[Cite as Cullen v. State Farm Mut. Auto. Ins. Co., 2011-Ohio-6621.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 95925
MICHAEL E. CULLEN PLAINTIFF-APPELLEE
vs.
STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-555183
BEFORE: Celebrezze, J., Stewart, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: December 22, 2011 ATTORNEYS FOR APPELLANT
Mark A. Johnson Joseph Ezzie Robert J. Tucker Baker & Hostetler, L.L.P. 65 East State Street Suite 2100 Columbus, Ohio 43215-4260
Michael K. Farrell Baker & Hostetler, L.L.P. 3200 PNC Center 1900 East Ninth Street Cleveland, Ohio 44114-3485
Robert Shultz Heyl, Royster, Voelker & Allen, P.C. Suite 100 Mark Twain Plaza III P.O. Box 467 Edwardsville, Illinois 62025
ATTORNEYS FOR APPELLEE
W. Craig Bashein John P. Hurst Bashein & Bashein Co., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113-2216
Paul W. Flowers Paul W. Flowers Co., L.P.A. Terminal Tower, 35th Floor 50 Public Square Cleveland, Ohio 44113
continued . . . AMICI CURIAE
For National Association of Mutual Insurance Companies (“NAMIC”) Anthony T. Eliseuson Steven M. Levy SNR Denton US, L.L.P. 233 South Wacker Drive Suite 7800 Chicago, Illinois 60606
For Ohio Insurance Institute (“OII”) Daniel J. Kelso 172 East State Street Suite 201 Columbus, Ohio 43215-4321
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Appellant, State Farm Mutual Automobile Insurance Company (“State
Farm”), challenges the trial court’s September 29, 2010 order certifying a class of
individuals and businesses allegedly harmed by State Farm when making “glass only”
claims for damage to windshields that were repaired rather than replaced. State Farm
argues that class certification is inappropriate. After a thorough review of the record and
law, we affirm in part, reverse in part, and remand for further proceedings consistent with
this opinion.
I. Background
{¶ 2} Appellee, Michael Cullen, filed suit against State Farm on February 18,
2005 raising claims of breach of contract, bad faith, and breach of fiduciary duty. He
sought monetary and declaratory relief as well as class certification. He submitted his motion for class certification on August 23, 2005. However, State Farm requested that
the trial court allow it to file a motion for summary judgment and that the court rule on
that motion prior to ruling on questions regarding class certification.
{¶ 3} On September 20, 2006, State Farm filed its motion for summary judgment.
Due to several discovery irregularities, the proceedings dragged on until March 29,
2007, when the trial court denied State Farm’s motion for summary judgment.
{¶ 4} After that, the trial court took up the class certification question and held a
hearing on that motion on April 14, 2010. In his complaint and class certification
motion, Cullen alleged that State Farm implemented a program to encourage windshield
repair rather than replacement for qualifying windshield claims and never disclosed to
claimants a benefit option under their policies of insurance. Prior to 1991, State Farm
had a program to use a repair procedure to fix chipped or cracked windshields rather than
replace them. In 1997, State Farm subcontracted the handling of glass-only damage
claims1 to Lynx Services, L.L.C. (“Lynx”). According to Cullen, Lynx, in conjunction
with State Farm, developed a script2 that representatives would use to steer claimants to
select windshield repair, even for claimants with no deductible.3 However, the repair
1 State Farm had a policy provision for claims where only damage to glass was involved during some of the class period. Damage to glass as a result of collision was handled separately. 2 State Farm refers to this as a decision tree and adamantly argues it is not a script. 3 Cullen argues that 51 percent of putative class members had no deductible. option was only available for windshields that qualified (having small chips or cracks that
were not in the driver’s immediate view) and only if the insured agreed to the repair.
{¶ 5} In 2003, Cullen called State Farm to report damage to his windshield
caused by a stone. He was transferred to a Lynx agent and agreed to have his windshield
repaired rather than replaced. To encourage claimants to take the repair option, State
Farm waived the deductible so that windshields were repaired at no charge to the insured.
A policy provision to that effect was added in 1998.4 Cullen alleges that the script used
by Lynx did not set forth all the options claimants had, a violation of state insurance
regulations. Specifically, he alleges that Lynx never disclosed a “pay-out” option where
claimants could receive a check for the entire amount of the windshield, less the
deductible, and then have the windshield repaired at their own expense. Cullen argues
this is the only option that would have been chosen by an insured had their options been
fully explained to them. He further alleges that State Farm saved a great deal of money
by pushing repair rather than replacement for these claimants. State Farm’s cost of a
new windshield averaged $342, even after the deductible was subtracted; the cost of
repair was often less than $50.
{¶ 6} Cullen asserts that there are some 100,000 people who filed glass-only
claims during the class period who may have been affected by State Farm’s
non-disclosure of all available options under the policy.
4 After Cullen’s suit was filed in 2005, State Farm removed that waiver. {¶ 7} The trial court found that Cullen had satisfied all the requirements of class
certification using the following definition:
{¶ 8} “All persons and business entities covered under an Ohio motor vehicle
insurance policy issued by [State Farm] who made a ‘Glass Only’ physical damage
comprehensive coverage claim on or after January 1, 1991 for cracked, chipped or
damaged windshields and received a chemical filler or patch repair, or payment thereof,
instead of a higher amount for actual cash value or replacement cost of the windshield.
The lesser of the amount of the actual cash value or the replacement cost of the
windshield for each claim must exceed the insured’s applicable deductible.”
{¶ 9} The definition also included two subclasses — those who had claims
administered by Lynx and those who did not.5 State Farm then timely filed the instant
appeal, raising three errors.
II. Law and Analysis
A. Class Certification Under Civ.R. 23(B)(3)
{¶ 10} State Farm first argues that “[t]he trial court erred and abused its discretion
by granting the motion of plaintiff-appellee for class certification under Rule 23(B)(3).”
In Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St.3d 480, 2000-Ohio-397, 727
N.E.2d 1265, the Ohio Supreme Court reaffirmed that the standard of review to be
applied for class action certification is that of an abuse of discretion. A trial court
5 The definition also had three categories of excluded individuals, including those who have previously filed suit, officers or employees of State Farm or the parties in this case, and those who opt out of the class. possesses broad discretion in determining whether a class action may be maintained.
That determination will not be disturbed absent a showing that the discretion was abused.
Id. An abuse of discretion implies that the trial court’s attitude was unreasonable,
arbitrary, or unconscionable. Beder v. Cleveland Browns, Inc. (1998), 129 Ohio App.3d
188, 717 N.E.2d 716. The trial court’s decision regarding the certification of a class
should not be reversed on appeal because the appellate judges would have decided the
issue differently had the initial determination been in their hands. Hamilton v. Ohio Sav.
Bank, 82 Ohio St.3d 67, 1998-Ohio-365, 694 N.E.2d 442.
{¶ 11} The class action is an invention of equity. Its purpose is to facilitate
adjudication of disputes involving common issues between multiple parties in a single
action. Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho (1990), 52 Ohio
St.3d 56, 62, 556 N.E.2d 157. The plaintiff bears the burden of establishing the right to a
class action. Shaver v. Standard Oil Co. (1990), 68 Ohio App.3d 783, 589 N.E.2d 1348.
Class certification in Ohio is based on Rule 23 of the Ohio Rules of Civil Procedure,
which is identical to Rule 23 of the Federal Rules of Civil Procedure, so federal law is
also useful in analyzing a given situation.
{¶ 12} In Warner v. Waste Mgt., Inc. (1988), 36 Ohio St.3d 91, 521 N.E.2d 1091,
the Ohio Supreme Court listed seven elements necessary for a class to be certified. In
determining whether a class action is properly certified, the first step is to ascertain
whether the threshold requirements of Civ.R. 23(A) have been met. Once those
requirements are established, the trial court must turn to Civ.R. 23(B) to discern whether the purported class comports with the factors specified therein. Accordingly, before a
class may be certified as a class action, a trial court must make seven affirmative findings.
Warner at paragraph one of the syllabus.
{¶ 13} Four prerequisites are explicitly set forth in Civ.R. 23 and two are implicit
in the rule. Id. The two implicit prerequisites are: (1) the class must be identifiable and
unambiguously defined, and (2) the class representatives must be members of the class.
Id. at 96.
{¶ 14} The four delineated prerequisites in Civ.R. 23(A) include: “(1) the class is
so numerous that joinder of all members is impracticable, (2) there are questions of law or
fact common to the class, (3) the claims or defenses of the representative parties are
typical of the claims and defenses of the class, and (4) the representative parties will fairly
and adequately protect the interests of the class.” Id. at 97, quoting Civ.R. 23(A).
Except as commonality relates to predominance, State Farm limits its arguments on
appeal to the requirements in Civ.R. 23(B).
{¶ 15} Finally, the trial court must also find that one of the three Civ.R. 23(B)
requirements is met before the class may be certified. Id. at 94; see, also, Hamilton. If
the class movant fails to meet one of these requirements, class certification must be
denied.
{¶ 16} Civ.R. 23(B)(3) requires that the questions of law or fact common to the
members of the class predominate over any questions affecting individual members. As
stated in Hamilton, “Civ.R. 23(B)(3) provides that an action may be maintained as a class action if, in addition to the prerequisites of subdivision (A), ‘the court finds that the
questions of law or fact common to the members of the class predominate over any
questions affecting only individual members, and that a class action is superior to other
available methods for the fair and efficient adjudication of the controversy.’” Id. at
79-80.
i. Predominance
{¶ 17} State Farm first argues that Cullen fails to meet the requirements for class
certification under Civ.R. 23(B)(3), predominance.
{¶ 18} In order to satisfy the predominance requirement, Cullen must show that the
common questions of law and fact represent a significant aspect of the class and are
capable of resolution for all members of the class in a single adjudication. Shaver v.
Standard Oil Co. at 799; Wal-Mart Stores, Inc. v. Dukes (2011), 564 U.S. ___, 131 S.Ct.
2541, 180 L.Ed.2d 374.
{¶ 19} The mere assertion that common issues of law or fact predominate does not
satisfy the express requirements under the rule. In Waldo v. N. Am. Van Lines, Inc.
(W.D.Pa. 1984), 102 F.R.D. 807, the court stated: “[It] is not simply a matter of
numbering the questions in the case, [labeling] them as common or diverse, and then
counting up. It involves a sophisticated and necessarily judgmental appraisal of the
future course of the litigation * * *.”
{¶ 20} Where the circumstances of each proposed class member need to be
analyzed to prove the elements of the claim or defense, then individual issues would predominate and class certification would be inappropriate. Schmidt v. Avco Corp.
(1984), 15 Ohio St.3d 310, 314, 473 N.E.2d 822.
{¶ 21} Here, if Cullen’s theory of the case is believed, the use of a common plan to
steer claimants to opt for repair rather than replacement or disclosure of a cash payment
for the value of the glass, less deductible, is a significant class-wide issue.
{¶ 22} According to Ohio Admin. Code 3901-1-54(E)(1), an insurer must “fully
disclose to the first party claimants all pertinent benefits, coverages or other provisions of
an insurance contract under which a claim is presented.” Cullen argues this was not
done because the Lynx representatives never disclosed the payment option he seeks and
steered claimants to repair rather than replacement of their windshields.6
{¶ 23} State Farm argues that no such “pay-out” option exists in the insurance
contract. Cullen argues that State Farm’s policies provide that it will “pay loss to your
car * * * but only for the amount of each such loss in excess of the deductible amount, if
any.” Cullen further alleges that loss is further defined to give State Farm the option to
“settle a loss with [the claimant] in any of the following ways: * * * ‘pay the actual cash
value’ of the property at the time of loss, ‘pay to repair’ the damaged property or part, or
‘pay to replace’ the property or part.”
{¶ 24} Although hotly contested by the parties, the contract may provide for a cash
payment option, as Cullen argues, but that may be discretionary to be decided exclusively
6 Significant is State Farm’s instruction to minimize replacement and encourage repair even to claimants with no deductible. by State Farm. Further, “[a] court should not create an obligation not found in the
contract’s terms.” Werner v. Progressive Preferred Ins. Co. (N.D.Ohio 2008), 533
F.Supp.2d 776, 781, citing Leigh v. Crescent Square Ltd. (1992), 80 Ohio App.3d 231,
235, 608 N.E.2d 1166. But none of these issues need be decided at this time because
class certification is not akin to a motion for summary judgment.
{¶ 25} State Farm acknowledged that it never repaired a windshield without a
claimant’s consent. This would indicate that State Farm does not retain absolute
discretion over this decision in practice. Further, State Farm employees acknowledged
that this pay-out option has been utilized by customers in the past.7
{¶ 26} The Supreme Court stated that “[c]ommonality requires the plaintiff to
demonstrate that the class members ‘have suffered the same injury,’ [Gen. Telephone Co.
of S.W. v. Falcon (1982), 457 U.S. 147,] 157. This does not mean merely that they have
all suffered a violation of the same provision of law. * * * Their claims must depend upon
a common contention * * *. That common contention, moreover, must be of such a
nature that it is capable of class wide resolution — which means that determination of its
7 “‘[T]he practical construction made by the parties may be considered by the court as an aid to its construction when the contract is ambiguous, uncertain, doubtful, or where the words thereof are susceptible to more than one meaning, or when a dispute has arisen between the parties after a period of operation under the contract.’” St. Marys v. Auglaize Cty. Bd. of Commrs., 115 Ohio St.3d 387, 2007-Ohio-5026, 875 N.E.2d 561, ¶39, quoting Consol. Mgt., Inc. v. Handee Marts, Inc. (1996), 109 Ohio App.3d 185, 191, 671 N.E.2d 1304, quoting 18 Ohio Jurisprudence 3d (1980) 46, Contracts, Section 160. Also, “[w]here a dispute arises relating to an agreement under which the parties have been operating for some considerable period of time, the conduct of the parties may be examined in order to determine the construction which they themselves have placed upon the contract, and great weight will be given to such construction.” Natl. City Bank of Cleveland v. Citizens Bldg. Co. of Cleveland (1947), 74 N.E.2d 273, 279. truth or falsity will resolve an issue that is central to the validity of each one of the claims
in one stroke.” Dukes at 2551. Here, the use of a common script creates such a
common, class-wide contention making this case suitable for class litigation. The trial
court examined these issues and determined that Cullen has raised a colorable claim
sufficient to satisfy the Civ.R. 23 standards. That was not an abuse of discretion.
{¶ 27} Part of State Farm’s predominance argument boils down to difficulty in
calculating damages and that some members of the class would have no damages. If
included class members had no damages, this would be inappropriate because Cullen’s
cause of action for breach of contract requires a showing of damages-in-fact to succeed.
Estate of Mikulski v. Centerior Energy Corp., Cuyahoga App. No. 94536,
2011-Ohio-696, ¶14 (“appellants must demonstrate that they were actually damaged as an
element of their breach of contract and fraud claims”).
{¶ 28} The trial court narrowed the class definition to only include damaged
individuals, and difficulty in calculating damages should not stand as a reason to avoid
class certification. If the fact of damages can be shown with certainty in a class-wide
manner, difficulty in calculating the amount is insufficient to avoid certification. Hoang
v. E*Trade Group, Inc., 151 Ohio App.3d 363, 2003-Ohio-301, 784 N.E.2d 151, ¶20;
Estate of Mikulski at ¶20.
{¶ 29} The trial court broke down the class further into two subclasses — those
who had their claims handled by Lynx and those who did not. {¶ 30} Addressing those with claims handled by Lynx, the trial court found the use
of a common scripted conversation constituted a common issue where liability could be
determined based on whether this conversation improperly prompted claimants to elect
repair without having their options properly explained to them.
{¶ 31} The existence of the Lynx script or “word track” offers evidence of
class-wide treatment that can reasonably establish evidence of Cullen’s claim. The trial
court’s certification of this subclass of putative class members was not an abuse of
discretion.
{¶ 32} However, Lynx was not involved in claims filed before August 1997, and
its script cannot be used for claims made before this period. Cullen’s theory of the case
is that cash-out payments that were a benefit under the policy were never disclosed.
{¶ 33} In Cope v. Metro. Life Ins. Co., 82 Ohio St.3d 426, 1998-Ohio-405, 696
N.E.2d 1001, the Ohio Supreme Court found that generalized evidence that proves or
disproves an element of the claim obviates the need to examine individual issues of
reliance. Id. at 436. In the case of claims submitted before 1997, Cullen argues that he
only needs to show that State Farm had an obligation to restore the claimant’s vehicle to
preloss condition, and he purports to offer expert testimony to show that a windshield can
never be repaired to restore it to preloss condition. The use of generalized evidence
found in the common contract between the entire subclass and the testimony and findings
of Cullen’s experts provides a means of resolving a significant question of breach of contract without the need to examine individual issues. Therefore, the trial court did not
abuse its discretion in certifying this subclass.
{¶ 34} State Farm argues that by placing a calculation of damages within the class
definition, Cullen has created an impermissible “fail-safe class.” This “refers to a class
definition that is improper because the members of the class cannot be known until a
determination has been made as to the merits of the claim or the liability of the opposing
party. Adashunas v. Negley (C.A.7, 1980), 626 F.2d 600, 603. Thus, a fail-safe class
‘put[s] the cart before the horse.’” Mims v. Stewart Title Guar. Co. (N.D.Tex. 2008),
254 F.R.D. 482, 486. Here, that is not the case because a mathematical calculation to
determine whether a given windshield replacement is more expensive than a given
deductible can be accomplished without trying the issues of the case and can be done in a
straight forward, mechanical manner.
{¶ 35} However, State Farm has identified a group of individuals whose inclusion
in the class is inappropriate. It argues that approximately 990 putative class members
had their windshields repaired and then later replaced after complaining to State Farm
about the quality of the repair. These individuals are included in the class under the
current definition, but would have no damages similar to the claims of the class because
their windshields were replaced. Therefore, the class definition should be amended to
exclude these putative class members.
ii. Manageability {¶ 36} State Farm also argues that the class is not manageable. The trial court’s
handling of such a large class will be difficult, but its administration is facilitated by the
careful records kept by State Farm and others and the ability to accurately calculate
damages using computerized algorithms and State Farm’s databases of information
(including the make and model of each claimant’s vehicle; the historic cost of windshield
replacement, including labor, available in National Auto Glass Specification pricing
guides; the percent difference from that cost as calculated through assigning various
market designations to counties in Ohio, already done by State Farm; and the amount of
individual deductibles at the time a claim was submitted). See Stammco, L.L.C. v.
United Tel. Co. of Ohio, Fulton App. No. F-07-024, 2008-Ohio-3845, ¶59, reversed on
other grounds by Stammco, L.L.C. v. United Tel. Co. of Ohio, 125 Ohio St.3d 91,
2010-Ohio-1042, 926 N.E.2d 292.
{¶ 37} State Farm’s records, in conjunction with available industry data, contain
the necessary information to arrive at a reasonable estimation of damages for each
putative class member and to determine class membership. Therefore, manageability is
not so insurmountable that class certification should be denied.
{¶ 38} Further, while several iterations of insurance policies cover the class period,
the language in those policies that impacts Cullen’s claim is substantially similar. The
existence of these different policies does not preclude class-wide treatment of the claims
at issue.
iii. Superiority {¶ 39} State Farm also alleges that a class action is not the best form in which to
litigate this issue. The Ohio Supreme Court has recognized that four factors listed by the
drafters of Civ.R. 23(B)(3) may be of importance when addressing whether the class
vehicle is superior to other methods of litigating claims: “‘(a) the interest of members of
the class in individually controlling the prosecution or defense of separate actions; (b) the
extent and nature of any litigation concerning the controversy already commenced by or
against members of the class; (c) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; (d) the difficulties likely to be encountered
in the management of a class action.’” Schmidt v. Avco Corp. (1984), 15 Ohio St.3d 310,
314, 473 N.E.2d 822.
{¶ 40} Here, as in Hamilton, “[n]o individual has attempted to institute a parallel
action or to intervene in this action, and it is unlikely that any new suits will be filed given
the relatively small individual recoveries and the massive duplication of time, effort, and
expense that would be involved. While the class is numerically substantial, it is certainly
not so large as to be unwieldy. Class action treatment would eliminate any potential
danger of varying or inconsistent judgments, while providing a forum for the vindication
of rights of groups of people who individually would be without effective strength to
litigate their claims.” Id. at 80. Based on all these factors, class treatment is the
superior method of resolving the present dispute.
B. Class Certification Under Civ.R. 23(B)(2) {¶ 41} State Farm next argues that “[t]he trial court erred and abused its discretion
by granting plaintiff’s motion for class certification under Rule 23(B)(2).” This
provision states, “the party opposing the class has acted or refused to act on grounds
generally applicable to the class, thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the class as a whole[.]”
{¶ 42} Under this provision, a plaintiff must show that the defendant’s actions
impact the entire class and that final injunctive or declaratory relief is appropriate.
{¶ 43} The trial court found, “it appears that the same practices which [Cullen]
experienced are still ongoing. Declaratory and injunctive relief are thus potentially
available remedies which can be issued on a class wide basis in the event that he prevails
upon the merits of his claim.”
{¶ 44} Here, Cullen seeks declaratory relief under Civ.R. 23(B)(2). Under federal
law, declaratory relief is proper under The Declaratory Judgment Act of 1934, now 28
U.S.C. 2201, either “‘1) where the judgment will serve a useful purpose in clarifying and
settling the legal relations in issue; or 2) when it will terminate and afford relief from the
uncertainty, insecurity and controversy giving rise to the proceedings.’” Sarafin v. Sears,
Roebuck & Co., Inc. (D.C. Ill., 1978), 446 F.Supp. 611, 615, quoting Maryland Casualty
Co. v. Rosen (C.A.2, 1971), 445 F.2d 1012, 1014.
{¶ 45} State Farm argues that the declaratory relief sought is incidental to
monetary damages. {¶ 46} “Certification under Civ.R. 23(B)(2) depends upon what type of relief is
primarily sought, so where the injunctive relief is merely incidental to the primary claim
for money damages, Civ.R. 23(B)(2) certification is inappropriate.” Wilson v. Brush
Wellman, Inc., 103 Ohio St.3d 538, 2004-Ohio-5847, 817 N.E.2d 59, ¶17, citing Zinser v.
Accufix Research Inst., Inc. (C.A.9, 2001), 253 F.3d 1180. The Seventh Circuit, in
denying certification of a class action seeking injunctive relief and money damages, has
also stated that “[a]n injunction would not provide ‘final’ relief as required by Rule
23(B)(2). An injunction is not a final remedy if it would merely lay an evidentiary
foundation for subsequent determinations of liability.” Kartman v. State Farm Mut.
Auto. Ins. Co. (C.A. 7, 2011), 634 F.3d 883, 893.
{¶ 47} In Marks v. C.P. Chem. Co., Inc. (1987), 31 Ohio St.3d 200, 203, 509
N.E.2d 1249, class certification was denied for individuals who had foam insulation with
toxic formaldehyde levels sprayed into their homes. The plaintiffs sought future
diagnostic testing for class members in addition to damages. The Ohio Supreme Court
declined to certify the class under Civ.R. 23(B)(2) because the “provision is inapplicable
where the primary relief requested is damages.”
{¶ 48} Recently, in Dukes, the Supreme Court found that Rule 23(b)(2) “does not
authorize class certification when each class member would be entitled to an
individualized award of monetary damages.” Id. at 2557.8 The court went on to find
8 The distinction is not a small one because significant notice and opt-out provisions are mandatory in Civ.R. 23(B)(3) classes that are absent from Civ.R. 23(B)(2). See Dukes at 2558-2559. that “individualized monetary claims belong in Rule 23(b)(3). The procedural
protections attending the (b)(3) class — predominance, superiority, mandatory notice, and
the right to opt out — are missing from (b)(2) not because the Rule considers them
unnecessary, but because it considers them unnecessary to a (b)(2) class. When a class
seeks an indivisible injunction benefitting all its members at once, there is no reason to
undertake a case-specific inquiry into whether class issues predominate or whether class
action is a superior method of adjudicating the dispute.” Id. at 2558. The court did not
address the specific question here — whether a class should be certified under both
Civ.R. 23(B)(2) and (B)(3).
{¶ 49} However, “[a]s the Supreme Court of Ohio stated, ‘[d]isputes over whether
the action is primarily for injunctive or declaratory relief rather than a monetary award
neither promote the disposition of the case on the merits nor represent a useful
expenditure of energy. Therefore, they should be avoided. If the Rule 23(a)
prerequisites have been met and injunctive or declaratory relief has been requested, the
action usually should be allowed to proceed under subdivision (b)(2). * * * The court
has the power under subdivision (c)(4)(A), which permits an action to be brought under
Rule 23 “with respect to particular issues,” to confine the class action aspects of a case to
those issues pertaining to the injunction and to allow damage issues to be tried
separately.’” Asset Acceptance L.L.C. v. Caszatt, Lake App No. 2009-L-090,
2010-Ohio-1449, ¶71, quoting Hamilton at 87, quoting Wright, Arthur R. Miller & Mary
Kay Kane, Federal Practice and Procedure (2 Ed.1986) 470, Section 1775. {¶ 50} Here, the relief sought includes money damages that require individualized
analyses as to the proper amount, but that relief flows from the declaratory judgment
sought. This is the test developed by the Fifth Circuit in determining whether
certification of such a class is proper. See Allison v. Citgo Petroleum Corp. (C.A.5,
1998), 151 F.3d 402. That court defined incidental to mean damages that “flow directly
from liability to the class as a whole on the claims forming the basis of the injunctive or
declaratory relief.” Id. at 415. Here, whether we engage in the more rigorous analysis
of whether a class should be certified under both subsections or following the Ohio
Supreme Court’s guidance to avoid such an analysis, the result is the same. The class is
maintainable under both Civ.R. 23(B)(2) and (B)(3).
{¶ 51} Appellant’s second assignment of error is overruled.
C. Failure to Conduct a Rigorous Analysis
{¶ 52} Finally, State Farm alleges that “[t]he trial court abused its discretion by
failing to conduct the rigorous analysis of the requirements for class certification under
Rule 23 required by Ohio law.”
{¶ 53} State Farm claims the trial court did not undertake its own rigorous analysis
of the Civ.R. 23 requirements, but merely adopted wholesale Cullen’s proposed findings
of facts and conclusions of law. Not only is this a good way to perturb the trial judge, it
is also incorrect.
{¶ 54} The trial court presided over a hearing where both sides presented evidence
on whether the class should be certified in this case and asked salient questions of both sides. It used much of the language in Cullen’s proposed findings of facts and
conclusions of law, but its opinion was half the length as the proposed findings. Further,
it narrowed the class definition to address State Farm’s argument regarding potential class
members without any injury. Appellant provides no evidence that the trial court did not
undertake a reasoned analysis of the issues presented to arrive at a rational, logical
conclusion.
{¶ 55} However, the trial court’s findings of fact and conclusions of law do go too
far into the merits of the case. One statement in particular is possibly outcome
determinative. The trial court states that a cash pay-out option was available and that
State Farm failed to disclose that option. This goes to the heart of the merits of the case
and is inappropriate at this point. Class certification does not address the merits of the
claim. This is understandable given that both sides argued the merits during class
certification and continue to do so in their briefs before this court.
III. Conclusion
{¶ 56} For claims handled using a common script or word track, the trial court did
not err in certifying the class in this case. Individual questions do not predominate
because the script used by Lynx and developed by State Farm establishes class-wide
treatment under Cullen’s theory that State Farm breached its contracts with insureds by
dissuading individuals from replacing their windshields and not informing them of their
option to receive a check for the value of the windshield less their deductible. For claims
made prior to the use of a common script, Cullen argues that the policy language simplifies the case to a showing that the policy in question required State Farm to restore
vehicles to their preloss condition and that a windshield repair cannot do so. The theory,
while dubious, does provide a means to resolve the case on a class-wide basis for these
members. Therefore, the trial court did not err in certifying this class. However, the
class definition must be restricted to exclude those who had their windshields replaced
after repair. Finally, State Farm has provided nothing to indicate that the trial court did
not fulfill its duty to analyze the issues in this case when rendering its judgment.
{¶ 57} This cause is affirmed as to certification of a class action, but reversed as to
the class definition and remanded to the trial court to redefine the class.
It is ordered that appellant and appellee share the costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
JAMES J. SWEENEY, J., CONCURS; MELODY J. STEWART, P.J., DISSENTS (WITH SEPARATE OPINION)
MELODY J. STEWART, P.J., DISSENTING: {¶ 58} The class action complaint filed in this case presents three distinct
groupings of State Farm policyholders whose claims for damaged windshields must be
divided into numerous sub-groupings. To be sure, there is a “common” issue regarding
whether State Farm had an obligation to make a cash payment available to its
policyholders in lieu of a repair, but the commonality is so general in nature that it fails to
distill into a concrete legal issue. When these varying groups are broken down into their
constituent parts, I believe that any litigation going forward will be so unmanageable as to
make class certification an abuse of the court’s discretion.
I
{¶ 59} Civ.R. 23(A)(2) defines “commonality” as “questions of law or fact
common to the class.” The court found that the common claim presented in this case
was whether State Farm was contractually obligated to make available to all glass-only
claimants the cash value of a replacement windshield.
{¶ 60} While I agree that Cullen’s complaint presents a common question on the
issue of whether State Farm had to offer glass-only claimants the cash value of a
replacement windshield, that was merely a threshold question that did not resolve other,
equally important, class-wide issues. In Wal-Mart Stores, Inc. v. Dukes (2011), 564 U.S.
___, 131 S.Ct. 2541, 180 L.Ed.2d 374,9 the United States Supreme Court cautioned that it
is “easy to misread” the commonality requirement of Fed.R.Civ.P. 23 (and by extension,
9 Because Civ.R. 23 is patterned after Fed.R.Civ.P. 23, “federal authority is an appropriate aid to interpretation of the Ohio rule.” Marks v. C.P. Chem. Co. (1987), 31 Ohio St.3d 200, 201, 509 N.E.2d 1249. Civ.R. 23) because “[a]ny competently crafted class complaint literally raises ‘common
questions.’” (Internal quotations omitted.) Id. at 2551, quoting Nagareda, Class
Certification in the Age of Aggregate Proof (2009), 84 N.Y.U.L.Rev. 97, 131-132.
Construing a Title VII gender discrimination claim for a class of 1.5 million female
Wal-Mart workers, the Supreme Court acknowledged that these claims presented a
“common” Title VII claim of gender discrimination, but noted that “[t]his does not mean
merely that [the workers] have all suffered a violation of the same provision of law.” Id.
Given the separate nature of injury that can be asserted under Title VII (intentional
discrimination or disparate impact), the court found that the mere claim of a Title VII
injury “*** gives no cause to believe that all their claims can productively be litigated at
once. Their claims must depend upon a common contention — for example, the
assertion of discriminatory bias on the part of the same supervisor. That common
contention, moreover, must be of such a nature that it is capable of classwide resolution
— which means that determination of its truth or falsity will resolve an issue that is
central to the validity of each one of the claims in one stroke.” Id.
{¶ 61} There is no dispute that the class certified by the court encompassed
policyholders in three distinct time periods: (1) from 1991 to March 1998, State Farm
had no windshield repair language in its automobile policies; (2) from April 1998 to
August 2005, State Farm had policy language stating that it would waive any deductible
for a glass-only claim if the policyholder agrees to have the windshield repaired; and (3) from September 2005 to present, State Farm no longer waived the deductible and would
repair the windshield for glass-only claimants only if agreed to by the policyholder.
{¶ 62} As in Dukes, this class encompassed far too many theories of recovery
under a “common” question to present a unified class. Different policyholders were at
times covered under different versions of the State Farm automobile policy. Over the
20-year period, policyholders could be determined to have suffered losses, if any, under
multiple variations on the theme of “glass only” claims. Some policyholders may have
had their windshields immediately replaced while others had their windshields repaired.
For those who had their windshields repaired, some had their deductibles waived while
others did not. Some policyholders may have expressly given permission for repair
while others may not have given permission. And, of course, some policyholders were
advised under the Lynx word track while others were not. While there may be an initial
common question of State Farm’s obligation to offer a cash payment in lieu of repair, the
many permutations of the underlying claim do not present common issues sufficient to
justify certification into a single class of policyholders.
II
{¶ 63} I likewise find that the court erred by concluding that the class it defined
was manageable.
{¶ 64} “Manageability” encompasses “the whole range of practical problems that
may render the class action format inappropriate for a particular suit.” Eisen, 417 U.S. at
164. In determining manageability, the court should consider the potential difficulties in notifying class members of the suit, calculation of individual damages, and distribution of
damages. Maguire v. Sandy Mac, Inc. (D.N.J. 1992), 145 F.R.D. 50, 53-54. The courts
must evaluate the costs and benefits of adjudicating plaintiffs’ claims in a class action, as
compared to the costs and benefits of proceeding through numerous separate actions.
{¶ 65} The need for individualized damage assessments adversely affects the need
for class certification. Broussard v. Meineke Discount Muffler Shops, Inc. (C.A.4, 1998),
155 F.3d 331, 342-343. However, individualized damages assessments are manageable
when “variables are identifiable on a classwide basis and, when sorted, are capable of
determining damages for individual policyowners ***.” In re Monumental Life Ins. Co.
(C.A.5, 2004), 365 F.3d 408, 419.
{¶ 66} In Conclusion of Law No. 14, the court conceded that “the recovery due
each class member will not be identical,” but found that fact alone did not warrant a
finding that the class would be unmanageable. The court found that State Farm had a
computer database and “the ability to employ computer analysis of those records.” See
Conclusion of Law No. 12.
{¶ 67} In In re Bridgestone/Firestone, Inc. (C.A.7, 2002), 288 F.3d 1012,
1018-1021, the court of appeals reversed class certification because the plaintiffs’
alleged defective tire design class action would be unmanageable because tires were
recalled at different times, they may have differed in their propensity to fail, some
vehicles were resold, some owners alleged they were advised to underinflate their tires,
and there were six tire models representing 67 different designs. {¶ 68} As in Bridgestone, there are too many damages variables present in this
case to make the class manageable. There are 100,000 proposed class members who,
over a 20-year period, made glass-only claims. Those policyholders were, during that
period, covered under three distinct State Farm approaches to glass-only windshield
claims. Some had their windshields repaired with no further complaint; some had their
windshields replaced. Policyholders had different deductibles, which may have varied
year-to-year as they renewed their policies. Some, but not all, policyholders had their
deductibles waived after agreeing to accept a windshield repair. The policyholders drove
different automobiles, which required significantly different types of windshields, the
value of which varied depending on the type of car, the size and type of the glass installed
on the car, and the labor required to replace the windshield. For example, the cost to
replace the windshield of a 2009 luxury sports utility vehicle would likely be significantly
higher than the replacement cost for a 1997 subcompact coupe. Even assuming the same
make and model of car, the replacement cost would certainly vary over the 20-year period
certified by the court due to various factors including inflation or the type and quality of
glass used in the windshields.
{¶ 69} The court’s confidence in its ability to wade through the difficulties posed
by variable issues relating to damages assessments based solely on the rather nebulous
idea that computers can sort it out is, I believe, misplaced. For trial purposes, it would be
extraordinarily difficult to present damages issues as raised in this case. See Newton v.
Merrill Lynch, Pierce, Fenner & Smith, Inc. (C.A.3, 2001), 259 F.3d 154, 191 (finding unmanageable class action that would require individualized inquiry into “hundreds of
millions” of NASDAQ transactions). Not every member of the class will have suffered
the same amount of damages. As noted, those damages will vary not only by the type of
policy, but by the cost of repair for each particular model of car during a particular time
frame.
{¶ 70} A class action must represent the best “available method[ ] for the fair and
efficient adjudication of the controversy.” Civ.R. 23(B)(3). The difficulties likely to be
encountered in the management of the class as certified by the court are so numerous that
I cannot confidently conclude that the case can be fairly tried. I therefore dissent with
the majority’s decision.