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Filing # 95082459 E-Filed 09/01/2019 01:15:56 PMIN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,IN AND FOR ORANGE COUNTY, FLORIDACASE NO: 2018-CA-001024-0CARLSEN GIORDANI, individually and on behalfof all other similarly situated,Plaintiff,vs.ASCENDANT COMMERCIAL INSURANCE INC.,a Florida insurance company,Defendant./JOINT MOTION FOR PRELIMINARY APPROVAL OFCLASS ACTION SETTLEMENT AND SUPPORTING MEMORANDUMPlaintiffs Carlsen Giordano and Druitt LLC., on behalf of themselves and all otherssimilarly situated and Defendant Ascendant Commercial Insurance, Inc. respectfully request thatthe Court preliminarily approve the proposed class action settlement described in detail in theClass Action Settlement Agreement attached hereto as Exhibit A as follows.I.CONCISE STATEMENT OF THE PRECISE RELIEF REQUESTEDThe Parties file this motion requesting that the Court preliminarily approve a class actionsettlement, and preliminarily certify a settlement class. The Parties jointly and respectfullyrequest that the Court grant preliminary approval of the proposed settlement, and enter an orderof preliminary approval including, in substantially the same form, the content of the proposedOrder attached to this Motion as Exhibit B.The proposed preliminary approval Order approves the form of notice to be given to the

class, establishes a scheduling process for the submission of any objections or requests forexclusion from the class, and provides for a fairness hearing to be held by the Court. Prior to thefairness hearing, the Parties will file another motion requesting final approval of the Settlement.II.STATEMENT OF THE BASIS FOR THE REQUESTThe Parties have reached a Settlement Agreement for the purpose of providing tomembers of a Settlement Class the payment of 6% sales tax, and tag transfer and title transferfees as provided in the Settlement Agreement.III .MEMORANDUM OF LEGAL AUTHORITYBACKGROUNDThe Parties reached the Agreement after more than a year of litigation, including adecision by the Court denying the Defendants’ Motion for Summary Judgment. The Parties alsoconducted a day-long mediation session with Ricardo Cata, Esq., followed by lengthy furthernegotiations.As the Court is aware, this case involves allegations that Defendant breached automobileinsurance policies issued to Plaintiffs and members of the proposed class by failing to include inpayments for insured total loss vehicle claims an amount for sales tax calculated based on theState sales tax of 6% that would be due on the purchase of a comparable vehicle as well asamounts representing mandatory fees for tag and title transfer. Amongst other defenses, theDefendant contended that Section 626.9743 Fla. Stat., is a part of the Policies at issue, and that,in particular, subsection (9) of the statute permits an insurer to defer payment of sales tax unlessand until the obligation has actually been incurred. Defendant also denied that tax transfer and2

title transfer fees are payable as part of the Actual Cash Value of the total loss vehicle.If they were to proceed through final judgment in this Court, and then an appeal to theFifth District Court of Appeals, both sides would bear substantial risk. The putative class wouldbear the risk of recovering nothing if class certification were denied or reversed on appeal, or ifthe Fifth District ruled in favor of the Defendant on the merits. Defendant would bear the risk ofhaving to pay the state sales tax and tag transfer and title transfer fees to the putative classmembers’, plus substantial interest and attorneys’ fees, if Plaintiffs prevailed on classcertification, at trial, and on appeal.THE PROPOSED SETTLEMENTThe proposed settlement requires Defendant to do the following: (1) make payment, to allsettlement class members, sales tax of 6% made a part of the agreed adjusted vehicle value of thetotal loss vehicle, plus state tag transfer fees of 4.60, and title transfer fees of 75.25, for a totalof 79.85 in transfer fees; (2) to pay attorneys’ fees, incentive awards and costs in the amount of 185,000; and (3) to pay the costs of the Class Administration. It should be noted that therecovery provides for payment to every class member to be paid the 6% sales tax, plus 100% ofmandatory tag and title fees claimed in the Complaint directly, without the need to submit aclaim.PRELIMINARY APPROVAL OF THE SETTLEMENT IS WARRANTEDPreliminary approval of a class action settlement is not binding, and it is granted unless aproposed settlement is obviously deficient. Smith v. Wm. Wrigley Jr. Co. , 2010 U.S. Dist.3

1LEXIS 67832, *6 (S.D. Fla. June 15, 2010).Preliminary approval is appropriate where theproposed settlement is the result of the parties’ good faith negotiations, there are no obviousdeficiencies and the settlement falls within the range of reason. Id . at *7. These requirements arereadily satisfied here, as demonstrated above and in the exhibits hereto. City of L.A. v.Bankrate, Inc. , 2016 U.S. Dist. LEXIS 115071, *14-15 (S.D. Fla. Aug. 24, 2016) (grantingpreliminary approval of proposed class action settlement where the proposed settlement wasmade after mediation was conducted, A[t]he negotiations appear to have been made in good faithand there do not appear to be any obvious deficiencies, and the settlement amount appears to bewithin the range of reasonableness); Almanzar v. Select Portfolio Servicing, Inc. , 2015 U.S Dist.LEXIS 178149, *5-6 (S.D. Fla. Oct. 15, 2015) (granting preliminary approval, finding thatproposed class action settlement was based on informed, good-faith, arms-length negotiationsbetween the Parties and their capable and experienced counsel, and settlement was within therange of reasonableness and possible judicial approval.).In deciding whether to grant preliminary approval, some courts have also made apreliminary inquiry into whether the requirements of Rule 1.220 for certification of a class forsettlement purposes are satisfied. Each of those requirements are satisfied here for settlementpurposes.The numerosity requirement is satisfied for purposes of settlement because Defendantshave produced records demonstrating that they determined that there are more than 269 members(policyholders) during the class period who had total loss auto claims in Florida and may be1Florida Rule of Civil Procedure is patterned on Rule 23 of the Federal Rules so Florida courts consider case lawinterpreting Rule 23 as persuasive. Broin v. Philip Morris Co . 641 So.2d 888, n.1 (Fla. 3 rd DCA 1994).4

entitled to additional payment for sales tax and tag/title fees as members of the proposedsettlement class.The commonality requirement is satisfied for purposes of settlement because there is acommon question of law regarding whether the Defendant was required to pay sales tax andtag/title fees at the time that Defendant made payment of the actual cash value of the vehicle,based on the cost of a vehicle comparable to the total loss vehicle. This issue applies to all of theclaims of the proposed settlement class and would be a central issue on an appeal if the case werefurther litigated. Defendants could also contest the source of all of the clients or the attorneys’award at the trial court or appellate level.The typicality requirement is satisfied for purposes of settlement because the NamedPlaintiffs’ claims are typical of those of the putative class members in that the classrepresentatives were not paid part or all of the State sales tax and tag/title transfer fees that areclaimed to be owed.The adequacy of representation requirement is satisfied for purposes of settlement.There is also no evidence that the Named Plaintiffs have any conflict of interest with theProposed Class, and the Proposed Class Counsel is experienced in class action litigation,including having been approved Class Counsel in numerous Federal Courts, on Class Actions, onthis exact issue.See Sos v. State Farm Mut. Automobile Ins. Co., M.D. Fla. Case No.6:17-cv-890-Orl.-40-KRS; Rothv. GEICO General Ins. Co. , S.D. Fla. Case No.16-62942-Civ.-DIMITROULEAS; Jones, et al., v. GEICO General Ins. Co., et. al., M.D. Fla.Case No. 6:17-cv-891-Orl-40LRH, and Joffe, et al., v. GEICO Indemnity Company, et al., CaseNo. 18-61361-CIV-DIMITROULEAS/SNOW.5

With respect to the requirements of Fla. R. Civ. P. 1.220(b)(3), for purposes of thissettlement, common questions of law or fact predominate over any questions affecting onlyindividual members, and a class action is superior to other available methods for fairly andefficiently adjudicating the controversy. Given that Defendant has, by agreeing to the proposedSettlement, agreed to make payments of additional sales tax and tag/title fees in amounts basedonly upon the vehicle valuations that were previously performed, and have effectively waived,for purposes of settlement, any opportunity they may have to present evidence with regard tovehicle valuations, individualized questions do not predominate and a class action is superior toother available methods of adjudication.CONCLUSIONThe parties jointly and respectfully request that the Court grant preliminary approval ofthe proposed Settlement, and enter an order of preliminary approval including, in substantiallythe same form, the content of the proposed Order attached as Exhibit B to Agreement.The proposed preliminary approval Order approves the form of notice to be given to theClass, establishes a schedule and process for the submission of any objections or request forexclusion from the class, and provides for a fairness hearing to be held by the Court. The Partiesanticipate later requesting final approval of the settlement in advance of the fairness hearing.Dated September 1, 2019/s/ Wendy J. Stein FultonFBN: 389552Bonner Kiernan Trebach& Crociata, LLP110 East Broward Boulevard/s/ Ed NormandEdmund A. NormandFBN: 865590Jacob L. PhillipsFBN: 1201306

Suite 1700Fort Lauderdale, Florida 33301Telephone: 954-308-8100Facsimile: rkiernan.comNormand PLLC3165 McCrory Place, Ste. 175Orlando, FL 32803Tel: ndpllc.comservice@normandpllc.comCounsel for Ascendant CommercialInsurance, Inc.Christopher J. LynchFBN: 3310416915 Red Road, Suite 208Coral Gables, FL 33143Tel: terlynchlaw.comCounsel for Plaintiffs7