“Regulating the business of insurance is clearly within the duties of the separate states”
How later courts described this case
- “Regulating the business of insurance is clearly within the duties of the separate states”
- J. Wolff concurringXdiscussing notice in context of class action, stating notice by publication should be by publications that class members are likely to actually read. Judge Wolff, quoting the Manual for Complex Litigation, 9 observed that: “[financial and legal journals or sections of newspapers, while useful to a degree, are not likely to be read by many members of the general public.” He further noted that geographical considerations become paramount when determining what media are appropriate for notice by publication.
Written by the judges who cited it.
The opinion
RICHARD B. TEITELMAN, Judge,
dissenting.
I respectfully dissent.
The principal opinion limits this class action to Missouri policyholders because of the differences in state laws to be applied to class members in the various states. Analysis of this question is appropriate, as section 507.070.1(3) requires that a class action involve “a common question of law or fact affecting the several rights and a common relief is sought.” See Phillips Petroleum v. Shutts, 472 U.S. 797, 821 , 105 S.Ct. 2965 , 86 L.Ed.2d 628 (1985).
However, section 507.070.1(3) does not require that all questions of law or fact be common. As the leading treatise on class actions' notes, there need be only a single issue common to all members of the class. Newberg on Class Actions, sec. 3:10, 272-274. The mere “existence of state law variations is not alone sufficient to preclude class certification.” Newberg on Class Actions, sec. 4:25, 163. Here, as the trial court found, there will likely be a single predominant issue of breach of contract common to policyholders in all fourteen states. Possible violations of additional state insurance laws or regulations do not deprive this class of commonality.
Moreover, American Family seeks a writ of prohibition. “Prohibition is a discretionary writ, and there is no right to have the writ issued. Prohibition will lie only to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional *497 power.” State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 856-57 (Mo. banc 2001) (citations omitted). Interlocutory review of trial court error by writ of prohibition “should occur only in extraordinary circumstances.” State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 577 (Mo. banc 1994). “If the error is one of law, and reviewable on appeal, a writ of prohibition is not appropriate.” Id.
The State of Missouri has trial judges of the finest character, steeped in a tradition of both justice and discretion. Our trial judges do not lightly undertake rulings such as the class certification in this case, and there was no quick ruling here. The trial court certified the class only after exhaustive analysis of the potential claims and variations of the laws of the fourteen states. In an eight-day hearing, the trial court heard the testimony of seventeen witnesses and viewed hundreds of exhibits. The trial court concluded that this case is fundamentally a simple claim for breach of contract — law that is universal to all fourteen states. The trial court decided that the various nuanced differences among the fourteen states would not be determinative — that they presented false conflicts. A decision as to what question of law or fact will ultimately predominate is a difficult one — and one appropriately left within the discretion of the trial court. This Court is not yet reviewing a full record. The plaintiffs in this class action may prevail or fail according to a question of law or fact common to the fourteen states, or not, but that result is far from clear at this early stage.
“The trial court abuses discretion if its order is clearly against the logic of the circumstances, is arbitrary and unreasonable, and indicates a lack of careful consideration.” State ex rel. Ford Motor v. Messina, 71 S.W.3d 602, 607 (Mo. banc 2002). This is far from such a case.
There is no compelling reason why this issue cannot be raised on direct appeal with a great deal more clarity.
The certification of this multi-state class action serves the purposes of section 507.070, by avoiding an impracticable volume of cases. The repetition of this claim in thirteen more states will hardly conserve the resources of the parties or the judiciary.
I would quash the writ.