Ken Toole sued J.M.I.C. Life Insurance Company (“JMIC”), individually and on behalf of a class of similarly situated persons, after JMIC failed to refund unearned insurance premiums purportedly owed under credit life and disability policies issued by JMIC. On interlocutory appeal, 1 JMIC appeals from the Superior Court of Muscogee County’s denial of its motion for summary judgment on Toole’s individual claims and its certification of the class of certain former insureds of JMIC. Discerning no error, we affirm.
On appeal from the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant to determine whether the moving party is entitled to judgment as a matter of law.
Rubin v. Cello Corp.,
A defendant may prevail on summary judgment by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential *373 element of plaintiffs case. Lau’s Corp. v. Haskins,261 Ga. 491 (405 SE2d 474 ) (1991).
(Punctuation omitted.)
Metts v. Wal-Mart Stores,
So viewed, the evidence reveals that Toole purchased a used car from a dealership in Columbus, Georgia, in October 2001 and obtained a loan to finance the purchase. As part of the transaction, he also purchased a credit life and disability insurance policy from JMIC. The $994.89 premium for the policy was financed as part of the same loan that provided for the purchase price of the car. Under the terms of the policy, if Toole died before satisfying the car loan, JMIC would pay any remaining balance on the loan. If, however, the underlying note was terminated for any reason before its 60-month term expired, Toole was entitled, under both the terms of the policy and under Georgia law, to a refund of the unearned premium (that portion of the premium providing coverage beyond the expiration of the note). See OCGA § 33-31-9 (c).
Toole fully satisfied his car loan in July 2002, thereby terminating the underlying note more than four years prior to the expiration of its term. JMIC, however, failed to provide Toole with a refund of the unearned premium at that time, offering to do so only after he filed the instant suit. Toole declined in order to preserve his status as a proper class representative, and the instant litigation followed.
JMIC challenges the trial court’s denial of its motion for summary judgment, arguing that Toole’s claim in contract is barred because Toole failed to submit proof of early loan payoff as required by (i) the express terms of his insurance contract, (ii) an implied term of his insurance contract, (iii) the duty of good faith and fair dealing, and (iv) OCGA § 33-31-9 (c). JMIC also argues that Toole may not recover economic damages in tort arising from a breach of contract under OCGA § 51-1-1. Further, JMIC contends that the trial court abused its discretion in certifying a class action because (i) Toole, lacking a proper claim, is not an adequate class representative; (ii) the proposed class is unmanageable; (iii) common questions do not predominate; (iv) the laws of 38 states, together with resulting contract differences, foreclose a class action for lack of common issues of fact and law; and (v) Toole’s claim is not typical of those in the class.
1. JMIC claims that the trial court erred in denying its motion for summary judgment as to Toole’s individual claims. We disagree.
(a) JMIC argues that it is entitled to summary judgment as to Toole’s individual claims because Toole failed to provide it with pre-suit notice (express, implied, or by virtue of good faith and fairness) that he had paid off his car loan early. By its motion for oral argument, however, JMIC expressly acknowledged that, by filing *374 suit, Toole satisfied any contractual notice requirement obligating it to return Toole’s unearned premium. Specifically, JMIC stated that
the Complaint was the first notice JMIC received indicating that Toole’s loan had been paid off prior to its maturity date. Because it then realized that the condition to its contractual duty to provide a refund had been satisfied, JMIC tendered a full refund of the outstanding premium to Toole within 60 days of service of the Complaint.
JMIC concedes by its pleadings that, by filing suit, Toole satisfied any contractual condition precedent to its obligation to return his unearned premium. See
Lawson v. Duke Oil Co.,
(b) The trial court also did not err in denying JMIC’s motion for summary judgment upon the argument that OCGA § 33-31-9 required Toole to notify it of his early payoff at the time Toole satisfied his loan in 2002.
Effective May 2, 2005, OCGA § 33-31-9 was amended to provide that “it is the obligation of the insured to notify the insurer of the early payoff of the indebtedness which is covered by [credit life and credit accident and sickness] insurance.” OCGA§ 33-31-9 (c.l). In doing so, the General Assembly stated: “This Act is declaratory of existing law and is only intended to clarify such law. The passage of this Act shall not create any implication that any change in existing law is effected.” Ga. L. 2005, p. 612, § 2 (the “2005 amendment”). Such language, however, is uncodified, and, in any event, fails to establish that either the former OCGA § 33-31-9 or Georgia common law imposed a notice requirement before the 2005 amendment. See
Undercofler v. Swint,
Moreover, OCGA § 33-31-9, as amended, does not purport to require notice prior to suit or within any particular time after loan payoff, and filing suit satisfies a notice requirement where the statute does not require pre-suit notice. See,
e.g., Rojas v. State of Ga.,
269 Ga.
*375
121, 121-122 (1) (
The General Assembly is presumed to have known the foregoing upon its enactment of the 2005 amendment.
Hughes v. Ga. Dept. of Corrections,
(c) Further, JMIC argues that Toole’s individual tort claims fail because “[a] tort is the unlawful violation of a private legal right other than a mere breach of contract, express or implied.” OCGA § 51-1-1. Toole’s tort claims are not foreclosed, however, because the duties alleged to have been violated do not arise merely from contract but are also imposed by statute. OCGA § 33-31-9. See
Long v. Jim Letts Oldsmobile, Inc.,
In light of the foregoing, the denial of JMIC’s motion for summary judgment was proper.
Metts,
supra,
2. JMIC contends that the trial court erred in certifying the class for failure to satisfy the requisites to class certification; Toole’s unsuitability to serve as class representative; individual issues predominating over common issues; and Toole’s failure to show that his claim is typical of the claims of the other class members. We disagree.
“Under OCGA § 9-11-23, a class action is authorized if the members of the class share a common right and common questions of law or fact predominate over individual questions of law or fact. [Cit.]”
UNUM Life Ins. Co. of America v. Crutchfield,
Private actions may be brought as class actions where the requirements of OCGA § 9-11-23 are met. These requirements are:
*376 (1) numerosity — that the class is so numerous as to make it impracticable to bring all members before the court; (2) commonality — that there are questions of law and fact common to the class members which predominate over any individual questions; (3) typicality — that the claim of the named plaintiff is typical of the claims of the class members; (4) adequacy of representation — that the named plaintiff will adequately represent the interest of the class; and (5) superiority — that a class action is superior to other methods of fairly and efficiently adjudicating the controversy.
(Footnote omitted.)
Cornett's,
supra,
(a) JMIC argues that the trial court abused its discretion by adopting Toole’s proposed order on his motion for class certification, which indicated that the trial court had not “found” the elements authorizing class certification. “Even when a trial court adopts a proposed order verbatim, the findings of fact therein are those of the court and may be reversed only if they are clearly erroneous. [Cits.]”
Fuller v. Fuller,
Further, by its order, the trial court expressly found that class certification was proper as a matter of law as to each of the statutory requisites to class certification. See
Life Ins. Co. of Ga. v. Meeks,
(b) Since Toole’s individual claims are valid, Division 1, supra, there is no merit to JMIC’s claim that Toole is not a proper class representative for lack of a valid claim.
(c) JMIC contends that class certification should be reversed for lack of commonality. First, it argues that Toole cannot prove which of JMIC’s insureds are sufficiently common to be in the class without discovery, proof, and a mini-trial specific to each insured. Second, it urges that common questions of law do not predominate since the trial court must apply the nonuniform laws of 38 states. JMIC asserts that the law of contracts and credit insurance varies among these states. These contentions are without merit.
JMIC relies on
Winfrey v. Southwest Community Hosp.,
JMIC correctly points out that the trial court has certified a 38-state class. It is undisputed, however, that class members executed materially similar form contracts that require JMIC to return the unearned premium when the insured’s loan is paid off prior to maturity, and, in this regard, JMIC administers all its policies in the same manner.
While the laws of the several states necessarily differ to some degree, JMIC has not come forward with evidence showing how the result would be different for the members of the class under the law of contracts on a state-by-state basis. Absent such a showing, Georgia law controls, see
Abruzzino v. Farmers’ & Merchants’ Bank,
JMIC argues differing affirmative defenses to breach of contract state-by-state. Again, however, it does not provide evidence showing that applying the law of another state would yield a different result for any class member, foreclosing a finding that common questions of law do not predominate on this basis.
Proof that Toole is entitled to the return of the portion of his premium that JMIC did not earn establishes a similar entitlement for all members of the class, as certified, i.e., JMIC insureds whose underlying debt stopped before coverage expired but who have not received a return of unearned premiums. As the trial court found on an undisputed record, every JMIC insurance credit insurance policy provides that JMIC will return the unearned premium if the debt is paid off before the policy period expires. Toole’s claim and those of the
*378
class thus are one and the same, and the trial court did not abuse its discretion in finding that the proposed class meets the typicality-requirement. OCGA § 9-11-23 (a) (3);
Meeks,
supra,
It bears emphasis that certification orders are “inherently tentative,” and the trial court retains jurisdiction to modify or even vacate them as may be warranted by subsequent events in the litigation. Gen. Telephone Co. of the Southwest v. Falcon, 457 U. S. 147, 160 (102 SC 2364, 72 LE2d 740) (1982); OCGA § 9-11-23 (c) (1). The trial court recognized this in its order certifying the class, stating that “if significant manageability problems arise, the Court can always revisit the issue of certification, de-certify the class, partially de-certify the class, or certify one or more sub-classes.”
Given the foregoing, we cannot say at this interlocutory stage that the trial court abused its discretion in certifying the class.
Carnett’s,
supra,
Judgment affirmed.
Notes
See OCGA § 9-11-23 (g) (order certifying or refusing to certify a class entitled to direct appeal as a nonfinal judgment).