                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



STATE OF WEST VIRGINIA EX REL. ERIE
INSURANCE PROPERTY & CASUALTY
COMPANY,
                                                                     FILED
Petitioner                                                               February 13, 2017

                                                                              released at 3:00 p.m.
                                                                            RORY L. PERRY, II CLERK
vs.) No. 16-0884                                                          SUPREME COURT OF APPEALS
                                                                               OF WEST VIRGINIA


THE HONORABLE DAVID W. NIBERT
AND TAMARA HARDMAN, INDIVIDUALLY
AND AS ADMINISTRATRIX OF THE ESTATE OF
EMILY ELIZABETH-ANNE HARDMAN,
Respondents


                             MEMORANDUM DECISION

       This is a writ of prohibition proceeding filed under the original jurisdiction of this
Court by Petitioner, Erie Insurance Property & Casualty Company (hereinafter “Erie”),
through counsel, James D. Lamp and Matthew J. Perry. Erie seeks to have this Court
prohibit enforcement of an order by the Circuit Court of Jackson County that granted class
action certification to the Respondents, Tamara Hardman individually and as administratrix
of the estate of Emily Elizabeth-Anne Hardman (hereinafter “the Respondents”). The
Respondents, through counsel, Brent K. Kesner and Ernest G. Hentschel, contend that the
writ should be denied because class action certification met all the requirements of Rule 23
of the West Virginia Rules of Civil procedure.

       This Court has considered the parties’ briefs, the appendix submitted, and the parties’
oral arguments. Upon consideration of the standard of review, the Court grants the writ of
prohibition. In view of prior precedent on the dispositive issue presented in this case, a
memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

      The underlying facts of this case are not complicated. It appears that on or about
October 1, 2006, Emily Elizabeth-Anne Hardman was killed in an automobile accident in
Jackson County, West Virginia. Emily was a passenger in a car driven by Samuel




                                              1

Postlethwaite, when the car struck a solid rock embankment.1 Emily’s estate recovered the
policy limits from Mr. Postlethwaite’s insurer, Nationwide Insurance Company. The estate
sought underinsured motorist coverage from a policy maintained by Emily’s parents with
Erie. That policy provided underinsured motorist coverage in the amounts of $20,000 per
person; $40,000 per occurrence; and $10,000 for property damage. However, the estate
sought the liability limits under the policy on the theory that Erie’s underinsured motorist
coverage election/rejection forms did not comply with the West Virginia Insurance
Commissioner’s form. The liability limits under the policy were $100,000 per person;
$300,000 per occurrence; and $50,000 for property damage. Erie refused to tender the
liability limits. Instead, at some point, Erie tendered the per person underinsured motorist
limit under the policy, $20,000, to “Tamara Hardman, on behalf of the Estate of Emily . . .
by way of interpleader.”

        The Respondents eventually filed a declaratory judgment action against Erie seeking
a determination of the amount of benefits available under the policy.2 The complaint initially
was amended to add claims for breach of contract, bad faith, and unfair settlement practices.
A second amendment to the complaint was made that included allegations in support of a
class action involving the use of election/rejection forms for underinsured motorist coverage
that did not comply with the Insurance Commissioner’s form. The circuit court eventually
certified a class in an order entered on November 12, 2010. Erie filed a petition for a writ
of prohibition with this Court to prohibit enforcement of the class action certification order.
This Court issued an unpublished Memorandum Decision on June 14, 2011, granting the writ
as moulded, which required the circuit court to enter an order certifying the class in
compliance with the findings required by our precedents. While the case was pending in the
circuit court, it appears the Respondents filed a third amended complaint on June 8, 2016.
The third amended complaint set out a class action claim “seeking declaratory relief as to the
validity of . . . Erie’s selection/rejection forms.” On July 13, 2016, the circuit court entered
an order certifying a class “who were insureds under any Erie policy and who were injured
by or suffered property damage caused by an act of an underinsured motorist, and who did
not receive underinsured motorists coverage benefits at least equal to the liability limits
stated in the policy declarations[.]”3 Erie thereafter filed the instant proceeding seeking to
prohibit enforcement of the class action certification order.


       1
        The pleadings indicate that Mr. Postlethwaite and another passenger also were killed
in the accident.
       2
        The limited record does not indicate the date the complaint was filed, but the civil
action number suggests the complaint was originally filed in 2008.
       3
           The order also set out a number of excluded persons.

                                               2

         This Court has “previously recognized that ‘[w]rits of prohibition offer a procedure
. . . preferable to an appeal for challenging an improvident award of class standing.’” State
of West Virginia ex rel. Chemtall Inc. v. Madden, 216 W. Va. 443, 450, 607 S.E.2d 772, 779
(2004) (quoting McFoy v. Amerigas, Inc., 170 W. Va. 526, 532, 295 S.E.2d 16, 22 (1982)).
It also has been held that “[t]his Court will review a circuit court’s order granting or denying
a motion for class certification pursuant to Rule 23 of the West Virginia Rules of Civil
Procedure [1998] under an abuse of discretion standard.” Syl. pt. 1, In re West Virginia
Rezulin Litig., 214 W. Va. 52, 585 S.E.2d 52 (2003).4

       The standard for certifying a class action has been succinctly set out in Syllabus point
8 of Rezulin as follows:

                      Before certifying a class under Rule 23 of the West
              Virginia Rules of Civil Procedure [1998], a circuit court must
              determine that the party seeking class certification has satisfied
              all four prerequisites contained in Rule 23(a)–numerosity,
              commonality, typicality, and adequacy of representation–and has
              satisfied one of the three subdivisions of Rule 23(b). As long as
              these prerequisites to class certification are met, a case should


       4
       This Court’s precise guidance for determining whether a writ of prohibition should
issue was enunciated in Syllabus point 4 of State ex rel. Hoover v. Berger, 199 W. Va. 12,
483 S.E.2d 12 (1996):

               In determining whether to entertain and issue the writ of prohibition for
       cases not involving an absence of jurisdiction but only where it is claimed that
       the lower tribunal exceeded its legitimate powers, this Court will examine five
       factors: (1) whether the party seeking the writ has no other adequate means,
       such as direct appeal, to obtain the desired relief; (2) whether the petitioner
       will be damaged or prejudiced in a way that is not correctable on appeal; (3)
       whether the lower tribunal’s order is clearly erroneous as a matter of law; (4)
       whether the lower tribunal’s order is an oft repeated error or manifests
       persistent disregard for either procedural or substantive law; and (5) whether
       the lower tribunal’s order raises new and important problems or issues of law
       of first impression. These factors are general guidelines that serve as a useful
       starting point for determining whether a discretionary writ of prohibition
       should issue. Although all five factors need not be satisfied, it is clear that the
       third factor, the existence of clear error as a matter of law, should be given
       substantial weight.

                                               3

               be allowed to proceed on behalf of the class proposed by the
               party.

214 W. Va. 52, 585 S.E.2d 52 (emphasis added). Erie contends that the Respondents failed
to satisfy the commonality and typicality requirements of Rule 23(a) and the predominance
requirement of Rule 23(b). We need only address the circuit court’s findings with respect
to the commonality requirement of Rule 23(a).5 This is because “[i]f only one prerequisite
is not met, class certification is not appropriate.” Jones v. Am. Gen. Life & Accident Ins. Co.,
213 F.R.D. 689, 699 (S.D. Ga. 2002). See Wiener v. Dannon Co., 255 F.R.D. 658, 664 (C.D.
Cal. 2009) (“A court should not grant class certification unless it is satisfied, after a rigorous
analysis, that all of the requirements of Rule 23(a) are met.” (internal quotations and citation
omitted)); McCall v. Drive Fin. Servs., L.P., 236 F.R.D. 246, 249 n.3 (E.D. Pa. 2006) (“[T]he
court must be satisfied that the plaintiffs satisfy all four prerequisites of Rule 23(a).”); Noerr
v. Greenwood, No. 14320-NC, 2002 WL 31720734, at *2 (Del. Ch. Nov. 22, 2002) (“The
plaintiff must satisfy all four requirements of Rule 23(a).”); Rene ex rel. Rene v. Reed, 726
N.E.2d 808, 816 (Ind. Ct. App. 2000) (“To obtain class certification, the students must satisfy
all of the requirements of Trial Rule 23(A).”); Jacobsen v. Allstate Ins. Co., 310 P.3d 452,
460 (Mont. 2013) (“[c]lass certification requires that the plaintiff satisfy all four requirements
of Rule 23(a).”); In re South Dakota Microsoft Antitrust Litig., 657 N.W.2d 668, 671 (S.D.
2003) (“In order to obtain certification of a class, the plaintiffs must satisfy all the
requirements of SDCL 15-6-23 (FRCP 23(a)).”);.

      To begin we will note that the Respondents’ third amended complaint appears to have
been motivated by our decision in Thomas v. McDermitt, 232 W. Va. 159, 751 S.E.2d 264
(2013).6 The decision in Thomas presented a certified question wherein we were asked to

       5
     In Syllabus point 11 of Rezulin, 214 W. Va. 52, 585 S.E.2d 52, we explained the
commonality requirement as follows:

               The “commonality” requirement of Rule 23(a)(2) of the West Virginia
       Rules of Civil Procedure [1998] requires that the party seeking class
       certification show that “there are questions of law or fact common to the
       class.” A common nucleus of operative fact or law is usually enough to satisfy
       the commonality requirement. The threshold of “commonality” is not high, and
       requires only that the resolution of common questions affect all or a substantial
       number of the class members.
       6
       The circuit court’s order specifically found that “[t]he State Supreme Court’s ruling
in Thomas prompted the Plaintiff to seek leave to amend her Complaint to clarify the relief
sought.”

                                                4

determine what was the effect of an insurer’s failure to use the Insurance Commissioner’s
underinsured motorist coverage forms pursuant to W. Va. Code § 33-6-31d. We answered
the certified question in Syllabus point 12 of Thomas, 232 W. Va. 159, 751 S.E.2d 264, as
follows:

                     An insurance company’s failure to use the West Virginia
              Insurance Commissioner’s prescribed forms pursuant to West
              Virginia Code § 33-6-31d (2011) results in the loss of the
              statutory presumption and a reversion to the standards
              enunciated in Bias v. Nationwide Mutual Insurance Co., 179
              W. Va. 125, 365 S.E.2d 789 (1987).[7]

(Footnote added). See State ex rel. State Farm Mut. Auto. Ins. Co. v. Cramer, 237 W. Va.
60, ___ n.7, 785 S.E.2d 257, 263 n.7 (2016) (“We made clear in Thomas that an insurer must
use the Commissioner’s form in order to gain the benefit of the statutory presumption that
its offer of uninsured/underinsured coverage was effective, and that the insured’s rejection
of such coverage was knowing and intelligent.”).8

        The circuit court relied on the holding in Thomas in determining that the Respondents
satisfied the commonality requirement of Rule 23(a):


       7
        The third amended complaint expressly cited to the decision in Bias as part of the
basis for relief. The second amended complaint did not mention Bias.
       8
       Subsequent to our decision in Thomas, the Legislature amended W. Va. Code
§ 33-6-31d in 2015 and added the following new provision:

               (f) Notwithstanding any of the provisions of article six of this chapter
       to the contrary, including section thirty-one-f, for insurance policies in effect
       on December 31, 2015, insurers are not required to offer or obtain new
       uninsured or underinsured motorist coverage offer forms as described in this
       section on any insurance policy to comply with the amount of the minimum
       required financial responsibility limits set forth in subsection (b), section two,
       article four, chapter seventeen-d of this code. All such offer forms that were
       executed prior to January 1, 2016, shall remain in full force and effect.

The briefs of the parties have not mentioned nor cited to the amendment to W. Va. Code
§ 33-6-31d. We therefore refrain, at this time, from determining the impact of the
amendment, if any, on our decision in Thomas and this litigation.

                                               5

        18. The Court finds that there are numerous common
questions of law and fact present in this case amongst all of the
proposed class members with respect to the validity of Erie’s
selection/rejection form. Specifically, Erie is alleged to have
used the same defective underinsured motorist coverage
selection/rejection form with respect to all members of the
proposed class and its use of the form presents the same factual
scenario in the case of each. Both the Plaintiff and the proposed
class must prove that Erie violated W. Va. Code § 33-6-31d by
failing to use the selection/rejection form promulgated by the
Insurance Commissioner to offer underinsured motorists
coverage to its customers and, therefore is not entitled to a
statutory presumption under Thomas. The same proof is
applicable to the claims of all of the putative class members
since it is alleged that Erie used the same form throughout West
Virginia over a period of many years (at least the entire time
period encompassed by the class). Moreover, the effect of such
proof would be the same with respect to each claim since the
failure to make a commercially reasonable offer of underinsured
motorists coverage using the Commissioner’s form in each case
would result in the loss of the presumption in each case.
Therefore, Erie’s use of an improper and defective
selection/rejection form to offer underinsured motorists
coverage is a common question of fact among all members of
the proposed class which, if proven, would resolve in one action
an issue which is central to all of the class members’ claims for
underinsured motorists coverage.

        19. The Court further finds that issues regarding Erie’s
use of a defective form will be common to the class in light of
the fact that the rights of all putative class members with respect
to the loss of the statutory presumption under Thomas are
affected by Erie’s use of the same form and the same alleged
defects in the form. Thus, proof of Erie’s use of a defective
selection/rejection form by one class member would be
applicable to the claims of all other class members and a
determination that Erie’s UIM selection/rejection form is
defective would apply to all other Erie customers who received
offers of underinsured motorists coverage on the non-compliant
form.

                                6

              ....


                      24. In addition, the Court finds that the issue of the
              validity of the UIM selection/rejection form utilized by Erie in
              making mandatory offers of UIM coverage is a common issue
              necessary to the resolution of the claim for UIM benefits of
              every putative class member. As it is the burden of the insurer,
              in this case Erie, to prove that a commercially reasonable offer
              of UIM benefits has been made to the insured, it is a central
              issue to the claim for UIM benefits of every putative class
              member whether Erie utilized the form promulgated by the
              Insurance Commissioner or, instead, used a defective form. The
              Court has determined that Erie failed to use the prescribed form,
              and that the form utilized by Erie failed to inform Erie’s
              insureds of the total cost for each optional level of UIM
              coverage. Without this essential information, Erie’s insureds
              were unable to make . . . knowing and informed selections
              and/or rejections of coverage, since they could not compare the
              relative costs of the optional limits of UIM coverage available
              to them. This material issue, therefore, is a common issue that
              exists as a necessary foundation block for the claim of every
              class member, since Erie has based its rejection of UIM
              coverage for each putative class member solely upon its use of
              the defective form at issue in the present action.

        A careful reading of the above findings reveals that the circuit court said the same
thing numerous ways, as opposed to setting out “numerous common questions of law and
fact.” Distilled to its essence, the circuit court found that all purported class members would
have to litigate the issue of whether Erie used an underinsured motorist coverage form that
was not in compliance with the form required by the Insurance Commissioner, which would
result in a loss of the presumption. We do not believe that this issue satisfies the common
question of fact or law for class certification purposes. Erie has cited to two cases that have
rejected the issue of noncompliance with a statutory form for underinsured motorist coverage
as satisfying the commonality requirement for class certification.

              The case of Martin v. State Farm Mutual Automobile Insurance
              Co., 809 F. Supp. 2d 496 (S.D. W. Va. 2011), was litigated
              before Judge Chambers in the United States District Court for

                                              7

              the Southern District of West Virginia. The plaintiffs in Martin
              filed a complaint seeking, among other things, a declaratory
              judgment providing that, because the forms used by State Farm
              to offer UIM coverage to its insureds did not comply with West
              Virginia Code § 33-6-31d, State Farm failed to make
              commercially reasonable offers to each plaintiff and their
              policies must be reformed to carry UIM coverage in an amount
              equal to the respective policy’s liability coverage limits.

Martin, 809 F. Supp. 2d at 500. The insurer in Martin moved for summary judgment as to
only two of the three named plaintiffs, and the plaintiffs moved for an order certifying the
case as a class action. As an initial matter, the district court found that the defendant did not
use the underinsured motorist form required by the West Virginia Insurance Commissioner;
therefore, the defendant lost the statutory presumption of making an effective offer of the
optional coverages to the two summary judgment plaintiffs. The decision went on to find
that the defendant made an effective offer of underinsured motorist coverage and that the two
plaintiffs’ rejection of such coverage was knowing and intelligent.9 The opinion went on to
address the class action certification issue as follows:

                     While Plaintiffs’ Motion for Class Certification is
              mooted by the dismissal of two of Plaintiffs’ named plaintiffs,
              the Court nonetheless addresses the impact of its foregoing
              conclusions on the viability of class certification with respect to
              this action. By finding that Bias controls where the statutory
              presumption does not apply, the Court is now confronted with
              a proposed class of State Farm insureds, the resolution of whose
              cases require individual fact-finding under the Bias standard.
              . . . Here, the varying claims presented by the proposed class
              will require an intensive, individual fact-finding, as
              demonstrated by the Court’s discussion of Martin’s and
              Fleming’s decedent’s claims. Accordingly, the class proposed
              by Plaintiffs fails to meet the commonality requirement under
              Rule 23(a) of the Federal Rules of Civil Procedure. The Court
              therefore DENIES Plaintiffs’ motion for class certification.



       9
         See Thomas, 232 W. Va. at 173, 751 S.E.2d at 278 (“This Court agrees with the
reasoning of the Martin court and also adopts that interpretation of the application of the
statute.”).

                                               8

Martin, 809 F. Supp. 2d at 509-10.

       In Blake v. State Farm Mutual Automobile Insurance Co., 523 N.E.2d 85 (Ill. App. Ct.
1988), superseded by statute on other grounds as stated in Royal Imperial Grp., Inc. v.
Joseph Blumberg & Assocs., Inc., 608 N.E.2d 178 (Ill. App. Ct. 1992), the plaintiff was
injured in an automobile accident. The tortfeasor was underinsured. However, the plaintiff
did not have underinsured motorist coverage. The plaintiff sued his insurer for failing to
offer him underinsured motorist coverage. The plaintiff contended that he did not obtain
underinsured motorist coverage because the insurer used an inadequate insurance form,
called an acknowledgment/rejection form, that did not comply with statutory requirements.
The plaintiff sought to litigate his claim as a class action on the theory that the defendant’s
“use of the inadequate ‘acknowledgement/rejection’ form for ‘new business’ provided a
sufficient basis for the similarity of law or fact required for class actions[.]” Blake, 523
N.E.2d at 87. The trial court refused to certify the case as a class action. On appeal, the
appellate court affirmed the denial of class certification as follows:

                      Blake inaccurately characterizes the instant case as one
              that turns on a pervasive question of law common to all class
              members. In the cases cited by Blake, the common question of
              law or fact was the basis for the law suit. The defendants’
              actions harmed all class members, although the harm to the
              individual class members may have varied somewhat by degree
              or circumstances in which it arose. In contrast, no commonality
              among members of the proposed class arose from the transaction
              of September 5, 1980, between Mr. and Mrs. Blake and State
              Farm’s agent Ms. Trennert, and proof of Blake’s claim would
              not give other proposed class members a right to recover. The
              instant case arose from an auto accident between Blake and an
              unnamed third party, and the allegations of improper offer stem
              from individual negotiations with State Farm’s agent. The
              circumstances of the case shows predominant individual issues
              despite an incidental question of law that may extend to other
              insureds.

Blake, 523 N.E.2d at 88 (emphasis added).

        The circuit court’s certification order in the instant case attempted to distinguish
Martin by addressing the factual differences in the coverage forms used in Martin and the
instant case. This distinction is meaningless. Martin rejected class certification because the
use of an unauthorized underinsured motorist coverage form was overwhelmed by the

                                              9

requirement of individual fact-finding. The Respondents have attempted to distinguish
Martin and Blake by arguing that, “[u]like Martin and Blake . . . , the class in this case was
only certified for the purpose of resolving the common issue concerning the validity of Erie’s
selection/rejection forms. No individual factual determinations will be required.” The
Respondents have misunderstood the essence of class actions.

        The United States Supreme Court addressed a similar issue in Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). In Wal-Mart, the
Supreme Court rejected class action certification of an employment discrimination case. One
of the issues addressed in that case was the commonality requirement of federal Rule 23(a).
The opinion made the following relevant comments about the commonality requirement:

                      The crux of this case is commonality–the rule requiring
              a plaintiff to show that there are questions of law or fact
              common to the class. That language is easy to misread, since
              any competently crafted class complaint literally raises common
              questions. . . . Commonality requires the plaintiff to
              demonstrate that the class members have suffered the same
              injury. 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 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.

Wal-Mart, 564 U.S. at 349-50, 131 S. Ct. at 2550-51, 180 L. Ed. 2d 374, (emphasis added)
(internal quotations and citations omitted)).

       The decisions in Wal-Mart, Martin, and Blake stand for the proposition that a
violation of law as a common issue may not support class certification in a setting where
individualized fact-finding is necessary. As noted by the Fourth Circuit, “[w]hat matters to
class certification . . . is not the raising of common questions–even in droves–but, rather the
capacity of a classwide proceeding to generate common answers apt to drive the resolution
of the litigation.” Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 128 (4th Cir. 2013)
(internal quotations and citation omitted). See M.D. ex rel. Stukenberg v. Perry, 675 F.3d
832, 840 (5th Cir. 2012) (“[t]he members of a proposed class do not establish that ‘their
claims can productively be litigated at once,’ merely by alleging a violation of the same legal
provision by the same defendant.”); Likes v. DHL Express, 288 F.R.D. 524, 536 (N.D. Ala.
2012) (rejecting class certification because resolution of the common issue meant “that

                                               10

individualized determinations of fact would need to be decided as to each DHL contractor
relationship”).

       In the instant case, under Syllabus point 12 of Thomas, a violation of W. Va. Code
§ 33-6-31d by Erie would permit the Respondents to litigate their underinsured claim under
Syllabus point 1 of Bias. The dispositive common issues or contentions in this case are set
out in Syllabus point 1 of Bias as follows:

                      Where an offer of optional coverage is required by
              statute, the insurer has the burden of proving that an effective
              offer was made, and that any rejection of said offer by the
              insured was knowing and informed.

179 W. Va. 125, 365 S.E.2d 789. Resolving the common contentions of whether Erie made
“an effective offer” to each of the members of the class, and whether each class member’s
rejection of that offer was “knowing and informed,” requires individual determination. That
is, resolution of these issues for the Respondents will not resolve the issues for any other
class member. See, e.g., Jewell v. Ford, 211 W. Va. 592, 596, 567 S.E.2d 602, 606 (2002)
(“[E]ven if an effective offer of optional uninsured motorist coverage was made to Jewell,
we believe that a genuine issue of material fact exists as to whether she made a knowing and
intelligent waiver of the additional, optional coverage.”); Parham v. Horace Mann Ins. Co.,
200 W. Va. 609, 620, 490 S.E.2d 696, 707 (1997) (“[T]he trial court clearly informed the
jury that Appellees had the burden to prove it made a commercially reasonable offer of
insurance and that Appellants made a knowing and intelligent rejection of such insurance.”);
Riffle v. State Farm Mut. Auto. Ins. Co., 186 W. Va. 54, 55, 410 S.E.2d 413, 414 (1991) (“A
jury decided that the Riffles’ rejection of this coverage was not knowing and informed;
therefore, the trial court held State Farm liable under this Court’s decision in Bias v.
Nationwide Mut. Ins. Co., 179 W. Va. 125, 365 S.E.2d 789 (1987).”); Miller v. Hatton, 184
W. Va. 765, 768, 403 S.E.2d 782, 785 (1991) (“The appellants contend that Travelers did not
prove that there was an effective offer and a knowing and intelligent waiver by the insured
at the time the insurance was procured. . . . The appellants, however, presented no evidence
in opposition to Travelers’ explanation of the negotiations regarding underinsurance
coverage.”). See also Webb v. Shaffer, 694 F. Supp. 2d 497, 505 (S.D. W. Va. 2010)
(“Because the Court finds the required offer was commercially reasonable, the only
remaining issue presented is whether, when viewed in the light most favorable to the
plaintiff, there is a genuine issue of material fact with respect to whether Mr. Kilgore
knowingly and intelligently rejected such offer. The Court finds that there is not.”).

        The Bias issues are the central common questions in this litigation. The circuit court
totally ignored these substantive issues in order to certify a class on Thomas’ holding

                                             11

involving the loss of a presumption. The loss of the presumption under Thomas is a matter
that a trial court may resolve as a matter of law, i.e., it ordinarily would not be a jury
question.

        In view of the foregoing, the writ of prohibition prayed for is granted, and the trial
court is prohibited from enforcing its class certification order of July 13, 2016.

                                                                               Writ Granted.




ISSUED: February 13, 2017

CONCURRED IN BY:
Chief Justice Allen H. Loughry II
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Elizabeth D. Walker




                                             12

