ROLAND L. BELSOME, Judge.
Defendants, Harbor Homeowners' Association, Inc. (the "Association") and its insurer, State Farm and Casualty Company ("State Farm"), appeal the trial court's judgment granting the Motion to Confirm Class Certification filed by plaintiff, Wendy Duhon. For the following reasons, we affirm.
The Harbor View Condominium Complex in New Orleans sustained wind and water damages after Hurricanes Katrina and Rita. The Association, through its volunteer Board of Directors (the "Board"), manages the complex. The Board is composed of individual condominium owners.
On August 4, 2006, Ms. Duhon filed a class action lawsuit against the Association and other defendants alleging that the Association was at fault for various damages relating to the repair of the complex.
In 2007, Ms. Duhon filed two motions for class certification that were never heard. Accordingly, in 2013, she filed a motion to re-set the certification hearing, and the matter was heard on January 13, 2014. By judgment rendered on February 25, 2014, the trial court granted Ms. Duhon's motion for class certification on two of the plaintiff's three claims: the Association's breaches of duty regarding the delay in repair and increase of the insurance deductible. Accordingly, the class was defined as follows:
The defendants appealed the certification of the class to this Court. See Duhon v. Harbor Homeowners' Ass'n, Inc., 2014-0583 (La.App. 4 Cir. 2/4/15), 160 So.3d 1019. Prior to any decision on appeal, Ms. Duhon filed a motion to dismiss all of her claims against the Association that were not covered by insurance. Accordingly, this Court remanded the matter to the trial court to review the motion and "to
On February 26, 2015, the court granted Ms. Duhon's motion to voluntarily dismiss all uninsured claims. Thereafter, the court addressed the issue of class of class certification that had been remanded.
1. The class certification was improper because:
The standard of review for a trial court's ruling on a motion for class certification is tri-parte. When reviewing the certification of a class, a trial court's factual findings are subject to the manifest error standard or review; however, the ultimate decision of whether or not to certify the class is reviewed under an abuse of discretion. Doe v. S. Gyms. LLC, 2012-1566, p. 9 (La. 3/19/13); 112 So.3d 822, 830. Finally, the question of whether the district court applied the correct legal standards in determining whether to certify the class is reviewed de novo. Husband v. Tenet Health Systems Medical Center, Inc., 2008-1257, p. 6, (La.App. 4 Cir. 8/12/09), 16 So.3d 1220, 1227.
The procedure for class certification is governed by Article 591 of the Louisiana Code of Civil Procedure.
Pursuant to La. C.C.P. art. 491(A)(1), the first requirement for maintaining a class action is that the members of the class must be so numerous that joinder is impracticable. Johnson v. Orleans Parish Sch. Bd., 2000-0825, p. 12 (La.App. 4 Cir. 6/27/01), 790 So.2d 734, 743. The determination of numerosity is not only based on the number of putative class members, but is also based upon considerations of judicial economy, financial resources of class members, and the size of individual claims. Chalona v. Louisiana Citizens Property Ins. Corp., 2008-0257, p. 6 (La.App. 4 Cir. 6/11/08), 3 So.3d 494, 500-01. The burden is on the plaintiff to make a prima facie showing that a definable group of aggrieved person's exists and that the class is so numerous that joinder is impractical. Johnson, 2000-0825, p 7-8, 790 So.2d at 740-41. No set number has been established that automatically makes joinder impractical, instead, the determination is based on the facts and circumstances of each case. However, this Court has found that a presumption arises that joinder is impractical if more than forty class members exist. Husband, 2008-1527, p. 9, 16 So.3d at 1229 (citing Vela v. Plaquemines Parish Gov't, 1994-1161 (La.App. 4 Cir. 6/29/95), 658 So.2d 46).
The trial court found that the numerosity requirement was satisfied, noting that the proposed class of condominium owners in this matter is more than double the forty required to create a presumption for numerosity. In fact, the record reflects that roughly eighty-three condominium owners fit within the class definition. For
The second requirement for certification is that there exist questions of law and fact common to the class. La. C.C.P. art. 591(A)(2). This court has found that commonality exists where there is at least one issue of law or fact, the resolution of which will affect all or a significant number of putative class members. Davis v. Am. Home Prods. Corp., 2002-0942, p. 14 (La.App. 4 Cir. 3/26/03), 844 So.2d 242, 254. Generally, this involves a two-step inquiry: (1) a determination that common issues predominate over questions affecting only individual members, and (2) a determination that the class action procedure is superior to other procedural mechanisms. Johnson, 2000-0825, p. 14, 790 So.2d at 744.
As defined by the trial court, the first category of class members are those who were damaged by the Association's actions and/or breaches of agreements or duties associated with the obtaining of hurricane insurance. Specifically, the plaintiff's allegation is that the Association was negligent in failing to secure a hurricane insurance policy for the entire complex with less than a 10% deductible. The insurance policy and its deductible at issue applied to the common areas of the complex. All condominium owners utilize the common areas of the complex and own a similar share of this space. For this reason, the question of the Association's negligence in obtaining this policy is a common question of law and fact between all class members.
The second certified category is defined as those who were damaged by the Association's action and/or breaches of agreements or duties associated with the delay in completing post-Katrina repair work in the common areas of the complex. The record clearly reflects that the Association was responsible for the maintenance and repair of the common areas, as well as the post-hurricane repair and recovery.
Accordingly, the trial court did not commit manifest error in finding that the commonality existed in this matter.
The third requirement for maintaining a class is that the claims or defenses of the representative parties be typical of the claims or defenses of the class. La. C.C.P. art. 591(A)(4). If the representative plaintiffs' claims arise out of the same event or course of conduct as the putative class members' claims, and are based on the same legal theories, the typicality requirement is satisfied. Davis, 2002-0942, p. 17, 844 So.2d at 256. The testimony of Ms. Duhon establishes that the issues affecting her interests are aligned with the common issues affecting the class in that they arise from the same event, practice or course of conduct as the claims of the putative class members. Moreover, they are based on the same legal theory — i.e., that the Associations negligence and/or breach of duty caused the damages alleged. The claims and defenses among potential members of the class would be duplicated, and discovery redundant, if the actions were handled individually. Thus, we do not find that the trial court erred in determining that the "typicality" requirement was satisfied.
The fourth requirement is that the representative parties will fairly and adequately protect the interests of the class. La. C.C.P. art. 591(A)(4). "Adequacy of representation for class certification requires that the claims of the proposed class representatives be a cross-section of, or typical of, the claims of all class members." Husband, 2008-1527, p. 11 (La.App. 4 Cir. 8/12/09), 16 So.3d 1220, 1230 (citing Andry v. Murphy Oil, U.S.A., Inc., 1997-0793, p. 6 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, 1130). We have identified four factors relevant to this inquiry, namely: (1) The representative must be able to demonstrate that he or she suffered an actual injury; (2) the representative should possess firsthand knowledge or experience of the conduct at issue in the litigation; (3) the representative's stake in the litigation, that is, the substantiality of his or her interest in winning the lawsuit, should be significant enough, relative to that of other class members, to ensure that representative's conscientious participation in the litigation; and (4) the representative should not have interests antagonistic to or in direct conflict with those of other class members. Claborne v. Hous. Auth, of New Orleans, 2014-1050, pp. 14-15 (La. App. 4 Cir. 4/15/15), 165 So.3d 268, 282, writ denied, 2015-0946 (La. 9/11/15), 176 So.3d 1039.
The defendants' contend that Ms. Duhon has antagonistic interests to those of other potential class members. This argument, in part, is rooted in the fact that the Association is a defendant in a separate suit brought by the contractor it originally hired to make repairs to the complex. In that matter, the Association asserted claims in reconvention that the contractor was at fault for the delays.
Further, the defendants see Ms. Duhon's claims as antagonistic to the class members because the current condominium owners, which Ms. Duhon is not, could be adversely impacted by additional Association assessments that would be necessary to satisfy a judgment. However, the record clearly reflects that State Farm insures the Association for such claims, and nowhere in the record does it indicate that State Farm has denied coverage or sought a declaration from the court regarding its coverage.
For these reasons, we do not find that the trial court manifestly erred when determining that Ms. Duhon would fairly and adequately provide protection for the interests of the class.
Because we have determined that the requirements set forth in La. C.C.P. 591(A) have been satisfied, we must now examine the trial court's finding that predominance and superiority requirements of La. C.C.P. art. 591(B)(3) have also been met. As noted above, Article 591(B)(3) requires that "[t]he court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only an individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy."
The claims of all class members originate from one common source; namely, the negligence of the Association relative to the repair and recovery of the common elements of the complex after Hurricanes Katrina and Rita. This negligence prevented all condominium owners from gaining access to their properties. This issue, once resolved, affects every claim. The fact that putative class members may have varying degrees of damages does not preclude class certification. See Bartlett v. Browning-Ferris Industries Chemical Services, Inc., 1999-0494 (La. 11/12/99), 759 So.2d 755.
Further, "[w]hen a common character of right exists, a class action is superior to other available adjudicatory methods in effectuating substantive law, and promoting judicial efficiency and individual fairness." Husband, 2008-1527, p. 17, 16 So.3d at 1233. Here, proceeding individually undermines judicial economy, and leads to the potential of inconsistent adjudications. Our jurisprudence has previously expressed concern in instances where individual class member would have to prove causation separately, or where there was a risk that the class would degenerate into a series of individual trials; however, neither of those concerns exist in the instant matter. See Brooks v. Union Pacific R. Co., 2008-2035, p. 21 (La. 5/22/09), 13 So.3d 546, 561; Alexander v. Norfolk S. Corp., 2011-2793, p. 3 (La.3/9/12), 82 So.3d 1234, 1236. As noted above, the question of whether the Association was negligent in its actions or inactions after the storm is one that can be answered for the class as a whole. Accordingly, we do not find that the trial court was manifestly erroneous in determining that Article 591(B)(3) is satisfied in this matter.
For these reasons, we find that the trial court did not abuse its discretion in certifying the class.
LANDRIEU, J., dissents with reasons.
Louisiana Code of Civil Procedure article 591 A(4) requires that the class representative(s) "fairly and adequately protect the interests of the class." "Adequacy of representation for class certification requires that the claims of the proposed class representatives be a cross-section of, or typical of, the claims of all class members." Husband v. Tenet Health Systems Mem'l Med. Ctr., Inc., 2008-1527, p. 11 (La.App. 4 Cir. 8/12/09), 16 So.3d 1220, 1230 (citing Andry v. Murphy Oil, U.S.A., Inc., 97-0793, p. 6 (La.App. 4 Cir. 4/1/98), 710 So.2d 1126, 1130). Four factors relevant to this inquiry are: (1) The representative must be able to demonstrate that he or she suffered an actual injury; (2) The representative should possess firsthand knowledge or experience of the conduct at issue in the litigation; (3) The representative's stake in the litigation, that is, the substantiality of his or her interest in winning the lawsuit, should be significant enough, relative to that of other class members, to ensure that representative's conscientious participation in the litigation; and (4) The representative should not have interests antagonistic to or in direct conflict with those of other class members. Claborne v. Hous. Auth. of New Orleans, 2014-1050, pp. 14-15 (La.App. 4 Cir. 4/15/15); 165 So.3d 268, 282, writ denied, 2015-0946 (La. 9/11/15); 176 So.3d 1039.
In the present case, Ms. Duhon is the sole class representative. She filed a class action petition against the Association on behalf of all Harbor View condominium owners who were damaged by delays in repairing the individual units and common areas of the complex after Hurricanes Katrina and Rita, as well as by the procuring of a larger insurance deductible prior to the hurricanes. The problem with Ms. Duhon's representation is that, unlike many of the members of the class she purports to represent, Ms. Duhon no longer owns a unit in the complex. While this fact alone would not necessarily result in a conflict in all situations, in this particular case the primary defendant alleged to be at fault, the Association, is entirely composed of volunteer unit owners who have been elected to represent the interests of the present unit owners, who also compose the plaintiff class. Ms. Duhon is no longer represented by the Association. Therefore her interests are in conflict with those of the class in general. Further exacerbating this conflict is the fact that the Association is involved in a pending lawsuit filed by the contractor it initially hired to make the hurricane repairs. In its reconventional demand asserted in that lawsuit, the Association contends the contractor is at fault for the same repair delays Ms. Duhon complains of in the class action. It must be presumed that unit owners and purported class members currently represented by the Association agree with the Association's position blaming the contractor for those delays. The Association argues that this class action is unnecessary because the interests of the class members in delay damages are being adequately asserted by it in the pending suit. Ms. Duhon failed to contravene this argument. Specifically, she did not present evidence that a single other unit owner agreed with her assertions that the Association was at fault for the repair delays. Ms. Duhon clearly is not in the same position as the class members whose interests she purports to represent. In effect, she is asking that a class be certified to sue itself. As the sole class representative, her interests are antagonistic to those of the class. The trial court's determination that Ms.
Ms. Duhon contends that her dismissal of the uninsured claims cures any conflict of interest between her and those class members who are current members of the Association. I disagree. Even assuming that any potential award in the class action would be paid by the insurer of the Association, pursuant to the Louisiana Direct Action statute, the Association must remain as a defendant in the lawsuit.
I therefore find that Ms. Duhon is unable to fairly and adequately protect the interests of the class as required by Article 591 A(4). Because Ms. Duhon's interests are not sufficiently aligned with those of the class as a whole, I also find that a class action in this instance is not superior to other available methods for the fair and efficient adjudication of this controversy. See, La. C.C.P. art. 591 B(3). For these reasons, I would reverse the class certification.
Further, the by-laws provide that the Association was to "[m]ake, or contract for the making of, repairs, additions, and improvements to or alteration of the Property, and repairs to the restoration of the Property, in accordance with these Bylaws, after damage or destruction by fire or other casualty, or as a result of condemnation or eminent domain proceedings."
La. Rev. Stat. Ann. § 22:1269 (Emphasis supplied).