Swiger v. United Valley Ins. Co., 15-0596
| Decision Date | 17 June 2016 |
| Docket Number | No. 15-0596,15-0596 |
| Court | West Virginia Supreme Court |
| Parties | Samuel J. Swiger and Brenda F. Swiger, individually, and as next friend of Joseph S. Swiger, an infant, all individually, and as representatives of the class of other similarly situated individuals, Plaintiffs Below, Petitioners, v. United Valley Insurance Company, a foreign corporation doing business in West Virginia, UGI Corporation, a foreign corporation doing business in West Virginia, Lon R. Greenberg, Euguene Van Name Bissell, R. Paul Grady, Crawford & Company, a corporation doing business in West Virginia, a/k/a Crawford & Company Insurance Adjusters, Inc., Mark P. Griffith, Daniel W. Hoover, individuals, Associated Electric & Gas Insurance Services, Ltd. (AEGIS), National Union Fire Insurance Company of Pittsburgh, Energy Insurance Mutual, Ltd., Starr Excess Liability Insurance Company, Ltd., and American International Group, Inc., Defendants Below, Respondents |
Petitioners and plaintiffs below, Samuel J. Swiger and Brenda F. Swiger, individually, and as next friend of Joseph S. Swiger, an infant, individually, and as representatives of the class of other similarly situated individuals, by counsel David J. Romano, appeal the May 18, 2015, order of the Circuit Court of Harrison County that denied their motion to add additional parties as named class representatives and motion to amend or modify the circuit court's previous order denying petitioners' motion to certify a class. Respondents and defendants below, United Valley Insurance Company, UGI Corporation, Lon R. Greenberg, Euguene Van Name Bissell, R. Paul Grady, by counsel James A. Varner, Sr., James N. Riley, and Debra Tedeschi Varner; Crawford & Company, a/k/a Crawford & Company Insurance Adjusters, Inc., Mark P. Griffith, Daniel W. Hoover, by counsel Richard J. Bolen, and Melissa Dodd Veltri; Associated Electric & Gas Insurance Services, Ltd. (AEGIS), Energy Insurance Mutual, Ltd., by counsel Jonathan L. Anderson; National Union Fire Insurance Company of Pittsburgh, Starr Excess Liability Insurance Company, Ltd., and American International Group, Inc., by counsel John H. Tinney, Jr. and John K. Cecil, filed a response. Petitioners submitted a reply.
This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.
Monongalia County Action
On October 20, 1996, an explosion and resulting fire occurred at the home of Petitioners Samuel and Brenda Swiger ("the Swigers"), causing property damage and personal injuries to Petitioner Samuel Swiger and the Swigers' infant son. The Swigers filed a complaint against AmeriGas Propane ("AmeriGas"), a subsidiary of Respondent UGI Corporation ("UGI"), in the Circuit Court of Monongalia County, alleging that AmeriGas had improperly installed an underground liquid propane gas line at too shallow a depth on the Swigers' property. The propane line was breached, causing gas to leak into the home, and ignite.
The Swigers's complaint also included class action allegations. The purported class consisted of others in West Virginia who had underground propane gas lines installed by AmeriGas and for whom the Swigers' sought reinstallment or replacement of the propane lines to an appropriate depth, in accordance with national fire code regulations. Other than the Swigers, none of the members of the purported class had suffered any personal injury or property damage. By order entered October 21, 1999, the circuit court granted class certification.
Thereafter, in 2001, the Swigers settled their individual claims for $210,000, and the settlement was approved by the circuit court in 2003. As part of the dismissal of the individual claims, it was agreed that the Swigers could remain as the named class representatives with respect to any class claims that they may be deemed to possess, but that any award the Swigers may receive for any class claim would be limited to nominal damages of no more than $100.
A settlement agreement was reached in or around December of 2010, defining the settlement class, in essence, as those who had an AmeriGas propane system on their property in West Virginia. The settlement class did not include anyone who had suffered damages as a result of any fire, explosion, or other similar catastrophe, nor did it include any property damage or personal injury claims from an explosion or fire cause by AmeriGas propane systems. Furthermore, the settlement agreement did not release AmeriGas from liability for personal injury or property damage claims that might be asserted by any member of the settlement class due to any explosion, fire, or other calamity involving a member's propane system.
By order entered August 12, 2011, the circuit court gave final certification and approval of the settlement class, which was thereafter administered pursuant to their classification in six categories.
On October 23, 2002, and February 16, 2005, the Swigers filed complaints on their own behalf and in the instant action, respectively, in the Circuit Court of Harrison County. The cases were consolidated by order entered April 27, 2006. The Swigers's primary claim is that the insurance company respondents violated the West Virginia Unfair Trade practices Act ("UTPA") by failing to investigate or properly adjust the Monongalia County class members' claims. The Swigers further asserted claims of negligence, civil conspiracy, violation of the Unauthorized Insurers Act, and intentional conduct for the alleged failure of AmeriGas to disclose insurance information to the class members in the Monongalia County action.
On July 25, 2013, the Swigers filed a motion to certify the present case as a class action pursuant to Rule 23 of the West Virginia Rules of Civil Procedure.1 A hearing on the motion was conducted on February 21, 2014. By order entered January 26, 2015, the circuit court denied the motion to certify the class, finding that the Swigers failed to satisfy the "typicality" and "adequacy of representation" requirements of Rule 23(a). The circuit court further found that the Swigers failed to satisfy the predominance criteria set forth in Rule 23(b)(3). The circuit court ordered that the remainder of the Swigers's individual claims of bad faith and violations under the UTPA would be allowed to proceed.
Thereafter, the Swigers filed a motion to alter or amend the January 26, 2015, order, which motion the circuit court denied by order entered February 25, 2015. Meanwhile, on February 20, 2015, the Swigers filed a motion to add additional parties, namely Frank J. Yablonsky and Andrew J. Sorine, as named class representatives and to amend or modify the January 26, 2015, order denying class certification. By order entered May 18, 2015, the circuit court denied the Swigers's motions. This appeal followed.
The Swigers's first assignment of error is that the circuit court erred in denying class certification in this case. The Swigers argue that they met the essential criteria of Rule 23, including that their claims were typical of the class, as required by Rule 23(a)(3); that they can adequately represent the interests of the putative class, as required by Rule 23(a)(4); and that common questions of law or fact predominated over issues affecting only the putative class, as required by Rule 23(b)(3). The Swigers further argue that, in denying class certification, the circuit court improperly decided the merits of the case.
Before certifying a class under Rule 23 of the West Virginia Rules of Civil Procedure [1998], a circuit court must determine that the party seeking class certification has satisfied all four prerequisites contained in Rule 23(a)—numerosity, commonality, typicality, and adequacy of representation—and has satisfied one of the three subdivisions of Rule 23(b). As long as these prerequisites to class certification are met, a case should be allowed to proceed on behalf of the class proposed by the party.
Syl. Pt. 8, In re W.Va. Rezulin Litig., 214 W.Va. 52, 585 S.E.2d 52 (2003).
Rezulin Litig., 214 W.Va. at 56, 585 S.E.2d at 56, syl. pt. 4.
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