Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
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,
BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and McCormack,
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR, JUDGE
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.
Factual and Procedural History
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.
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
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.
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
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. 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.
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.
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
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.
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
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.
Law and Analysis
Standard of Review
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
"[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
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, ¶
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.
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.
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).
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 ...