National Gypsum Co. v. Kirbyville Independent School Dist., 09-88-330

• Decision Date: 27 April 1989
• Docket Number: No. 09-88-330,09-88-330
• Citation: 770 S.W.2d 621
• Parties: 53 Ed. Law Rep. 1317 NATIONAL GYPSUM COMPANY, Appellant, v. KIRBYVILLE INDEPENDENT SCHOOL DISTRICT, et al., Appellees. CV.
• Court: Texas Court of Appeals

Page 621

770 S.W.2d 621

53 Ed. Law Rep. 1317

NATIONAL GYPSUM COMPANY, Appellant, v. KIRBYVILLE INDEPENDENT SCHOOL DISTRICT, et al., Appellees.

No. 09-88-330 CV.

Court of Appeals of Texas Beaumont.

April 27, 1989.

As Corrected May 1, 1989.

Rehearing Denied May 18, 1989.

Cynthia Hollingsworth, Dallas, A.W. Davis, Jr., Newton, Kevan F. Hirsch, Philadelphia, Pa., Curtis L. Frisbie, Jr., Dallas, for appellant.

Martin Dies, Orange, Richard C. Hile, Jasper, for appellees.

OPINION

PER CURIAM.

This is an interlocutory appeal of an order determining that this asbestos-in-buildings case should be maintained as a class action under Rule 42 of the Texas Rules of Civil Procedure on behalf of certain Texas school districts, Appellees, against the National Gypsum Company, Appellant. The school districts are:

1. Abilene Independent School District

2. Albany Independent School District

3. Alice Independent School District

4. Amarillo Independent School District

5. Angleton Independent School District

6. Arkansas Cty. Independent School District

7. Arlington Independent School District

8. Austin Independent School District

9. Banquet Independent School District

10. Bastrop Independent School District

11. Beaumont Independent School District

12. Birdville Independent School District

13. Boerne Independent School District

14. Bridge City Independent School District

15. Brownfield Consolidated Independent School District

16. Burleson Independent School District

17. China Spring Independent School District

18. Clear Creek Independent School District

19. Columbia Brazoria Independent School District 20. Connally Independent School District

21. Corpus Christi Independent School District

22. Corsicana Independent School District

23. Crockett Independent School District

24. Dallas Independent School District

25. Dayton Independent School District

26. Deer Park Independent School District

27. East Chambers County Independent School District

28. Ector County Independent School District

29. Fort Worth Independent School District

30. Fort Sam Houston Independent School District

31. Friendswood Independent School District

32. Galena Park Independent School District

33. Goose Creek Independent School District

34. Harlandale Independent School District

35. Hitchcock Independent School District

36. Houston Independent School District

37. Huffman Independent School District

38. Hurst-Euless-Bedford Independent School District

39. Irving Independent School District

40. Jourdanton Independent School District

41. La Feria Independent School District

42. La Grange Independent School District

43. Lamar Consolidated Independent School District

44. Lubbock Independent School District

45. Lufkin Independent School District

46. Meadow Independent School District

47. Mesquite Independent School District

48. Midland Independent School District

49. Needville Independent School District

50. North East Independent School District

51. North Forest Independent School District

52. Pasadena Independent School District

53. Plemons-Stinett-Phillips Consolidated Independent School District

54. Port Arthur Independent School District

55. Richardson Independent School District

56. Riesel Independent School District

57. San Antonio Independent School District

58. San Marcos Independent School District

59. Sequin Independent School District

60. Snyder Independent School District

61. South San Antonio Independent School District

62. Southwest Independent School District

63. Spring Branch Independent School District

64. Waco Independent School District

65. West Oso Independent School District

66. West Rusk County Independent School District

The order certifying the class action by the trial court follows:

"In The District Court of Jasper County State Of Texas

Kirbyville Independent

School District, et al

vs.

National Gypsum Company

Cause No. 12,301

"ORDER

"This is an action for property damage brought by Kirbyville Independent School District ("Kirbyville") against National Gypsum Company ("National Gypsum") wherein Kirbyville asserts that it has sustained property damages as a result of the installation of asbestos-containing ceiling material within its buildings. Kirbyville alleges that the presence of the asbestos-containing ceiling and fireproofing material in its building constitutes a potential health hazard which requires its removal.

"Kirbyville brings this suit in its individual capacity and as a representative of approximately 300 public independent school districts in Texas or in the alternative, 66 named independent school districts, each of which has opted-out of the In Re: School Asbestos Litigation, Master File No. 83-0268 ('National Class Action'), and whose buildings allegedly contain asbestos-containing material manufactured by National Gypsum. The case is presently before the Court on Kirbyville's motion for class certification.

"The Court having considered Kirbyville's motions to certify class, the facts and material introduced, briefs of the parties, and argument of counsel at the hearing held on May 6, 1988 finds that Kirbyville has met the requirements of Rule 42(a) and (b)(4) of the Texas Rules of Civil Procedure, and that a class composed of 66 named school [sic] independent school districts should be certified. ¹

"NUMEROSITY

"Kirbyville's proposed class meets the requirement of numerosity. This determination is not based on numbers alone, however, but on whether joinder of all members is practicable in view of the size of the class and such other factors as judicial economy, the nature of the action, geographical location of class members and the likelihood that class members would be unable to prosecute individual lawsuits. See Philips [Phillips] v. Joint Legislative Committee, 637 F.2d 1014, 1022 (5th Cir.1981), cert. denied, 456 U.S. 960, 102 S.Ct. 2035, 72 L.Ed.2d 483 (1982); Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1038 (5th Cir.1981). ² The size of the proposed class, as well as National Gypsum's actions in this case, points out the impracticability of joinder. Moreover, consideration of the other factors, especially judicial economy and the nature of this particular action, makes this litigation an ideal candidate for class certification.

"COMMONALITY

"National Gypsum does not dispute that there are questions of fact and law common to all members of the class. Its disagreement concerns the significance of those issues. The Court finds that the following common issues exist:

"(1) the health hazard of asbestos, and the potential hazard posed to building occupants from asbestos-containing materials during conditions of normal use;

"(2) Defendant's knowledge of the danger;

"(3) Defendant's failure to warn or test;

"(4) Defendant's participation in a conspiracy in the formation of or an adherence to industry-wide practices; and

"(5) Defendant's conduct justifying the imposition of punitive damages.

The first four of these issues have been identified as common issues by other courts in considering motions to certify class composed of similarly situated school districts. See In Re: School Asbestos Litigation, 789 F.2d 996, 1000 (3d Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986); Board of Educ. of the School Distr. of the City of Detroit v. The Celotex Corp., et al, No. 84-429634-NP (Wayne County, Mich., Cir.Ct.1985).

"TYPICALITY

"The Court finds that the claims and defenses of Kirbyville have the same essential characteristics as those of the class. Wiggins, 743 S.W.2d at 334. National Gypsum asserts that the differences in numbers of buildings in school districts, the dates of construction, the condition of the material, the type of product installed, the variations, types and uses of classrooms, each suggest that claims of the school districts are not typical. However, it is apparent that these individual issues are not critical to the resolution of the common issues found by the Court, which essentially concern National Gypsum's conduct and liability. As National Gypsum noted in its Brief in In Re: Asbestos Litigation:

" '[W]ith respect to these common issues [those enumerated in the National Class Action], the facts and defenses available to the claim of any one plaintiff are equally applicable to the claims of the others,.... For this reason, the issues are eminently suitable for disposition through Rule 23 certification pursuant to subparagraph (b)(2) and (c)(4)(A). Brief of National Gypsum, In Re: Asbestos School Litigation, p. 22, 3d Cir.1985.'

"Furthermore, the claims need not be identical, but only 'substantially similar.' Wiggins, 743 S.W.2d at 335. In this case, Kirbyville's claims are virtually identical to those of the class members. In fact, the class members have the same legal claims against National Gypsum, arising from the same factual circumstances. See In Re: Asbestos School Litigation, 104 F.R.D. 422, 430 (E.D.Pa.1984), aff'd, 789 F.2d 996 (3d Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986). Clearly, Kirbyville has met its burden of establishing typicality under Rule 42(a)(3).

"ADEQUACY OF REPRESENTATION

"There is no antagonism between Kirbyville and other class members, nor does the evidence support the finding that Kirbyville will not vigorously defend the class members' interest. See Wiggins, 743 S.W.2d at 335. Rather, the Court concludes that Kirbyville will fairly and adequately protect the interest of the class.

"National Gypsum also argues that the length of time during which Plaintiff's Motion to Certify Class has been pending establishes that Kirbyville will not adequately represent the class members' interest. However, it appears that any attempt by Kirbyville to proceed with certification of this class until the opt-out date provided for in National Class Action had passed would have been premature, if not futile.

"PREDOMINANCE OF COMMON ISSUES

"While, as...