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Sitton v. State Farm Mutual Automobile Insurance Co.2/18/2003
her, State Farm contends the requirements of CR 23(b) are not satisfied.
B. CR 23(b)(1)(A) & (b)(2). State Farm argues that certification is inappropriate under either (b)(1) or (b)(2), because the primary objective of the suit is monetary damages. State Farm is correct.
Classes certified under CR 23(b)(1) are designed to avoid prejudice to the defendant or absent class members. Certification under subsection (b)(2) is appropriate when injunctive or declaratory relief is requested, and when the defendant has acted or refused to act or failed to perform a legal duty on grounds generally applicable to the class. Classes certified under subsections (b)(1) and (b)(2) are 'mandatory' classes; that is, the results are binding on all class members, who may not choose to opt out of the class. Notice to class members under these subsections is left to the trial court's discretion. Mandatory class members thus may be deprived of their rights to notice and an opportunity to control their own litigation. For these reasons, when plaintiffs are seeking monetary damages, certification under (b)(1) or (b)(2) violates due process unless the monetary damages sought are merely 'incidental to the primary claim for injunctive or declaratory relief.'
Incidental damages are those ''that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.'' Such damages are really a group remedy, rather than an individual one:
Ideally, incidental damages should be only those to which class members automatically would be entitled once liability to the class (or subclass) as a whole is established. . . . Moreover, such damages should at least be capable of computation by means of objective standards and not dependent in any significant way on the intangible, subjective differences of each class member's circumstances. Liability for incidental damages should not require additional hearings to resolve the disparate merits of each individual's case; it should neither introduce new and substantial legal or factual issues, nor entail complex individualized determinations.
Here, plaintiffs seek group remedies in the form of an order enjoining State Farm to pay valid PIP claims, and various declarations of the rights of policy holders. But these remedies follow only if their contract and tort theories succeed, and on those theories they seek individual monetary damages, which will require individualized determinations about each class member's circumstances. These damages are not incidental. The class members are thus not afforded sufficient due process protections by CR 23(b)(1) and (b)(2), and class certification under these subsections was improper.
This error is not alleviated by later certification under CR 23(b)(3), with its full panoply of due process protections, because the court certified all claims under all three subsections. As a result, a class member who elects to opt out under CR 23(b)(3) remains bound by the CR 23(b)(1) and (b)(2) certification, but the parameters of the CR 23(b)(1) and (b)(2) certifications are unclear. It is not impossible that an action merits certification under all three sections of the rule, but it is surely rare, and such occasions require a more definite and clear order than that entered here. And ordinarily, these bases for certification should not be combined.
C. CR 23(b)(3). Class certification is appropriate under CR 23(b)(3), the most comprehensive type of class, if common questions of fact or law predominate over individual ones and a class action is superior to other available methods of adjudication. State Farm argues that common questions do not pred
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