Cynthia M. Ferrara, Plaintiff/Appellant,
21st Century North America Insurance Company, Defendant/Appellee.
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
Rees Scully Mansukhani LLP, Phoenix By Andrew S. Jacob,
Calvin E. Davis, and Aaron P. Rudin Counsel for
Eppich authored the opinion of the Court, in which Presiding
Judge Vásquez and Judge Espinosa concurred.
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.
and Procedural Background
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.
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.
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
Ferrara subsequently filed the instant action for breach of
contract and declaratory relief,  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).
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)). "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).
Rule 23(a), Ariz. R. Civ. P., requires a party seeking