[Cite as Blue Ash Auto, Inc. v. Progressive Cas. Ins. Co., 2016-Ohio-7965.]




                     Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 104251 and 104252




                         BLUE ASH AUTO, INC., ET AL.
                                                            PLAINTIFFS-APPELLANTS

                                                      vs.

           PROGRESSIVE CASUALTY INS. CO., ET AL.
                                                            DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                            Cuyahoga County Court of Common Pleas
                           Case Nos. CV-12-791816 and CV-14-821172

        BEFORE: E.A. Gallagher, P.J., Boyle, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: December 1, 2016
ATTORNEYS FOR APPELLANT

James B. Rosenthal
Joshua R. Cohen
Cohen Rosenthal & Kramer
Hoyt Block Building, Suite 400
700 West St. Clair Avenue
Cleveland, Ohio 44113

Dennis A. Becker
526 Wards Corner Road
Suite A
Loveland, Ohio 45140

Erica L. Eversman
Eversman Law Offices
846 N. Cleveland Massillon Road
Akron, Ohio 44333

Peter D. Traska
Traska Law Firm, L.L.C.
4352 Pearl Road, Suite A
Cleveland, Ohio 44109


ATTORNEYS FOR APPELLEES

Michael Edward Mumford
Ernest E. Vargo
Baker & Hostetler L.L.P.
Key Tower, Suite 2000
127 Public Square
Cleveland, Ohio 44114

Michael R. Nelson
Sutherland Asbill & Brennan L.L.P.
1114 Avenue of the Americas
40th Floor
New York, New York 10036
EILEEN A. GALLAGHER, P.J.:

          {¶1} Plaintiffs-appellants Blue Ash Auto, Inc., Finney Automotive Company, Inc.,

Russell Westfall and Westfall Auto Sales L.L.C., appeal the decision of the Cuyahoga

County Court of Common Pleas denying class action certification on their claims against

defendants-appellees (collectively, “Progressive”).        For the following reasons, we

affirm.

          Facts and Procedural Background

          {¶2} In this consolidated class action case, appellants are independent auto body

shops that have performed repairs on vehicles insured under the policies of Progressive.

Appellants allege that Progressive tortiously interferes with their business practices by

dictating what services and parts it is willing to pay for when appellants are tasked with

repairing a Progressive insured automobile.        Appellants also allege that Progressive

dictates the labor rates that it is willing to pay without regard to a particular shop’s rates.

Apellants allege that these limitations do not necessarily allow for them to restore an

insured’s car to its original, pre-loss condition and that the limitations violate both Ohio

law and Progressive’s own insurance policies. Appellants seek damages for parts and

labor expended in excess of Progressive’s limitations. Appellants also seek declaratory

relief in the form of an order requiring Progressive to indemnify them from any liability

arising from their compliance with Progressive’s restrictions.
       {¶3} Progressive argues that its practices are part of the competitive market for

auto repair services in Ohio and that its own “Direct Repair Program” (“DRP”) auto body

shops are able to repair an insured’s vehicle to its pre-loss condition under the same terms

offered to plaintiffs.

       {¶4} Appellants sought to prosecute their claims for tortious interference and

declaratory judgment on behalf of the following class:

       All Ohio registered auto body repair shops, or registered individuals, with
       the exception of those members of Progressive’s Direct Repair Program that
       have performed physical auto body repairs paid for directly or indirectly,
       partially or in full, by Progressive as a result of Automobile insurance
       policies issued by Progressive, from August 7, 2005 through present.

       {¶5} The trial court denied class certification on both of appellants claims finding

that appellants failed to meet their burden under four of the seven requirements set forth

in Civ.R. 23(A).

       Law and Analysis

       {¶6} Appellants first assignment of error argues that the trial court abused its

discretion in holding that appellants failed to satisfy the prerequisites of Civ.R. 23(A).

Under applicable law, this assignment of error necessarily overlaps with both appellants

second and third assignments of error. Therefore, we address it within our analysis of

those errors.

       {¶7} We note that we do not reach the merits of appellants claims against

Progressive. This appeal is strictly limited to reviewing the trial court’s decision to deny
class certification.   We consider the substance of appellants claims only to the extent that

they have a relevant bearing on that analysis.

       Standard of Review for Class Certification under Civ.R. 23

       {¶8} A trial court has broad discretion in determining whether to certify a class

action, and an appellate court should not disturb that determination absent an abuse of

discretion.   Marks v. C.P. Chem. Co., 31 Ohio St.3d 200, 509 N.E.2d 1249 (1987),

syllabus. That discretion, however, is not unlimited. It must be exercised within the

framework of Civ.R. 23. Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 70, 694 N.E.2d

442 (1998).    “‘A determination by a trial court regarding class certification that is clearly

outside the boundaries established by Civ.R. 23, or that suggests that the trial court did

not conduct a rigorous analysis into whether or not the prerequisites of Civ.R. 23 are

satisfied, will constitute an abuse of discretion.’”      Mozingo v. 2007 Gaslight Ohio,

L.L.C, 9th Dist. Summit Nos. 26164 and 26172, 2012-Ohio-5157, ¶ 8, quoting Hill v.

Moneytree of Ohio, Inc., 9th Dist. Lorain No. 08-CA-009410, 2009-Ohio-4614, ¶ 9.

       {¶9} The application of the abuse of discretion standard to a trial court’s decision

to certify a class “is grounded not in credibility assessment, but in the trial court’s special

expertise and familiarity with case-management problems and its inherent power to

manage its own docket.”            Hamilton at 70.        “[A]ny doubts about adequate

representation, potential conflicts, or class affiliation should be resolved in favor of

upholding the class, subject to the trial court’s authority to amend or adjust its

certification order as developing circumstances demand, including the augmentation or
substitution of representative parties.” Baughman v. State Farm Mut. Auto. Ins. Co., 88

Ohio St.3d 480, 487, 727 N.E.2d 1265 (2000); Gattozzi v. Sheehan, 2016-Ohio-5230, 57

N.E.3d 1187,    ¶ 17 (8th Dist.). An abuse of discretion occurs where the trial court’s

decision is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

       Requirements for Class Certification under Civ.R. 23(A)

       {¶10} Seven prerequisites must be met before a class may be properly certified as a

class action under Civ.R. 23: (1) an identifiable class must exist and the definition of the

class must be unambiguous; (2) the named plaintiff representatives must be members of

the class; (3) the class must be so numerous that joinder of all the members is

impracticable; (4) there must be questions of law or fact common to the class; (5) the

claims or defenses of the representatives must be typical of the claims or defenses of the

class; (6) the representative parties must fairly and adequately protect the interests of the

class; and (7) one of the three requirements under Civ.R. 23(B) must be met. Hamilton,

82 Ohio St.3d at 71, 694 N.E.2d 442, citing Warner v. Waste Mgmt., 36 Ohio St.3d 91,

96, 521 N.E.2d 1091 (1988); Civ.R. 23.

       {¶11} The party seeking to maintain a class action “has the burden of

demonstrating that all factual and legal prerequisites to class certification have been met.”

 Repede v. Nunes, 8th Dist. Cuyahoga Nos. 87277 and 97469, 2006-Ohio-4117, ¶ 14,

citing Gannon v. Cleveland, 13 Ohio App.3d 334, 335, 469 N.E.2d 1045 (8th Dist.1984);

see also Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733,
999 N.E.2d 614, ¶ 15 (“a party seeking certification pursuant to Civ.R. 23 bears the

burden of demonstrating by a preponderance of the evidence that the proposed class

meets each of the requirements set forth in the rule.”).   If the party seeking to maintain a

class fails to meet any one of the Civ.R. 23 requirements, class certification must be

denied.

       “Rigorous Analysis”

       {¶12} The trial court is required to “carefully apply the class action requirements”

and to conduct a “rigorous analysis” into whether the prerequisites for class certification

under Civ.R. 23 have been satisfied.    Hamilton at 70.     This entails “resolv[ing] factual

disputes relative to each [Civ.R. 23] requirement and to find, based on those

determinations, other relevant facts, and the applicable legal standard, that the

requirement is met.” Cullen at ¶ 16.      This “rigorous analysis” often requires the trial

court to “[look] into the enmeshed legal and factual issues that are part of the merits of

the plaintiff’s underlying claims,” Felix v. Ganley Chevrolet, Inc., 145 Ohio St.3d 329,

2015-Ohio-3430, 49 N.E.2d 1224, ¶ 26, considering “what will have to be proved at trial

and whether those matters can be presented by common facts,” Cullen at ¶ 17.

However, the trial court may examine the underlying merits of the plaintiff’s claims only

to the extent necessary to determine whether the plaintiff has satisfied the Civ.R. 23

requirements. Id.; Felix at ¶ 26; Stammco, L.L.C. v. United Tel. Co. of Ohio, 136 Ohio

St.3d 231, 2013-Ohio-3019, 994 N.E.2d 408, ¶ 44. The abuse of discretion standard
applies both to the trial court’s “ultimate decision” regarding class certification as well as

its determination regarding each of the Civ.R. 23 requirements.

         {¶13} The two arguments presented by appellants are that the trial court erred in

denying class certification on (1) their declaratory judgment claim and (2) their tortious

interference claim. Subsumed within these arguments is appellants first assignment of

error.    Pursuant to the seventh requirement for class certification under Civ.R. 23(A), the

trial court found that the above claims failed to satisfy the requirements of Civ.R.

23(B)(2) and (B)(3), respectively.     For the reasons set forth below, we find no abuse of

discretion in the trial court’s conclusions.

         I. Class Certification of Appellants Declaratory Judgment Claim

         {¶14} The trial court found that appellants proposed class certification of their

declaratory judgment claim did not satisfy the requirements of Civ.R. 23(B)(2).

         {¶15} Civ.R. 23(B)(2) provides that class treatment may be maintained when “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.” “Claims for individualized relief are not

compatible with Civ.R. 23(B)(2) because the relief sought must affect the entire class at

once.” WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 180 L.Ed.2d 374

(2011). In other words:

         [Civ.R. 23(B)(2)] applies only when a single injunction or declaratory

         judgment would provide relief to each member of the class. It does not
        authorize class certification when each individual class member would be

        entitled to a different injunction or declaratory judgment against the

        defendant. Similarly, it does not authorize class certification when each

        class member would be entitled to an individualized award of monetary

        damages.

Cullen, 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, ¶ 21, quoting Walmart at

2557.

        {¶16} Furthermore, certification depends on “what type of relief is primarily

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

damages, Civ.R. 23(B)(2) certification is inappropriate.” Id. at ¶ 22, quoting Wilson v.

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

        {¶17} Here the trial court concluded that appellants cannot maintain their Civ.R.

23(B)(2) declaratory judgment claim because it is merely incidental to their damages

claim. Appellants argue that the injunctive relief sought under their    Civ.R. 23(B)(2)

claim is separate and inverse from the damages sought under their        Civ.R. 23(B)(3)

tortious interference claim. Appellants argue that their    Civ.R. 23(B)(2) claim seeks

indemnification for potential liability arising from their adherence to Progressive’s

mandates while their Civ.R. 23(B)(3) claim seeks unrelated damages for situations in

which they perform necessary repairs notwithstanding Progressive’s refusal to pay.

        {¶18} While the two types of damages may be distinguishable, we find this to be a

distinction without difference.    Appellants    Civ.R. 23(B)(2) claim would lead to
individualized awards of monetary damages for each class member in the event that a

class member were to be sued for an allegedly faulty repair.   More importantly, the Ohio

Supreme Court denied Civ.R. 23(B)(2) class certification under substantially the same

circumstances in Cullen holding 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 as set forth in Civ.R. 23(B)(2).”

Cullen at ¶ 27, citing Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 893 (7th

Cir.2011) (“this case is unsuitable for class certification: An 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”).

       {¶19} It is easy to understand the Supreme Court’s hesitance to so extend Civ.R.

23(B)(2) class certifications where, as here, establishing the applicability of the desired

indemnification would require a case-by-case analysis of facts pertinent to the repair.

Whether Progressive rightfully or wrongfully refused to pay for a particular service or

part would need to be examined in each instance of an allegedly faulty repair.    A myriad

of other issues would also need to be resolved as well. Causation in particular would be

a case-by-case dispute that cannot be resolved by the appellants desired relief.        For

example: Was the allegedly defective repair in a particular incident due to Progressive’s

mandates or the body shop’s own negligent labor performance within those mandates?

Was the shop’s desired service or part appropriate and necessary for each particular repair

that is later deemed faulty? How can the trial court deem that Progressive is always liable
when it and the shop diverge on the manner or type of repair to be performed without the

individualized context of every possible car repair that may occur?        As the trial court

noted, any indemnification would be premised on an initial decision that the estimate

provided by Progressive was inadequate based on the unique facts of each case.           These

issues simply cannot be resolved on a class-wide basis with any finality without

considering the facts pertinent to a particular instance of   negligent repair.

       {¶20} Because appellants’ desired declaration would merely lay the foundation for

subsequent individualized determinations of liability, we cannot say the trial court abused

its discretion in denying class certification on appellants Civ.R. 23(B)(2) declaratory

judgment claim.

       {¶21} Appellants second assignment of error is overruled.            Appellants    first

assignment of error is also denied as it applies to the Civ.R. 23(B)(2) class certification.



       II. Class Certification of Appellants Tortious Interference Claim

       {¶22} The trial court also found that appellants proposed class certification of their

tortious interference claim did not satisfy the predominance requirement of Civ.R.

23(B)(3).

       {¶23} For a class action to be certified under Civ.R. 23(B)(3), the trial court must

make two findings: (1) that “the questions of law or fact common to the members of the

class predominate over any questions affecting only individual members” and (2) that “a
class action is superior to other available methods” for the fair and efficient adjudication

of the controversy. Civ.R. 23(B)(3).

       {¶24} A “key purpose” of the predominance requirement “is to test whether the

proposed class is sufficiently cohesive to warrant adjudication by representation.” Felix

v. Ganley Chevrolet, Inc., 145 Ohio St.3d 329 2015-Ohio-3430, 49 N.E.3d 1224, ¶ 35,

citing Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d

689 (1997). “‘For common questions of law or fact to predominate it is not sufficient

that such questions merely exist; rather, they must represent a significant aspect of the

case.” Cullen, 137 Ohio St.3d 373, 2013-Ohio-4733, 999 N.E.2d 614, ¶ 30, quoting

Marks v. C.P. Chem. Co., 31 Ohio St.3d 200, 204, 509 N.E.2d 1249 (1987). They must

also be “capable of resolution for all members in a single adjudication.” Id. at ¶ 30,

quoting Marks at 204.

       {¶25} It is not, however, sufficient for class certification under Civ.R. 23(B)(3)

that the allegations of the complaint raise “a colorable claim.”        The plaintiff must

demonstrate and the trial court must find “that questions common to the class in fact

predominate over individual ones.” Cullen at ¶ 33-34.

       {¶26} Civ.R. 23(B)(3) sets forth a list of factors “pertinent” to the predominance

and superiority findings required under Civ.R. 23(B)(3): (1) “the class members’ interests

in individually controlling the prosecution or defense of separate actions”; (2) “the extent

and nature of any litigation concerning the controversy already begun by or against class

members”; (3) “the desirability or undesirability of concentrating the litigation of the
claims in the particular forum” and (4) “the likely difficulties in managing a class action.”

 Civ.R. 23(B)(3)(a)-(d). This list, however, is not exhaustive; other relevant factors may

also be considered. State ex rel. Davis v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118,

2006-Ohio-5339, 855 N.E.2d 444, ¶ 27-28.

       {¶27} In Cullen, the Ohio Supreme Court rejected class certification under Civ.R.

23(B)(3) where the plaintiffs were unable to establish by common proof a breach of duty

by the defendants but would rather require individualized inquiries for each plaintiff.

The Cullen court stated, “To meet the predominance requirement, a plaintiff must

establish that issues subject to generalized proof and applicable to the class as a whole

predominate over those issues that are subject to only individualized proof.” Cullen at ¶

30, quoting Randleman v. Fidelity Natl. Title Ins. Co., 646 F.3d 347, 352-353 (6th

Cir.2011).

       {¶28} The same flaw exists in this case. Any common questions of law or fact in

this instance fail to predominate over the voluminous individual questions that would

need to be resolved. The trial court aptly pointed out that an individualized inquiry

would be necessary for not just each potential class member, but every separate instance

where such class members conducted a repair under the alleged limitations imposed by

Progressive.   The court would have to examine each repair and consider whether the

additional services or parts that Progressive allegedly denied to the particular class

member were necessary to restore the damaged vehicle in question to its pre-loss

condition.
       {¶29} Appellants argue that such an individualized inquiry would not be necessary

but their reasoning is flawed.   They ask that the trial court accept as established fact that

each additional service, part and higher labor rate that Progressive allegedly denied them

was necessary to properly repair every conceivable damaged vehicle.        Appellants’ theory

leaves no room for Progressive to exercise its right to dispute these facts in this litigation.

 Because the resolution of these disputes would require a case-by-case analysis of every

Progressive repair conducted by every member of the class, we cannot say that common

questions of law or fact predominate over the looming mass of individualized inquires

that would dominate this litigation.

       {¶30} We find no abuse of discretion in the trial court’s decision to deny class

certification on appellants tortious interference claim under Civ.R. 23(B)(3).

       {¶31} Appellants first and third assignments of error are overruled.

       {¶32} The judgment of the trial court is affirmed.

       It is ordered that appellee recover from appellant the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

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

pleas court to carry this judgment into execution.

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

Rule 27 of the Rules of Appellate Procedure.



_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, J., and
SEAN C. GALLAGHER, J., CONCUR
