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Bowen v. Farmers Insurance Co.

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 26, 2018

WILLIAM BOWEN PLAINTIFF-APPELLEE
v.
FARMERS INSURANCE COMPANY, ET AL. DEFENDANTS-APPELLANTS

          Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-09-688770

          ATTORNEYS FOR APPELLANT Donald S. Scherzer Stephen W. Funk Roetzel & Andress, L.P.A. One Cleveland Center Joseph Karnen Brian M. Robinson One Liberty Place,

          ATTORNEYS FOR APPELLEE Patrick J. Perotti Dworken & Bernstein Co., L.P.A. Bonezzi, Switzer, Polito & Hupp, Co., L.P.A.

          BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and McCormack, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR, JUDGE

         {¶1} Defendant-appellant, Farmers Insurance of Columbus, Inc. ("Farmers") challenges the trial court's order certifying a class of individuals that purchased uninsured motorist coverage from Farmers between October 1994 and September 1997. Farmers argues that class certification is inappropriate. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶2} The instant matter is premised on the Ohio Supreme Court's decision in Martin v. Midwestern Group Ins. Co., 70 Ohio St.3d 478, 639 N.E.2d 438 (1994) (hereinafter "Martin v. Midwestern Group"). In Martin v. Midwestern Group, on October 5, 1994, the Ohio Supreme Court invalidated the "other-owned vehicle" exclusion to uninsured/underinsured motorist ("UM/UIM") coverage in every automobile insurance policy in Ohio. The court held that "[a]n automobile liability insurance policy provision which eliminates uninsured motorist coverage for persons insured thereunder who are injured while occupying a motor vehicle owned by an insured, but not specifically listed in the policy, violates R.C. 3937.18 and is therefore invalid." Id. at paragraph three of the syllabus. The Martin v. Midwestern Group decision removed the necessity for insureds to pay UM/UIM premiums on each of the vehicles in their policy. Rather, they would have UM/UIM coverage while in any of their owned vehicles if a UM/UIM premium was paid on one vehicle.

         {¶3} Prior to and at the time of the Martin v. Midwestern Group decision, plaintiff-appellee William Bowen had an automobile insurance policy through Farmers. Bowen had multiple vehicles on the policy, and he paid UM premiums on each vehicle.

         {¶4} On March 31, 2009, Bowen filed a complaint against Farmers alleging that Farmers continued to assess multiple premiums for UM coverage despite the Ohio Supreme Court's holding in Martin v. Midwestern Group. Bowen filed an amended complaint on June 26, 2009. He filed a second amended complaint on January 8, 2010. In the second amended complaint, Bowen asserted causes of actions for breach of contract and fraud relating to Farmers' practice of assessing multiple UM premiums for UM coverage, even after a UM premium was paid on a first vehicle.

         {¶5} On February 26, 2010, Farmers filed a motion to dismiss Bowen's second amended complaint. On May 14, 2010, the trial court granted Farmers' motion to dismiss the second amended complaint on the breach of contract claim; the trial court denied Farmers' motion to dismiss on the fraud claim.

         {¶6} On December 31, 2015, Farmers filed a motion for summary judgment, arguing that Bowen's fraud claim was barred by the applicable four-year statute of limitations.[1] Bowen filed a brief in opposition on June 14, 2011. Farmers filed a reply brief on June 27, 2011. On January 24, 2013, the trial court denied Farmers' motion for summary judgment.

         {¶7} On March 12, 2015, Farmers filed a motion to strike class allegations pursuant to Civ.R. 23(D)(4) for want of bringing the fraud claim within the statute of limitations. Bowen filed a brief in opposition on April 2, 2015. The trial court denied Farmers' motion to strike class allegations on June 17, 2015.

         {¶8} On December 31, 2015, Bowen filed a motion for class certification. Bowen sought to certify a class as defined as follows: "all persons who purchased automobile insurance from Farmers and paid premiums identified as paying for UM coverage on more than one vehicle in the household at any time during the period October 1994 through September 1997."

         {¶9} Farmers filed a brief in opposition on February 16, 2016. In opposing Bowen's motion for class certification, Farmers argued that Bowen could not satisfy the superiority and predominance requirements under Civ.R. 23(B)(3). Specifically, Farmers argued that the following individual issues would overwhelm common issues: (1) the application of the four-year statute of limitations, (2) proof of class members' desire or lack of desire to obtain guest coverage, and (3) proof of actual reliance. Furthermore, Farmers asserted that proposed class includes members that were not harmed and did not suffer any damages from Farmers' practice of allocating UM premiums on a per-vehicle basis. Bowen filed a reply brief in support of his motion for class certification on March 1, 2016.

         {¶10} The trial court held a hearing on Bowen's motion for class certification on April 4, 2016. On March 8, 2017, the trial court granted Bowen's motion for class certification.

         {¶11} On April 6, 2017, Farmers filed the instant appeal challenging the trial court's judgment. Farmers assigns three errors for review:

I. The trial court erred in certifying an overly broad class consisting entirely of class members whose claims are barred by the statute of limitations.
II. The trial court erred by finding that common questions predominated where an injury-in-fact to each class member cannot be proven by common evidence.
III. The trial court erred by finding that common questions predominated because, if tolling can apply to the class claims, the trial court failed to consider the highly individualized inquiries necessary to determine whether each class member's claim was timely.

         II. Law and Analysis

         A. Standard of Review

         {¶12} A trial court has broad discretion in determining whether to certify a class action. Konarzewski v. Ganley, Inc., 8th Dist. Cuyahoga No. 104681, 2017-Ohio-4297, ¶ 8. This court will not disturb the trial court's determination absent an abuse of discretion. Id. ., citing Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200, 509 N.E.2d 1249 (1987), syllabus. "The trial court's discretion is not unlimited, but is bound by and must be exercised within the framework of Civ.R. 23." Konarzewski at id., citing Hamilton v. Ohio Savs. Bank, 82 Ohio St.3d 67, 70, 694 N.E.2d 442 (1998). A trial court abuses its discretion when its decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

         {¶13} "[A] party seeking certification pursuant to Civ.R. 23 bears the burden of demonstrating by a preponderance of the evidence that the proposed class meets each of the requirements set forth in the rule." Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, ¶ 15. The following seven requirements must be met in order for a class action to be maintained under Civ.R. 23:

(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 impracticable; (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 met.

Hamilton at 71, citing Civ.R. 23(A) and (B), and Warner v. Waste Mgt., 36 Ohio St.3d 91');">36 Ohio St.3d 91, 521 N.E.2d 1091 (1988). In order to certify a class under Civ.R. 23(B)(3), the trial court must find (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." Cullen at ¶ 29.

         {¶14} If the party seeking certification fails to meet any one of the Civ.R. 23 requirements, class certification must be denied. Konarzewski at ¶ 9, citing Blue Ash Auto, Inc. v. Progressive Cas. Ins. Co., 8th Dist. Cuyahoga Nos. 104251 and 104252, 2016-Ohio-7965, ¶ 11.

         B. Overbroad Class

         {¶15} In the first assignment of error, Farmers argues that the trial court erred by misconstruing Ohio law regarding the application of the discovery rule and tolling the statute of limitations. As a result, Farmers asserts, the trial court certified an overbroad class, consisting entirely of class members whose claims are barred by the four-year statute of limitations applicable to Bowen's and the class members' fraud claim.

         {¶16} Pursuant to the first Civ.R. 23(B) requirement, "the class must be identifiable and defined unambiguously." Clark v. Park 'N Fly, 8th Dist. Cuyahoga No. 94379, 2011-Ohio-323, ¶ 15.

"The requirement that there be a class will not be deemed satisfied unless the description of it is sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member." 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure (2 Ed.1986) 120-121, Section 1760. Thus, the class definition must be precise enough "to permit identification within a reasonable effort." Warner [36 Ohio St.3d at 96, 521 N.E.2d 1091].

Hamilton, 82 Ohio St.3d at 71-72, 694 N.E.2d 442.

         {¶17} This court has explained that the identifiable class requirement is not to be confused with the predominance requirement set forth in Civ.R. 23(B)(3). Clark at ¶ 18. The predominance requirement inquires whether "separate adjudications are likely required to finally determine the action." Hamilton at 73. "The focus at this stage is on how the class is defined. 'The test is whether the means is specified at the time of certification to determine whether a particular individual is a member of the class.'" Hamilton at id., quoting Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho, 52 Ohio St.3d 56, 63, 556 N.E.2d 157 (1990).

         {¶18} In his motion for class certification, Bowen sought to certify a class as defined as follows: "all persons who purchased automobile insurance from Farmers and paid premiums identified as paying for UM coverage on more than one vehicle in the household at any time during the period October 1994 through September 1997." Put another way, Bowen's proposed class definition ...


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