The Ohio Supreme Court recently issued an opinion reversing the certification of a class in a case against State Farm involving repair vs. replacement of windshields on auto claims.  In Cullen v. State Farm Mutual Automobile Ins. Co., 2013 Ohio 4733 (Ohio Nov. 5, 2013), the plaintiffs alleged that State Farm had a practice of improperly encouraging insureds to accept a purportedly “temporary” repair of their windshield instead of having it replaced at a higher cost.  The trial court certified a class and the appellate court affirmed, but the Ohio Supreme Court reversed.

The Ohio Supreme Court adopted the U.S. Supreme Court’s recent opinions in Wal-Mart v. Dukes and Comcast v. Behrend with respect to the “rigorous analysis” required for class certification, and the need for a ruling on a merits issue that overlaps with a class certification issue. 

There has been a recent trend of plaintiffs’ lawyers focusing on Rule 23(b)(2) as a potential avenue to certification of declaratory and/or injunctive relief claims, without the need for predominance of common issues of law or fact.  Typically these declaratory/injunctive relief claims are really nothing more than a request for money damages in disguise, or a means to obtain money damages.  This case was no exception to that trend.  Significantly, the Ohio Supreme Court held that “claims for declaratory relief that merely lay a foundation for subsequent determinations regarding liability or that facilitate an award of damages do not meet the requirement for certification” under Rule 23(b)(2).  (Id. at ¶ 27.)  The court relied on the Seventh Circuit’s opinion in Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883 (7th Cir. 2011) (blog post), which is particularly helpful to insurers in defending against certification under Rule 23(b)(2).

In addressing Rule 23(b)(3), the point I found particularly significant was that the Ohio Supreme Court found that the appellate court had erred by failing to consider whether State Farm’s defenses raised individualized issues.  The importance of defenses in deciding class certification is often overlooked or underemphasized.  Without remanding for further factual analysis, the Ohio Supreme Court found that the lower courts had abused their discretion in certifying the class under Rule 23(b)(3).  The court explained that:

In sum, the determination of preloss and postrepair condition, the preloss value and the costs to repair or replace a particular windshield, and the individual knowledge and consent of each class claimant entail inspection of tens of thousands of automobiles and an individualized assessment of the damages each class member sustained, if any.

(Id. at ¶ 50.)

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Photo of Wystan Ackerman Wystan Ackerman

Wystan Ackerman is a partner in Robinson+Cole’s Insurance + Reinsurance Group and handles a diverse range of property insurance litigation, including large business interruption cases, class actions, other complex litigation, and appeals. He also has substantial experience representing insurance companies in putative class…

Wystan Ackerman is a partner in Robinson+Cole’s Insurance + Reinsurance Group and handles a diverse range of property insurance litigation, including large business interruption cases, class actions, other complex litigation, and appeals. He also has substantial experience representing insurance companies in putative class actions involving homeowners’ insurance coverage and market conduct/claim-handling practices. He has been prominently involved in high-profile property insurance litigation concerning the September 11th catastrophe and Hurricane Katrina, and Chinese-made drywall. Based in the insurance capital of Hartford, Connecticut, Wystan writes the blog Insurance Class Actions Insider, which was selected by Lexis Nexis as a top insurance blog for 2011.

Wystan grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state. He always had strong interests in history, politics and baseball and his heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox). Wystan says it was his early fascination with Lincoln that drove him to practice law. As a high school senior, he was one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified his interest in law and government. He went on to Bowdoin College, where he wrote for the Bowdoin Orient and majored in government. After Bowdoin, he went on to Columbia Law School. He also interned in the chambers of then-Judge Sonia Sotomayor on the Second Circuit. Wystan graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole.

When Wystan’s not at his desk, flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation he often can be found watching “Dora the Explorer” or reading or playing whiffleball with his young daughter, helping his wife with her business, Option Realty, reading a book about history or politics, or watching the Boston Red Sox.

Read Wystan’s rc.com bio.