Filed: Oct. 10, 1996
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 96-60222 Summary Calendar _ EMMITT I. CAMP, on Behalf of Himself and All Others Similarly Situated; and DANNY WALTERS, on Behalf of Himself and All Others Similarly Situated, Plaintiffs-Appellants, VERSUS ALLSTATE INSURANCE COMPANY, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Mississippi (2:95-CV-419-PS) _ October 9, 1996 Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges. JERRY E
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 96-60222 Summary Calendar _ EMMITT I. CAMP, on Behalf of Himself and All Others Similarly Situated; and DANNY WALTERS, on Behalf of Himself and All Others Similarly Situated, Plaintiffs-Appellants, VERSUS ALLSTATE INSURANCE COMPANY, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Mississippi (2:95-CV-419-PS) _ October 9, 1996 Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges. JERRY E...
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 96-60222
Summary Calendar
_______________
EMMITT I. CAMP,
on Behalf of Himself and All Others Similarly Situated;
and
DANNY WALTERS,
on Behalf of Himself and All Others Similarly Situated,
Plaintiffs-Appellants,
VERSUS
ALLSTATE INSURANCE COMPANY,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(2:95-CV-419-PS)
_________________________
October 9, 1996
Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Emmitt Camp and Danny Walters, on behalf of themselves and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
set forth in 5TH CIR. R. 47.5.4.
1
others similarly situated (collectively, the “plaintiffs”, or,
individually, the “Camp Sub-class” and the “Walters Sub-class”),
appeal the dismissal of their claims against Allstate Insurance
Company (“Allstate”) for failure to state a claim under FED. R.
CIV. P. 12(b)(6). Finding no error, we affirm.
I.
Plaintiffs filed the instant class action1 against Allstate
challenging Allstate’s practice of precluding “stacking” for multi-
vehicle uninsured or under-insured motorist coverage in the wake of
Harrison v. Allstate Ins. Co., 662 So. 2d 1092 (Miss. 1995).2
Under Harrison, Allstate is required to allow stacked coverage for
its insureds who have policies covering more than one vehicle and
who pay higher premiums than they would otherwise pay to insure one
vehicle.
Id. at 1095.
Camp was involved in an accident with an under-insured
motorist pre-Harrison and sought to stack his multi-vehicle
coverage. Allstate informed Camp that, pending the outcome of
1
Plaintiffs actually seek certification for two sub-classes. The Camp
Sub-class purports to represent those plaintiffs who have paid premiums for
multi-vehicle uninsured motorist coverage and who have filed claims against
Allstate under such coverage, whereas the Walters Sub-class purports to represent
those who have paid premiums for multi-vehicle uninsured motorist coverage but
have not filed claims against Allstate under such coverage.
2
“Stacking” refers to the practice of allowing an insurer to add or
“stack” the limits of each vehicle covered under an insurance policy to pay for
damages sustained in an accident. For example, if the insured obtained a policy
providing $10,000 in uninsured motorist coverage for bodily injury on each of two
vehicles, the maximum recovery under a practice of stacking would be $20,000
($10,000 for each vehicle).
2
Harrison, it would not permit stacked coverage. Subsequent to and
in accordance with Harrison, Allstate requested of Camp sufficient
medical records to allow it to readjust his claim up to the full
amount of the stacked coverage. Before Camp’s claim could be
readjusted, however, he filed the instant action.
Upon motion from Allstate, the district court dismissed
plaintiffs’ claims, noting that to the extent the complaint
attempted to state a claim under pre-Harrison law, Harrison had
precluded such, and to the extent the complaint attempted to state
a claim under post-Harrison law, it was premature.
II.
We review de novo the dismissal under rule 12(b)(6). See
Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.), cert. denied,
115
S. Ct. 189 (1994). Plaintiffs first assert that under Cruz v.
Hauck,
627 F.2d 710, 715 (5th Cir. 1980), the district court erred
in dismissing the instant case on its merits without first
determining whether the claim could be certified as a class action.
We disagree.
We have held, since Cruz, that the timing requirements of FED.
R. CIV. P. 23(c)(1) are not absolute, and thus class action
litigation may be halted by a motion to dismiss or for summary
judgment. See Floyd v. Bowen, 833 F.2d 529, 534 (5th Cir. 1987).
We agree with Allstate that Cruz is more properly limited, by its
3
facts, to the proposition that where a delay in ruling on class
certification may render a live controversy moot, it is error to
dismiss a case for mootness before first attending to the certifi-
cation issues. See Cruz, 627 F.2d at 714-15.
Plaintiffs next claim that the Walters Sub-class actions
should not have been dismissed, because Allstate’s obligations
under Harrison might result in injuries to members of the sub-
class, notwithstanding the fact that none of such sub-class members
has ever filed a coverage claim with Allstate. It is elementary
that an “irreducible constitutional minimum of standing” is “injury
in factSSan invasion of a legally protected interest which is
(a) concrete and particularized . . . and (b) 'actual or imminent,
not “conjectural” or “hypothetical.”'” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (citations omitted).
Because, by definition, none of the members of the Walters
Sub-class has suffered any “actual or imminent” injury, they lack
standing to assert their claims. Should they in fact suffer injury
at a later date, their claims may become justiciable. See id. at
564 (“Such 'some day' intentions . . . do not support a finding of
the 'actual or imminent' injury that our cases require.”) (citation
omitted).3
3
Allstate also notes correctly, in this regard, that Harrison expressly
held that Allstate was in fact deemed to have provided stacked coverage under its
existing policies, even though it never intended so to provide. Hence, members
of the Walters Sub-class, who by definition never filed a claim pre-Harrison,
actually were receiving precisely the coverage they should have received.
4
With respect to the Camp Sub-class, Plaintiffs contend that
Allstate has a duty under Mississippi law, post-Harrison, to notify
members of the Sub-class of their right to stack uninsured motorist
coverage under their existing policies, and its failure to comply
with said duty has resulted in damages to the Sub-class members.
We need not decide whether Mississippi law confers such a duty on
Allstate, however, because the Sub-class is improper as formed.
Camp, by his own admission, acknowledges that he was made
aware by Allstate of his rights to stack post-Harrison. Hence,
because he is not a member of the sub-class he purports to repre-
sentSSthe Sub-class comprises individuals to whose attention
Allstate allegedly has failed to bring HarrisonSSCamp’s claims are
not typical of other sub-class claims, nor can he be an adequate
sub-class representative.
Camp’s typicality with the other sub-class claims is under-
mined further by the unique factual questions surrounding his
claimSSwhether he suffered injury sufficient even to implicate a
full second stacked limit and, if so, the actual extent of such
damages.4 As such, the class cannot be certified. See, e.g.,
Merrill v. Southern Methodist Univ., 806 F.2d 600, 608 (5th Cir.
1986); Everitt v. City of Marshall,
703 F.2d 207, 211 (5th Cir.),
cert. denied,
464 U.S. 894 (1982).
4
We agree with Allstate that such uniqueness attaches to any potential
Camp Sub-class claimant, making the commonality and typicality requirements for
class certification difficult to satisfy.
5
AFFIRMED.
6
