[Cite as Cullen v. State Farm Mut. Auto. Ins. Co., 2011-Ohio-6621.]



                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                       No. 95925


                                 MICHAEL E. CULLEN
                                                           PLAINTIFF-APPELLEE

                                                     vs.

                          STATE FARM MUTUAL
                       AUTOMOBILE INSURANCE CO.
                                                           DEFENDANT-APPELLANT



                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CV-555183

        BEFORE:          Celebrezze, J., Stewart, P.J., and Sweeney, J.

        RELEASED AND JOURNALIZED:                           December 22, 2011
ATTORNEYS FOR APPELLANT

Mark A. Johnson
Joseph Ezzie
Robert J. Tucker
Baker & Hostetler, L.L.P.
65 East State Street
Suite 2100
Columbus, Ohio 43215-4260

Michael K. Farrell
Baker & Hostetler, L.L.P.
3200 PNC Center
1900 East Ninth Street
Cleveland, Ohio 44114-3485

Robert Shultz
Heyl, Royster, Voelker & Allen, P.C.
Suite 100 Mark Twain Plaza III
P.O. Box 467
Edwardsville, Illinois 62025


ATTORNEYS FOR APPELLEE

W. Craig Bashein
John P. Hurst
Bashein & Bashein Co., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113-2216

Paul W. Flowers
Paul W. Flowers Co., L.P.A.
Terminal Tower, 35th Floor
50 Public Square
Cleveland, Ohio 44113


                                       continued . . .
AMICI CURIAE

For National Association of Mutual Insurance Companies (“NAMIC”)
Anthony T. Eliseuson
Steven M. Levy
SNR Denton US, L.L.P.
233 South Wacker Drive
Suite 7800
Chicago, Illinois 60606

For Ohio Insurance Institute (“OII”)
Daniel J. Kelso
172 East State Street
Suite 201
Columbus, Ohio 43215-4321




FRANK D. CELEBREZZE, JR., J.:

       {¶ 1} Appellant, State Farm Mutual Automobile Insurance Company (“State

Farm”), challenges the trial court’s September 29, 2010 order certifying a class of

individuals and businesses allegedly harmed by State Farm when making “glass only”

claims for damage to windshields that were repaired rather than replaced. State Farm

argues that class certification is inappropriate. After a thorough review of the record and

law, we affirm in part, reverse in part, and remand for further proceedings consistent with

this opinion.

                                       I. Background

       {¶ 2} Appellee, Michael Cullen, filed suit against State Farm on February 18,

2005 raising claims of breach of contract, bad faith, and breach of fiduciary duty. He

sought monetary and declaratory relief as well as class certification. He submitted his
motion for class certification on August 23, 2005. However, State Farm requested that

the trial court allow it to file a motion for summary judgment and that the court rule on

that motion prior to ruling on questions regarding class certification.

       {¶ 3} On September 20, 2006, State Farm filed its motion for summary judgment.

 Due to several discovery irregularities, the proceedings dragged on until March 29,

2007, when the trial court denied State Farm’s motion for summary judgment.

       {¶ 4} After that, the trial court took up the class certification question and held a

hearing on that motion on April 14, 2010. In his complaint and class certification

motion, Cullen alleged that State Farm implemented a program to encourage windshield

repair rather than replacement for qualifying windshield claims and never disclosed to

claimants a benefit option under their policies of insurance. Prior to 1991, State Farm

had a program to use a repair procedure to fix chipped or cracked windshields rather than

replace them. In 1997, State Farm subcontracted the handling of glass-only damage

claims1 to Lynx Services, L.L.C. (“Lynx”). According to Cullen, Lynx, in conjunction

with State Farm, developed a script2 that representatives would use to steer claimants to

select windshield repair, even for claimants with no deductible.3 However, the repair




       1
          State Farm had a policy provision for claims where only damage to glass was involved
during some of the class period. Damage to glass as a result of collision was handled
separately.
       2
           State Farm refers to this as a decision tree and adamantly argues it is not a script.
       3
           Cullen argues that 51 percent of putative class members had no deductible.
option was only available for windshields that qualified (having small chips or cracks that

were not in the driver’s immediate view) and only if the insured agreed to the repair.

       {¶ 5} In 2003, Cullen called State Farm to report damage to his windshield

caused by a stone. He was transferred to a Lynx agent and agreed to have his windshield

repaired rather than replaced. To encourage claimants to take the repair option, State

Farm waived the deductible so that windshields were repaired at no charge to the insured.

 A policy provision to that effect was added in 1998.4 Cullen alleges that the script used

by Lynx did not set forth all the options claimants had, a violation of state insurance

regulations. Specifically, he alleges that Lynx never disclosed a “pay-out” option where

claimants could receive a check for the entire amount of the windshield, less the

deductible, and then have the windshield repaired at their own expense. Cullen argues

this is the only option that would have been chosen by an insured had their options been

fully explained to them. He further alleges that State Farm saved a great deal of money

by pushing repair rather than replacement for these claimants. State Farm’s cost of a

new windshield averaged $342, even after the deductible was subtracted; the cost of

repair was often less than $50.

       {¶ 6} Cullen asserts that there are some 100,000 people who filed glass-only

claims during the class period who may have been affected by State Farm’s

non-disclosure of all available options under the policy.



       4
           After Cullen’s suit was filed in 2005, State Farm removed that waiver.
       {¶ 7} The trial court found that Cullen had satisfied all the requirements of class

certification using the following definition:

       {¶ 8} “All persons and business entities covered under an Ohio motor vehicle

insurance policy issued by [State Farm] who made a ‘Glass Only’ physical damage

comprehensive coverage claim on or after January 1, 1991 for cracked, chipped or

damaged windshields and received a chemical filler or patch repair, or payment thereof,

instead of a higher amount for actual cash value or replacement cost of the windshield.

The lesser of the amount of the actual cash value or the replacement cost of the

windshield for each claim must exceed the insured’s applicable deductible.”

       {¶ 9} The definition also included two subclasses — those who had claims

administered by Lynx and those who did not.5 State Farm then timely filed the instant

appeal, raising three errors.

                                   II. Law and Analysis

                      A. Class Certification Under Civ.R. 23(B)(3)

       {¶ 10} State Farm first argues that “[t]he trial court erred and abused its discretion

by granting the motion of plaintiff-appellee for class certification under Rule 23(B)(3).”

In Baughman v. State Farm Mut. Auto. Ins. Co., 88 Ohio St.3d 480, 2000-Ohio-397, 727

N.E.2d 1265, the Ohio Supreme Court reaffirmed that the standard of review to be

applied for class action certification is that of an abuse of discretion. A trial court

       5
         The definition also had three categories of excluded individuals, including those who
have previously filed suit, officers or employees of State Farm or the parties in this case, and
those who opt out of the class.
possesses broad discretion in determining whether a class action may be maintained.

That determination will not be disturbed absent a showing that the discretion was abused.

 Id. An abuse of discretion implies that the trial court’s attitude was unreasonable,

arbitrary, or unconscionable. Beder v. Cleveland Browns, Inc. (1998), 129 Ohio App.3d

188, 717 N.E.2d 716. The trial court’s decision regarding the certification of a class

should not be reversed on appeal because the appellate judges would have decided the

issue differently had the initial determination been in their hands. Hamilton v. Ohio Sav.

Bank, 82 Ohio St.3d 67, 1998-Ohio-365, 694 N.E.2d 442.

       {¶ 11} The class action is an invention of equity.     Its purpose is to facilitate

adjudication of disputes involving common issues between multiple parties in a single

action. Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho (1990), 52 Ohio

St.3d 56, 62, 556 N.E.2d 157. The plaintiff bears the burden of establishing the right to a

class action. Shaver v. Standard Oil Co. (1990), 68 Ohio App.3d 783, 589 N.E.2d 1348.

 Class certification in Ohio is based on Rule 23 of the Ohio Rules of Civil Procedure,

which is identical to Rule 23 of the Federal Rules of Civil Procedure, so federal law is

also useful in analyzing a given situation.

       {¶ 12} In Warner v. Waste Mgt., Inc. (1988), 36 Ohio St.3d 91, 521 N.E.2d 1091,

the Ohio Supreme Court listed seven elements necessary for a class to be certified. In

determining whether a class action is properly certified, the first step is to ascertain

whether the threshold requirements of Civ.R. 23(A) have been met.             Once those

requirements are established, the trial court must turn to Civ.R. 23(B) to discern whether
the purported class comports with the factors specified therein. Accordingly, before a

class may be certified as a class action, a trial court must make seven affirmative findings.

 Warner at paragraph one of the syllabus.

       {¶ 13} Four prerequisites are explicitly set forth in Civ.R. 23 and two are implicit

in the rule. Id. The two implicit prerequisites are: (1) the class must be identifiable and

unambiguously defined, and (2) the class representatives must be members of the class.

Id. at 96.

       {¶ 14} The four delineated prerequisites in Civ.R. 23(A) include: “(1) the class is

so numerous that joinder of all members is impracticable, (2) there are questions of law or

fact common to the class, (3) the claims or defenses of the representative parties are

typical of the claims and defenses of the class, and (4) the representative parties will fairly

and adequately protect the interests of the class.” Id. at 97, quoting Civ.R. 23(A).

Except as commonality relates to predominance, State Farm limits its arguments on

appeal to the requirements in Civ.R. 23(B).

       {¶ 15} Finally, the trial court must also find that one of the three Civ.R. 23(B)

requirements is met before the class may be certified. Id. at 94; see, also, Hamilton. If

the class movant fails to meet one of these requirements, class certification must be

denied.

       {¶ 16} Civ.R. 23(B)(3) requires that the questions of law or fact common to the

members of the class predominate over any questions affecting individual members. As

stated in Hamilton, “Civ.R. 23(B)(3) provides that an action may be maintained as a class
action if, in addition to the prerequisites of subdivision (A), ‘the court finds that the

questions of law or fact common to the members of the class predominate over any

questions affecting only individual members, and that a class action is superior to other

available methods for the fair and efficient adjudication of the controversy.’” Id. at

79-80.

                                      i. Predominance

         {¶ 17} State Farm first argues that Cullen fails to meet the requirements for class

certification under Civ.R. 23(B)(3), predominance.

         {¶ 18} In order to satisfy the predominance requirement, Cullen must show that the

common questions of law and fact represent a significant aspect of the class and are

capable of resolution for all members of the class in a single adjudication. Shaver v.

Standard Oil Co. at 799; Wal-Mart Stores, Inc. v. Dukes (2011), 564 U.S. ___, 131 S.Ct.

2541, 180 L.Ed.2d 374.

         {¶ 19} The mere assertion that common issues of law or fact predominate does not

satisfy the express requirements under the rule. In Waldo v. N. Am. Van Lines, Inc.

(W.D.Pa. 1984), 102 F.R.D. 807, the court stated:         “[It] is not simply a matter of

numbering the questions in the case, [labeling] them as common or diverse, and then

counting up. It involves a sophisticated and necessarily judgmental appraisal of the

future course of the litigation * * *.”

         {¶ 20} Where the circumstances of each proposed class member need to be

analyzed to prove the elements of the claim or defense, then individual issues would
predominate and class certification would be inappropriate.           Schmidt v. Avco Corp.

(1984), 15 Ohio St.3d 310, 314, 473 N.E.2d 822.

       {¶ 21} Here, if Cullen’s theory of the case is believed, the use of a common plan to

steer claimants to opt for repair rather than replacement or disclosure of a cash payment

for the value of the glass, less deductible, is a significant class-wide issue.

       {¶ 22} According to Ohio Admin. Code 3901-1-54(E)(1), an insurer must “fully

disclose to the first party claimants all pertinent benefits, coverages or other provisions of

an insurance contract under which a claim is presented.” Cullen argues this was not

done because the Lynx representatives never disclosed the payment option he seeks and

steered claimants to repair rather than replacement of their windshields.6

       {¶ 23} State Farm argues that no such “pay-out” option exists in the insurance

contract. Cullen argues that State Farm’s policies provide that it will “pay loss to your

car * * * but only for the amount of each such loss in excess of the deductible amount, if

any.” Cullen further alleges that loss is further defined to give State Farm the option to

“settle a loss with [the claimant] in any of the following ways: * * * ‘pay the actual cash

value’ of the property at the time of loss, ‘pay to repair’ the damaged property or part, or

‘pay to replace’ the property or part.”

       {¶ 24} Although hotly contested by the parties, the contract may provide for a cash

payment option, as Cullen argues, but that may be discretionary to be decided exclusively


       6
          Significant is State Farm’s instruction to minimize replacement and encourage repair
even to claimants with no deductible.
by State Farm. Further, “[a] court should not create an obligation not found in the

contract’s terms.”    Werner v. Progressive Preferred Ins. Co. (N.D.Ohio 2008), 533

F.Supp.2d 776, 781, citing Leigh v. Crescent Square Ltd. (1992), 80 Ohio App.3d 231,

235, 608 N.E.2d 1166. But none of these issues need be decided at this time because

class certification is not akin to a motion for summary judgment.

       {¶ 25} State Farm acknowledged that it never repaired a windshield without a

claimant’s consent.     This would indicate that State Farm does not retain absolute

discretion over this decision in practice. Further, State Farm employees acknowledged

that this pay-out option has been utilized by customers in the past.7

       {¶ 26} The Supreme Court stated that “[c]ommonality requires the plaintiff to

demonstrate that the class members ‘have suffered the same injury,’ [Gen. Telephone Co.

of S.W. v. Falcon (1982), 457 U.S. 147,] 157. This does not mean merely that they have

all suffered a violation of the same provision of law. * * * Their claims must depend upon

a common contention * * *. That common contention, moreover, must be of such a

nature that it is capable of class wide resolution — which means that determination of its


       7
           “‘[T]he practical construction made by the parties may be considered by the court as an
aid to its construction when the contract is ambiguous, uncertain, doubtful, or where the words
thereof are susceptible to more than one meaning, or when a dispute has arisen between the
parties after a period of operation under the contract.’” St. Marys v. Auglaize Cty. Bd. of
Commrs., 115 Ohio St.3d 387, 2007-Ohio-5026, 875 N.E.2d 561, ¶39, quoting Consol. Mgt., Inc.
v. Handee Marts, Inc. (1996), 109 Ohio App.3d 185, 191, 671 N.E.2d 1304, quoting 18 Ohio
Jurisprudence 3d (1980) 46, Contracts, Section 160. Also, “[w]here a dispute arises relating to
an agreement under which the parties have been operating for some considerable period of time,
the conduct of the parties may be examined in order to determine the construction which they
themselves have placed upon the contract, and great weight will be given to such construction.”
Natl. City Bank of Cleveland v. Citizens Bldg. Co. of Cleveland (1947), 74 N.E.2d 273, 279.
truth or falsity will resolve an issue that is central to the validity of each one of the claims

in one stroke.” Dukes at 2551.         Here, the use of a common script creates such a

common, class-wide contention making this case suitable for class litigation. The trial

court examined these issues and determined that Cullen has raised a colorable claim

sufficient to satisfy the Civ.R. 23 standards. That was not an abuse of discretion.

       {¶ 27} Part of State Farm’s predominance argument boils down to difficulty in

calculating damages and that some members of the class would have no damages. If

included class members had no damages, this would be inappropriate because Cullen’s

cause of action for breach of contract requires a showing of damages-in-fact to succeed.

Estate of Mikulski v. Centerior Energy Corp., Cuyahoga App. No. 94536,

2011-Ohio-696, ¶14 (“appellants must demonstrate that they were actually damaged as an

element of their breach of contract and fraud claims”).

       {¶ 28} The trial court narrowed the class definition to only include damaged

individuals, and difficulty in calculating damages should not stand as a reason to avoid

class certification. If the fact of damages can be shown with certainty in a class-wide

manner, difficulty in calculating the amount is insufficient to avoid certification. Hoang

v. E*Trade Group, Inc., 151 Ohio App.3d 363, 2003-Ohio-301, 784 N.E.2d 151, ¶20;

Estate of Mikulski at ¶20.

       {¶ 29} The trial court broke down the class further into two subclasses — those

who had their claims handled by Lynx and those who did not.
       {¶ 30} Addressing those with claims handled by Lynx, the trial court found the use

of a common scripted conversation constituted a common issue where liability could be

determined based on whether this conversation improperly prompted claimants to elect

repair without having their options properly explained to them.

       {¶ 31} The existence of the Lynx script or “word track” offers evidence of

class-wide treatment that can reasonably establish evidence of Cullen’s claim. The trial

court’s certification of this subclass of putative class members was not an abuse of

discretion.

       {¶ 32} However, Lynx was not involved in claims filed before August 1997, and

its script cannot be used for claims made before this period. Cullen’s theory of the case

is that cash-out payments that were a benefit under the policy were never disclosed.

       {¶ 33} In Cope v. Metro. Life Ins. Co., 82 Ohio St.3d 426, 1998-Ohio-405, 696

N.E.2d 1001, the Ohio Supreme Court found that generalized evidence that proves or

disproves an element of the claim obviates the need to examine individual issues of

reliance. Id. at 436. In the case of claims submitted before 1997, Cullen argues that he

only needs to show that State Farm had an obligation to restore the claimant’s vehicle to

preloss condition, and he purports to offer expert testimony to show that a windshield can

never be repaired to restore it to preloss condition. The use of generalized evidence

found in the common contract between the entire subclass and the testimony and findings

of Cullen’s experts provides a means of resolving a significant question of breach of
contract without the need to examine individual issues. Therefore, the trial court did not

abuse its discretion in certifying this subclass.

       {¶ 34} State Farm argues that by placing a calculation of damages within the class

definition, Cullen has created an impermissible “fail-safe class.” This “refers to a class

definition that is improper because the members of the class cannot be known until a

determination has been made as to the merits of the claim or the liability of the opposing

party. Adashunas v. Negley (C.A.7, 1980), 626 F.2d 600, 603. Thus, a fail-safe class

‘put[s] the cart before the horse.’” Mims v. Stewart Title Guar. Co. (N.D.Tex. 2008),

254 F.R.D. 482, 486. Here, that is not the case because a mathematical calculation to

determine whether a given windshield replacement is more expensive than a given

deductible can be accomplished without trying the issues of the case and can be done in a

straight forward, mechanical manner.

       {¶ 35} However, State Farm has identified a group of individuals whose inclusion

in the class is inappropriate. It argues that approximately 990 putative class members

had their windshields repaired and then later replaced after complaining to State Farm

about the quality of the repair. These individuals are included in the class under the

current definition, but would have no damages similar to the claims of the class because

their windshields were replaced. Therefore, the class definition should be amended to

exclude these putative class members.

                                      ii. Manageability
       {¶ 36} State Farm also argues that the class is not manageable. The trial court’s

handling of such a large class will be difficult, but its administration is facilitated by the

careful records kept by State Farm and others and the ability to accurately calculate

damages using computerized algorithms and State Farm’s databases of information

(including the make and model of each claimant’s vehicle; the historic cost of windshield

replacement, including labor, available in National Auto Glass Specification pricing

guides; the percent difference from that cost as calculated through assigning various

market designations to counties in Ohio, already done by State Farm; and the amount of

individual deductibles at the time a claim was submitted).         See Stammco, L.L.C. v.

United Tel. Co. of Ohio, Fulton App. No. F-07-024, 2008-Ohio-3845, ¶59, reversed on

other grounds by Stammco, L.L.C. v. United Tel. Co. of Ohio, 125 Ohio St.3d 91,

2010-Ohio-1042, 926 N.E.2d 292.

       {¶ 37} State Farm’s records, in conjunction with available industry data, contain

the necessary information to arrive at a reasonable estimation of damages for each

putative class member and to determine class membership. Therefore, manageability is

not so insurmountable that class certification should be denied.

       {¶ 38} Further, while several iterations of insurance policies cover the class period,

the language in those policies that impacts Cullen’s claim is substantially similar. The

existence of these different policies does not preclude class-wide treatment of the claims

at issue.

                                      iii. Superiority
       {¶ 39} State Farm also alleges that a class action is not the best form in which to

litigate this issue. The Ohio Supreme Court has recognized that four factors listed by the

drafters of Civ.R. 23(B)(3) may be of importance when addressing whether the class

vehicle is superior to other methods of litigating claims: “‘(a) the interest of members of

the class in individually controlling the prosecution or defense of separate actions; (b) the

extent and nature of any litigation concerning the controversy already commenced by or

against members of the class; (c) the desirability or undesirability of concentrating the

litigation of the claims in the particular forum; (d) the difficulties likely to be encountered

in the management of a class action.’” Schmidt v. Avco Corp. (1984), 15 Ohio St.3d 310,

314, 473 N.E.2d 822.

       {¶ 40} Here, as in Hamilton, “[n]o individual has attempted to institute a parallel

action or to intervene in this action, and it is unlikely that any new suits will be filed given

the relatively small individual recoveries and the massive duplication of time, effort, and

expense that would be involved. While the class is numerically substantial, it is certainly

not so large as to be unwieldy. Class action treatment would eliminate any potential

danger of varying or inconsistent judgments, while providing a forum for the vindication

of rights of groups of people who individually would be without effective strength to

litigate their claims.”   Id. at 80.   Based on all these factors, class treatment is the

superior method of resolving the present dispute.

                      B. Class Certification Under Civ.R. 23(B)(2)
       {¶ 41} State Farm next argues that “[t]he trial court erred and abused its discretion

by granting plaintiff’s motion for class certification under Rule 23(B)(2).”              This

provision states, “the party opposing the class has acted or refused to act on grounds

generally applicable to the class, thereby making appropriate final injunctive relief or

corresponding declaratory relief with respect to the class as a whole[.]”

       {¶ 42} Under this provision, a plaintiff must show that the defendant’s actions

impact the entire class and that final injunctive or declaratory relief is appropriate.

       {¶ 43} The trial court found, “it appears that the same practices which [Cullen]

experienced are still ongoing.      Declaratory and injunctive relief are thus potentially

available remedies which can be issued on a class wide basis in the event that he prevails

upon the merits of his claim.”

       {¶ 44} Here, Cullen seeks declaratory relief under Civ.R. 23(B)(2). Under federal

law, declaratory relief is proper under The Declaratory Judgment Act of 1934, now 28

U.S.C. 2201, either “‘1) where the judgment will serve a useful purpose in clarifying and

settling the legal relations in issue; or 2) when it will terminate and afford relief from the

uncertainty, insecurity and controversy giving rise to the proceedings.’” Sarafin v. Sears,

Roebuck & Co., Inc. (D.C. Ill., 1978), 446 F.Supp. 611, 615, quoting Maryland Casualty

Co. v. Rosen (C.A.2, 1971), 445 F.2d 1012, 1014.

       {¶ 45} State Farm argues that the declaratory relief sought is incidental to

monetary damages.
       {¶ 46} “Certification under Civ.R. 23(B)(2) depends upon what type of relief is

primarily sought, so where the injunctive relief is merely incidental to the primary claim

for money damages, Civ.R. 23(B)(2) certification is inappropriate.” Wilson v. Brush

Wellman, Inc., 103 Ohio St.3d 538, 2004-Ohio-5847, 817 N.E.2d 59, ¶17, citing Zinser v.

Accufix Research Inst., Inc. (C.A.9, 2001), 253 F.3d 1180. The Seventh Circuit, in

denying certification of a class action seeking injunctive relief and money damages, has

also stated that “[a]n injunction would not provide ‘final’ relief as required by Rule

23(B)(2). An injunction is not a final remedy if it would merely lay an evidentiary

foundation for subsequent determinations of liability.” Kartman v. State Farm Mut.

Auto. Ins. Co. (C.A. 7, 2011), 634 F.3d 883, 893.

       {¶ 47} In Marks v. C.P. Chem. Co., Inc. (1987), 31 Ohio St.3d 200, 203, 509

N.E.2d 1249, class certification was denied for individuals who had foam insulation with

toxic formaldehyde levels sprayed into their homes.            The plaintiffs sought future

diagnostic testing for class members in addition to damages. The Ohio Supreme Court

declined to certify the class under Civ.R. 23(B)(2) because the “provision is inapplicable

where the primary relief requested is damages.”

       {¶ 48} Recently, in Dukes, the Supreme Court found that Rule 23(b)(2) “does not

authorize class certification when each class member would be entitled to an

individualized award of monetary damages.” Id. at 2557.8 The court went on to find

       8
        The distinction is not a small one because significant notice and opt-out provisions are
mandatory in Civ.R. 23(B)(3) classes that are absent from Civ.R. 23(B)(2). See Dukes at
2558-2559.
that “individualized monetary claims belong in Rule 23(b)(3).               The procedural

protections attending the (b)(3) class — predominance, superiority, mandatory notice, and

the right to opt out — are missing from (b)(2) not because the Rule considers them

unnecessary, but because it considers them unnecessary to a (b)(2) class. When a class

seeks an indivisible injunction benefitting all its members at once, there is no reason to

undertake a case-specific inquiry into whether class issues predominate or whether class

action is a superior method of adjudicating the dispute.” Id. at 2558. The court did not

address the specific question here — whether a class should be certified under both

Civ.R. 23(B)(2) and (B)(3).

       {¶ 49} However, “[a]s the Supreme Court of Ohio stated, ‘[d]isputes over whether

the action is primarily for injunctive or declaratory relief rather than a monetary award

neither promote the disposition of the case on the merits nor represent a useful

expenditure of energy.        Therefore, they should be avoided.        If the Rule 23(a)

prerequisites have been met and injunctive or declaratory relief has been requested, the

action usually should be allowed to proceed under subdivision (b)(2). * * * The court

has the power under subdivision (c)(4)(A), which permits an action to be brought under

Rule 23 “with respect to particular issues,” to confine the class action aspects of a case to

those issues pertaining to the injunction and to allow damage issues to be tried

separately.’”   Asset Acceptance L.L.C. v. Caszatt, Lake App No. 2009-L-090,

2010-Ohio-1449, ¶71, quoting Hamilton at 87, quoting Wright, Arthur R. Miller & Mary

Kay Kane, Federal Practice and Procedure (2 Ed.1986) 470, Section 1775.
       {¶ 50} Here, the relief sought includes money damages that require individualized

analyses as to the proper amount, but that relief flows from the declaratory judgment

sought.    This is the test developed by the Fifth Circuit in determining whether

certification of such a class is proper. See Allison v. Citgo Petroleum Corp. (C.A.5,

1998), 151 F.3d 402. That court defined incidental to mean damages that “flow directly

from liability to the class as a whole on the claims forming the basis of the injunctive or

declaratory relief.” Id. at 415. Here, whether we engage in the more rigorous analysis

of whether a class should be certified under both subsections or following the Ohio

Supreme Court’s guidance to avoid such an analysis, the result is the same. The class is

maintainable under both Civ.R. 23(B)(2) and (B)(3).

       {¶ 51} Appellant’s second assignment of error is overruled.

                     C. Failure to Conduct a Rigorous Analysis

       {¶ 52} Finally, State Farm alleges that “[t]he trial court abused its discretion by

failing to conduct the rigorous analysis of the requirements for class certification under

Rule 23 required by Ohio law.”

       {¶ 53} State Farm claims the trial court did not undertake its own rigorous analysis

of the Civ.R. 23 requirements, but merely adopted wholesale Cullen’s proposed findings

of facts and conclusions of law. Not only is this a good way to perturb the trial judge, it

is also incorrect.

       {¶ 54} The trial court presided over a hearing where both sides presented evidence

on whether the class should be certified in this case and asked salient questions of both
sides.    It used much of the language in Cullen’s proposed findings of facts and

conclusions of law, but its opinion was half the length as the proposed findings. Further,

it narrowed the class definition to address State Farm’s argument regarding potential class

members without any injury. Appellant provides no evidence that the trial court did not

undertake a reasoned analysis of the issues presented to arrive at a rational, logical

conclusion.

         {¶ 55} However, the trial court’s findings of fact and conclusions of law do go too

far into the merits of the case.        One statement in particular is possibly outcome

determinative. The trial court states that a cash pay-out option was available and that

State Farm failed to disclose that option. This goes to the heart of the merits of the case

and is inappropriate at this point. Class certification does not address the merits of the

claim.    This is understandable given that both sides argued the merits during class

certification and continue to do so in their briefs before this court.

                                      III. Conclusion

         {¶ 56} For claims handled using a common script or word track, the trial court did

not err in certifying the class in this case. Individual questions do not predominate

because the script used by Lynx and developed by State Farm establishes class-wide

treatment under Cullen’s theory that State Farm breached its contracts with insureds by

dissuading individuals from replacing their windshields and not informing them of their

option to receive a check for the value of the windshield less their deductible. For claims

made prior to the use of a common script, Cullen argues that the policy language
simplifies the case to a showing that the policy in question required State Farm to restore

vehicles to their preloss condition and that a windshield repair cannot do so. The theory,

while dubious, does provide a means to resolve the case on a class-wide basis for these

members. Therefore, the trial court did not err in certifying this class. However, the

class definition must be restricted to exclude those who had their windshields replaced

after repair. Finally, State Farm has provided nothing to indicate that the trial court did

not fulfill its duty to analyze the issues in this case when rendering its judgment.

       {¶ 57} This cause is affirmed as to certification of a class action, but reversed as to

the class definition and remanded to the trial court to redefine the class.

       It is ordered that appellant and appellee share the costs herein taxed.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.

       The court finds there were reasonable grounds for this appeal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

JAMES J. SWEENEY, J., CONCURS;
MELODY J. STEWART, P.J., DISSENTS (WITH SEPARATE OPINION)


MELODY J. STEWART, P.J., DISSENTING:
       {¶ 58} The class action complaint filed in this case presents three distinct

groupings of State Farm policyholders whose claims for damaged windshields must be

divided into numerous sub-groupings. To be sure, there is a “common” issue regarding

whether State Farm had an obligation to make a cash payment available to its

policyholders in lieu of a repair, but the commonality is so general in nature that it fails to

distill into a concrete legal issue. When these varying groups are broken down into their

constituent parts, I believe that any litigation going forward will be so unmanageable as to

make class certification an abuse of the court’s discretion.

                                               I

       {¶ 59} Civ.R. 23(A)(2) defines “commonality” as “questions of law or fact

common to the class.” The court found that the common claim presented in this case

was whether State Farm was contractually obligated to make available to all glass-only

claimants the cash value of a replacement windshield.

       {¶ 60} While I agree that Cullen’s complaint presents a common question on the

issue of whether State Farm had to offer glass-only claimants the cash value of a

replacement windshield, that was merely a threshold question that did not resolve other,

equally important, class-wide issues. In Wal-Mart Stores, Inc. v. Dukes (2011), 564 U.S.

___, 131 S.Ct. 2541, 180 L.Ed.2d 374,9 the United States Supreme Court cautioned that it

is “easy to misread” the commonality requirement of Fed.R.Civ.P. 23 (and by extension,

       9
          Because Civ.R. 23 is patterned after Fed.R.Civ.P. 23, “federal authority is an
appropriate aid to interpretation of the Ohio rule.” Marks v. C.P. Chem. Co. (1987), 31 Ohio
St.3d 200, 201, 509 N.E.2d 1249.
Civ.R. 23) because “[a]ny competently crafted class complaint literally raises ‘common

questions.’”   (Internal quotations omitted.)     Id. at 2551, quoting Nagareda, Class

Certification in the Age of Aggregate Proof (2009), 84 N.Y.U.L.Rev. 97, 131-132.

Construing a Title VII gender discrimination claim for a class of 1.5 million female

Wal-Mart workers, the Supreme Court acknowledged that these claims presented a

“common” Title VII claim of gender discrimination, but noted that “[t]his does not mean

merely that [the workers] have all suffered a violation of the same provision of law.” Id.

 Given the separate nature of injury that can be asserted under Title VII (intentional

discrimination or disparate impact), the court found that the mere claim of a Title VII

injury “*** gives no cause to believe that all their claims can productively be litigated at

once.    Their claims must depend upon a common contention — for example, the

assertion of discriminatory bias on the part of the same supervisor.         That common

contention, moreover, must be of such a nature that it is capable of classwide resolution

— which means that determination of its truth or falsity will resolve an issue that is

central to the validity of each one of the claims in one stroke.” Id.

        {¶ 61} There is no dispute that the class certified by the court encompassed

policyholders in three distinct time periods: (1) from 1991 to March 1998, State Farm

had no windshield repair language in its automobile policies; (2) from April 1998 to

August 2005, State Farm had policy language stating that it would waive any deductible

for a glass-only claim if the policyholder agrees to have the windshield repaired; and (3)
from September 2005 to present, State Farm no longer waived the deductible and would

repair the windshield for glass-only claimants only if agreed to by the policyholder.

       {¶ 62} As in Dukes, this class encompassed far too many theories of recovery

under a “common” question to present a unified class. Different policyholders were at

times covered under different versions of the State Farm automobile policy. Over the

20-year period, policyholders could be determined to have suffered losses, if any, under

multiple variations on the theme of “glass only” claims. Some policyholders may have

had their windshields immediately replaced while others had their windshields repaired.

For those who had their windshields repaired, some had their deductibles waived while

others did not. Some policyholders may have expressly given permission for repair

while others may not have given permission. And, of course, some policyholders were

advised under the Lynx word track while others were not. While there may be an initial

common question of State Farm’s obligation to offer a cash payment in lieu of repair, the

many permutations of the underlying claim do not present common issues sufficient to

justify certification into a single class of policyholders.

                                               II

       {¶ 63} I likewise find that the court erred by concluding that the class it defined

was manageable.

       {¶ 64} “Manageability” encompasses “the whole range of practical problems that

may render the class action format inappropriate for a particular suit.” Eisen, 417 U.S. at

164. In determining manageability, the court should consider the potential difficulties in
notifying class members of the suit, calculation of individual damages, and distribution of

damages. Maguire v. Sandy Mac, Inc. (D.N.J. 1992), 145 F.R.D. 50, 53-54. The courts

must evaluate the costs and benefits of adjudicating plaintiffs’ claims in a class action, as

compared to the costs and benefits of proceeding through numerous separate actions.

       {¶ 65} The need for individualized damage assessments adversely affects the need

for class certification. Broussard v. Meineke Discount Muffler Shops, Inc. (C.A.4, 1998),

155 F.3d 331, 342-343. However, individualized damages assessments are manageable

when “variables are identifiable on a classwide basis and, when sorted, are capable of

determining damages for individual policyowners ***.” In re Monumental Life Ins. Co.

(C.A.5, 2004), 365 F.3d 408, 419.

       {¶ 66} In Conclusion of Law No. 14, the court conceded that “the recovery due

each class member will not be identical,” but found that fact alone did not warrant a

finding that the class would be unmanageable. The court found that State Farm had a

computer database and “the ability to employ computer analysis of those records.” See

Conclusion of Law No. 12.

       {¶ 67} In In re Bridgestone/Firestone, Inc. (C.A.7, 2002), 288 F.3d 1012,

1018-1021, the court of appeals reversed class certification because the          plaintiffs’

alleged defective tire design class action would be unmanageable because tires were

recalled at different times, they may have differed in their propensity to fail, some

vehicles were resold, some owners alleged they were advised to underinflate their tires,

and there were six tire models representing 67 different designs.
       {¶ 68} As in Bridgestone, there are too many damages variables present in this

case to make the class manageable. There are 100,000 proposed class members who,

over a 20-year period, made glass-only claims. Those policyholders were, during that

period, covered under three distinct State Farm approaches to glass-only windshield

claims. Some had their windshields repaired with no further complaint; some had their

windshields replaced. Policyholders had different deductibles, which may have varied

year-to-year as they renewed their policies. Some, but not all, policyholders had their

deductibles waived after agreeing to accept a windshield repair. The policyholders drove

different automobiles, which required significantly different types of windshields, the

value of which varied depending on the type of car, the size and type of the glass installed

on the car, and the labor required to replace the windshield. For example, the cost to

replace the windshield of a 2009 luxury sports utility vehicle would likely be significantly

higher than the replacement cost for a 1997 subcompact coupe. Even assuming the same

make and model of car, the replacement cost would certainly vary over the 20-year period

certified by the court due to various factors including inflation or the type and quality of

glass used in the windshields.

       {¶ 69} The court’s confidence in its ability to wade through the difficulties posed

by variable issues relating to damages assessments based solely on the rather nebulous

idea that computers can sort it out is, I believe, misplaced. For trial purposes, it would be

extraordinarily difficult to present damages issues as raised in this case. See Newton v.

Merrill Lynch, Pierce, Fenner & Smith, Inc. (C.A.3, 2001), 259 F.3d 154, 191 (finding
unmanageable class action that would require individualized inquiry into “hundreds of

millions” of NASDAQ transactions). Not every member of the class will have suffered

the same amount of damages. As noted, those damages will vary not only by the type of

policy, but by the cost of repair for each particular model of car during a particular time

frame.

         {¶ 70} A class action must represent the best “available method[ ] for the fair and

efficient adjudication of the controversy.” Civ.R. 23(B)(3). The difficulties likely to be

encountered in the management of the class as certified by the court are so numerous that

I cannot confidently conclude that the case can be fairly tried. I therefore dissent with

the majority’s decision.
