Baldwin Mut. Ins. Co. v. McCain

• Court: Alabama Supreme Court
• Writing for the Court: MENDHEIM, Justice.
• Citation: Baldwin Mut. Ins. Co. v. McCain, 260 So. 3d 801 (Ala. 2018)
• Decision Date: 23 March 2018
• Docket Number: 1160093
• Parties: BALDWIN MUTUAL INSURANCE COMPANY v. Gloria Mitchell MCCAIN

260 So.3d 801

BALDWIN MUTUAL INSURANCE COMPANY

v.Gloria Mitchell MCCAIN

1160093

Supreme Court of Alabama.

March 23, 2018

Louis M. Calligas of Balch and Bingham LLP, Montgomery, for appellant.

Earl P. Underwood, Jr., of Underwood & Riemer, P.C., Fairhope; Kenneth J. Riemer, of Underwood & Riemer, Mobile; and Michael G. Strickland of Strickland & Kendall, LLC, Montgomery, for appellee.

MENDHEIM, Justice.

Baldwin Mutual Insurance Company ("Baldwin Mutual") appeals from an order of the Montgomery Circuit Court certifying for class treatment pursuant to Rule 23, Ala. R. Civ. P., an action filed against it by Gloria Mitchell McCain. We reverse and remand.

I. Facts

This is the second time this action has been before us. In Baldwin Mutual Insurance Co. v. McCain, 176 So.3d 1195 (Ala. 2015) (" Baldwin Mutual I"), we summarized the relevant facts as follows:

"At all relevant times, McCain owned a house in Montgomery upon which she held a homeowner's insurance policy issued by Baldwin Mutual. That policy provided that any covered property losses would be settled ‘at actual cash value at the time of loss but not exceeding the amount necessary to repair or replace the damaged property.’ The policy further explained ‘actual cash value’ as follows:

" ‘Actual cash value is calculated as the amount it would cost to repair or replace covered property, at the time of loss or damage, with material of like kind and quality, subject to a deduction for deterioration, depreciation and obsolescence. Actual cash value applies to valuation of covered property regardless of whether that property has sustained partial or total loss or damage.

" ‘The actual cash value of the lost or damaged property may be significantly less than its replacement cost.’

"In July 2005, McCain's house was damaged as the result of a windstorm. She filed a claim with Baldwin Mutual, and Baldwin Mutual thereafter retained an independent adjuster to examine McCain's damaged property and to prepare an estimate to repair the damage. Baldwin Mutual paid McCain's claim in accordance with the estimate prepared by the adjuster. Pursuant to a work-authorization form signed by McCain, Baldwin Mutual paid the funds directly to McCain's contractor. In June 2006, McCain filed another claim after her house suffered damage as a result of a lightning strike. After the same adjuster prepared an estimate, Baldwin Mutual paid the new claim in accordance with the adjuster's estimate. The record contains no allegation or evidence indicating that McCain sought more money from Baldwin Mutual in connection with those claims or that she was unhappy in any way with the service provided by Baldwin Mutual on those claims before she initiated this lawsuit.

"On September 29, 2010, McCain filed a complaint against Baldwin Mutual. As subsequently amended, the complaint stated one claim of breach of contract and another claim generally asserting misrepresentation and suppression of material facts. The genesis of the claims is that Baldwin Mutual had wrongfully been reducing the amount paid on claims made on actual-cash-value policies inasmuch as its practice was to deduct some amount for depreciation not only of the damaged materials and the labor costs of initially installing those damaged materials (based on their condition prior to the covered damage and their expected life span), but also of the labor costs associated with the removal of the damaged materials. It is improper and impossible to depreciate those labor costs, McCain argues, because they had not previously been incurred at some defined time in the past; rather, they are being incurred at the time of the current repair. For example, with regard to McCain's July 2005 claim, Baldwin Mutual recognized that the cost of removing damaged roof shingles was $420; however, $63 in depreciation was deducted from that amount, and Baldwin Mutual paid only $357 for that job, what it considered to be the actual cash value. See generally Branch v. Farmers Ins. Co., 55 P.3d 1023, 1028 (Okla. 2002) (clarifying that under Oklahoma law ‘labor costs to tear off an old roof are not included as a necessary part of the replacement costs of installing a new roof’ and that ‘the labor costs in debris removal may not be depreciated’). Noting that hundreds or thousands of Baldwin Mutual policyholders were likely negatively affected by Baldwin Mutual's practices in this regard, McCain also sought class-action certification of her claims...."

176 So.3d at 1195–96 (footnote omitted).

The trial court in Baldwin Mutual I certified a class based on McCain's claims, and Baldwin Mutual appealed the certification order. This Court reversed the trial court's certification order because "the class definition proposed by McCain in her brief submitted after the class-certification hearing was materially different from the class definition offered by McCain in her original complaint." 176 So.3d at 1199. We noted that the trial court failed to give "Baldwin Mutual the opportunity to oppose the certification of the proposed class at a hearing conducted for that purpose pursuant to § 6–5–641[, Ala. Code 1975]," 176 So.3d at 1199, and we pretermitted "consideration of the Rule 23 issues raised by Baldwin Mutual." 176 So.3d at 1198. We remanded the case for further proceedings.

Upon remand, and with leave from the trial court, McCain filed on October 11, 2015, a second amended complaint that retained the allegations in her first amended complaint and amended the definition of the proposed class. On October 20, 2015, Baldwin Mutual answered the second amended complaint. Following further discovery, McCain on April 28, 2016, filed a motion for class certification along with a supporting brief and exhibits. On May 5, 2016, with leave of the trial court, McCain filed her third amended complaint, which corrected an error in the class definition but otherwise retained the allegations of the second amended complaint.

On May 27, 2016, Baldwin Mutual filed a motion for a summary judgment. Baldwin Mutual contended that McCain's claims were barred by the doctrine of res judicata based on a final judgment entered by the Calhoun Circuit Court in Baldwin Mutual Insurance Co. v. Adair, CV–2011–000002 ("the Adair litigation"), which allegedly involved the same claims and same parties. See Baldwin Mut. Ins. Co. v. Adair, 181 So.3d 1033 (Ala. 2014) (addressing an appeal from an order modifying a preliminary injunction entered in the Adair litigation). On the same date, Baldwin Mutual filed a response in opposition to the motion for class certification, along with a brief and evidentiary submissions. In that brief, Baldwin Mutual argued that class certification should be denied because, it said, McCain failed to meet the requirements of a proper class representative, specifically that McCain could not "establish Rule 23(a) typicality and adequacy" because "McCain's breach of contract claim is subject to a unique defense—res judicata." On July 15, 2016, McCain filed responses to Baldwin Mutual's motion for a summary judgment and to its response in opposition to her motion for class certification. On July 21, 2016, the trial court held a hearing on the motion for class certification and the motion for a summary judgment.

On September 21, 2016, the trial court entered an order denying Baldwin Mutual's motion for a summary judgment. On October 18, 2016, the trial court entered an order certifying McCain's purported class pursuant to Rule 23(a) and Rule 23(b)(3). The order defined the class as follows:

"(1) All current and former Baldwin Mutual insureds;

"(2) who are citizens of the State of Alabama;

"(3) who in the six years preceding the Complaint suffered a covered loss to property situated within the State of Alabama;

"(4) where the damage estimate for such loss prepared by Baldwin Mutual or their adjusters did not include as a separate item cost for ‘removal’ of damaged building components, and/or depreciated the cost of labor for removal to a lesser amount;

"(5) where calculation of the loss was based on either replacement cost or actual cash value; and

"(6) where the payment for such loss was made to the insured or directly to a contractor."

Baldwin Mutual filed a timely appeal of the class-certification order pursuant to § 6–5–642, Ala. Code 1975.

II. Standard of Review

" ‘This Court applies an abuse-of-discretion standard of review to a trial court's class-certification order, but we will review de novo the question whether the trial court applied the correct legal standard in reaching its decision to certify a class....

" ‘If the [plaintiffs] fail to meet the evidentiary burden as required by Rule 23, [Ala. R. Civ. P.,] then the order certifying the ... class[ ] constitutes an abuse of discretion by the trial court.... The [plaintiffs] must establish all of the criteria set forth in Rule 23(a), Ala. R. Civ. P., and one of the criteria set forth in Rule 23(b).’ "

Wyeth, Inc. v. Blue Cross & Blue Shield of Alabama, 42 So.3d 1216, 1218–19 (Ala. 2010) (quoting Smart Prof'l Photocopy Corp. v. Childers–Sims, 850 So.2d 1245, 1248–49 (Ala. 2002) ).

III. Analysis

Baldwin Mutual presents several arguments as to why it believes the trial court erred in certifying McCain's class action. Its first argument is that McCain's underlying breach-of-contract claims are barred by the doctrine of res judicata because of the final judgment in the Adair litigation and that, therefore, the class-certification order must be reversed. Understanding this argument and McCain's response to it requires some background with regard to the Adair litigation.

As noted above, the Adair litigation also has been before this Court previously. In our opinion in Adair, we related the facts in that litigation, in part, as follows:

"On December 2, 2010, [Baldwin Mutual] filed an ‘Application for Temporary Restraining Order, Motion for a Preliminary Injunction and Complaint for Declaratory Judgment’ (‘the complaint’) in the Baldwin Circuit Court against

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