[Cite as Chambers v. Farmers Ins. of Columbus, Inc., 2025-Ohio-5.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
RYAN CHAMBERS, :
Plaintiff-Appellee, : No. 113659 v. :
FARMERS INSURANCE OF : COLUMBUS, INC., : Defendant-Appellant.
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED RELEASED AND JOURNALIZED: January 2, 2025
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-22-958771
Appearances:
Shamis & Gentile and Andrew J. Shamis; Jacob L. Phillips, pro hac vice, for appellee.
Frantz Ward LLP, Jennifer E. Novak, and Gregory R. Farkas, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant, Farmers Insurance of Columbus (“Farmers”),
appeals the trial court’s decision granting class certification. Upon careful review of
the law and record, we affirm in part, reverse in part, and remand. We reverse solely for the trial court to modify the class definition to include only those insureds
who Farmers determined have a total-loss claim.
Procedural History and Facts
Our discussion is limited to the procedural history and facts relevant to
this appeal.
On January 26, 2022, plaintiff-appellee, Ryan Chambers
(“Chambers”), individually and on behalf of all other similarly situated individuals,
filed a complaint against Farmers, asserting a breach-of-contract claim. In his
complaint, Chambers claimed that he was a named insured under an automobile
policy (“Policy”) issued by Farmers, his vehicle sustained loss or damage in August
2020 from an accident, and he filed a property damage claim with Farmers as a
result. Farmers determined that Chambers’ vehicle was a total loss. However,
Farmers’ payment of the claim did not include sales tax. Chambers asserted that
Farmers was required to pay the applicable sales tax for a damaged or stolen vehicle
as part of its loss payment under the Policy. Chambers claimed that nothing in the
Policy unambiguously excluded sales tax or contradicted Farmers’ promise to pay
sales tax where it paid for a loss in money.
Chambers further claimed that he was filing a class-action lawsuit
because Farmers failed to pay sales taxes to all those in the class and thus breached
its contract with all such class members. Chambers claimed that insureds, such as
himself and the class, paid premiums in exchange for Farmers’ promises under its
automobile insurance policies and that Farmers failed to include sales tax when making loss payments to the class in breach of its clear promises. Chambers alleged
that the policies issued by Farmers to class members were virtually identical in all
respects, stating that if an insured car sustains “‘direct, sudden and accidental’” loss
“‘[Farmers] will pay the loss in money, or repair or replace damaged or stolen
property.’” (Complaint, 01/26/22, quoting Exhibit A, Policy.) Farmers further
promised in the policies that “[i]f we pay for loss in money, our payment will include,
where required by law, the applicable sales tax and fees for the damaged or stolen
property.” Id.
Chambers, who brought the action as a representative of the class
pursuant to Civ.R. 23, then asserted the following class-related allegations.
Chambers claimed that his Policy and the class members’ policies, including
comprehensive and collision coverage and the payment of loss sections, were
materially identical and applied equally to them. Chambers asserted that there were
numerous parties, making it impracticable to bring them all before the court, and
estimated there were thousands of class members. Chambers alleged that a question
of common interest existed as to the class members — namely, whether sales tax
should be paid as part of a payment of loss under the Policy. Chambers claimed that
he and his counsel had no conflicts adverse to those of the class and there were no
other issues or facts that precluded class treatment or rendered it less than ideal.
Chambers asserted that the case was ideally suitable for class treatment
because this question of common interest was (a) a legal question of policy
interpretation resolvable as a matter of law by the trial court, and (b) the trial court’s determination would resolve virtually the entirety of each member of the class
claims. Chambers explained that if the trial court determined that a loss payment
included sales tax, then every member of the class would be entitled to payment of
sales tax and that the calculation of such damages would be a ministerial effort based
on data and records kept as part of Farmers’ normal business practices. Chambers
claimed it would be a significant waste of judicial and party resources to file
thousands of individual lawsuits merely to resolve the exact same question of policy
interpretation and to do so would unnecessarily create the risk of inconsistent
adjudications and conflict within and between courts. Chambers alleged that it was
far more efficient and preferable to resolve the centrally dispositive question of
policy interpretation for thousands of class members in a single case.
On April 1, 2022, Farmers filed a Civ.R. 12(B)(6) motion to dismiss for
failure to plead a legally cognizable claim for breach of contract. The motion was
denied by the trial court, and Farmers filed an answer with 16 defenses.
Upon completion of discovery, Chambers filed a motion for the trial
court to certify the following class of individuals (“Class”):
All Ohio insureds, under a policy issued by defendant Farmers Insurance of Columbus, Inc., covering a vehicle with private-passenger auto physical damage coverage for comprehensive or collision loss, who, within two years prior to the filing of this lawsuit through the date of the certification order, submitted a first-party property damage claim determined by Farmers to constitute a covered loss claim and where the loss claim payment did not include the full amount of State and local sales tax calculated on the vehicle’s value. (Motion for Class Certification, 03/24/23.) The trial court granted Chambers’
motion and wrote an eight-page order and opinion, which addressed the seven class-
action requirements. Farmers appealed, raising the following assignments of error
for review.
Assignment of Error No. 1
The trial court erred in granting [Chambers’] motion for class certification on the ground that the [C]lass is overly broad and unascertainable.
Assignment of Error No. 2
The trial court erred in granting [Chambers’] motion for class certification on the ground that [Chambers] failed to satisfy the adequacy prerequisite under [Civ.R.] 23(A)(4).
Assignment of Error No. 3
The trial court erred in granting [Chambers’] motion for class certification on the ground that [Chambers] failed to satisfy the typicality prerequisite under [Civ.R.] 23(A)(3).
Assignment of Error No. 4
The trial court erred in granting [Chambers’] motion for class certification on the ground that [Chambers] failed to satisfy the commonality prerequisite under [Civ.R.] 23(A)(2).
Assignment of Error No. 5
The trial court erred in granting [Chambers’] motion for class certification on the ground that [Chambers] failed to satisfy the numerosity prerequisite under [Civ.R.] 23(A)(1).
Assignment of Error No. 6
The trial court erred in granting [Chambers’] motion for class certification on the ground that [Chambers] failed to establish that common issues predominate as required under [Civ.R.] 23(B)(3). Assignment of Error No. 7
The trial court erred in granting [Chambers’] motion for class certification on the ground that [Chambers] failed to establish that a class action is a superior method for resolution of this matter as required under [Civ.R.] 23(B)(3).
Law and Analysis
Standard of Review
The standard of review for a trial court’s determination in class action
lawsuits is abuse of discretion. Rimmer v. CitiFinancial, 2020-Ohio-99, ¶ 30 (8th
Dist.).
“The appropriateness of applying the abuse-of-discretion standard in
reviewing class action determinations is grounded not in credibility assessment, but
in the trial court’s special expertise and familiarity with case-management problems
and its inherent power to manage its own docket.” Washington v. Spitzer Mgmt.,
2003-Ohio-1735, ¶ 9 (8th Dist.), citing Hamilton v. Ohio Savs. Bank, 82 Ohio St.3d
67, 70 (1998). “An abuse of discretion . . . implies that the trial court’s attitude is
unreasonable, arbitrary, or unconscionable.” Jacobson v. Gross, 2022-Ohio-3427,
¶ 66 (8th Dist.), citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
“‘A trial court which routinely handles case-management problems is
in the best position to analyze the difficulties, which can be anticipated in litigation
of class actions. It is at the trial level that decisions as to class definition and the
scope of questions to be treated as class issues should be made.”’ Rimmer v. CitiFinancial Inc., 2020-Ohio-99, ¶ 30 (8th Dist.), quoting Marks v. C.P. Chem. Co.,
31 Ohio St.3d 200, 201 (1987).
The trial court’s discretion must be “bound by and exercised within”
the requirements of Civ.R. 23. Washington at ¶ 9. In doing so, the trial court must
carefully apply the class action requirements and complete a vigorous analysis to
ensure Civ.R. 23’s prerequisites are met. Id, citing Holznagel v. Charter One Bank,
2000 Ohio App. LEXIS 5877 (8th Dist. Dec. 14, 2000), citing Hamilton. Before a
court may certify a case as a class action pursuant to Civ.R. 23, seven requirements
must be satisfied: (1) an identifiable class must exist and the definition of the class
must be unambiguous; (2) the named representatives must be members of the class;
(3) the class must be so numerous that joinder of all members is impractical; (4)
there must be questions of law or fact common to the class; (5) the claims or defenses
of the representative parties must be typical of the claims or defenses of the class;
(6) the representative parties must fairly and adequately protect the interests of the
class; and (7) one of the three Civ.R. 23(B) requirements must be satisfied. Id.,
citing Civ.R. 23(A)-(B) and Warner v. Waste Mgt., Inc., 36 Ohio St. 3d 91, 96-98
(1988). Civ.R. 23(B) provides that a class action may be maintained if:
(1) [p]rosecuting separate actions by or against individual class members would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(b) Adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; or
(2) The party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) The court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(a) The class members’ interests in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already begun by or against class members;
(c) The desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(d) The likely difficulties in managing a class action.
Prior to granting a motion for class certification, the trial court must first determine
whether the plaintiff proved each of the requirements in Civ.R. 23 by a
preponderance of the evidence.
Overly Broad and Unascertainable
In its first assignment of error, Farmers argues that the proposed class
is overly broad and unascertainable to permit certification. We sustain Farmers’ first
assignment of error in part with respect to the class definition including insureds
who suffered a partial loss and remand for limited purpose to limit class total-loss
claims. A class is defined too broadly to permit certification when the class
includes a great number of members who, for some reason, could not have been
harmed by the defendant’s allegedly unlawful conduct. Stammco, L.L.C. v. United
Tel. Co. of Ohio, 2013-Ohio-3019, ¶ 53, quoting Messner v. Northshore, 669 F.3d
802, 824 (7th Cir. 2012). Therefore, the class definition of an “identifiable class”
must be sufficiently definite so that it is administratively workable for the trial court
to decide whether a particular person is a member. Gattozzi v. Sheehan, 2016-Ohio-
5230, ¶ 26 (8th Dist.), quoting Hamilton, 82 Ohio St.3d at 71-72. So, “‘the class
definition must be precise enough “to permit identification within a reasonable
effort.””’ Id., citing id. at 72, quoting Warner, 36 Ohio St. 3d at 96. The class must
be defined sufficiently so it is administratively feasible for the trial court to
determine whether a particular person is a member. Maestle v. Best Buy Co., 2011-
Ohio-5833, ¶ 17 (8th Dist.), citing Hamilton at 71-72. “A class certification does not
need to identify specific members; rather, it must provide ‘a means to identify such
persons . . . .”’ Konarzewski v. Ganley, Inc., 2009-Ohio-5827, ¶ 19 (8th Dist.),
quoting Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho, 52 Ohio
St. 3d 56, 63 (1990). Conversely, if the class includes a substantial amount of
individuals who have no claim under the theory proposed by the plaintiff, then the
class is not sufficiently definite. Jacobs v. FirstMerit Corp., 2013-Ohio-4308, ¶ 27
(11th Dist.), citing Miller v. Painters Supply & Equip. Co., 2011-Ohio-3976, ¶ 24 (8th
Here the class has been defined as [a]ll Ohio insureds, under a policy issued by defendant Farmers Insurance of Columbus, Inc., covering a vehicle with private-passenger auto physical damage coverage for comprehensive or collision loss, who, within two years prior to the filing of this lawsuit through the date of the certification order, submitted a first-party property damage claim determined by Farmers to constitute a covered loss claim and where the loss claim payment did not include the full amount of state and local sales tax calculated on the vehicle’s value.
(Motion for Class Certification, 03/24/23.)
Farmers argues that the Class includes numerous uninjured
policyholders. Specifically, Farmers asserts that its policy is only required to pay
sales tax for a vehicle that is a total loss “where required by law.” Farmer’s policy
provides in pertinent part: “We will pay the loss in money, or repair or replace the
damaged or stolen property . . . If we pay for loss in money, our payment will
include, where required by law, the applicable sales tax and fees for the damaged or
stolen property.” (Emphasis in original.) Farmers also asserts that due to the
numerous exemptions to when sales tax is charged in Ohio, a claim-by-claim review
of the documentation and information provided by the insured, as well as material
information extrinsic to the Farmers’ claim file, must be conducted. Farmers
contends that the Class is also overbroad because it is not limited to total loss
vehicles and includes, on its face, vehicle repair claims. Finally, Farmers claims that
if consideration is given to Ohio Adm.Code 3901-1-54(H)(7)(f), then Farmers is only
required to pay sales taxes to those policyholders who satisfy two conditions: timely
purchase of a replacement vehicle and timely submission of substantiating documentation.1 Consequently, Farmers claims that because Chambers failed to
narrow the Class for these considerations, the trial court abused its discretion in
granting class certification.
Chambers rejects Farmers’ assertion that the class definition is overly
broad and unascertainable. Chambers counters that he has identified the objective
factors to identify the class: whether a person was insured by Farmers; whether they
submitted a claim; whether Farmers determined the claim was a covered total-loss
claim; and whether the claim payment included sales tax. Chambers argues that
even if Farmers’ concerns are considered, they are inadequate to support a claim
that the trial court abused its discretion. To support his response, Chambers points
to other similar certified-class definitions that were upheld in Angell v. GEICO
Advantage Ins. Co., 573 F.Supp.3d 1151 (S.D.Tex. 2021), and Buffington v.
Progressive Advanced Ins. Co., 342 F.R.D. 66 (S.D.N.Y. 2002).
Based on our review of the record, we note that Chambers
acknowledged that those individuals whose losses were for repairs are not part of
the Class. Chambers states that “the entire case has been litigated and briefed under
the assumption that the class definition only includes total loss, not partial losses.”
Chambers therefore admits that he “inadvertently failed to include the modifier
‘total loss’ as part of the ‘covered [total-loss] claim’ limitation.” He asserts that this
“technical issue can easily be cleared up upon remand.” While we agree that the trial
1 Ohio Adm.Code 3901-1-54(H)(7)(f) provides that an insurer who elects to pay actual cash value shall pay sales tax if the insured buys a replacement vehicle within 30 days of receipt of the cash settlement. court can amend the class definition upon remand, we cannot affirm it as written.
We therefore sustain Farmers’ first assignment of error with respect to this limited
issue. Upon remand, the trial court should modify the class definition to limit the
Class to insureds who Farmers’ determined have had a total-loss claim.
With respect to Farmers’ arguments that the Class as defined is
overbroad because the State of Ohio does not always collect sales tax on vehicles, for
example, when someone acquires a vehicle during a divorce or purchased it out of
state, and its argument regarding the application of the administrative code, we
disagree that these factors make the class overbroad or unascertainable. These
arguments go to the merits of Chambers’ claim, and courts do not generally consider
the merits of a claim at the class-certification stage. See Stammco, 2013-Ohio-3019,
at ¶ 42-44 (a court may probe the merits of a claim only to the extent of determining
whether the plaintiff has satisfied the prerequisites of Civ.R. 23). Here, the class
definition as certified does refer to Farmers’ nonpayment of taxes, but it does not
turn on whether a putative class member acquired a vehicle without paying sales tax
or purchased a replacement vehicle and sought reimbursement for sales tax.
We conclude that Farmers has not established that the Class includes
a substantial amount of individuals without a claim under the theory proposed by
Chambers. Recognizing similar classes have been certified, we find the trial court
was within its discretion in certifying this class definition. However, we sustain
Farmers’ first assignment of error in part with respect to the class definition
including insureds who suffered a partial loss. Upon remand, the trial court should modify the Class to limit it to insureds who suffered a total loss. Accordingly,
Farmers’ first assignment of error is sustained in part and overruled in part.
Adequacy
In its second assignment of error, Farmers claims the trial court erred
in granting Chambers’ motion for class certification because Chambers failed to
satisfy the adequacy prerequisite in Civ.R. 23(A)(4). We find this claim lacks merit.
A class representative authorization under Civ.R. 23(A)(4) can only be
made upon a demonstration that the representative will “fairly and adequately”
protect the interests of the class. Westgate Ford Truck Sales, Inc. v. Ford Motor
Co., 2007-Ohio-4013, ¶ 60 (8th Dist.). “Implicit in the concept of adequate
representation of a class is the idea that those being represented possess similar
claims constituting a cohesive class and the representative is a member of this class.”
Id.; Hansberry v. Lee, 311 U.S. 32, 40-46 (1940).
Adequacy questions in class actions assess both the class
representative and counsel. Id. at 61, citing Vinci v. American Can Co., 9 Ohio St.3d
98, 101 (1984). The Ohio Supreme Court has viewed questions of adequacy as being
a “serious discrepancy between the position of the representative and that of the
class . . . .” Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St.3d 480, 487
(2000). “Moreover, any doubts about adequate representation, potential conflicts,
or class affiliation should be resolved in favor of upholding the class, subject to the
trial court’s authority to amend or adjust its certification order as developing circumstances demand, including the augmentation or substitution of
representative parties.” Id. at 61, citing Baughman at id.
Here, Farmers claims Chambers’ criminal record deems him
inadequate as a class representative. Farmers argues that his record renders him
unfit to perform the fiduciary role of a named plaintiff. Farmers asserts that the trial
court’s limited review for merely conflicts of interest between Chambers and the
putative class is erroneous. Farmers also question the adequacy of Chambers’
counsel.
Farmers’ claim that the trial court abused its discretion in finding this
requirement satisfied is without merit. Given the nature of this action against
Farmers, i.e., whether the Farmers properly paid sales taxes as required by its
policies, Chambers’ criminal background appears to be irrelevant. More than likely,
the issue of payment of state taxes by Farmers will be resolved by Farmers’ records
and interpretation of its policies. Given the limited issue in this case, the trial court
did not abuse its discretion by focusing on potential conflicts between Chambers and
the class as opposed to Chambers’ criminal record.
Additionally, the trial court determined that Chambers’ counsel was
adequate based on counsel’s experience with both class action cases and complex
litigation. The trial court also had an opportunity to observe counsel’s performance
in advancing this case. We therefore conclude that Farmers’ suggestion that the
class certification should be denied because Chambers and his counsel are
inadequate to represent the class due to Chambers’ criminal record and counsel’s lack of experience is without merit. As previously stated, inadequate representation
and/or counsel should result only in their respective replacement, leaving the class
upheld. Accordingly, Farmers’ second assignment of error is overruled.
Typicality
In its third assignment of error, Farmers claims that the trial court
erred in granting class certification because Chambers failed to satisfy the typicality
prerequisite under Civ.R. 23(A)(3). We find this challenge lacks merit.
“‘The requirement for typicality is met where there is no express
conflict between the class representatives and the class. Similarly, a representative
is deemed adequate so long as his or her interest is not antagonistic to that of other
class members.’” Cantlin v. Smythe Cramer Co., 2018-Ohio-4607, ¶ 27 (8th Dist.),
quoting Hamilton, 82 Ohio St.3d at 77-78. In essence, a finding of typicality means
the “‘“plaintiff’s claims are typical in common-sense terms of the class, thus
suggesting the incentives of the plaintiff are aligned with those of the
class.”’” Berdysz v. Boyas Excavating, Inc., 2017-Ohio-530, ¶ 38 (8th Dist.),
quoting Musial Offices, Ltd. v. Cty. of Cuyahoga, 2014-Ohio-602, ¶ 24 (8th Dist.),
quoting Neal v. Casey, 43 F.3d 48, 55 (3d Cir. 1994).
{¶ 29} Moreover, unless a unique defense is so “‘“central to the litigation that
it threatens to preoccupy the class representative to the detriment of the other class
members, it will not destroy typicality or adequacy of representation.”’” Cantlin at
¶ 27, quoting Hamilton at 78, quoting 5 Moore, Federal Practice, 23-126, Section
23.25(4)(b)(iv) and 23-98, Section 23.24(6) (3d Ed.1997). Indeed, “‘[d]efenses may affect the individual’s ultimate right to recover, but they do not affect the
presentation of the case on the liability issues for the plaintiff class.’” Id. at 29,
quoting Baughman, 88 Ohio St. 3d at 486.
Farmers alleges that typicality cannot be satisfied because Chambers
failed to mitigate his claim. However, the trial court recognized that typicality does
not require exact claims or defenses. (Trial Court Certification Order, 01/23/24).
The trial court found that typicality exists because Chambers and the putative class
were insured by Farmers with policies including exact material terms and all
suffered the loss of sales tax. The trial court, as stated in Baughman, maintained its
focus upon the essential conforming characteristics of Farmers’ actions and the
claims arising therefrom. Accordingly, the trial court did not abuse its discretion in
finding the typicality requirement was satisfied and Farmers’ third assignment of
error is overruled.
Commonality
In its fourth assignment of error, Farmers alleges that the trial court
erred in granting certification because Chambers failed to satisfy the commonality
prerequisite under Civ.R. 23(A)(2). This allegation is without merit.
Civ.R. 23(A)(2) requires questions of law or fact to be common to the
class. “‘Commonality requires “a common nucleus of operative facts.””’ Goree v.
Northland Auto Enters., 2020-Ohio-3457, ¶ 53 (8th Dist.), quoting Binder v.
Cuyahoga Cty., 2019-Ohio-1236, ¶ 115 (8th Dist.), quoting Warner, 36 Ohio St.3d
at 97. Commonality exists where a common factual question is common to the applicable cause of action. Id., citing Binder at ¶ 115, quoting Berdysz, 2017-Ohio-
530, at ¶ 29, and Grant v. Becton Dickinson & Co., 2003-Ohio-2826, ¶ 36 (10th
Dist.). Commonality is often satisfied without much difficulty for the parties and
very little exertion of time by the judge. Id., citing Binder at ¶ 115.
Here, the trial court conducted its review of this requirement. Among
other things, the trial court recognized that commonality does not require all of the
factual questions and legal issues to apply to all of the parties. (Trial Court
Certification Order, 01/23/24). The trial court found that Chambers demonstrated
two questions of law regarding Farmers: 1) whether Farmers’ policy requires sales
tax payment, and 2) whether that payment can be conditional. These questions of
law will require interpretation of the policy and provide a common answer.
Farmers claims the issue whether local and state taxes is owed cannot
be determined on a class-wide basis. Farmers cites Allen-Wright v. Allstate Ins. Co.,
2008 WL 5336701 (E.D. Pa. Dec. 17, 2008), to support its challenge. However, the
claim in Allen-Wright is clearly distinguishable because the issue of damages
required individualized assessments due to the nature of the damages sought.
There, the determination required individualized consideration of which person
would be entitled to 20 to 25 percent of general contractor’s overhead and profit but
were limited to 5 percent overhead and profit. The determination here, whether
sales tax should be included in claim payments made by Farmers, does not involve
an individualized assessment. Farmers criticizes the trial court’s one-sentence determination. But,
as stated in Goree, the judge does not need to expend much time on this
requirement. Accordingly, Farmers’ claim that the trial court abused its discretion
in finding commonality of the putative class is rejected and its fourth assignment of
error is overruled. Goree, 2020-Ohio-3457 (8th Dist.).
Numerosity
In its fifth assignment of error, Farmers alleges the trial court erred in
granting Chambers’ motion for class certification because he failed to satisfy the
numerosity prerequisite under Civ.R. 23(A)(1).
Satisfaction of the numerosity requirement is determined on a case-
by-case basis. Berdysz, 2017-Ohio-530 at ¶ 26, citing Warner, 36 Ohio St. 3d at 97.
No specific number has been declared to satisfy the numerosity requirement but,
notably, a class with over 40 persons is usually acceptable. Id., citing id.
However, Farmers failed to raise this issue with the trial court. Such
failure results in waiver of the issue. State ex rel. Zollner v. Indus. Comm. of Ohio,
66 Ohio St.3d 276, 278 (1993). Therefore, this court chooses not to address it and
affirms the trial court’s numerosity determination.
Predominance
In its sixth assignment of error, Farmers alleges that the trial court
erred in granting Chambers’ motion for class certification because he failed to
establish that common issues predominate as required under Civ.R. 23(B)(3). We
find that the trial court did not err. For class certification pursuant to Civ.R. 23(B)(3), the trial court must
make two findings: (1) “that the questions of law or fact common to the members of
the class predominate over any questions affecting only individual members,” and
(2) “that a class action is superior to other available methods for the fair and efficient
adjudication of the controversy.” This determination requires the trial court to
weigh questions common with class members against any dissimilarities between
them. If the trial court determines common questions predominate, then it should
“‘“consider whether any alternative methods exist for resolving the controversy and
whether the class action method is in fact superior.”’” State ex rel. Huttman v.
Parma, 2016-Ohio-5624, ¶ 29 (8th Dist.), quoting Cullen v. State Farm Mut. Auto.
Ins. Co., 2013-Ohio-4733, ¶ 29, quoting Ealy v. Pinkerton Govt. Servs., 514 Fed.
Appx. 299 (4th Cir.2013).
“‘For common questions of law or fact to predominate, it is not
sufficient that such questions merely exist; rather, they must represent a significant
aspect of the case. Furthermore, they must be capable of resolution for all members
in a single adjudication.’” Id. at ¶ 30, quoting Marks v. C.P. Chem. Co., 31 Ohio St.3d
200, 204 (1987). So, in deciding a class certification motion, a trial court must
consider what the plaintiffs must prove at trial and whether common proof can
demonstrate those matters. Id.; Cullen at ¶ 17.
In State ex rel. Huttman, this court held that the trial court abused its
discretion by granting class certification. We found that, because of the widely
varying conditions of a city’s sanitary sewer problems, liability could not be determined in common but, instead, appeared to require a house-by-house
examination. Id. at ¶ 33. Consequently, we concluded that the limited facts
presented failed to establish predominance of common questions of law or fact. Id.
On the other hand, in Musial Offices, Ltd. v. Cuyahoga Cty., 2014-
Ohio-602, this court held that the trial court erred in finding a lack of predominance
and denying plaintiff’s motion for class certification in a suit to recoup overpaid
property taxes from a county. We found that “common legal issues relating to the
county’s liability to the class members predominated, even though individualized
inquiry was required to determine damages.” Id. at ¶ 33-35. We explained that the
inquiry into whether common questions predominate over individual questions is a
separate inquiry, distinct from the Civ.R. 23(A)(2) requirements. Id. at ¶ 32, citing
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 388 (2011). “This balancing test of
common and individual issues is qualitative, not quantitative.” Id., citing In re Am.
Med. Sys., Inc., 75 F.3d 1069, 1080 (6th Cir. 1996). Thus, only a single issue in
common is needed by all members of the class and the “‘fact that questions peculiar
to each individual member of the class member remain after the common questions
of the defendant’s liability have been resolved does not dictate the conclusion that
a class action is impermissible.’” Id., quoting Sterling v. Velsicol Chem. Corp., 855
F.2d 1188, 1197 (6th Cir. 1988). “Where common issues predominate, the class
members ‘will prevail or fail in unison.’” Id., quoting Amgen Inc. v. Conn. Ret. Plans
& Trust Funds, 133 S.Ct. 1184, 1196 (2013). Here, Farmers argues individualized review of each member is
required to determine whether sales tax was paid because its audit report is
unreliable. Additionally, Farmers argues under its interpretation of the policy,
additional individualized, fact-intensive inquiry is required. Chambers counters
that he is not required to establish an exact number of class members, only that the
number is sufficient to make joinder impractical.
Here, the trial court found predominance was met because the
common legal and factual issues were more substantial than the individual damages
expressed by Farmers. Indeed, all members of the putative class will prevail or fail
based upon the interpretation of the policy. This unison impact satisfies the
predominance prerequisite. Therefore, the trial court did not abuse its discretion in
so finding and Farmers’ sixth assignment of error is overruled.
Superiority
Lastly, in its seventh assignment of error, Farmers argues that the trial
court erred in granting Chambers’ motion for classification because he failed to
establish a class action is a superior method of resolution of this matter as required
under Civ.R.23(B)(3). We find the trial court did not err.
Whether a class action is the superior method of adjudication requires
a comparative evaluation of alternative procedures to decide if the court’s time and
energy would justify a class action. Berdysz, 2017-Ohio-530, at ¶ 34, citing State ex
rel. Davis v. Pub. Emps. Retirement Bd., 2006-Ohio-5339, ¶ 28. Class action
necessity is an appropriate consideration for the trial court. Id., citing id. at ¶ 32-33. “‘The “need” for class action treatment . . . may be considered a vital, if not
determinative, consideration as need inevitably relates to the problems
of superiority, fairness, and efficiency.’” Id., quoting id. at ¶ 32, quoting Wilcox v.
Commerce Bank of Kansas City, 474 F.2d 336, 346 (10th Cir. 1973). The Ohio
Supreme Court found that “a trial court does not abuse its discretion by considering
the ‘need, or whether plaintiffs’ action would accomplish the same result without the
additional burden and expense of a class action,’ in determining whether class
certification is warranted.” San Allen, Inc. v. Buehler, 2011-Ohio-1676, ¶ 17,
quoting State ex rel. Davis at ¶ 33.
Farmers claims that class action is not the superior means for
adjudication in this case because individualized adjudication of liability is required.
Chambers rejects this claim, arguing that Farmers does not address the superiority
requirement. Among other things, the trial court found class action is superior
because of the small potential recovery for each member and the manageability of
this action. These considerations are sufficient to justify the court’s time and energy
to adjudicate this case. Therefore, Farmers contention is without merit and its final
assignment of error is overruled.
Consequently, the trial court did not abuse its discretion in granting
Chambers’ motion for class certification. However, we reverse the trial court’s
judgment in part for the limited purpose of modifying the class definition to limit it
to insureds who suffered a total-loss claim. Accordingly, the trial court’s decision is affirmed in part, reversed in
part, and remanded.
It is ordered that appellant and appellee share costs herein taxed.
The court found there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
MICHELLE J. SHEEHAN, P.J., and ANITA LASTER MAYS, J., CONCUR