Melot v. Oklahoma Farm Bureau Mutual Insurance Co.

2004 OK CIV APP 25, 87 P.3d 644, 75 O.B.A.J. 889, 2003 Okla. Civ. App. LEXIS 126, 2003 WL 23327541
CourtCourt of Civil Appeals of Oklahoma
DecidedDecember 9, 2003
DocketNo. 98242
StatusPublished
Cited by5 cases

This text of 2004 OK CIV APP 25 (Melot v. Oklahoma Farm Bureau Mutual Insurance Co.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Melot v. Oklahoma Farm Bureau Mutual Insurance Co., 2004 OK CIV APP 25, 87 P.3d 644, 75 O.B.A.J. 889, 2003 Okla. Civ. App. LEXIS 126, 2003 WL 23327541 (Okla. Ct. App. 2003).

Opinion

Opinion by

JERRY L. GOODMAN, Presiding Judge:

¶ 1 Defendant Oklahoma Farm Bureau Mutual Insurance Company (Insurer) appeals the trial court's order certifying a class action. Based upon our review of the facts and applicable law, we affirm.

FACTS

¶ 2 Plaintiffs Hilton and Ramona Melot (Plaintiffs) are policyholders with Insurer. Plaintiffs asserted their home was damaged by a storm on June 9, 2000. They filed a claim with Insurer. After several inspections by Insurer's adjustor and negotiations between the parties, Insurer offered and Plaintiffs accepted $8,751 for the claim. According to Plaintiffs, this figure did not include a 20 percent "overhead and profit" allowance routinely charged by general contractors whenever three or more trades were involved in repairing damage to a home.

¶ 3 Plaintiffs then sued Insurer, asserting that Insurer had a common practice of underpaying its policyholders' property damage claims by failing to include this 20 percent allowanee for overhead and profit. Plaintiffs asserted three theories of recovery: breach of contract, in that Insurer's common practice resulted in their receiving "less than full and fair indemnification"; bad faith, in that Insurer purposely followed this common practice of withholding the 20 percent, which was "at worst, an unlawful practice and, at best, extremely questionable"; and fraud, in that Insurer had failed to inform its insureds about the practice. Plaintiff's petition was filed individually and on behalf of others insured by Insurer "whose claims for covered damage to their dwellings were intentionally under-adjusted in that [Insurer] failed to include adequate and timely payments for contractor's profit and overhead."

¶ 4 In an order filed August 16, 2002, the trial court granted Plaintiffs' motion for class certification.. The trial court found that Insurer did not inform Plaintiffs about the 20 percent figure nor did it offer any such allow[646]*646ance. On October 31, 2002, the trial court modified the order to provide the following definition of the class:

All Oklahoma citizens who were or are Oklahoma Farm Bureau Mutual Insurance Company homeowner policyholders:
1. who suffered a covered loss to their home on or after June 8, 1999;
2. whose losses were adjusted on an actual cash value (ACV) or replacement cost (RC) basis;
3. whose Oklahoma Farm Bureau worksheets/estimates indicate the involvement of three trades or more; and
4. whose damage adjustments did not include adequately calculated and timely tendered compensation for general contractor's overhead and profit.
1 5 Insurer appeals.

STANDARD OF REVIEW

¶ 6 In an appeal from a trial court's certification of a class action, our standard of review is whether the trial court abused its discretion. Shores v. First City Bank Corp., 1984 OK 67, ¶ 4, 689 P.2d 299, 301. Class actions in Oklahoma are governed by 12 0.8. 2001, § 2028. The trial court abuses its discretion if the record fails to support the conclusion that each of the five prerequisites of the statute are met. Id. These prerequisites are set out in section 2028 as follows:

A. PREREQUISITES TO A CLASS ACTION. One or more members of a class may sue or be sued as representative parties on behalf of all only if:
1. The class is so numerous that join-der 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 or defenses of the class; and
4. The representative parties will fairly and adequately protect the interests of the class.
B. CLASS ACTIONS MAINTAINABLE. An action may be maintained as a class action if the prerequisites of subsection A of this section are satisfied and in addition:
3. 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. The matters pertinent to the findings include:
a. the interest of members of the class ~ in individually controlling the prose-ecution 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, and
d. the difficulties likely to be encountered in the management of a class action.

ANALYSIS

¶ 7 The parties have chosen to combine some of the statute's elements for purposes of argument. In the interest of clarity, we will discuss them separately.

Preliminary Matters

¶ 8 First, we disagree with Insurer's assertion that the trial court failed to certify an identifiable class, or that it erred because it did not identify the class until it issued its amended order. The amended order is final and reviewable. It adequately specifies who is a putative member of the class. While this does not automatically mean the requirements of a class action were met, it is clear that the class is sufficiently identifiable.

¶ 9 We also reject Insurer's argument that the class is too broad in that the contractual claims are subject to a one-year statute of limitations, meaning that the class should be limited to those suffering a loss no later than June 8, 2000, and not June 8, 1999, as the order indicates. The existence of individual statute of limitations defenses is [647]*647not a factor that generally finds favor with courts considering certification. Shores, 1984 OK 67, ¶ 16, 689 P.2d at 304. The trial court can consider the matter as needed and limit the class in ways to conform to the statute of limitations, if it becomes necessary to do so. At this stage of the proceeding, the limitations issue is not a sufficient ground for denying certification.

Numerosity

¶ 10 The trial court accepted the testimony of Plaintiff's expert that 6,900 to 7,000 potential class members exist. This requirement was uncontested by Insurer.

Commonality

¶11 Commonality requires that there be questions of fact or law common to the class. The trial court concluded that a common question existed as to whether Insurer, in cases where it conceded that repairs involved three or more trades, was required to include an allowance for the general contractor's overhead and profit.

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Bluebook (online)
2004 OK CIV APP 25, 87 P.3d 644, 75 O.B.A.J. 889, 2003 Okla. Civ. App. LEXIS 126, 2003 WL 23327541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melot-v-oklahoma-farm-bureau-mutual-insurance-co-oklacivapp-2003.