Oubre v. Louisiana Citizens Fair Plan

• Decision Date: 29 May 2007
• Docket Number: No. 07-CA-66.,07-CA-66.
• Citation: 961 So.2d 504
• Parties: Geraldine OUBRE and Linda Gentry on their behalf, as well as others, similarly situated v. LOUISIANA CITIZENS FAIR PLAN.
• Court: Court of Appeal of Louisiana — District of US

961 So.2d 504

Geraldine OUBRE and Linda Gentry on their behalf, as well as others, similarly situated v. LOUISIANA CITIZENS FAIR PLAN.

No. 07-CA-66.

Court of Appeal of Louisiana, Fifth Circuit.

May 29, 2007.

Desiree M. Charbonnet, Bernard Charbonet, Attorneys at Law, Madro Bandaries, Attorney at Law, New Orleans, Louisiana, Anna E. Dow, Attorney at Law, Gonzales, Louisiana, Steven M. Mauterer, Attorney at Law, Gretna, Louisiana, for Plaintiff/Appellee.

John W. Waters, Jr., David E. Walle, Gregory J. McDonald, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appellant.

Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and GREG G. GUIDRY.

ROTHSCHILD, Judge.

Defendant, Louisiana Citizens Property Insurance Corporation ("Citizens"), also referred to as Louisiana Citizens Fair Plan, appeals from a judgment of the trial court granting plaintiffs' Motion for Class Certification. For the following reasons, we affirm the decision of the trial court.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Geraldine Oubre and Linda Gentry, filed this lawsuit on November 18, 2005 on their own behalf and on behalf of others similarly situated.¹ Plaintiffs were insureds of Citizens on August 29, 2005 when Hurricane Katrina hit the Gulf Coast and/or on September 24, 2005 when Hurricane Rita struck. In this lawsuit, plaintiffs allege that they suffered damages to their property after Katrina and/or Rita and they notified Citizens of their losses, but Citizens failed to comply with its statutory duty under LSA-R.S. 22:658(A)(3) to initiate loss adjustment in a timely and adequate manner.² Therefore, plaintiffs contend that Citizens is liable for statutory penalties provided in LSA-R.S. 22:1220.

On December 21, 2005, plaintiffs filed a motion to certify this action as a class action, pursuant to LSA-C.C.P. art. 592. A hearing on the class certification issue was held over several days.³ At the conclusion of the hearing on July 13, 2006, the trial judge gave the parties additional time to submit post-hearing memoranda and thereafter, he took the matter under advisement.

On July 11, 2006, the trial judge rendered a judgment granting plaintiffs' motion for class certification. On July 17, 2006, the trial judge rendered a supplemental and amended judgment in which he defined the class as follows:

All present or past insureds of Louisiana Citizens Property Insurance Corporation a/k/a LOUISIANA CITIZENS FAIR PLAN, hereinafter referred to as "LCPIC", who, on or after August 29, 2005, provided notification of loss resulting from Hurricanes Katrina and/or Rita to LCPIC, and whose loss adjustment was not initiated within thirty (30) days after notification of loss.

In this judgment, the trial judge further decreed that Linda Gentry, Geraldine Oubre, Susan Hano, Sylvia Randolph, and John Macera, II would serve as the class representatives. The trial judge issued written reasons for judgment on August 8, 2006. On July 21, 2006, Citizens filed a motion for new trial, which was denied by the trial court. Citizens appeals the trial court's judgment certifying this matter as a class action.

LAW AND DISCUSSION

In Louisiana, the class action certification procedure is governed by LSA-C.C.P. art. 591, which provides as follows:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:

(1) The class is so numerous that joinder of all members is impracticable.

(2) There are questions of law or fact common to the class.

(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.

(4) The representative parties will fairly and adequately protect the interests of the class.

(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.

B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:

(1) The prosecution of separate actions by or against individual members of the class would create a risk of:

(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) The court finds 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. The matters pertinent to these findings include:

(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;

(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

(c) The desirability or undesirability of concentrating the litigation in the particular forum;

(d) The difficulties likely to be encountered in the management of a class action;

(e) The practical ability of individual class members to pursue their claims without class certification;

(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or

(4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.

C. Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class. However, following certification, the court shall retain jurisdiction over claims or defenses dependent for their resolution on proof individual to a member of the class.

In order to obtain class certification, a plaintiff must meet all of the requirements of LSA-C.C.P. art. 591(A) and also satisfy one of the subsections of art. 591(B). Daniels v. Witco Corp., 03-1478 (La.App. 5 Cir. 6/1/04), 877 So.2d 1011, 1014, writ denied, 04-2287 (La.11/19/04), 888 So.2d 205. The burden of establishing that the statutory criteria are met falls on the party seeking to maintain the action as a class action. Id.

The standard of review for class action certifications is bifurcated. The factual findings are reviewed under the manifest error/clearly wrong standard, but the trial court's judgment on whether or not to certify the class is reviewed by the abuse of discretion standard. Etter v. Hibernia Corporation, 06-646 (La.App. 4 Cir. 2/14/07), 952 So.2d 782; Boudreaux v. State, Dep't of Transp. and Dev., 96-0137 (La.App. 1 Cir. 2/14/97), 690 So.2d 114, 119. A trial court has wide discretion in deciding whether or not to certify a class. Daniels v. Witco Corp., supra; Eastin v. Entergy, 97-1094 (La.App. 5 Cir. 4/15/98), 710 So.2d 835, 838. Any errors to be made in deciding class action issues should be in favor of and not against maintenance of the class action, because a class certification order is subject to modification if later developments during the course of trial so require. Johnson v. E.I. Dupont deNemours and Co., Inc., 98-229 (La.App. 5 Cir. 10/14/98), 721 So.2d 41; McCastle v. Rollins Environmental Services of Louisiana, Inc., 456 So.2d 612, 620 (La.1984).

When reviewing the trial court's ruling regarding class certification, we do not consider whether plaintiffs' claims state a cause of action or have substantive merit, or whether plaintiffs will ultimately prevail on the merits. Schexnayder v. Entergy Louisiana, Inc., 04-636 (La.App. 5 Cir. 3/29/05), 899 So.2d 107, 113, writ denied, 05-1255 (La.12/9/05), 916 So.2d 1058. Rather, our task is to examine plaintiffs' legal claims and to determine only whether a class action is the appropriate procedural device in light of established Louisiana criteria. Id.

In the instant case, the trial judge found that plaintiffs' claims meet all of the criteria set forth in LSA-C.C.P. art. 591(A), namely numerosity, commonality, typicality, adequacy of representation, and an objectively definable class. The trial judge also found that the elements of predominance and superiority set forth in LSA-C.C.P. art. 592(B)(3) have been satisfied. On appeal, Citizens contends that the trial judge abused his discretion and was manifestly erroneous in certifying this case as a class action, and it asserts several arguments in support of its position.

Citizens argues that the trial judge erred in finding that "the class certification requirement of commonality (common questions of law and fact predominate over individual issues for purposes of class certification) has been met under La. C.C.P. art. 591(B)(3)." Citizens further argues that the trial court erred in failing to identify specific issues that could be tried class-wide and in failing to consider the many individual issues not subject to common evidence. It contends that each plaintiff's claim must be reviewed on a case-by-case basis to determine whether loss adjustment was initiated in a timely fashion. Citizens further asserts that in Defraites v. State Farm Mut. Auto. Ins. Co., 03-1081 (La.App. 5 Cir. 1/27/04), 864 So.2d 254, writ denied, 04-460 (La.4/29/05), 869 So.2d 832, this Court rejected class...