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Waste Pro USA v. Vision Construction ENT, Inc.

Florida Court of Appeals, First District

September 18, 2019

Waste Pro USA and Waste Pro of Florida, Inc., Appellants,
v.
Vision Construction ENT, Inc., Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Escambia County. J. Scott Duncan, Judge.

          Jerry R. Linscott, Julie S. Brady, Susan M. Johns, and Maureen Berard Soles of Baker & Hostetler, LLP, Orlando, for Appellants.

          Charles Phillip Hall of Phil Hall, P.A., Pensacola; James M. Stephens of McCallum, Methvin & Terrell PC, Birmingham; J. Phillip Warren of Taylor, Warren & Weidner, P.A., Pensacola, for Appellee.

          B.L. Thomas, J.

         Waste Pro USA and Waste Pro of Florida appeal the lower court's nonfinal order certifying a Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") class for all customers who paid Waste Pro's "environmental fee." For the reasons that follow, we affirm.

         Facts

         Waste Pro of Florida, Inc. provides waste disposal services to residential and commercial customers in Florida, including Appellee Vision Construction ENT., Inc., a Pensacola construction company.

         Vision brought an action for alleged violations of FDUTPA and a claim of unjust enrichment against Appellant Waste Pro USA.[1] Vision alleged that two fees charged by Waste Pro, a "fuel surcharge" and an "environmental fee," were deceptive. With regards to the "environmental fee," Vision alleged that "[t]he Environmental Fee bears no relation to Waste Pro's increased environmental costs (or its actual environmental costs) it might incur and the proceeds it receives are not used to offset such increased costs." Vision asserted that, while the title "environmental fee" would lead a reasonable consumer to believe that the fees are used to offset environmental costs imposed by a regulator, the fees in fact are retained by Waste Pro.

         Vision filed a class action complaint requesting that the court certify two classes under Florida Rule of Civil Procedure 1.220: a class composed of customers who paid the fuel surcharge fee, and a class composed of customers who paid the environmental fee.

         At a class certification hearing, the court heard evidence that Waste Pro began charging the environmental fee in 2009 and has always charged it as a percentage of a base fee, unless a customer individually negotiated otherwise.

         From 2008-2010, Waste Pro service agreements contained fill-in blanks labeled "fuel surcharge" and "environmental fee," and the back of the forms contained an explanation that Waste Pro "may adjust charges for increases in" charges for various items or services, such as landfill charges, fuel costs, or insurance premiums.

         Beginning in 2011, the service agreements stated that "[a] fuel surcharge and environmental compliance cost recovery charge, calculated as a percentage of the Charge(s), will be included on your invoice."

         Waste Pro's CFO testified that he could not recall Waste Pro incurring any environmental costs that it didn't have before 2009. He testified that he did not track any environmental costs that existed from 2006-2016. The CFO testified that he had never seen any calculations done for Waste Pro's environmental costs. At least once, the environmental fee increased from six to eight percent solely because a competitor's increased to eight percent; no analysis of environmental costs contributed to the increase.

         Waste Pro's environmental expert submitted an analysis indicating that Waste Pro incurred between approximately $6.8-7.7 million in "major environmental expenses" between 2011 and 2015 and collected approximately $6.1 million in environmental fees in that time.

         A Waste Pro corporate representative testified that Waste Pro's environmental costs are not netted against the environmental revenues it receives. The representative testified that no document provided to a Waste Pro customer contains an explanation of the environmental fee "except the website." The representative testified that he did not think Waste Pro's sales representative should inform customers that if Waste Pro's environmental costs decreased, the customers would still be charged an environmental fee; he testified that the sales representatives don't know what the environmental costs are and could not disclose them to customers.

         A Waste Pro sales representative testified that he would inform customers inquiring about the environmental fee that it was intended to "try to recover part of the increased costs of compliance." Another Waste Pro sales representative, likewise testified that Waste Pro's environmental fee was used to recoup some of Waste Pro's environmental compliance costs. This representative testified that occasionally, customers inquiring about the environmental fee were directed to Waste Pro's website.

         The website, in varying iterations, informed customers that the "Environmental Charge is related to our costs of meeting a high standard of environmental compliance set by internal management and external governmental regulatory agencies. . . . This charge will help support our costs to operate our collection, transfer, recycling and landfills in a safe and environmentally responsible manner." The website did not inform customers what Waste Pro's environmental costs were, or the method Waste Pro used to calculate the fee.

         Waste Pro regional sales managers submitted affidavits stating that they are encouraged to, but are not required to impose the environmental fee, and they may reduce or waive the fee at a customer's request. Waste Pro's CEO and a Waste Pro corporate executive both testified that they wouldn't expect Waste Pro's customers to know what Waste Pro's environmental costs were.

         Waste Pro submitted evidence that Waste Pro's five regional vice presidents had autonomy and discretion regarding whether to charge the fuel and environmental fees. Each region made its own determinations on whether to waive, reduce, or cap the fees.

         Vision began contracting with Waste Pro in 2009 and was not charged an environmental fee until 2014. Waste Pro charged Vision the environmental fee on fewer than 10 of the 170 service invoices between Vision and Waste Pro. Vision continued using Waste Pro after filing suit in this case and was using it at the time of Vision President Garry Crook's deposition.

         Vision paid environmental fees to vendors other than Waste Pro; Crook testified that Vision was sometimes charged an environmental fee by concrete companies. Crook testified that he assumed that the other companies were also imposing these fees to recover their costs for "environmental issues."

         Waste Pro submitted affidavits from some putative class members stating that they understood that the environmental fee was intended to offset Waste Pro's total costs and would expect that those fees included a profit component. However, when Vision deposed these affiants, they stated that they did not draft or have personal knowledge of those statements in the affidavits and testified that they either had no knowledge of whether the environmental fee was intended to ...


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