Northern Indiana Public Service Co. v. Bolka, 46A04-9708-CV-344

Citation693 N.E.2d 613
Decision Date08 April 1998
Docket NumberNo. 46A04-9708-CV-344,46A04-9708-CV-344
PartiesNORTHERN INDIANA PUBLIC SERVICE COMPANY, an Indiana corporation, and NIPSCO Industries, Inc., an Indiana corporation, Appellants-Defendants, v. Scott A. BOLKA, on behalf of himself and all others similarly situated, Appellee-Plaintiff.
CourtCourt of Appeals of Indiana

KIRSCH, Judge.

Northern Indiana Public Service Co. and NIPSCO Industries, Inc. (NIPSCO) appeal from the class certification of a cause brought by Scott A. Bolka for damages allegedly caused by emissions from a NIPSCO power generating plant. NIPSCO challenges the trial court's findings that the requirements of Trial Rule 23(A) and (B) were met.

We affirm in part and reverse in part.


Scott A. Bolka is a boat owner who harbored his boat in Washington Park Marina in Michigan City, Indiana, near Michigan City Generating Station, one of NIPSCO's power generating plants. He claims that the plant produced harmful emissions that damaged his boat and required him to clean it more frequently than would otherwise be necessary. He observed the same types of damages to other boats in the same marina. He sought certification of his action on behalf of all owners of boats harbored in the marina. After a hearing, the trial court issued an order certifying the action. NIPSCO appeals.


Trial Rule 23(A) lists the threshold requirements for certification of a suit as a class action. It provides that a plaintiff may sue as a representative and on behalf of a class if the following four requirements are met: (1) the class is so numerous that joinder of all members is impracticable (numerosity); (2) there are questions of law or fact common to the class (commonality); (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality); and (4) the representative parties will fairly and adequately protect the interests of the class (adequacy.)

Trial Rule 23(B) provides that one of three additional requirements must also be met. Here, the trial court found that the requirements of both Trial Rule 23(B)(1) and (B)(3) were satisfied. Trial Rule 23(B)(1) requires the court to find either that the prosecution of actions by individual class members would create a risk of inconsistent verdicts establishing incompatible standards of conduct, or that adjudication of some claims individually would as a practical matter dispose of the claims of others not a party to the suit. Trial Rule 23(B)(3) requires that the court find that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. NIPSCO argues that the trial court improperly certified the class because three of the four Trial Rule 23(A) requirements and Trial Rule 23(B) were not satisfied.

The plaintiff has the burden of establishing that the Trial Rule 23 requirements have been met. McCart v. Chief Executive Officer in Charge, Independent Federal Credit Union, 652 N.E.2d 80 (Ind.Ct.App.1995), trans. denied (1996). The determination of whether an action is maintainable as a class action is committed to the sound discretion of the trial court. CSX Trans., Inc. v. Clark, 646 N.E.2d 1003 (Ind.Ct.App.1995). Thus, a trial court's ruling on class certification is reviewed employing an abuse of discretion standard. Heritage House of Salem, Inc. v. Bailey, 652 N.E.2d 69 (Ind.Ct.App.1995), trans. denied (1996). If substantial evidence supports the trial court's exercise of discretion, this court will affirm its order. ConAgra, Inc. v. Farrington, 635 N.E.2d 1137, 1139 (Ind.Ct.App.1994).

I. Numerosity under Trial Rule 23(A)(1)

First, NIPSCO argues that Bolka failed to prove that joinder of all potential plaintiffs was impracticable, as required by Trial Rule 23(A)(1). It argues that the only evidence Bolka presented was his complaint, which alleged that the number of potential plaintiffs was in excess of 125, which was "too numerous to allow" them to join the suit as co-plaintiffs, and his own testimony that he had observed at least one hundred boaters engaging in the same type of boat cleaning at the marina. Record at 8, 153.

The trial court found that "the vast number of leased slips ... are such that to join all of the said potential class members would be impracticable." Record at 110. NIPSCO argues that this conclusion has no evidentiary support and that the court improperly relied upon "common sense assumptions" without stating what those assumptions were. It argues that the identities of those who lease slips are readily available and that accepting Bolka's "inconvenience" and "hardship" arguments was an abuse of discretion. It contends that one hundred plus boaters is a sufficiently discrete number to proceed without class certification.

The determination of whether joinder is impracticable is not simply a test of numbers, but requires an examination of the specific facts and circumstances of each case. McCart, 652 N.E.2d at 83. Proponents of the class are not required to specify the identities or exact number of persons included in the proposed class, but they may not rely on conclusory allegations that joinder is impracticable or upon speculation as to the size of the class. Id. at 83. Instead, they must supply facts or demonstrate circumstances which provide support for a reasonable estimate of the number of class members. Id. at 83. A finding of numerosity may be supported by common sense assumptions. CSX Trans., Inc. v. Clark, 646 N.E.2d at 1007. Courts interpreting the identical provision of the federal rule have recognized that while numerosity analysis does not rest on a "magic" number, permissive joinder has been deemed impracticable where class members number forty or more. Chandler v. Southwest Jeep-Eagle, Inc., 162 F.R.D. 302 (N.D.Ill.1995). The numerosity inquiry requires the court to consider judicial economy and the ability of the class members to institute individual suits. Connerwood Healthcare, Inc. v. Estate of Herron, 683 N.E.2d 1322 (Ind.Ct.App.1997), trans. denied (1998).

The only evidence presented about the number of potential class members was Bolka's testimony that he observed "hundreds" of boats with damages similar to his own. NIPSCO does not dispute this number. Bolka's testimony was a reasonable estimate of the number of potential class members based on his own direct observation. It was not an abuse of discretion for the trial court, informed by common sense, to conclude that litigating a case involving over one hundred plaintiffs would be impracticable. The fact that the identities of the class members are ascertainable does not negate the availability of the class action as a vehicle to litigate their claims. See, e.g., Skalbania v. Simmons, 443 N.E.2d 352 (Ind.Ct.App.1982).

II. Commonality under Trial Rule 23(A)(2)

NIPSCO also takes issue with the trial court's determination that the commonality requirement of Trial Rule 23(A)(2) was met. The trial court concluded that the same course of conduct, the "consistent spewing of harmful emissions and coal dust," satisfied the commonality test of Trial Rule 23(A)(2). Record at 112. Commonality is satisfied by a finding that the plaintiffs' claims derived from a common nucleus of operative fact. Edward D. Jones & Co. v. Cole, 643 N.E.2d 402 (Ind.Ct.App.1994), trans. denied (1995). A common nucleus of operative fact exists where there is a common course of conduct. Id. at 405.

NIPSCO contends that no common issue is available for resolution in a manner which would alleviate the need for having separate jury consideration of each claim because it plans to raise defenses that create different questions of fact as to each boater. It will argue that each boater's activity is a proximate cause of his or her own damage in either "coming to the nuisance" or "incurring the risk" of harboring his boat near the NIPSCO power plant. Thus, legal liability will not be decided solely based on whether there are harmful emissions from NIPSCO's plant, but will depend upon the factual determinations inherent in NIPSCO's defenses. NIPSCO contends that the trial court failed to recognize the need for individual determinations regarding NIPSCO's affirmative defenses. It argues that the trial court's certification order effectively denies NIPSCO its statutory right to make the activities of the boaters part of the consideration for fault and nuisance.

NIPSCO also argues that even if Bolka and other boaters have negligence claims, they are unsuitable for class determination because Indiana's Comparative Fault Act requires the fact finder to determine the relative degree of each plaintiff's fault in causing his damages. This determination will necessarily be unique to each individual. Involved in this analysis will be the unique facts surrounding the history of each boat, i.e., the location of the boat, the amount of exposure, and the type of preventive care and maintenance it received. NIPSCO contends that because these variables would prevent a jury from allocating the same degree of fault among all of the members of the class, there is no common issue of liability.

In spite of these potential differences, however, there was one common course of conduct: harmful emissions from NIPSCO's plant which impacted on each of the class members. The fact that each boater may have a different degree of damage does not negate the commonality component. Individual questions do not prevent a class action on the common questions. Bank One, Indianapolis, N.A. v. Norton, 557 N.E.2d 1038, 1042 (Ind.Ct.App.1990). As...

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