FTLP, including those costs reasonably likely to be incurred upon replacement. Nevertheless, Defendants decline to actually include such charges in making ACV payment to total-loss insureds, thereby breaching the contracts with insureds. Defendants promise to pay ACV, which includes sales tax equal to a percentage of the


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base value and mandatory transfer fees. Defendants fail to actually make such payment to total-loss insureds as a uniform and standard policy.


Paragraph 61.

CLASS ALLEGATIONS

62. Plaintiffs bring this action respectively seeking representation of a class pursuant to Fed. R. Civ. P. 23.


bring this action on behalf of themselves and a putative class pursuant to Fed. R. Civ. P.

23, but Progressive American and Progressive Select deny that this case is suitable for class

treatment and that Plaintiffs or the putative class members are entitled to any relief

whatsoever.

63. Plaintiffs’ claims are typical to those of all class members because members of the class are similarly affected by Defendants’ uniform failure to make the FTLP upon the total loss of insured vehicles. The material and relevant policy terms for each class member are substantially identical to the terms of Plaintiffs’ policies.


Paragraph 63.

64. Plaintiffs’ interests are coincident with and not antagonistic to those of other class members, nor are the Plaintiffs subject to any unique defenses.


Paragraph 64.

65. Plaintiffs’ claims raise questions of law and fact common to all members of the class, within the meaning of FRCP 23(a)(2), and they predominate over any questions affecting only individual Class Members within the meaning of Rule 23(b)(3). Said common questions include, but are not limited to, the following: (a) whether, under the Defendants’ standardized policy language, Plaintiffs and the class members are owed an amount including mandatory title and tag transfer fees and 6% of the vehicle value in sales tax upon the total loss of an insured vehicle; and (b) whether the Defendants have breached its insurance contracts with the Plaintiff and the class members by failing to make such FTLP upon the total loss of an insured vehicle.


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Paragraph 65.

66. Plaintiffs’ claims are typical of the claims of all other members of the class because all such claims arise from the allegedly improper failure by Defendants to make a FTLP upon the total loss of insured vehicles.


Paragraph 66.

67. Plaintiffs and their counsel will fairly and adequately protect and represent the interests of each member of the class.


information sufficient to form a belief as to the truth of the allegations of Paragraph


68. Plaintiffs are committed to the vigorous prosecution of this action and have retained competent counsel experienced in prosecuting and defending class actions. Plaintiffs’ counsel have successfully litigated other class action cases similar to that here, where insurers breached contracts with insureds by failing to include sales tax and/or total loss fees after total losses.


information sufficient to form a belief as to the truth of the allegations of Paragraph 68 and


69. Pursuant to Rule 23(b)(3), a class action is superior to the other available methods for a fair and efficient adjudication of the controversy because, among other reasons, it is desirable to concentrate the litigation of the Class Members’ claims in one forum, as it will conserve party and judicial resources and facilitate the consistency of adjudications. Furthermore, because the damages suffered by individual Class Members is relatively small, their interests in maintaining separate actions is questionable and the expense and burden of individual litigation makes it impracticable for Class Members to seek individual redress for the wrongs done to them. Plaintiff knows of no difficulty that would be encountered in the management of this case that would preclude its maintenance as a class action.


Paragraph 69.


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70. Any argument that class treatment is not viable or productive in the present action is undercut by the fact that the Middle District very recently treated as a class action a case that is substantially identical in fact and in law to the present action. See Bastian v. United Servs. Auto. Ass’n, 150 F. Supp. 3d 1284 (M.D. Fla. December 10, 2015). Bastian is in the process of being successfully settled as a class, and stands as incontrovertible evidence demonstrating the efficacy and viability of class treatment in the present action. Similarly, Roth v. Geico General Insurance Co., Case No. 16-62942-CIV-Dimitrouleas (S.D. Fla. June 14, 2018) is a substantially similar case recently certified as a class action with judgment entered in favor of the class.

ANSWER: Paragraph 70 purports to characterize Bastian v. United Servs. Auto. Ass’n,

150 F. Supp. 3d 1284 (M.D. Fla. Dec. 10, 2015), and Roth v. Geico Gen. Ins. Co., Case No.

16-62942-CIV-Dimitrouleas (S.D. Fla. June 14, 2018); these decisions are the best

evidence of their content, and Progressive American and Progressive Select deny any

inconsistent allegations. Progressive American and Progressive Select deny the remaining

allegations in Paragraph 70.

71. Plaintiff Paris and Plaintiff Hernandez bring this action as class representatives, on behalf of themselves and on behalf of all other persons or entities similarly situated, more specifically defined as follows:

PROGRESSIVE AMERICAN CLASS

All insureds, under any Florida policy issued by Progressive American Insurance Company with the same operative policy language covering a vehicle with private-passenger auto physical damage coverage for comprehensive or collision loss where such vehicle was declared a total loss, who made a first-party claim for total loss, and whose claim was adjusted as a total loss, within the five year time period prior to the date on which this lawsuit was filed until the date of any certification order.


define a putative class as alleged in Paragraph 71 but deny that such class is properly

defined and deny that this action is appropriate for class action treatment.

72. Plaintiff Hegel brings this action as class representative, individually and on behalf of all other persons or entities similarly situated, more specifically defined as follows:

PROGRESSIVE SELECT CLASS


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All insureds, under any Florida policy issued by Progressive Select Insurance Company with the same operative policy language covering a vehicle with private-passenger auto physical damage coverage for comprehensive or collision loss where such vehicle was declared a total loss, who made a first-party claim for total loss, and whose claim was adjusted as a total loss, within the five year time period prior to the date on which this lawsuit was filed until the date of any certification order.


define a putative class as alleged in Paragraph 72 but deny that such class is properly

defined and deny that this action is appropriate for class action treatment.

73. The issues related to Plaintiffs’ claims do not vary from the issues relating to the claims of the other members of the classes such that a class action provides a more efficient vehicle to resolve this claim than through a myriad of separate lawsuits.


Paragraph 73.

74. Certification of the above classes is also supported by the following considerations:

a. The relatively small amount of damages that members of the classes have suffered on an individual basis would not justify the prosecution of separate lawsuits;

b. Counsel in this class action is not aware of any previously filed litigation against the Defendants in which any of the members of the class are a party and which any question of law or fact in the subject action can be adjudicated; and

c. No difficulties would be encountered in the management of Plaintiff’s claim on a class action basis, because the classes are readily definable and the prosecution of this class action would reduce the possibility of repetitious litigation.


Paragraph 74.

75. Although the precise number of class members for the Classes are unknown to Plaintiffs at this time and can only be determined through appropriate discovery, Plaintiffs believe that because Defendants are some of the largest motor vehicle insurers in the State of Florida and write hundreds of millions of dollars of private-passenger physical damage coverage premiums, the classes of persons affected by Defendants’ unlawful practice consists of thousands of individuals, or the class of persons affected are otherwise so numerous that joinder of all class


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members is impractical. The unlawful practice alleged herein is a standardized and uniform practice, employed by Defendants pursuant to standardized insurance policy language, and results in the retention by Defendants of insurance benefits and monies properly owed to Plaintiffs and the class members. Thus, numerosity as to both classes is established.

ANSWER: As to the first sentence of Paragraph 75, Progressive American and

Progressive Select admit that the precise number of individuals who meet the definitions

of Plaintiffs’ proposed Progressive American and Progressive Select classes is presently

unknown but are without knowledge and information sufficient to form a belief as to the

truth of the remaining allegations in the first sentence of Paragraph 75 as to what “Plaintiffs

believe” and therefore deny the same. Progressive American and Progressive Select deny

the remaining allegations of Paragraph 75.

76. Fed. R. Civ. P. 23(a)(2)’s commonality requirement for the Class is satisfied for reasons articulated herein. The central issues in this litigation turn on interpretation of materially identical policy provisions; thus, this case is well-suited for classwide adjudication. Defendants and all class members are bound by the same materially identical policy terms. In addition to those reasons listed above, common questions include (but are not limited to): (1) Whether the policy language includes mandatory costs to replace the Insured Auto, and (2) whether Defendants are required to pay mandatory costs, taxes and fees to insureds who suffer total-losses to vehicles insured under Defendants’ Policies.


Paragraph 76.

77. Fed. R. Civ. P. 23(a)(3)’s typicality requirement for the Class is satisfied for reasons articulated herein, and particularly because Plaintiffs and Class Members were injured through Defendants’ uniform misconduct. Further, Plaintiffs’ and Class Members’ legal claims arise from the same core practices, namely, the failure to make FTLP, including sales tax and tag/title transfer fees, for first-party total loss claims. Plaintiffs’ claims are based upon the same legal theories as those of the Class Members. Plaintiffs suffered the same harm as all the other Class Members.


Paragraph 77.

78. Fed. R. Civ. P. 23(b)(3)’s requirements are met for all reasons already stated herein. Specifically, the previously articulated common issues of fact and law predominate over any question solely affecting individual Class Members. Further, and as stated previously, class treatment is superior to any other alternative method of adjudication because the damages suffered


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by individual Class Members is relatively small, their interests in maintaining separate actions is questionable and the expense and burden of individual litigation makes it impracticable for Class Members to seek individual redress for the wrongs done to them, and Plaintiffs know of no difficulty that would be encountered in the management of this case that would preclude its maintenance as a class action.


Paragraph 78.

COUNT I: CLAIM FOR BREACH OF CONTRACT BY PLAINTIFF PARIS AND PLAINTIFF HERNANDEZ AGAINST DEFENDANT PROGRESSIVE

AMERICAN

79. The foregoing allegations contained herein are incorporated by reference.

ANSWER: Progressive American re-asserts its responses to Paragraphs 1 through 78 as

though fully set forth herein.

80. This count is brought by Plaintiff Michael Paris, as personal representative of the Estate of Harry Paris, Jr. and Plaintiff Rolando Hernandez, on behalf of themselves and on behalf of the Progressive American Class Members.

ANSWER: Progressive American admits that Paris and Hernandez purport to bring Count

I, individually and on behalf of the alleged Progressive American class, but Progressive

American denies that Paris, Hernandez, and the putative Progressive American class are

entitled to the relief requested.

81. Mr. Paris and Mr. Hernandez were parties to materially identical insurance contracts with Defendant Progressive American as described herein. All Progressive American Class Members were parties to an insurance contract with Defendant Progressive American containing materially identical terms.

ANSWER: Progressive American admits that it issued policies to Henry Paris, Jr. and

Hernandez. Progressive American is without knowledge and information sufficient to form

a belief as to the truth of the remaining allegations and therefore denies the same.

82. The interpretation of Plaintiffs Paris and Hernandez’s insurance Policies as well as all Progressive American Class Members’ insurance Policies is governed by Florida law.

ANSWER: Progressive American admits that the Paris Policy and the Hernandez Policy


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are governed by Florida law. Progressive American is without knowledge and information

sufficient to form a belief as to the truth of the remaining allegations and therefore denies

the same.

83. Plaintiffs Paris, Plaintiff Hernandez, and all Progressive American Class Members made a claim determined by Defendant Progressive American to be a first-party total loss under the insurance policy, and determined to be a covered claim.

ANSWER: Progressive American admits that it covered a first-party total loss claim for

an accident involving Henry Paris, Jr. which occurred on or about December 1, 2017, and

that it covered a first-party total loss claim for an accident involving Hernandez, which

occurred on or about October 23, 2017. Progressive American is without knowledge and

information sufficient to form a belief as to the truth of the remaining allegations and

therefore denies the same.

84. Defendant Progressive American, by paying the total loss claim, determined that Plaintiffs Paris and Hernandez as well as each Progressive American Class Member complied with the terms of their insurance contracts, and fulfilled all duties and conditions under the Policies to be paid on his or her total loss.

ANSWER: Progressive American denies the allegations of Paragraph 84.

85. Pursuant to the aforementioned uniform contractual provisions, upon the total loss of insured vehicles, Plaintiff Paris, Plaintiff Hernandez, and every Progressive American Class Member were owed the actual cash value of the vehicle, including all mandatory costs, taxes and fees (FTLP).


86. Defendant Progressive American refused to make FLTP to Plaintiff Paris, Plaintiff Hernandez, and every Progressive American Class Member.


87. Defendant Progressive American’s failure to provide the promised coverage constitutes a material breach of contract with Plaintiff Paris, Plaintiff Hernandez, and every Progressive American Class Member.



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88. As a result of said breaches, Plaintiff Paris, Plaintiff Hernandez and the Progressive American Class Members are entitled under Defendant’s insurance policies to sums representing the benefits owed for ACV mandatory taxes and fees, as well as costs, prejudgment and postjudgment interest, and other relief as is appropriate.


89. In addition, Plaintiffs and the class members are entitled to an award of attorney’s fees and costs pursuant to § 627.428 Fla. Stat. and all other statutory or contractual provisions allowing for attorney’s fees and costs.


COUNT II: CLAIM FOR BREACH OF CONTRACT BY PLAINTIFF HEGEL AGAINST DEFENDANT PROGRESSIVE SELECT

90. Allegations 1-78 are hereby incorporated by reference.

ANSWER: Progressive Select re-asserts its responses to Paragraphs 1 through 78 as

though fully set forth herein.

91. This count is brought by Plaintiff Christie Hegel, individually and on behalf of the Progressive Select Class Members.

ANSWER: Progressive Select admits that Hegel purports to bring Count II, individually

and on behalf of the alleged Progressive Select Class, but Progressive Select denies that

Hegel and the putative Progressive Select Class are entitled to the relief requested.

92. Ms. Hegel was party to an insurance contract with Defendant Progressive Select as described herein. All Progressive Select Class Members were parties to an insurance contract with Defendant Progressive Select containing materially identical terms.

ANSWER: Progressive Select admits that it issued a policy to Hegel. Progressive Select

is without knowledge and information sufficient to form a belief as to the truth of the

remaining allegations and therefore denies the same.

93. The interpretation of Plaintiff Hegel’s and all Progressive Select Class Members’ insurance Policies is governed by Florida law.

ANSWER: Progressive Select admits that the policy issued to Hegel is governed by

Florida law. Progressive Select is without knowledge or information sufficient to form a


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belief as to the truth of the remaining allegations and therefore denies the same.

94. Plaintiff Hegel and all Progressive Select Class Members made a claim determined by Defendant Progressive Select to be a first-party total loss under the insurance policy, and determined to be a covered claim.

ANSWER: Progressive Select admits that it covered a first-party total loss claim for an

accident involving the Hegel vehicle which occurred on or about March 25, 2018.

Progressive Select is without information sufficient to form a belief as to the truth of the

remaining allegations and therefore denies the same.

95. Defendant Progressive Select, by paying the total loss claim, determined that Plaintiff Hegel and each Progressive Select Class Member complied with the terms of their insurance contracts, and fulfilled all duties and conditions under the Policies to be paid on his or her total loss.

ANSWER: Progressive Select denies the allegations of Paragraph 95.

96. Pursuant to the aforementioned uniform contractual provisions, upon the total loss of insured vehicles, Plaintiff Hegel and every Progressive Select Class Member were owed the actual cash value of the vehicle, including all mandatory costs, taxes and fees (FTLP).


97. Defendant Progressive Select refused to make FLTP to Plaintiff Hegel and every Progressive Select Class Member.


98. Defendant Progressive Select’s failure to provide the promised coverage constitutes a material breach of contract with Plaintiff Hegel and every Progressive Select Class Member.


99. As a result of said breaches, Plaintiff and the class members are entitled under Defendant’s insurance policies to sums representing the benefits owed for ACV mandatory taxes and fees, as well as costs, prejudgment and postjudgment interest, and other relief as is appropriate.


100. In addition, Plaintiffs and the class members are entitled to an award of attorney’s fees and costs pursuant to § 627.428 Fla. Stat. and all other statutory or contractual provisions allowing for attorney’s fees and costs.


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PRAYER FOR RELIEF

WHEREFORE, the Plaintiff Michael Paris, as personal representative of the Estate of Harry Paris, Jr., the Plaintiff Rolando Hernandez, on behalf of themselves and on behalf of the Progressive American Class, and the Plaintiff Christie Hegel, individually and on behalf of the Progressive Select Class, demand a trial by jury on all triable issues and seeks and prays for relief and judgment as follows:

For an Order certifying this action as a Class Action on behalf of the Classes described above;

For an award of compensatory damages in amounts owed under the Policies;

For all other damages according to proof;

For an award of attorney’s fees and expenses as appropriate pursuant to applicable law, including Fla. Stat. § 627.428;

For costs of suit incurred herein;

For pre and post judgment interests on any amounts awarded;

For other and further forms of relief as this Court deems just and proper.

RESPONSE TO PRAYER FOR RELIEF

Progressive American and Progressive Select deny that Plaintiffs, for themselves or on behalf

of the putative classes, are entitled to judgment against Progressive American or Progressive Select

for damages, attorneys’ fees, costs and expenses, interest, or any other relief on any issue. Progressive

American and Progressive Select also deny that this action is appropriate for class action treatment.

GENERAL DENIAL

Defendants Progressive American and Progressive Select deny all remaining allegations of

the Complaint not expressly admitted herein.


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SEPARATE OR AFFIRMATIVE DEFENSES

Without assuming the burden of proof where it otherwise rests with Plaintiffs, Progressive

American and Progressive Select further plead the following defenses to both the individual and

class claims alleged in the Complaint:

1. The Complaint, in whole or in part, fails to state a claim upon which relief can be

granted. Plaintiffs’ breach of contract claims fail because the plain and unambiguous language of

the Progressive American and Progressive Select insurance policies at issue in this case dictate

how the actual cash value of the total loss vehicle, is determined: “The actual cash value is

determined by the market value, age, and condition of the vehicle at the time the loss occurs.” (See,

e.g., Compl., Exhibit D, Progressive American Policy, Part IV.2(g).) Therefore, under Plaintiffs’

respective policies themselves, there is no obligation to pay sales tax or title and tag transfer fees.

2. The Complaint, in whole or in part, fails to state a claim upon which relief can be

granted. Plaintiffs’ breach of contract claims fail because Progressive American and Progressive

Select’s practices with respect to payment of sales tax and title and tag transfer fees comply with

both the plain and unambiguous language of the Progressive American and Progressive Select

insurance policies at issue and applicable Florida law.

3. Plaintiffs’ claims fail because Progressive American and Progressive Select

complied with Fla. Stat. § 626.9743 governing claim settlement practices related to motor vehicle

insurance at all times relevant to the claims in this case.

4. Plaintiffs’ causes of action and those of the proposed Class members are barred, in

whole or in part, because they have not suffered any injury as a result of the acts alleged in the

Complaint. The Progressive American and Progressive Select policies at issue in this case do not

require Defendants to pay sales tax or title or registration fees, and Defendants’ practices with


31

respect to payment of sales tax and title and tag transfer fees comply with applicable Florida law.

Therefore, Plaintiffs’ injury, if any, was not caused by any purported breach of the applicable

insurance policies.

5. Plaintiffs’ and the proposed Class members’ causes of action are barred, in whole

or in part, by statutes of repose and the doctrines of estoppel, waiver, release, set-off, payment,

laches, and/or unclean hands.

6. Plaintiffs’ and the proposed Class members’ causes of action are barred, in whole

or in part, by the doctrine of accord and satisfaction. Paris (and/or the lienholder of the vehicle)

received and accepted $6,119.54 as the total settlement, including actual cash value equal to

$6,197.68, $421.86 in sales tax, less a $127.26 condition adjustment, and less a $500.00 deductible.

(See Compl. at Exhibit F.) Hegel (and/or the lessor of her vehicle), received and accepted

$33,057.44 as the total settlement, including actual cash value equal to $33,400.96, $320.00 for an

aftermarket parts adjustment, $156.48 in sales tax, less a $500.00 deductible. (See Compl. at

Exhibit I.) Hernandez (and/or the lessor of his vehicle) received and accepted $41,043.29 as the

total settlement, including actual cash value equal to $41,400.73, $142.56 in sales tax, less a

$500.00 deductible. (See Compl. at Exhibit L.)

7. Progressive American and Progressive Select reserve all rights under the policies

that covered Plaintiffs’ claims and the claims of the proposed Class members. This includes the

right to enforce all policy provisions, conditions, and exclusions, and to demand appraisal and

other alternative forms of dispute resolution pursuant to the terms of the policies.

8. The maintenance of this action as a class action will violate the rule against splitting

a single cause of action with respect to many of the putative class members.


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9. Plaintiffs lack standing to assert any breach of contract claim, whether individually

or on behalf of a putative class, based on any alleged failure to be paid tax on their total loss claims

because Progressive American and Progressive Select paid Plaintiffs sales tax on their claims.

10. Paris has failed to plead that he possesses appropriate standing to assert claims on

behalf of Henry Paris, Jr. Paris was not a named insured under the subject policy. Although Paris

was not a named insured under an insurance policy issued by Progressive American in Florida, he

purports to represent a class of named insureds who were insured by Progressive American in

Florida. The Complaint merely contains conclusory allegations that Paris is the personal

representative of the estate of Henry Paris, Jr., without any substantiation that Paris possesses

requisite standing to pursue claims under the policy issued to Henry Paris, Jr., either individually

or on behalf of a putative class. As such, the court lacks subject matter jurisdiction over any such

claim Paris attempts to assert.

11. Hegel and Hernandez, who allege that they leased their vehicles, lack standing to

assert claims on behalf of persons who owned their insured vehicles. Likewise, Paris (who purports

to represent the interests of Henry Paris, Jr., who allegedly owned the insured vehicle) lacks

standing to assert claims on behalf of persons who leased vehicles. As such, the Court lacks subject

matter jurisdiction over any such claims Plaintiffs attempt to assert, respectively.

12. On information and belief, some putative class members’ claims may be barred by

the applicable statute of limitations.


the doctrine of abandonment.


the doctrines of res judicata or claim preclusion.


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the doctrines of collateral estoppel or issue preclusion.

16. On information and belief, Progressive American and Progressive Select may have

a defense of fraud or concealment with respect to some putative class members.

17. On information and belief, there may be some putative class members who have

failed to comply with the provisions of their policies, including, but not limited to, provisions

regarding their duties after loss or accident or duties of cooperation. Accordingly, claims against

Progressive American and/or Progressive Select would be barred or limited as to such persons.

18. On information and belief, some putative class members may have failed to

mitigate their alleged damages.

19. On information and belief, some claimants may lack standing to the extent that they

lack the requisite interest in the subject vehicle.

20. On information and belief, the claims of some putative class members may be

barred under exclusions in their respective policies. Such exclusions may include, inter alia, those

dealing with vehicles being used to carry persons or property for compensation or a fee, vehicles

being used for retail or wholesale delivery, certain vehicles used or maintained while engaged in

any auto business, vehicles suffering loss resulting from certain activities involving racing,

stunting, speed, or demolition contests, vehicles engaged in racetrack activity, vehicles suffering

losses as a result of intentional acts, certain vehicles that are leased or rented to others, vehicles

suffering losses as a result of destruction or confiscation by governmental authorities, vehicles

subject to wear and tear, freezing, mechanical, electrical, or electronic breakdown or failure, and

vehicles suffering loss as a result of excluded criminal acts. As the definitions in the Complaint do


34

not account for such exclusions, there is likelihood that there are claims that are subject to certain

of the foregoing exclusions.

21. On information and belief, some putative class members may have failed to satisfy

conditions precedent. The insurance policies provide that Progressive American and Progressive

Select may not be sued unless there is full compliance with the terms of the policies.

22. Plaintiffs have failed to meet the requirements of the applicable class action rules,

Fed. R. Civ. P. 23 and S.D. Fla. L.R. 23.1, as to the pleading or maintenance of a class action with

regard to the matters set forth in the Complaint. The causes of action or claims alleged in the

Complaint may not be properly certified or maintained as a class action. Plaintiffs have failed to

allege adequately all of the elements necessary to establish a valid class action under Rule 23 of

the Federal Rules of Civil Procedure. Plaintiffs are not appropriate class representatives because

their claims are not common and/or typical of the claims of the other purported class members.

Plaintiffs’ claims are inappropriate for class treatment because there are no common questions of

law or fact, the alleged common questions do not predominate over individual issues raised by

Plaintiffs’ claims, and Plaintiffs would not adequately represent the members of the putative

classes.

* * *

Progressive American and Progressive Select hereby give notice that they intend to rely

upon any other defense that may become available or appear during the proceedings in this case,

including defenses that may apply to any unnamed members of the putative class which Plaintiffs

seek to represent, and hereby reserve their right to amend their Answer and Defenses to assert any

such defense.


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JURY TRIAL DEMANDED

Progressive American and Progressive Select hereby demand trial by jury on any and all

Counts and defenses so triable.

PRAYER FOR RELIEF

WHEREFORE, Progressive American and Progressive Select pray:

1. That judgment on Plaintiffs’ Third Amended Class Action Complaint for Damages

be entered for Progressive American and Progressive Select and against Plaintiffs, and that

Plaintiffs recover nothing by way of Plaintiffs’ Third Amended Class Action Complaint for

Damages, which should be dismissed with prejudice.

2. For Progressive American’s and Progressive Select’s costs and disbursements in

connection with this action.

3. For such other relief as this Court may deem just and proper.


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Counsel for Defendants Progressive American Insurance Company and Progressive Select Insurance Company

/s/ Bryan T. West Marcy Levine Aldrich (FBN 0968447) Bryan T. West (FBN 83526) Akerman LLP Three Brickell City Centre 98 Southeast Seventh Street Miami, Florida 33131 Telephone: 305.374.5600 Fax: 305.374.5095 E-mail:[email protected]

[email protected]

Karl A. Bekeny (admitted pro hac vice) Kevin M. Young (admitted pro hac vice) Benjamin C. Sassé (admitted pro hac vice) Courtney E. S. Mendelsohn (admitted pro hac vice) TUCKER ELLIS LLP 950 Main Avenue, Suite 1100 Cleveland, OH 44113 Tel: 216.592.5000 Fax: 216.592.5009 E-mail:[email protected]

[email protected] [email protected] [email protected]


37 52462061;1

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was filed through the CM/ECF

system on this 23rd day of March, 2020.

/s/ Bryan T. West Attorney


Documents

DEFENDANTS’ ANSWER AND DEFENSES TO THE THIRD …