*1 ex rel. FAMILY STATE AMERICAN
MUTUAL INSURANCE
COMPANY, Relator,
The Honorable Thomas C. CLARK Messina,
The Honorable Edith L.
Judges of the Sixteenth Judicial Cir-
cuit, Respondents.
No. 84610. SC Missouri,
Supreme Court
En Banc.
May
Rehearing July Denied
Original Proceeding in Prohibition. DiVita, Oliver, F. L. David Nicholas Marcus, for Relator. City, David L. Kansas Gibson, Waldeck, E. Julie J. Michael City, Respondents. Kansas Bauer, City, Kansas Amicus John W. (National Com- Assn. Insurance Curiae Of missioners). Balkin, City, for L. Kansas
Bernard (Ohio Insur- Department Amicus Curiae ance). PRICE, JR., computer RAY Judge.
WILLIAM now uses software write automatically
estimates. The software I. specifies non-OEM crash for automo- Mutual years. Plaintiffs sued model biles of certain *3 (“American Company Family”) Insurance computer program This same identifies for of contract breach on behalf of them- repairs require. the vehicle will The esti- similarly selves and na- situated mating systematically software excludes an eight day hearing, tionwide. After repairs from certain estimates deemed trial court certified the class. American necessary by industry standards.2 Such Family sought by way relief of writ of tests, repairs safety include seatbelt wheel prohibition. prelimi- This Court issued a alignments, adjusting the aim of head- nary writ in August prohibiting the lamps, protection. and corrosion trial court from taking any further action Family Plaintiffs claim that American absolute, in this case. The writ is made as its contracts with policyholders breached modified, for insureds whose contracts are pre-loss to restore their vehicles condi- subject to the laws of than states other by devising prac- tion implementing Missouri. payment tice that results of claims (1) systematic specification based on II. “inferior” parts repairs non-OEM crash for Family American private passen- writes (2) systematic specific omission ger automobile property casualty in- “necessary” repairs from estimates. surance in policy fourteen states.1 The brought Plaintiffs the action on behalf of promises “pay in money repair loss or nationwide, themselves and “all others or replace or damaged property.” or stolen in the alternative all in the state of others In American Family established the Missouri,” by who were insured American current guidelines adjusters follow repairs claim Family, made a for vehicle writing when estimates replacement for pursuant policy, pay- to their and received parts. For vehicles in the latest three prepared ment based on an estimate or years, adjusters model are instructed to approved by Family American that includ- specify Original Equipment Manufacturer parts ed non-OEM crash did not and/or (“OEM”) replacement parts repairs. specified “necessary"’repairs. include writing estimates for vehicles of an .When year, adjusters earlier model County are encour- The Circuit Court Jackson aged to specify the use of plaintiff non-OEM crash certified the nationwide class. parts salvage parts. parts Family OEM OEM an application American filed parts or, alternative, are those original prohibition made auto- writ suppliers; mobile manufacturers or prelimi- non- mandamus. This Court issued a compa- OEM are made nary prohibition. outside writ of The writ is made absolute, modified, specifica- nies access to the design without as as to insureds whose parts. tions of the OEM Family subject contracts are to the laws of states I-CAR, Family policies non-profit organization composed 1. American writes insurance Arizona, Iowa, Ohio, Wisconsin, companies, of insurance automobile manufac- Da- South turers, repair kota, Dakota, collision facilities and automo- Kansas, Illinois, North Mis- repair suppliers, developed industry tive has souri, Nebraska, Colorado, Indiana, Oregon, Family standards since 1979. American soft- and Minnesota. provide repairs ware does not for all the I- CARrecommends. (D.D.C.1977) (mem.); McMerty v. quashed as to the other than Missouri and (D.Minn. Burtness, insur- 72 F.R.D. comprised of insureds whose 1976) States, (mem.); Harrigan v. United subject law. ance contracts are to Missouri (E.D.Pa.1974) (mem).
63 F.R.D. subject especially This is true when III. interpretation the lawsuit is the matter of ac of whether an “Determination contracts. and enforcement of insurance action under proceed tion should within the ultimately Rule 52.08 rests of insur Regulating business Ralph of the trial court.” sound discretion clearly within the duties ance is Co., Ins. v. Am. Mut. S.W.2d explic Congress In separate states. *4 However, 522, (Mo.App.1992). if the 523 regulation state of insur itly recognized certify trial court abuses its discretion the McCar- though the enactment of ance class, may appropri ing “prohibition act, pertinent Act. The ran-Ferguson inconvenient, prevent unnecessary, ate insur business of part, “[t]he states rel expensive litigation.” See State ex. and therein, ance, every person engaged and Calvin, 855, 57 857 Linthicum v. S.W.3d subject the laws of the several shall be (Mo. 2001). banc regulation or relate to the States which 15 U.S.C. business.” taxation of such IV. 1012(a). type of applies to “the § The act requires, of a class action Certification that centers around regulation state (1) minimum, that the class be so at a governs and such contract of insurance” all members is joinder numerous that of policy which type as “the questions (2) of law or fact impracticable, questions issued, reliability, interpreta could be its (3) exist, common to the class claims Sec., tion, v. Nat’l enforcement”. SEC representative parties typical 564, Inc., 21 89 S.Ct. 393 U.S. (4) class, repre- the claims of the 668 L.Ed.2d parties fairly adequately will sentative this breach of con The outcome of interests of the class. Rule protect upon the ultimately hinges tract action 52.08(a). 507.070, also section RSMo See Family’s stan interpretation of American procedural rules are manda- 2000. These question dard insurance contract. Louis tory. Beatty v. Metro. St. Sewer subject interpretation clearly contract is 1995) (Mo. Dist., banc 914 S.W.2d Thus, McCarran-Ferguson Act. omitted). (citations certification is Class regulations of fourteen states laws and prospective if the appropriate determining wheth applied must be when meets each listed element. breached its contracts er various states the citizens of those A. upon non-OEM based providing estimates by the governed class claims are When repairs. omitting specific crash states, more multiple it laws of becomes ques to show that difficult for the class B. common to the class exist. tions of law examined court has F.Supp. no Missouri Corp., 696 While Raye v. Medtronic See appropriate (D.Minn.1988) class certification (focusing primar whether multiple apply, will states predomi when the laws questions ily on whether common have considered jurisdictions v. Inter other proceeding); Schmidt nate the ad Many courts that have Ass’n, question. 74 F.R.D. & Loan state Fed. Sav. The record appli dressed the issue conclude that the tween these two extremes.5 varying cation of state laws not common to no Missouri interest below establishes precludes class certification. See application insurance law Ins., Leszczynski citizens, F.R.D. Allianz foreign states to their own neither (S.D.Fla.1997); Indianer applica- how the does the record establish Co., Franklin Ins. 113 F.R.D. would be tion of the laws of fourteen states Life (S.D.Fla.1986) grounds overruled on other “common” to the class.6 The trial court by Ericsson GE Mobile Communications its discretion in certification of the abused Elecs., v. Motorola Communications & respect con- class with insureds whose (11th Cir.1997); F.3d McMerty v. subject tracts are the laws states Burtness, (D.Minn. 72 F.R.D. other than Missouri.
1976) (mem.)3; but see Alba Conte & Her bert B. Newberg, Newberg on Class Ac V. (4th ed.2002) 4:25, § tions at 168 (stating Separate analysis required to deter- that the mere “existence of state law varia mine whether the trial court abused its preclude tions is not alone sufficient to certification”). certifying discretion a class action *5 policies subject
insureds
are
to Mis-
whose
souri
In
law.
addition to the elements
ap
The laws of the fourteen states
52.08(a), plaintiffs
satisfy
Rule
must also
plicable
proposed
class action
requirements
one of the three
of Rule
against
Family certainly vary.
American
52.08(b).
plaintiffs
seek class certifi-
The laws
the
range
several states
from
52.08(b)(3),
upon
cation based
which re-
allowing
parts
the use of
in a
non-OEM
notice,
motion court
that com-
quires
vehicle if the owner
to find
given
forbidding
parts
questions
“predominate
the use of
or fact
non-OEM
as a mon
law
payment
any questions affecting only
condition to
of a claim.4 A kalei
over
individu-
doscope
members,
of rules litters the continuum be-
al
and that a class action is
Stat,
appellate
3.
recently
payment
One federal
court
went so
of a claim. Minn.
72A.201,
6(7) (2002).
§
proper
far as to state that
subd.
"[n]o
action is
litigants
governed by
unless all
are
the same
example,
ordinarily
5. For
law
re-
Kansas
legal
satisfy
rules. Otherwise the
cannot
quires
parts
clearly
non-OEM
to be
identified
commonality
superiority require-
estimate,
repair
but no
are
in the
restrictions
23(a), (b)(3).”
ments of Fed.R.Civ.P.
In Re
placed
parts
on the use of non-OEM
for vehi-
Inc.,
Bridgestone/Firestone,
288 F.3d
years
age
cles ten model
or older. Kan.
(7th Cir.2002).
50-661,
(1994);
§§
Stat. Ann.
50-662
Kan.
per-
§
Stat. Ann.
50-664
Colorado
Arizona, Iowa, Ohio,
4.
Wisconsin and South
parts only
mits the
of non-OEM
installation
permit
parts
Dakota all
the use of non-OEM
cus-
with the written or oral consent of the
repair
long
part
in a
so
estimate
used
42-9-107,
§§
tomer. Colo.Rev.Stat. Ann.
10-
clearly
accompa
identified in the estimate or
3-1304,
(West 1998).
10-3-1305
44-1292,
§
nying notice. Ariz.Rev.Stat. Ann.
(West 1994);
§
Iowa Code Ann. 537B.4
issues,
addressing
Although
other
the recent
(West 1997); Iowa Admin. Code r. 191-15.15
case of State Farm Mutual Automobile Insur-
(507 B);
1345.81(B),
§
01-1289,
Ohio Rev.Code Ann.
slip op.
Campell, No.
at
ance Co. v.
—
(C) (West 1994);
632.38(2),
§
10-11,
-,
Wis. Stat. Ann.
U.S.
123 S.Ct.
(3) (West 1995);
100.44(2)
(U.S.
§
Wis. Stat. Ann.
Apr.
L.Ed.2d
American does that a fact litigation, despite the that the suit also plaintiffs to meet the class Missouri fails 52.08(a). Rather, requirements Rule individual remaining entails numerous American contends Family 4:25, that a class § questions.” Newberg Conte & at plaintiffs “pre- does not Missouri meet in Rule
dominance” element outlined
52.08(b)(8).
position is
Family’s
American
Ameri
plaintiffs’ theory,
Under
that
the action consists of individual
Family
its
with
can
breached
contracts
with
fac-
varying
breach of contract claims
prospective
each
when it
member
“swamp”
tual circumstances that
common
payment
policyholders’
made
claims
demonstration,
issues. As a
American
upon
specifying
based
estimates either
Family
premises
two
states
factual
parts
omitting
use of
crash
non-OEM
prove
must
order to establish
particular repairs.
common issue is
(1)
liability
damaged
are
all of
predominant
If
issue.
it is established
parts at
case
issue
this
for all class
Family
at
trial
that American
did not
parts
condi-
good
members were OEM
policyholders
its
breach
contracts
prior
respective
immediately
tion
making payments
upon
based
non-OEM
(2)
losses,
covered
that all the non-
parts
particular
crash
or the omission of
specified
crash
OEM
prospec
then
claims of
repairs,
all the
repair
to all
inferior
OEM
tive class members fail
further
without
*6
parts.
crash
that
Family argues
American
analysis.
factual
If it is determined that
pre-
individual inquiries
these
other
payment
American
of
Family’s
claims
clude class certification.
upon
inclusion
non-OEM
based
of
‘predominance’
require
“The
particular
repairs
or
of
exclusion
every
...
demand
ment
does not
that
sin
or
constitutes breach of contract for some
to all the
gle issue
the ease be common
members, then
prospective
all of the
members,
but
there are
proceed in the most
the trial court can
issues
‘predomi
substantial common
which
rela
possible
expeditious
way
and efficient
individual
nate’ over the
issues.” South
or is
any
circumstances
tive
individual
Stone,
v.
139 F.R.D.
Carolina Nat’l Bank
predominance
The
of
may
sues that
exist.
(D.S.C.1991)
325,
(citing
&
331
3B Moore
simply
the common issue is not defeated
Kennedy, Moore’s Federal
Practice
may remain
questions
because “individual
¶
160).
23-159,
predomi
23.06-1 at
The
interpretation
ques
after
contract —
“dispositive
nant issue need not be
of
possible
of
defenses to
damages
tions
controversy or even be determinative
First
individual
Kleiner v.
Nat’l
claims”.
liability
issues involved.” Alba Conte
Bank,
(N.D.Ga.1983)
F.R.D.
Newberg, Newberg
& Herbert
on Class
(analyzing predominance concurrently with
(4th ed.2002).
4:25,
§
Actions
at 169
The
commonality)
v. Cameron
(citing Brown
damages
inquiry
need for
individual
Co.,
(E.D.Va.1981);
92 F.R.D.
Brown
preclude
finding
predomi
a
does
Inc.,
Chevrolet,
Ingram Joe Conrad
League,
nance.
v. Nat’l Football
Lewis
(E.D.Ky.1981)); but see
(D.D.C.1992) (mem.);
F.R.D.
146 F.R.D.
see
Corp., Augustus
Progressive Corp.,
No.
also Freedman v. Louisiana-Pac.
¶¶ 25-27,
WOLFF, J.,
slip op. at
**4-
in separate opinion
2008 WL
concurs
(Oh.App.2003).7
filed.
52.08(b)(3)
object
The
of Rule
“is
TEITELMAN, J.,
separate
dissents in
get
at the cases
a
where
class action
opinion filed.
promises important advantages of econo
my
uniformity
of effort and
of result with
C.J.,
LIMBAUGH,
WHITE
procedural
out undue dilution of
safe
STITH, JJ., not
LAURA DENVIR
guards for members of the class or for the
participating.
opposing party.”
Newberg
Conte &
4:24,
§
at 155 (quoting Kaplan, Continuing
WOLFF, Judge,
MICHAEL A.
Work
the Civil Committee: 1966
concurring.
Amendments
the Federal Rules Civil
(I),
Procedure
81 Harv. L.Rev.
389-90
principal opinion.
I concur in
I take
(1967))(discussing
counterpart
the Federal
liberty writing separately
expand
52.08).
to Rule
This is a
in which the
case
will,
aspects
process
of due
if ad-
trial court determined
rigorous
after
anal
to,
keep
hered
serve to
the class action
ysis
plain
that the resources of both the
viable and within reasonable bounds.
judiciary
tiffs and the
can be conserved
Damages
Action
Class
for
certification,
through class
diluting
without
Family’s procedural
American
safeguards.
A
procedure
join-
class action is a
for
has not established that
ing
single proceeding
large
number
the trial court abused its discretion in com
persons
with similar claims—where
ing to this determination for the class of
usually
each
claim
involves
small
insureds
subject
whose contracts are
money.
joinder
amount of
device
Missouri law.
potential
achieving justice
holds
aggrieved persons
sizeable numbers of
VI.
might
go unrepresented
who
otherwise
This Court makes absolute the
writ
uncompensated.
But there also is
prohibition, as modified.
potential
op-
for class actions to be used
*7
BENTON, J.,
instance,
RUSSELL,
pressively where, for
the cost
and
SHAW
—
JOYCE, Sp. JJ.,
and
concur.
settling
group marginal
of
a
of
claims is
bar,
7.
outweigh
questions
Under facts similar to
at
those
the
the minimal common
of
n Augustus
155267,
¶
court in
found
the
that
lower court
fact.” Id. at
2003 WL
denying
did not abuse its discretion in
class
inquiries
may
The
be neces
individual
policies
certification. The insurance
at issue
sary
predo
in the instant case do not defeat
Augustus required
in
the insurer to restore
previously,
minance. As stated
the trial court
damaged
pre-loss
vehicles to
condition and
questions, particularly
can resolve individual
specifically
parts
allowed the use
non-OEM
of
defenses,
relating
damages
those
to
after
finding
to do so. After
that "the determina
making
predominant
a determination on the
'pre-loss
tion of
condition' could
be
Augustus
issue. While the cotut in
found that
by individually examining
made
each and ev
"it would be inconceivable to reason that an
ery putative
by
class member’s vehicle” and
'pre-loss
automobile is not returned to its
"determin[ing]
what
were utilized on
vehicle”,
part
condition’ because a non-OEM is utilized
every
each
the court affirmed
making
repair”,
a
we
in
leave the determina
Augustus,
the lower court’s decision.
at
nn
25-26, 29,
¶¶
¶
predominant
tion of that
issue
this
to
2003 WL
in
case
4-5. The
¶ 27,
"presents
court concluded
the trier
fact. Id. at
WL
that the case
far
of
n
many
questions
too
individual
of fact which
Requirement
The
of
attractive
a defendant than the
Notice to the Class
more
to
merits.
expense
litigating
of
the
A
for damages
class action
is intended to
rule,
52.08,
Missouri’s class action
Rule
judicata
res
binding
have a
effect
the
adopted
from Rule
nearly
is
word-for-word
means, quite
of the class. That
members
Procedure,
of the Federal Rules of Civil
simply,
gets
Family
if American
Insurance
provide
to
was amended
for
which
favor,
judgment in its
all members of the
e.,
for damages
the kind
class action
—i.
opt
class
not
of the class
who did
out
plaintiffs in
money
the class
this
—that
judgment
the
cannot
bound
make
brought.
case have
It
claim
future.
also
same
The 1966 federal revisions introduced
judgment
means that where a
is entered in
concept
“opt-out”
class. Mis-
class, can-
favor
members
class
adopted
souri
its current version of the
not
of its
Where a
complain
inadequacy.
action rule in 1972. Under
class
class
settled, however, class‘mem-
class action is
rule, representative plaintiffs may
action
opportunity
notice and
to
get
bers do
an
monetary
an
maintain
action for
relief on
settlement,
object
court
the trial
but
group
persons similarly
of a
situ-
behalf
objec-
can
approve the settlement over
The
ated.
unnamed members
members,
tions
the class is
of class
doing
affir-
anything
can benefit without
52.08(e).
Rule
bound. See
litigants.
to
mem-
mative
become
Unless
application invites the
judicata
This res
class,
opt
a
bers of such
class
out
per
bind
question:
judgment
how can
they
purposes
are included in the class
party,
son
not been named
has
relief,
who has
prevails,
if the
res
class
and for
indeed,
or,
suit,
participated
may
not
in the
purposes.
kind of
ac-
judicata
The traditional
damages
is intended to
have known about it?
tion
benefit
claims
small
that the
cláss member
people
“small
held
answer is
unnamed
—who
another, ignorance,
Hansberry
for one reason or
ti-
is “represented.” Compare
midity, unfamiliarity
legal Lee,
with
business
L.Ed.
311 U.S.
S.Ct.
matters,
will
not take
affirma-
simply
(1940),
Tribe
Supreme
of Ben-Hur
step”
get
litigation
tive
involved
Cauble,
255 U.S.
S.Ct.
rights.1
vindicate their
L.Ed. 673
case, plaintiffs’
In this
counsel estimates
action
theory of
modern
that each claim worth
is
$100
$500.
“ought
rule
that class members
Counsel,
representative
through
represented.”2
well as
informed as
plaintiffs,
represent policy-
named
seeks
notice,
in the
prescribed
The idea of
holders
Insurance
rule,
practica
the best
action
If
states.
the court allows the suit to
eight
*8
given members
ble notice will be
action,
all
proceed as
members who
plaintiffs.
as
are not named
who
opt out
do not
will be deemed
be bound
all those
This
individual notice to
includes
by
whatever is done on their behalf
by
known.3
are
plaintiffs.
whose names and addresses
named
394,
Kaplan, Continuing
at
n.148
Benjamin
Kaplan,
81 Harvard
1.
Work of
2.
L.Rev.
(quoting Z.
Equity
Civil Committee: 1966 Amendments of
Chafee,
Some Problems
(1950)).
230
(I),
Federal Rules
Civil Procedure
Har-
(1967).
L.Rev.
vard
notice
requirement of individual
3. that,
52.08(c)(2),
provides
and
found in Rule
Rule
under
any
class action maintained
known, publication
enough
As to those who are not
of the mem
substantial
number
bers of the class to
that their inter
is sufficient. Mullane v. Central Hanover
ensure
by
Co.,
ests —which
interests
common
317-18,
Bank & Trust
339 U.S. at
protected.
definition —will be
In other
(1950).
S.Ct.
bers
practicable
of the class the best notice
tion was concentrated in Illinois and the six
circumstances, including
Illinois).
under the
bordering
individual
states
notice to all members who can be identified
through reasonable effort. The notice shall
It is not unusual for notice
sent to a
to be
(A)
advise each member that:
the court will
See,
wrong, incomplete or former address.
request-
exclude the member from the class if
e.g.,
Passenger Corp.,
Peters v. Nat'l R.R.
date;
(B)
specified
judgment,
ed
(D.C.Cir.1992)(notice ad
F.2d
1486-87
not,
whether favorable or
will include all
equate
though
zip
even
it used an incorrect
exclusion;
request
members who do not
number),
apartment
code and omitted
(C) any
request
member who does not
exclu-
Banks,
al.,
Gross v. Barnett
Inc. et
desired,
may,
appearance
sion
if
enter an
(C.C.M.D.Fla.1995)(no-
F.Supp.
through counsel.”
though
tice sufficient even
sent to class mem
ber’s
address
former
even where class mem
lypically
notice
Individual
is done mail
had,
occasion,
prior
attempted
ber
process
and is consistent
due
re-
address;
notify
indepen
defendant of current
quirements articulated in
Mullane
Central
dent
address
verification
class member’s
Trust,
306, 317-18,
Hanover Bank &
339 U.S.
practicable
large).
where the
was
70 S.Ct.
Though members “settlement” class, behalf, the of the it has been worked out on their timing notice the the class members can either take it or binding seems clear from the nature of the leave it. given prompt- action that notice be should ly the allowing after an order is entered lawyers agree the point At where on proceed action to as a class action.7 settlement, is a there tension the law- not, class action yer’s role. Whether or necessary
Prompt notice to effectuate is lawyer the has out who worked a settle- provision the giving rule’s class members opposing ment with counsel now becomes opt the the For choice to out of class. an for “the as well an advocate deal” as example, in Eisen Jacquelin, v. Carlisle & advocate for the client’s interests. In class U.S. S.Ct. L.Ed.2d actions, may partic- tension this ethical be (1974), Supreme the noted that all Court ularly class acute: an individual member’s class members whose names and address but may interest be the attor- $100 $500 through es reasonable are ascertainable may ney’s interest in class fees be in the prac effort are to receive the “best notice 52.08(e) Thus, Rule millions of dollars.8 opportu ticable” have they so will protecting the trial court gives a role nity to decide whether to be class mem class.9 the interests of the members judgment bers is entered that before Eisen, binding upon would them. be Personal as to Members of Jurisdiction U.S. at 2140. In addition to S.Ct. the Class giving early litigation, notice in the as the representatives respect With class directs, plaintiff representa court class of the class who are resi- members tives bear cost of notice. Id. at must Missouri, dents the state notice S.Ct. process, in the even after a occurs late
It
for
be
reached,
has become common
cases to
tentative settlement
is
does
proceed
filed
class actions and to
for
per-
as
seem
in terms of the court’s
offensive
even
notice to
years
months and
without
jurisdiction over unnamed class
sonal
members,
It is
class
class.
difficult
see how
though untimely
may
notice
before the court
process
members’ interests are
raise due
concerns. One of
any
class
meaningful way
given
assumptions
before notice is
of the
action is
explicit
judge
supervise
to the class. Often the first notice the
that the trial
will
the mat-
may
necessary
7. See
to revise the certifi-
Newberg,
3 Alba Conte & Herbert
that it
be
New-
cation,
berg
(4th
delay
may be
§
ed.
it
reasonable
8:9
Class Actions
temporarily.”).
2002)("There
notice
any
is
occasion
notice
no
propriety
until
of the
action has
after
class
challenged
example,
8. For
in a
Alabama
determined,
tentatively.
been
least
But it
at
settlement,
action
members recovered
obvious that if notice
to be effec-
seems
attorneys’
$100
about
while
fees were
each
meaning-
tive—if class members are to have a
$8
estimated to be between
11.7 million.
exclusion,
opportunity
request
appear
ful
Inc.,
Lending,
VT
Vermont v. Homeside
action, object
representation,
(Vt.2003).
493 class attorneys the and will look out for the interests existed between ter obtained “[e]very re- where dollar non-named class members. With members attorneys their fees came the class by to those who of the spect are residents members, Missouri, class from the accounts presumption can be state ” making them adversaries.... these are within indulged residents thus, jurisdiction and, the court’s a Mis- jurisdic- personal notions of Our earliest trial court to souri would be authorized that a state not exercise tion held could power over in a exercise their interests compel jurisdiction beyond its borders to court way that the would not be authorized pro- to respond the state those outside personal jurisdiction non- to exercise over Neff, 95 Pennoyer in the state. See v. cess residents. (1877). notion 24 L.Ed. The U.S. was that a state Pennoyer exercise respect to class mem-
With
out-of-state
was an affront to the
beyond its borders
bers, however,
jurisdic-
the concerns are
the state
sovereignty of
whose resident
may seem
apply
tional.
It
unusual to
juris-
being summoned. These
citizen was
jurisdiction
limits on
process
personal
due
re-
concepts
imposed
dictional
were
with
actions where
are to be
plaintiffs
being haled
spect to absent
Usually plain-
defendants
brought before
court.
a
court. The strict terri-
before
domestic
actions,
tiffs are volunteers. But in class
Pennoyer
way to
given
torial limits of
have
of unnamed
other
from
analysis
part
process
a due
based
who are to be
brought
states
before
state.
In-
party’s contacts
the forum
court are no more
than nonresi-
volunteers
Washington,
Shoe Co. v.
ternational
dent
usual civil action.
defendants
310, 66 S.Ct.
There is
to prevent
represents,
nothing wrong
he
there is
plaintiffs
using
from another state from
standpoint.
with that
from constitutional
bring
the courts of Missouri to
a lawsuit.
However,
fact,
named
there are no out-of-state
privileges
In
and immunities
Constitution,
clause of the United States
representatives
here. Missouri
IV,
Const. art.
sect.
forbids the
therefore,
U.S.
courts,
adjudi-
have no business
prohibiting
state fl’om
use of its courts
cating
of classes of nonresidents.
claims
nonresidents.
Protecting
the Interests of
In-state
In
order for a court Missouri to have
Class and
State of Missouri
sense,
jurisdiction
any meaningful
of the class who are resi-
members
is, to have before it the members of the
presumably
dents of the state of Missouri
represented,
class of
to be
those
represented
protected,
are adequately
re-
purported plaintiff class members must
rule, by the class
pendency
ceive notice of the
of the action. under the class action
Inc., regarding personal
Landing,
10. The Shutts case was the basis for the Ver-
Homeside
Supreme
jurisdiction.
mont
Court’s decision in Vermont v.
its
is the role of
“[I]t
the trial
citizens.
representatives
as well
*12
in-
attorney
protect
public
court.11
to
general
the
ex rel. Nixon v. American
terest.” State
moreover,
Missouri,
of
an
The state
has
(Mo.
Co., Inc.,
Tobacco
34 S.W.3d
In virtually
interest in the action as well.
2000).
reme-
banc
“If there were no other
every
type,
consumer class action of this
wrong,
public justice
for a
and
dy
great
class
there are
members who cannot be
rights
likely
were
to suffer
and, thus,
individual
notified
do not collect the dam-
capable
pursu-
prosecutor
that
allocated to
for want of a
of
ages
would be
them.
pot
gold
of
end of the
at the
rainbow
the
ing
wrongdoer
redressing
should,
view,
my
escheat to the state as wrong,
hard to
struggle
the courts would
property”.
“unclaimed
section
See
447.010
to
authority
attorney general
find
for the
(known
Disposition
seq.
et
as the Uniform
of the
Id.
people.”
intervene in the name
Act)
Property
re
of Unclaimed
In
(citing State ex rel. McKittrick v. Missouri
Ques-
Ancillary Adversary Proceeding
Comm’n,
Public
Service
Mo.
2002).
tions,
(Mo.
11. The nature action suit is such bers whether that, 52.08(a), representation adequate, under Rule the interests of un- consider the fair and defenses, "fairly present are to be named members intervene and claims or protected adequately” by representative to come into action.” Rule otherwise 52.08(d)(2). duty Byrd It is members. the court’s See also State ex rel. consider Chadwick, representatives (Mo.App. repre- whether the are able S.W.2d 1997)("[T]he City court sent under Rule 52.08. Ex- trial should have reviewed Springs Redevelopment Corp., appeared was celsior v. Elms whether class counsel it (Mo.App.2000). adequate, To named were ade- 18 S.W.3d aid the that the endeavor, class, 52.08(d)(2) pro- quate representatives in this of the there is court Rule apparent authority the court no conflict of between the vides issue orders interest requiring protection representatives among the notice "for the and the class or class_”). provide members class” and to mem- proper interpretation of the insur- procedure the class action is through ance contracts is not justice before the Court in which can be achieved. proceeding. this The interpretation may writ, This Court’s use of the as ex- depend applicable regulations of the pressed in principal opinion, is consis- department state’s ap- of insurance or on goal tent with the achieving justice plicable precedents. law case It is desir- I this case. princi- therefore concur able for the trial court to determine the pal opinion. viability plaintiffs’ theory contract be- *13 putting plaintiffs fore the named to the TEITELMAN, RICHARD B. Judge,
expense
giving
of
notice to the class.
dissenting.
Any
class,
delay
notifying the
because
I respectfully dissent.
desirability
of making this determi-
principal
opinion limits this class
class,
nation before giving notice to the
action to Missouri policyholders because of
seems more tolerable if the members of
the differences in state
applied
laws to be
only
Missouri,
are residents of
class members
the various states.
rather
than of the several states whose
Analysis of this question
appropriate,
residents the named
rep-
seek to
507.070.1(3)
section
requires that a class
A ruling
resent.
adverse
plaintiffs,
to the
action involve “a common question of law
on a motion to
summary
dismiss or for
affecting
or fact
rights
several
and a
judgment, would not
judicata
have res
ef-
sought.”
Phillips
common relief is
See
class,
fect as to the
in the absence of
Shutts,
797, 821, 105
Petroleum v.
472 U.S.
notice, but
ruling
court’s
would be
S.Ct.
The class action highly proce- is a useful 274. The mere “existence of state law joinder dural device for of a large number pre- variations is not alone sufficient to single of similar claims in a proceeding. It Newberg clude class certification.” on appropriately is most available where Actions, 4:25, Here, Class sec. as the large there are a number of small claims found, trial court likely there will be a pursue make economic only sense to single predominant issue of breach of con- class, as a not as individual claims. This policyholders tract common to in all four- procedural joinder device, highly useful for teen states. Possible violations of addi- consumers, vindicating rights can be tional state regulations insurance laws or abusively used in some circumstances. deprive do commonality. this class of procedure, To avoid abuse of the trial Moreover, pay courts should close attention seeks a writ rights of the prohibition. unnamed members of the is a discre- “Prohibition and, writ, particularly, requirement tionary right and there is no to have notice. When the focus is on the interests the writ issued. Prohibition will lie class, discretion, of the prevent judicial balanced a concern for an abuse of right of the an early irreparable defendant avoid party, harm to a or to claim, viability prevent determination of the extra-jurisdictional exercise why this reason compelling no There is v. Cal- ex rel. Linthicum power.” State appeal 2001) on direct (Mo. be raised issue cannot banc vin, 856-57 57 S.W.3d clarity. more omitted). great deal (citations Interlocutory review with prohibition error writ of trial court multi-state of this The certification extraordinary cir- only in occur “should of section purposes action serves Chassaing v. ex rel. State cumstances.” vol- 507.070, impracticable an by avoiding (Mo. Mummert, banc S.W.2d of this claim repetition of cases. The ume law, 1994). is one of “If the error con- hardly more states will in thirteen prohibition appeal, a writ of reviewable parties the resources serve appropriate.” Id. is not judiciary. judges trial of Missouri has The State quash I the writ. would character, steeped in a tradition the finest Our trial justice and discretion. of both rulings lightly do not undertake
judges *14 case, certification in this as the class
such here. The quick ruling was no
and there after
trial court certified potential claims analysis of the
exhaustive the fourteen of the laws of variations the trial eight-day hearing, In an states. McCLAIB, INC., Appellant, testimony of seventeen court heard the viewed hundreds of exhibits. witnesses and L.L.C., RESTAURANT, JASPER’S concluded that this case The trial court al., Respondent. et fundamentally simple claim for breach four- that is universal to all contract —law No. WD The trial court decided teen states. Appeals, Court Missouri among nuanced differences the various District. Western would not be determina- fourteen states they presented false conflicts. tive—that March of law or question A as to what decision Transfer Rehearing Motion for and/or ultimately is a diffi- predominate fact will 24, 2003. April Denied Supreme Court within appropriately one left cult one—and Denied trial court. This for Transfer Application the discretion of the 1,2003. full yet reviewing July record. Court is not may pre- in this class action of law according question or fail vail states, or fourteen fact common to the
not, from clear at this that result is far but
early stage. MO, City, Smiley, Kansas E. Rhonda Appellant. if its discretion
“The trial court abuses logic clearly against order is MO, for City, Kansas Larry Tyrl, J. circumstances, unreason- arbitrary and Respondent. able, consid- a lack of careful and indicates JR., P.J., SMART, M. Before JAMES Ford Motor ex rel.
eration.” State R. (Mo. RONALD G. ULRICH Messina, banc ROBERT 71 S.W.3d HOLLIGER, 2002). JJ. a case. is far from such