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Ferrara v. 21st Century North America Insurance Co.

Court of Appeals of Arizona, Second Division

September 10, 2018

Cynthia M. Ferrara, Plaintiff/Appellant,
21st Century North America Insurance Company, Defendant/Appellee.

          Appeal from the Superior Court in Pima County No. C20134813 The Honorable Catherine Woods, Judge.

          Jackson & Oden P.C., Tucson By Todd Jackson and Jean Roof and Goldberg & Osborne, Tucson By David J. Diamond Counsel for Plaintiff/Appellant

          Gordon Rees Scully Mansukhani LLP, Phoenix By Andrew S. Jacob, Calvin E. Davis, and Aaron P. Rudin Counsel for Defendant/Appellee

          Judge Eppich authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Espinosa concurred.


          EPPICH, Judge.

         ¶1 Appellant Cynthia Ferrara seeks review of the trial court's denial of her motion for class certification made pursuant to Rule 23, Ariz. R. Civ. P. Finding no abuse of discretion, we affirm.

         Factual and Procedural Background

         ¶2 Ferrara was injured in an auto accident in the course of her employment. As of the date of the accident, she was a covered person and beneficiary of an auto insurance policy provided by the defendant/appellee 21st Century North America Insurance Company. As a result of her injuries, Ferrara incurred $3, 981.59 in medical bills. She was eligible to receive, and in fact did receive workers' compensation benefits covering those expenses, though her employer's workers' compensation carrier was able to pay off the treatment costs at a reduced rate of $2, 053.91.

         ¶3 Following a $6, 812.59 settlement on her third-party claim against the responsible driver, Ferrara's workers' compensation carrier issued a lien on, and was repaid $2, 053.91 from, her third-party settlement, pursuant to A.R.S. § 23-1023(D). Ferrara subsequently submitted the medical bills she had incurred to 21st Century, along with documents establishing that she had reimbursed the workers' compensation carrier, seeking coverage pursuant to the medical payments ("medpay") provision of her policy in the amount of $3, 981.59.

         ¶4 21st Century denied her claim, citing an exclusion in the policy which the parties agree states: "We do not provide Medical Payments Coverage for any insured for bodily injury . . . [o]ccurring during the course of employment if workers' compensation benefits are required or available for the bodily injury."

         ¶5 Ferrara subsequently filed the instant action for breach of contract and declaratory relief, [1] and sought class action certification pursuant to Rule 23. The proposed class, of which Ferrara is the sole named plaintiff, was to consist of all persons or assignees who were covered by 21st Century auto policies or their affiliated underwriting entities, who had made a claim for medpay benefits that was denied on the basis of the workers' compensation exclusion notwithstanding such claimant's legal obligation to repay the workers' compensation benefits from a third-party recovery during the period of October 22, 2007 through the date of the class notice, with a geographic scope to include all thirty-three states in which 21st Century issues policies containing the exclusion. Following extensive discovery and argument, the trial court found that Ferrara had failed to satisfy the requirements of Rule 23(a), and denied class certification. This interlocutory appeal followed. We have jurisdiction pursuant to A.R.S. § 12-1873(A).


         ¶6 Plaintiffs seeking class certification must meet all the requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). "One seeking to maintain a class action has the burden of showing that the prerequisites are satisfied - merely calling it a class action does not make it one." Carpinteiro v. Tucson Sch. Dist. No. 1, 18 Ariz.App. 283, 286 (1972). In addressing Rule 23 of the Federal Rules of Civil Procedure, the United States Supreme Court has emphasized that "it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and that certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350-51 (2011)).[2] "The issue of whether a suit should be allowed to proceed as a class action is left to the trial court's discretion and, absent an abuse of discretion, we will not interfere with the decision of the trial court." Godbey v. Roosevelt Sch. Dist. No. 66, 131 Ariz. 13, 16 (App. 1981).

         ¶7 Rule 23(a), Ariz. R. Civ. P., requires a party seeking ...

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