BLUE ASH AUTO, INC., ET AL. v. PROGRESSIVE CASUALTY INS. CO., ET AL.
Nos. 104251 and 104252
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 1, 2016
2016-Ohio-7965
BEFORE: E.A. Gallagher, P.J., Boyle, J., and S. Gallagher, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CV-12-791816 and CV-14-821172
JUDGMENT: AFFIRMED
James B. Rosenthal
Joshua R. Cohen
Cohen Rosenthal & Kramer
Hoyt Block Building, Suite 400
700 West St. Clair Avenue
Cleveland, Ohio 44113
Dennis A. Becker
526 Wards Corner Road
Suite A
Loveland, Ohio 45140
Erica L. Eversman
Eversman Law Offices
846 N. Cleveland Massillon Road
Akron, Ohio 44333
Peter D. Traska
Traska Law Firm, L.L.C.
4352 Pearl Road, Suite A
Cleveland, Ohio 44109
ATTORNEYS FOR APPELLEES
Michael Edward Mumford
Ernest E. Vargo
Baker & Hostetler L.L.P.
Key Tower, Suite 2000
127 Public Square
Cleveland, Ohio 44114
Michael R. Nelson
Sutherland Asbill & Brennan L.L.P.
1114 Avenue of the Americas
40th Floor
New York, New York 10036
{¶1} Plaintiffs-appellants Blue Ash Auto, Inc., Finney Automotive Company, Inc., Russell Westfall and Westfall Auto Sales L.L.C., appeal the decision of the Cuyahoga County Court of Common Pleas denying class action certification on their claims against defendants-appellees (collectively, “Progressive“). For the following reasons, we affirm.
Facts and Procedural Background
{¶2} In this consolidated class action case, appellants are independent auto body shops that have performed repairs on vehicles insured under the policies of Progressive. Appellants allege that Progressive tortiously interferes with their business practices by dictating what services and parts it is willing to pay for when appellants are tasked with repairing a Progressive insured automobile. Appellants also allege that Progressive dictates the labor rates that it is willing to pay without regard to a particular shop‘s rates. Apellants allege that these limitations do not necessarily allow for them to restore an insured‘s car to its original, pre-loss condition and that the limitations violate both Ohio law and Progressive‘s own insurance policies. Appellants seek damages for parts and labor expended in excess of Progressive‘s limitations. Appellants also seek declaratory relief in the form of an order requiring Progressive to indemnify them from any liability arising from their compliance with Progressive‘s restrictions.
{¶4} Appellants sought to prosecute their claims for tortious interference and declaratory judgment on behalf of the following class:
All Ohio registered auto body repair shops, or registered individuals, with the exception of those members of Progressive‘s Direct Repair Program that have performed physical auto body repairs paid for directly or indirectly, partially or in full, by Progressive as a result of Automobile insurance policies issued by Progressive, from August 7, 2005 through present.
{¶5} The trial court denied class certification on both of appellants claims finding that appellants failed to meet their burden under four of the seven requirements set forth in
Law and Analysis
{¶6} Appellants first assignment of error argues that the trial court abused its discretion in holding that appellants failed to satisfy the prerequisites of
{¶7} We note that we do not reach the merits of appellants claims against Progressive. This appeal is strictly limited to reviewing the trial court‘s decision to deny
Standard of Review for Class Certification under Civ.R. 23
{¶8} A trial court has broad discretion in determining whether to certify a class action, and an appellate court should not disturb that determination absent an abuse of discretion. Marks v. C.P. Chem. Co., 31 Ohio St.3d 200, 509 N.E.2d 1249 (1987), syllabus. That discretion, however, is not unlimited. It must be exercised within the framework of
{¶9} The application of the abuse of discretion standard to a trial court‘s decision to certify a class “is grounded not in credibility assessment, but in the trial court‘s special expertise and familiarity with case-management problems and its inherent power to manage its own docket.” Hamilton at 70. “[A]ny doubts about adequate representation, potential conflicts, or class affiliation should be resolved in favor of upholding the class, subject to the trial court‘s authority to amend or adjust its certification order as developing circumstances demand, including the augmentation or
Requirements for Class Certification under Civ.R. 23(A)
{¶10} Seven prerequisites must be met before a class may be properly certified as a class action under
{¶11} The party seeking to maintain a class action “has the burden of demonstrating that all factual and legal prerequisites to class certification have been met.” Repede v. Nunes, 8th Dist. Cuyahoga Nos. 87277 and 97469, 2006-Ohio-4117, ¶ 14, citing Gannon v. Cleveland, 13 Ohio App.3d 334, 335, 469 N.E.2d 1045 (8th Dist.1984); see also Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733,
“Rigorous Analysis”
{¶12} The trial court is required to “carefully apply the class action requirements” and to conduct a “rigorous analysis” into whether the prerequisites for class certification under
{¶13} The two arguments presented by appellants are that the trial court erred in denying class certification on (1) their declaratory judgment claim and (2) their tortious interference claim. Subsumed within these arguments is appellants first assignment of error. Pursuant to the seventh requirement for class certification under
I. Class Certification of Appellants Declaratory Judgment Claim
{¶14} The trial court found that appellants proposed class certification of their declaratory judgment claim did not satisfy the requirements of
{¶15}
[
Civ.R. 23(B)(2) ] applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does notauthorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.
Cullen, 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, ¶ 21, quoting Walmart at 2557.
{¶16} Furthermore, certification depends on “what type of relief is primarily sought, so where the injunctive relief is merely incidental to the primary claim for money damages,
{¶17} Here the trial court concluded that appellants cannot maintain their
{¶18} While the two types of damages may be distinguishable, we find this to be a distinction without difference. Appellants
{¶19} It is easy to understand the Supreme Court‘s hesitance to so extend
{¶20} Because appellants’ desired declaration would merely lay the foundation for subsequent individualized determinations of liability, we cannot say the trial court abused its discretion in denying class certification on appellants
{¶21} Appellants second assignment of error is overruled. Appellants first assignment of error is also denied as it applies to the
II. Class Certification of Appellants Tortious Interference Claim
{¶22} The trial court also found that appellants proposed class certification of their tortious interference claim did not satisfy the predominance requirement of
{¶23} For a class action to be certified under
{¶24} A “key purpose” of the predominance requirement “is to test whether the proposed class is sufficiently cohesive to warrant adjudication by representation.” Felix v. Ganley Chevrolet, Inc., 145 Ohio St.3d 329 2015-Ohio-3430, 49 N.E.3d 1224, ¶ 35, citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). “‘For common questions of law or fact to predominate it is not sufficient that such questions merely exist; rather, they must represent a significant aspect of the case.” Cullen, 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, ¶ 30, quoting Marks v. C.P. Chem. Co., 31 Ohio St.3d 200, 204, 509 N.E.2d 1249 (1987). They must also be “capable of resolution for all members in a single adjudication.” Id. at ¶ 30, quoting Marks at 204.
{¶25} It is not, however, sufficient for class certification under
{¶26}
{¶27} In Cullen, the Ohio Supreme Court rejected class certification under
{¶28} The same flaw exists in this case. Any common questions of law or fact in this instance fail to predominate over the voluminous individual questions that would need to be resolved. The trial court aptly pointed out that an individualized inquiry would be necessary for not just each potential class member, but every separate instance where such class members conducted a repair under the alleged limitations imposed by Progressive. The court would have to examine each repair and consider whether the additional services or parts that Progressive allegedly denied to the particular class member were necessary to restore the damaged vehicle in question to its pre-loss condition.
{¶30} We find no abuse of discretion in the trial court‘s decision to deny class certification on appellants tortious interference claim under
{¶31} Appellants first and third assignments of error are overruled.
{¶32} The judgment of the trial court is affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
SEAN C. GALLAGHER, J., CONCUR