ON REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 06-2022
MARTHA WARD, on behalf of herself and all others similarly situated,
Plaintiff - Appellant,
versus
DIXIE NATIONAL LIFE INSURANCE COMPANY; NATIONAL FOUNDATION LIFE INSURANCE COMPANY,
Defendants - Appellees,
and
PALMETTO MARKETING ASSOCIATES, INCORPORATED; PATTI JENKINS,
Defendants.
----------------------------
SOUTH CAROLINA DEPARTMENT OF INSURANCE; AMERICA’S HEALTH INSURANCE PLANS, INCORPORATED,
Amici Supporting Appellees. No. 06-2054
MARTHA WARD, on behalf of herself and all others similarly situated,
Plaintiff - Appellee,
NATIONAL FOUNDATION LIFE INSURANCE COMPANY,
Defendant - Appellant,
DIXIE NATIONAL LIFE INSURANCE COMPANY,
Defendant - Appellee,
SOUTH CAROLINA DEPARTMENT OF INSURANCE; AMERICA’S HEALTH INSURANCE PLANS, INCORPORATED,
Amici Supporting Appellant.
Appeals from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., Chief District Judge. (3:03-cv-03239-JFA)
Argued: May 23, 2007 Decided: October 5, 2007
Decided on Rehearing: November 29, 2007
2 Before MICHAEL and TRAXLER, Circuit Judges, and WIDENER,1 Senior Circuit Judge.
Vacated in part, affirmed in part, dismissed in part, and remanded by unpublished per curiam opinion.
ARGUED: Richard Ara Harpootlian, Columbia, South Carolina, for Martha Ward, on behalf of herself and all others similarly situated. Elliot H. Scherker, GREENBERG & TRAURIG, L.L.P., Miami, Florida, for Dixie National Life Insurance Company and National Foundation Life Insurance Company. ON BRIEF: Tobias G. Ward, Jr., TODD & WARD, P.C., Columbia, South Carolina, for Martha Ward, on behalf of herself and all others similarly situated. C. Allen Foster, Kevin E. Stern, GREENBERG & TRAURIG, L.L.P., Washington, D.C.; J. Calhoun Watson, SOWELL, GRAY, STEPP & LAFFITTE, L.L.C., Columbia, South Carolina, for Dixie National Life Insurance Company and National Foundation Life Insurance Company. Jeffrey A. Jacobs, SOUTH CAROLINA DEPARTMENT OF INSURANCE, Columbia, South Carolina, for the South Carolina Department of Insurance, Amicus Curiae Supporting Dixie National Life Insurance Company and National Foundation Life Insurance Company. Joni Hong, AMERICA’S HEALTH INSURANCE PLANS, INC., Washington, D.C.; Markham R. Leventhal, Mitchell D. Sprengelmeyer, JORDEN BURT, L.L.P., Miami, Florida, for America’s Health Insurance Plans, Inc., Amicus Curiae Supporting Dixie National Life Insurance Company and National Foundation Life Insurance Company.
Unpublished opinions are not binding precedent in this circuit.
1 Judge Widener heard oral argument in this case but died prior to the time the decision was filed. The decision is filed by a quorum of the panel. 28 U.S.C. § 46(d).
3 PER CURIAM:
Plaintiff Martha Ward sued National Foundation Life
Insurance Company (National) and Dixie National Life Insurance
Company (Dixie), asserting that National refused to pay the full
amount of benefits owed under supplemental cancer insurance
policies that were issued by Dixie and later assigned to National.
The district court certified a statewide (South Carolina) plaintiff
class rather than the multistate class Ward sought to represent,
and the court later granted summary judgment in favor of National
on the breach of contract claims. Ward appealed and National
cross-appealed. In a prior opinion, we concluded that although the
district court properly limited the plaintiff class to South
Carolina residents, the court improperly granted summary judgment
on the breach of contract claims, and we remanded for further
proceedings on those claims. We dismissed National’s cross-appeal
without prejudice. See Ward v. Dixie Nat’l Life Ins. Co., 2007 WL
2914954 (4th Cir. Oct. 5, 2007).
Ward filed a petition for rehearing, and National,
supported by various amici, filed a petition for rehearing and
rehearing en banc. We granted Ward’s petition for panel rehearing
and denied National’s petition for rehearing, thus vacating our
prior opinion.2 See Fourth Circuit I.O.P. 40.2. Dispensing with
2 Because no member of the court called for a vote on National’s petition for rehearing en banc, the petition was denied. See Fourth Circuit Local Rule 35(b).
4 further briefing and argument, we now vacate the district court’s
decision granting summary judgment in favor of National, and we
remand with instructions for the district court to instead enter
judgment in favor of Ward on the breach of contract claims. In
light of our remand, we conclude that it would be premature for us
to consider the class certification issue. We therefore dismiss
without prejudice National’s cross-appeal.
I.
In August 1990 Ward purchased a cancer treatment benefit
policy from Dixie covering both herself and her husband. Ward’s
policy is a type of supplemental insurance under which direct
payments are made to the policyholder when an insured patient
undergoes covered cancer treatments. Benefits under this kind of
policy are paid regardless of whether the patient has other
insurance sufficient to cover all medical expenses. When the
patient has other insurance covering cancer treatments, the
policyholder is able to retain the money received as a result of
the supplemental coverage.
Benefits under Ward’s policy vary as to the procedure
performed. In some sections the policy provides clear caps as to
the maximum benefit to be paid. For example, the policy provides
a “Schedule of Operations” listing the maximum amount to be paid
-- ranging from $150 for skin excisions to $3000 for removal of an
5 intracardiac tumor -- for a variety of operations. In many other
sections of the policy no dollar amounts are provided, and benefits
are calculated in relation to the “actual charges” for the covered
procedures. Section (F) of the policy, titled “X-ray Therapy,
Radium Therapy, Radiation Therapy, and Chemotherapy Benefit,”
provides an example of this language:
We will pay the actual charges for teleradiotherapy, using either natural or artificially propagated radiation, when used for the purpose of modification or destruction of tissue invaded by cancer. We will also pay the actual charges made for plaques or molds or the administration internally, interstitially, or intracavitarially of radium or radioisotopes in sealed sources for the purpose of modification or destruction of tissue invaded by cancer. We will also pay the actual charges for cancericidal chemical substances and the administration thereof for the purpose of the modification or destruction of tissue invaded by cancer.
J.A. 221. Although the phrase is used repeatedly throughout the
policy, no definition for “actual charges” is provided.
Dixie assigned Ward’s policy to National in 1994. In
2001 Ward began filing claims under the policy after her husband,
James Ward (James), was diagnosed with prostate cancer and started
receiving treatment. Shortly thereafter, a dispute between Ward
and National arose over how benefits paid in the amount of the
“actual charges” are calculated.
For a number of years after the assignment, National
appears to have calculated benefits in the same manner that Dixie
had previously done. Specifically, when the benefit owed was based
on the “actual charges,” Dixie paid the benefit based on the
6 amounts billed to patients by their medical providers. Dixie paid
such amounts even though providers often have agreements with
certain insurers to accept as payment-in-full an amount less than
that reflected on the patient’s bill. In this case, for example,
James’s primary health insurance is provided through a plan
administered by Blue Cross and Blue Shield of South Carolina
(BCBS). Regardless of the amounts billed to James, his medical
providers have an agreement with BCBS that requires them to accept
a discounted amount as payment-in-full for services rendered to
BCBS insureds. This agreement prohibits providers from attempting
to collect an amount in excess of the pre-negotiated, discounted
fee from BCBS insureds such as James.
Toward the end of the year in 2001, National changed its
benefit payment practice. When Ward submitted claims for James’s
treatments in 2002, she was told that she would have to submit an
explanation of benefits (EOB) statement. By viewing the EOB,
National would be able to determine what the pre-negotiated
discount rate was for James’s treatments and calculate benefits in
light of this reduced amount. Ward refused to provide National
with the EOB statements because she contended that under the terms
of her policy, the “actual charge” was reflected in the non-
discounted bill that she received rather than in the EOB.
On March 7, 2003, after Ward was unable to resolve the
dispute, she filed an action in the Court of Common Pleas for
7 Richland County, South Carolina, against both Dixie and National.
The defendants removed the action to federal court on October 10,
2003. On September 15, 2004, Ward moved to certify a plaintiff
class consisting of
all persons insured under cancer policies from Defendant Dixie National Life Insurance Company where Dixie promised to pay to the insured the “actual charges” incurred for certain medical services, but instead paid not the actual charges but rather the (lesser) amount that the insured’s primary health insurer negotiated with the healthcare provider to pay for the medical procedure[.]
S.A. 7. On May 5, 2005, the district court certified a class of
South Carolina residents. The court limited the class to South
Carolina residents based on its understanding of South Carolina’s
door-closing statute, S.C. Code Ann. § 15-5-150. Ward, with
permission of the court, filed a third amended complaint on
September 27, 2005, asserting claims for (1) breach of contract
against both Dixie and National; (2) bad faith refusal to pay
against National; and (3) breach of contract accompanied by a
fraudulent Act against National. Ward later abandoned the bad
faith claim. Cross-motions for summary judgment followed. In
addition, National filed a motion, joined by Dixie, to decertify
the statewide class.
On May 10, 2006, the district court granted National’s
motion for summary judgment while denying Ward’s. The court
concluded that under South Carolina contract law, the phrase
“actual charges” is not ambiguous and must be read to mean “the
8 charges for which the patient is liable when medical services are
rendered, not the fictional amounts indicated on the invoice that
the provider does not expect the patient to pay.” J.A. 1074.
Because Ward did not prevail on her breach of contract claims, the
joint motion to decertify the class and Dixie’s motion for summary
judgment were denied as moot.
Ward appeals both the grant of summary judgment to
National as well as the district court’s decision to limit class
membership to South Carolina residents. National has filed a
cross-appeal contesting the district court’s decision to certify
even a statewide class.
II.
We begin with Ward’s argument that the district court
erred in concluding that, as used in her policy, the unambiguous
meaning of the phrase “actual charges” is the discounted amount
that medical providers have agreed to accept as full payment
pursuant to a third-party agreement with another insurer. Under
South Carolina law when a term has a “plain, ordinary, and popular
meaning,” courts must interpret the term to give effect to that
ordinary usage. Century Indem. Co. v. Golden Hills Builders, Inc.,
561 S.E.2d 355, 358 (S.C. 2002). When a term has a plain meaning
and that meaning is “clear and unambiguous, the language [of the
contract] alone determines the contract’s force and effect.”
9 Schulmeyer v. State Farm Fire & Cas. Co., 579 S.E.2d 132, 134 (S.C.
2003). Of course not all terms are susceptible to plain and
ordinary definition because of the simple fact that they are not
popularly used. As a result, a contract term is ambiguous when it
lacks a plain definition and is “capable of more than one meaning
when viewed objectively by a reasonably intelligent person who has
examined the context of the entire integrated agreement and who is
cognizant of the customs, practices, usages and terminology as
generally understood in the particular trade or business.” Hansen
v. United Servs. Auto. Ass’n, 565 S.E.2d 114, 117-18 (S.C. 2002).
In the district court’s endeavor to discern the plain
meaning of “actual charges” as used in Ward’s policy, it reasoned
that the word “actual” should be given a separate meaning from the
word “charges.” Because the district court understood the word
“actual” to mean something that is real or true, it concluded that
“actual charges” means the amounts for which the patient is truly
liable as opposed to “the fictional amounts indicated on the
invoice that the provider does not expect the patient to pay.”
J.A. 1074. We disagree both with the district court’s interpretive
approach as well as the conclusion that it reached. The definition
settled on by the district court is not the only one possible when
the language of the policy is considered in light of its context.
As we explain below, the meaning of the phrase “actual charges” as
used in Ward’s policy is ambiguous.
10 First, even under the district court’s approach --
defining each word separately and then putting those definitions
together -- another meaning can reasonably be found. The words
“actual charges” could also be understood to mean the amount shown
on the bill sent to the patient regardless of whether this amount
is the same as the amount actually owed. Viewed from within the
four corners of the policy, the phrase is ambiguous as there is
nothing to indicate whether “actual charges” is best understood to
mean the amount actually billed or the amount actually owed. See
Conner v. Am. Pub. Life Ins. Co., 448 F. Supp.2d 762, 766 (N.D.
Miss. 2006) (finding “inherent ambiguity in the undefined term
‘actual charges’”); Metzger v. Am. Fid. Assur. Co., No. CIV-05-
1387-M, 2006 U.S. Dist. LEXIS 70061, at *13 (W.D. Okla. Sept. 26,
2006) (same).
Second, we disagree with the assertion that the district
court was correct “in considering ordinary dictionary definitions”
of both “actual” and “charges.” Appellees’ Br. at 21. We conclude
that a person “who is cognizant of the customs, practices, usages
and terminology as generally understood” in the health insurance
industry would regard “actual charges” as a term of art rather than
two words to be separately defined. Hansen, 565 S.E.2d at 117.
The words are used throughout the insurance policy together as a
phrase -- a phrase that neither appears in a standard dictionary
nor has an ordinary, popular usage. Contrary to the defendants’
11 contention, South Carolina’s principles of contract interpretation
in no way prohibit courts from reading a phrase as a term of art if
that is how it would be regarded by an objective observer well-
versed in medical insurance terminology. See Frazier v. Badger,
603 S.E.2d 587, 591 (S.C. 2004).
Third, even when viewed as a term of art, the phrase
remains ambiguous. Prior to filing this lawsuit, Ward wrote to the
South Carolina Department of Insurance and asked to be provided
with a legal definition of “actual charge.” A representative of
the Department wrote back explaining that “[t]he term ‘actual
charge’ in industry-wide standards is the amount that you are
legally obligated to pay for a specific service.” J.A. 611
(emphasis in original). In contrast to the view taken by the
Department of Insurance, numerous health care dictionaries define
“actual charge” as the amount billed. See, e.g., Mosby’s Medical,
Nursing, and Allied Health Dictionary 26 (4th ed. 1994) (“actual
charge, the amount actually charged or billed by a medical
practitioner for a service. The actual charge may not be the same
as that paid for the service by an insurance plan.”); Lee Hyde, The
McGraw-Hill Essential Dictionary of Health Care 133 (1988) (“actual
charge. the amount a physician or other practitioner actually bills
a patient or his insurance for a medical service or procedure.”)
(emphasis in original). Because the policy itself does not
12 indicate which definition was intended by the parties, we conclude
that its meaning is ambiguous.3
We must now determine what remedy flows from our
conclusion that the insurance policy is ambiguous. In a typical
contract dispute, the meaning of an ambiguous contract is a
question of fact to be resolved by the jury. See, e.g., Café
Assocs., Ltd. v. Gerngross, 406 S.E.2d 162, 164 (S.C. 1991) (“As a
general rule, written contracts are to be construed by the Court;
but where a contract is ambiguous or capable of more than one
construction, the question of what the parties intended becomes one
of fact, and the question should be submitted to the jury.”).
Although statements of that general rule appear in cases involving
insurance disputes, see Waters v. S. Farm Bureau Life Ins. Co., 617
S.E.2d 385, 388 (S.C. Ct. App. 2005), only latent ambiguities in an
insurance policy are resolved by a jury; patent ambiguities must be
resolved in favor of the insured. See Cogdill v. Equity Life &
Annuity Co., 203 S.E.2d 674, 677 (S.C. 1974); Hann v. Carolina Cas.
Ins. Co., 167 S.E.2d 420, 423 (S.C. 1969). Accordingly, if the
3 National and its supporting amici contend that, absent compelling reasons, we must defer to the Department of Insurance’s interpretation of “actual charges.” We disagree. Although an agency’s interpretation of a statute it is charged with enforcing is entitled to deference, see Dunton v. S.C. Bd. of Examiners in Optometry, 353 S.E.2d 132, 133 (S.C. 1987), the Department of Insurance has no statutory mandate to pronounce the meaning of a term in an individual insurance policy. We are of course interested in the Department’s position, but South Carolina law does not in this case require us to defer to the Department’s view of the matter.
13 ambiguity in this case is patent, the district court should have
granted summary judgment in favor of Ward on the breach of contract
claims. If the ambiguity is latent, the meaning of the policy must
be determined by a jury on remand.
A patent ambiguity is one where the uncertainty as to
meaning “arises upon the words of the will, deed, or other
instrument as looked at in themselves, and before any attempt is
made to apply them to the object which they describe.” Hann, 167
S.E.2d at 422 (quoting Jennings v. Talbert, 58 S.E. 420, 421 (S.C.
1907)); cf. Stone Container Corp. v. Hartford Steam Boiler
Inspection & Ins. Co., 165 F.3d 1157, 1162 (7th Cir. 1999) (“A
patent ambiguity in a contract is one that is apparent from just
reading the contract.”). With a latent ambiguity, “the uncertainty
arises, not upon the words of the will, deed, or other instrument
as looked at in themselves, but upon those words when applied to
the object or subject which they describe.” Hann, 167 S.E.2d at
422. A latent ambiguity thus “does not appear on the face of the
words used, nor is its existence known until those words are
brought into contact with collateral facts.” Hastings v. Union
Fire Ins. Co., 125 S.E. 923, 924 (S.C. 1924) (internal quotation
marks omitted); cf. Stone Container Corp., 165 F.3d at 1162 (“A
latent ambiguity arises when, although the contract is clear ‘on
its face,’ anyone knowing the background would know that it didn’t
mean what it seems to mean.”).
14 We believe that the phrase “actual charges” is patently
ambiguous. The phrase is susceptible of more than one reasonable
interpretation, and the uncertainty of meaning arises thus from the
phrase itself, not from the application of the phrase to collateral
facts. See Cogdill, 203 S.E.2d at 677 (concluding that “lame back”
as used in a policy provision limiting disability benefits could
plausibly be construed in more than one way and that the phrase was
patently ambiguous); Hastings, 125 S.E. at 924 (finding latent
ambiguity in fire insurance policy that covered two barns because
the insured’s property included two traditional barns and an
abandoned tenant house used by the insured as a barn).
Because the ambiguity is patent, construction of the
policy is for the court rather than a jury. See Cogdill, 203
S.E.2d at 677; Hann, 167 S.E.2d at 423. South Carolina law very
clearly requires us to resolve the ambiguity in favor of the
insured. See Helena Chem. Co. v. Allianz Underwriters Ins. Co.,
594 S.E.2d 455, 459 (S.C. 2004) (“Where the words of an insurance
policy are capable of two reasonable interpretations, the
construction most favorable to the insured should be adopted.”);
Hann, 167 S.E.2d at 423 (“It is settled beyond cavil in this
jurisdiction that the terms of an insurance policy should be
construed most liberally in favor of the insured, and that in case
of conflict or ambiguity, a construction will not be adopted that
defeats recovery if the policy is reasonably susceptible of a
15 meaning that will permit recovery. We uniformly give the insured
the benefit of any doubt in the construction of the terms used in
an insurance policy.”). Accordingly, we vacate the district
court’s grant of summary judgment to National and remand with
instructions that the district court enter summary judgment in
favor of Ward on her breach of contract claims.
III.
A.
We now turn to the question of whether the district court
properly limited the class of plaintiffs to those who, like Ward,
are residents of South Carolina. In her motion for class
certification, Ward made clear that she sought to represent persons
residing throughout the southern United States who had bought
policies from Dixie that were later assigned to National. Because
the proposed class included non-residents of South Carolina, the
district court requested briefing from the parties on the effect of
South Carolina’s door closing statute, S.C. Code Ann. § 15-5-150,
on the potential out-of-state class members. That statute
provides:
An action against a corporation created by or under the laws of any other state government or country may be brought in the circuit court:
16 (1) By any resident of this State for any cause of action; or
(2) By a plaintiff not a resident of this State when the cause of action shall have arisen or the subject of the action shall be situated within this state.
S.C. Code Ann. § 15-5-150. As recently reinterpreted by the
Supreme Court of South Carolina in Farmer v. Monsanto Corp., 579
S.E.2d 325 (S.C. 2003), § 15-5-150 determines the capacity of a
party to sue. Furthermore, Farmer held that Ҥ 15-5-150 controls
the eligibility of class members in a class action where the
defendant is a foreign corporation.” 579 S.E.2d at 559. For
suits in South Carolina state court, the effect of Farmer is to
limit class membership to those persons who would have had
capacity to sue for themselves.
In ruling on Ward’s motion for class certification, the
district court concluded that § 15-5-150 prevented Ward from
representing out-of-state plaintiffs. The district court reached
this conclusion by relying on our prior decisions stating that “a
South Carolina federal court exercising diversity jurisdiction
must apply § 15-5-150 ‘unless there are affirmative countervailing
federal considerations.’” Proctor & Schwartz, Inc. v. Rollins,
634 F.2d 738, 739-40 (4th Cir. 1980) (quoting Szantay v. Beech
Aircraft Corporation, 349 F.2d 60, 64 (4th Cir. 1965)). Our
decisions in Proctor & Schwartz and Szantay, however, interpreted
the door-closing statute in light of the then-prevailing
17 understanding that § 15-5-150 restricted not capacity to sue but
the subject matter jurisdiction of state courts. In Farmer the
Supreme Court of South Carolina overruled its prior cases stating
that § 15-5-150 dealt with jurisdiction.
In this case, we do not find it necessary to decide what
effect the reinterpreted door-closing statute has on class
membership in suits being heard in South Carolina federal courts
sitting in diversity. This is so because, as we discuss next,
Ward has failed to establish that the proposed multistate class
meets Rule 23(b)(3)’s requirement that common legal issues
predominate.
B.
Fed. R. Civ. P. 23 sets the requirements for class
certification. First, Rule 23(a) provides that certification is
proper only if
(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 or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
Fed. R. Civ. P. 23(a). Once Rule 23(a)’s requirements of
numerosity, commonality, typicality, and representational adequacy
are met, the proposed class must still satisfy one of three
additional requirements for certification under Rule 23(b).
18 Because Ward sought class certification under Rule 23(b)(3), she
was required to show that
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.
Fed. R. Civ. P. 23(b)(3). The predominance requirement under Rule
23(b)(3) “is similar to but ‘more stringent’ than the commonality
requirement of Rule 23(a).” Thorn v. Jefferson-Pilot Life Ins.
Co., 445 F.3d 311, 319 (4th Cir. 2006) (quoting Lienhart v. Dryvit
Sys., 255 F.3d 138, 146 n. 4 (4th Cir. 2001)). The party seeking
class certification bears the burden of establishing all Rule 23
requirements. In re A.H. Robins Co., 880 F.2d 709, 728 (4th Cir.
1989).
In her class certification memorandum, Ward stated that
“members of the Class are dispersed throughout the southern United
States.” S.A. 12. She further noted that “Dixie marketed and
sold cancer policies in at least seven states other than South
Carolina, including Alabama, Florida, Georgia, Louisiana,
Mississippi, Tennessee, and Texas.” Id. Although Ward’s
multistate class purported to include “at a minimum, thousands of
persons” across the southern United States, Ward never identified
what state law would apply to the claims of absent class members
who are not residents of South Carolina and whose claims have no
19 connection to that state. Id. In a class action potentially
governed by the laws of multiple states, identifying the
applicable body or bodies of state law is critical because
“variations in state law may swamp any common issues and defeat
predominance.” Castano v. American Tobacco Co., 84 F.3d 734, 741
(5th Cir. 1996). Ward has the burden of showing “that common
questions of law predominate, and [she] cannot meet this burden
when the various laws have not been identified and compared.”
Gariety v. Grant Thornton, LLP, 368 F.3d 356, 370 (4th Cir. 2004);
see also Cole v. GMC, 484 F.3d 717, 730 (5th Cir. 2007)
(decertifying a class because “[p]laintiffs have failed to
adequately address, much less extensively analyze, [] variations
in state law”) (internal quotation marks and citation omitted).
Because the district court ruled on the effect of the
door-closing statute before addressing the merits of Ward’s motion
for class certification, it did not decide whether the proposed
multistate class meets the requirements of both Rule 23(a) and
Rule 23(b)(3). Even assuming that this proposed class could
satisfy the requirements of Rule 23(a), Ward has not established
that the multistate class satisfies Rule 23(b)(3)’s requirement
that common questions of law predominate. Specifically, Ward
failed to identify and compare the applicable state laws. When a
plaintiff seeking certification fails to provide this analysis, it
is not possible for the district court to determine whether any
20 variations in state law “pose ‘insuperable obstacles’ to
certification” of a multistate class. Spence v. Glock,
GES.m.b.H., 227 F.3d 308, 313 (D.C. Cir. 2000) (quoting Walsh v.
Ford Motor Co., 807 F.2d 1000, 1017 (D.C. Cir. 1986)). The need
in this case to identify all governing state laws and compare any
variations is underscored by the decisions in two recent cases
where plaintiffs in states within the proposed geographic class
made claims materially similar to Ward’s. In contrast to our
decision today under South Carolina law, two district courts
applying contract law principles of Alabama and Louisiana
concluded that the meaning of “actual charges” is unambiguous as
a matter of law. See Claybrook v. Cent. United Life Ins. Co., 387
F. Supp.2d 1199, 1203 (M.D. Ala. 2005); Jarreau v. Cent. United
Life Ins. Co., No. 05-83-FJP-SCR, 2006 U.S. Dist. LEXIS 51196 at
*2 (M.D. La. May 16, 2006). In light of Ward’s failure to show
that common issues of law would be predominant in a multistate
class, we affirm the decision of the district court to limit class
membership to South Carolina residents regardless of the effect of
the door-closing statute. See United States v. Smith, 395 F.3d
516, 519 (4th Cir. 2005) (“We are not limited to evaluation of the
grounds offered by the district court to support its decision, but
may affirm on any grounds apparent from the record.”).
21 IV.
We now turn to the cross-appeal filed by National, one
of the defendants. National claims that the district court abused
its discretion in certifying even a statewide class because: (1)
the class is not sufficiently numerous; (2) Ward is neither a
typical nor adequate class representative; and (3) individual
issues will predominate the determination of class members’
claims. On May 19, 2005, after the statewide class had been
certified but before any party had filed a motion for summary
judgment, National and Dixie petitioned this court to review the
district court’s certification order pursuant to Fed. R. Civ. P.
23(f). This rule grants us the discretion to entertain appeals
from class certification orders prior to the entry of a final
judgment. See Lienhart, 255 F.3d at 145. Our court applies a
five-factor test to guide our discretion in deciding whether to
hear such interlocutory appeals:
(1) whether the certification ruling is likely dispositive of the litigation; (2) whether the district court’s certification decision contains a substantial weakness; (3) whether the appeal will permit the resolution of an unsettled legal question of general importance; (4) the nature and status of the litigation before the district court (such as the presence of outstanding dispositive motions and the status of discovery); and (5) the likelihood that future events will make appellate review more or less appropriate.
Id. In their Rule 23(f) petition, the defendants raised the same
objections to the class certification order that National now
22 asserts in this appeal. We denied the interlocutory petition for
review on June 23, 2005.
National’s cross-appeal of the class certification is
before us as a result of the appeal taken by the plaintiff, Ward,
from a final judgment, namely, the summary judgment awarded to
defendant National. Because we have decided to vacate that
judgment and remand the case for further proceedings, National’s
current challenge to class certification is procedurally akin to
the earlier interlocutory appeal. This circumstance leads us to
conclude that it would be premature for us to address the class
certification issue. Earlier, when the district court certified
the statewide class, it explicitly reserved its authority to
decertify or modify the class at a future date. See McNamara v.
Felderhof, 410 F.3d 277, 281 (5th Cir. 2005) (noting that under
Rule 23(c)(1)(C) the district court on remand “is free to
reconsider its class certification order as often as necessary
before judgment.”). The defendants went on to file motions for
summary judgment and for decertification of the statewide class.
After the district court granted summary judgment to National, the
pending motion to decertify was denied as moot. Now, in light of
the remand, the district court will be able to consider the motion
to decertify. Accordingly, we dismiss without prejudice the
cross-appeal filed by National. Cf. Baskin v. Hawley, 810 F.2d
370, 371 (2d Cir. 1987) (“Prudential considerations lead to our
23 conclusion that these appeals should be dismissed as premature
notwithstanding the fact that they are taken from what was, at
that time, a ‘final decision[]’ within the meaning of 28 U.S.C.
§ 1291.”) (alteration in original).
V.
In sum, we conclude that the meaning of the phrase
“actual charges” as used in Ward’s policy is patently ambiguous.
We therefore vacate the district court’s grant of summary judgment
to National and remand with instructions for the district court to
grant summary judgment to Ward on the breach of contract claims.
We affirm, albeit on alternate grounds, the district court’s
decision to limit class membership to South Carolina residents.
Finally, we dismiss without prejudice the cross-appeal filed by
National challenging the district court’s certification of a
statewide class.
VACATED IN PART, AFFIRMED IN PART, DISMISSED IN PART, AND REMANDED