               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                            IN THE DISTRICT COURT OF APPEAL

                                            OF FLORIDA

                                            SECOND DISTRICT

LUCARELLI PIZZA & DELI and T.A.S.           )
SUNSHINE ENTERPRISES LLC,                   )
                                            )
             Appellants,                    )
                                            )
v.                                          )       Case No. 2D14-4311
                                            )
POSEN CONSTRUCTION, INC.,                   )
                                            )
             Appellee.                      )
                                            )

Opinion filed August 19, 2015.

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

Michael R.N. McDonnell of McDonnell Trial
Law, Naples; and Gary L. Green of Gary L.
Green, P.A., Naples, for Appellants.

Shelley H. Leinicke of Wicker, Smith,
O'Hara, McCoy & Ford, P.A., Fort
Lauderdale, for Appellee.


ALTENBERND, Judge.

             Lucarelli Pizza & Deli and T.A.S. Sunshine Enterprises LLC (the Plaintiffs)

appeal an order denying their amended motion for class certification. The alleged

cause of action in this case is negligence. Although the Plaintiffs sought to determine

only the issues of duty and breach of duty in their attempted class action, a person does
not have a cause of action for negligence in the absence of actual damage. Thus, to

establish numerosity and typicality for purposes of this class action, the Plaintiffs

needed to show that a sufficient and clearly ascertainable number of the proposed class

had suffered some compensable damage from the alleged negligence. The trial court

did not err in determining that the proposed class is overbroad and failed in this regard.

We thus affirm the order denying the amended motion for class certification.

              On November 11, 2010, Posen Construction was engaged in road

construction on Colonial Boulevard in Fort Myers, Florida. An employee allegedly

damaged a natural gas line, resulting in an interruption of gas service to a sizable

region. Neither Lucarelli Pizza & Deli nor TAS Sunshine Enterprises LLC suffered any

physical damage to their property, which was not adjacent to the location where the gas

line was damaged. Instead, they claim that they lost profits in their respective

businesses because the gas supply to their buildings was interrupted.

              The Plaintiffs initially sought to certify a class of "[a]ll commercial gas

users . . . who suffered an interruption in gas services and a resulting loss of business

revenue as a direct and proximate result" of the ruptured gas line. The Plaintiffs alleged

that the class consisted of approximately 1200 members, the number of customers who,

according to a list from the gas company, had lost gas service when the gas line was

ruptured. The trial court denied the first motion for certification after an evidentiary

hearing because, among other reasons, extensive individualized fact-finding would have

been necessary to determine who the members of the proposed class were—i.e., those

customers who had actually suffered economic losses from the interrupted gas service.




                                             -2-
              The Plaintiffs then brought the amended motion for class certification.

They attempted to overcome the problem in the first motion by redefining the class as

"all commercial gas users . . . who suffered an interruption in gas service as a direct and

proximate result" of the ruptured gas line and by limiting the issues in the class action

under Florida Rule of Civil Procedure 1.220(d)(4)(A) to duty and breach of duty. They

argued that assuming that they could prove liability in the class action, they would seek

to have individualized determinations of causation and damages. The Plaintiffs again

alleged that the class contained the approximately 1200 customers whose gas service

was interrupted by the ruptured gas line.

              Following two evidentiary hearings, the trial court correctly observed that

the class, as redefined, was overbroad and that the Plaintiffs failed to carry their burden

of proving numerosity and typicality under rule 1.220(a). The Plaintiffs did not present

any evidence that a single member of the proposed class other than themselves had

suffered any economic loss. Posen, on the other hand, presented extensive evidence

suggesting that due to the varied nature of their businesses, many of the commercial

customers who experienced an interruption in gas service had not suffered any

economic loss or damage as a result. The Plaintiffs' proposed class of 1200 included

auto repair businesses, bakeries, beauty parlors, funeral homes, offices, retailers,

schools, and banks. Posen's expert accountant explained that many of these

businesses likely only used gas for heating or hot water. The Plaintiffs presented no

evidence to demonstrate how any of these businesses might have suffered a loss of

revenue from the disruption in gas service.




                                            -3-
              The Plaintiffs' proposed class also included 695 restaurants, including

Lucarelli Pizza & Deli. While it seems logical that a pizza parlor that relied on gas to

bake its product would be significantly affected by a loss of gas service, Posen

presented evidence that showed that even among the restaurants, it was unclear how

many may have actually suffered any economic loss from the disruption in gas service.

A restaurant owner testified that she only used gas for aesthetic purposes—for outdoor

lamps—and that she suffered no loss of revenue as a result of the disruption in gas

service.

              In short, the evidence demonstrated that while many members of the

proposed class might have been inconvenienced by the loss of gas service, they would

be unable to make any claim for a loss of revenue or profit. Based on this evidence, the

trial court concluded that "potentially a great many class members, as currently

defined . . . have suffered no injury." This was not error.

              A cause of action in negligence requires proof of actual loss or damage.

Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216, 1227 (Fla. 2010). Thus, the second

effort at a definition of a class included members who would not have a cause of action

and would not be proper parties to an action sounding in negligence. The amendment

did not change the problem the Plaintiffs faced to establish either numerosity or

typicality: that the proposed class was overbroad because it included many members

who did not suffer and would not be able to prove any injury or actual damage. See

Leibell v. Miami-Dade Cty., 84 So. 3d 1078, 1083 (Fla. 3d DCA 2012) (holding that the

proposed class was overbroad and that the trial court did not abuse its discretion when

it concluded that the plaintiff failed to satisfy numerosity because the plaintiff's evidence




                                            -4-
established only that she, and none of the 1399 other proposed members, was part of

the class); Hutson v. Rexall Sundown, Inc., 837 So. 2d 1090, 1093 (Fla. 4th DCA 2003)

(holding that the trial court did not abuse its discretion when it concluded that the

plaintiffs failed to satisfy typicality because the proposed class included customers who

could not claim any injury or damage); see also Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d

672, 677 (7th Cir. 2009) ("[A] class should not be certified if it is apparent that it contains

a great many persons who have suffered no injury at the hands of the defendant.").

              We emphasize that this court is not called upon to determine whether the

complaint stated a cause of action in negligence. From its early origins, the interest

protected by a cause of action in negligence was the interest in one's person and

physical property. Thus, the actual damage that was an essential element of the tort

required proof of personal injury or property damage. See, e.g., FMR Corp. v. Boston

Edison Co., 613 N.E. 2d 902, 903 (Mass. 1993) (affirming summary judgment in favor of

the defendant power company and contractor where the commercial plaintiffs brought

negligence claims alleging purely economic damages caused by power outages). Over

the last century, courts have occasionally expanded the tort of negligence by creating

duties to protect plaintiffs in situations that do not result in personal injury or property

damage. But this has occurred only when specific circumstances have warranted a

more liberal judicial rule and an expanded duty of care. See, e.g., Monroe v. Sarasota

Cnty. Sch. Bd., 746 So. 2d 530 (Fla. 2d DCA 1999); Sandarac Ass'n v. W.R. Frizzell

Architects, Inc., 609 So. 2d 1349, 1352-53 (Fla. 2d DCA 1992), implied overruling on

other grounds recognized by Stone's Throw Condo. Ass'n v. Sand Cove Apartments,

Inc., 749 So. 2d 520 (Fla. 2d DCA 1999).




                                             -5-
              Several years ago, in a case where the livelihood of fishermen was

threatened by pollution, the supreme court permitted the fishermen to recover in

negligence for purely economic losses. Curd, 39 So. 3d 1216. Recently, in Tiara

Condominium Ass'n v. Marsh & McLennan Cos, 110 So. 3d 399, 400 (Fla. 2013), the

court declared that the economic loss rule has application only in the context of

products liability cases. In bringing this lawsuit, the Plaintiffs in this case appear to read

Curd and Tiara Condominium as opening the door to virtually any claim in negligence

for purely economic loss. We are inclined to read these cases more narrowly. See,

e.g., Virgilio v. Ryland Grp., Inc., 680 F.3d 1329, 1339-40 & 1340 n.31 (11th Cir. 2012)

(declining to apply Curd in a different factual context).

              In Curd, the court determined that the specific circumstances of the

fishermen justified an expansion of negligence law such that the standard of care owed

by the fertilizer company to the fishermen was a standard that included a duty to protect

their livelihood. 39 So. 3d at 1228. In Tiara Condominium, the holding limiting the

economic loss rule occurred in the context of the liability of an insurance broker. 110

So. 3d at 400-01. An insurance broker, like other economic professionals, fits into a

special professional category where the standard of care includes a duty to protect the

economic interests of clients or affected parties. We question whether the supreme

court in Curd and Tiara Condominium intended to allow customers of a local utility

company who have suffered only economic loss to sue every contractor or automobile

driver that negligently ruptures a gas line, knocks down a power pole, or otherwise

disrupts utility service. That issue, however, is not within the scope of review in this

nonfinal appeal.




                                             -6-
           Affirmed.


MORRIS and SLEET, JJ., Concur.




                                 -7-
