STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

STATE OF WEST VIRGINIA EX REL. ERIE 

INSURANCE PROPERTY & CASUALTY 

COMPANY,
 FILED 

Petitioner February 13, 2017
 

released at 3:00 p.m. 

RORY L. PERRY, II CLERK 

vs.) No. 16-0884 SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

THE HONORABLE DAVID W. NIBERT 

AND TAMARA HARDMAN, INDIVIDUALLY 

AND AS ADMINISTRATRIX OF THE ESTATE OF 

EMILY ELIZABETH-ANNE HARDMAN, 

Respondents 

MEMORANDUM DECISION 

This is a writ of prohibition proceeding filed under the original jurisdiction of this 

Court by Petitioner, Erie Insurance Property & Casualty Company (hereinafter “Erie”), 

through counsel, James D. Lamp and Matthew J. Perry. Erie seeks to have this Court 

prohibit enforcement of an order by the Circuit Court of Jackson County that granted class 

action certification to the Respondents, Tamara Hardman individually and as administratrix 

of the estate of Emily Elizabeth-Anne Hardman (hereinafter “the Respondents”). The 

Respondents, through counsel, Brent K. Kesner and Ernest G. Hentschel, contend that the 

writ should be denied because class action certification met all the requirements of Rule 23 

of the West Virginia Rules of Civil procedure. 

This Court has considered the parties’ briefs, the appendix submitted, and the parties’ 

oral arguments. Upon consideration of the standard of review, the Court grants the writ of 

prohibition. In view of prior precedent on the dispositive issue presented in this case, a 

memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure. 

The underlying facts of this case are not complicated. It appears that on or about 

October 1, 2006, Emily Elizabeth-Anne Hardman was killed in an automobile accident in 

Jackson County, West Virginia. Emily was a passenger in a car driven by Samuel 

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Postlethwaite, when the car struck a solid rock embankment.1 Emily’s estate recovered the 

policy limits from Mr. Postlethwaite’s insurer, Nationwide Insurance Company. The estate 

sought underinsured motorist coverage from a policy maintained by Emily’s parents with 

Erie. That policy provided underinsured motorist coverage in the amounts of $20,000 per 

person; $40,000 per occurrence; and $10,000 for property damage. However, the estate 

sought the liability limits under the policy on the theory that Erie’s underinsured motorist 

coverage election/rejection forms did not comply with the West Virginia Insurance 

Commissioner’s form. The liability limits under the policy were $100,000 per person; 

$300,000 per occurrence; and $50,000 for property damage. Erie refused to tender the 

liability limits. Instead, at some point, Erie tendered the per person underinsured motorist 

limit under the policy, $20,000, to “Tamara Hardman, on behalf of the Estate of Emily . . . 

by way of interpleader.” 

The Respondents eventually filed a declaratory judgment action against Erie seeking 

a determination of the amount of benefits available under the policy.2 The complaint initially 

was amended to add claims for breach of contract, bad faith, and unfair settlement practices. 

A second amendment to the complaint was made that included allegations in support of a 

class action involving the use of election/rejection forms for underinsured motorist coverage 

that did not comply with the Insurance Commissioner’s form. The circuit court eventually 

certified a class in an order entered on November 12, 2010. Erie filed a petition for a writ 

of prohibition with this Court to prohibit enforcement of the class action certification order. 

This Court issued an unpublished Memorandum Decision on June 14, 2011, granting the writ 

as moulded, which required the circuit court to enter an order certifying the class in 

compliance with the findings required by our precedents. While the case was pending in the 

circuit court, it appears the Respondents filed a third amended complaint on June 8, 2016. 

The third amended complaint set out a class action claim “seeking declaratory relief as to the 

validity of . . . Erie’s selection/rejection forms.” On July 13, 2016, the circuit court entered 

an order certifying a class “who were insureds under any Erie policy and who were injured 

by or suffered property damage caused by an act of an underinsured motorist, and who did 

not receive underinsured motorists coverage benefits at least equal to the liability limits 

stated in the policy declarations[.]”3 Erie thereafter filed the instant proceeding seeking to 

prohibit enforcement of the class action certification order. 

1

The pleadings indicate that Mr. Postlethwaite and another passenger also were killed 

in the accident. 

2

The limited record does not indicate the date the complaint was filed, but the civil 

action number suggests the complaint was originally filed in 2008. 

3

The order also set out a number of excluded persons. 

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This Court has “previously recognized that ‘[w]rits of prohibition offer a procedure 

. . . preferable to an appeal for challenging an improvident award of class standing.’” State 

of West Virginia ex rel. Chemtall Inc. v. Madden, 216 W. Va. 443, 450, 607 S.E.2d 772, 779 

(2004) (quoting McFoy v. Amerigas, Inc., 170 W. Va. 526, 532, 295 S.E.2d 16, 22 (1982)). 

It also has been held that “[t]his Court will review a circuit court’s order granting or denying 

a motion for class certification pursuant to Rule 23 of the West Virginia Rules of Civil 

Procedure [1998] under an abuse of discretion standard.” Syl. pt. 1, In re West Virginia 

Rezulin Litig., 214 W. Va. 52, 585 S.E.2d 52 (2003).4 

The standard for certifying a class action has been succinctly set out in Syllabus point 

8 of Rezulin as follows: 

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 adequacyof 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 

4

This Court’s precise guidance for determining whether a writ of prohibition should 

issue was enunciated in Syllabus point 4 of State ex rel. Hoover v. Berger, 199 W. Va. 12, 

483 S.E.2d 12 (1996): 

In determining whether to entertain and issue the writ of prohibition for 

cases not involving an absence of jurisdiction but only where it is claimed that 

the lower tribunal exceeded its legitimate powers, this Court will examine five 

factors: (1) whether the party seeking the writ has no other adequate means, 

such as direct appeal, to obtain the desired relief; (2) whether the petitioner 

will be damaged or prejudiced in a way that is not correctable on appeal; (3) 

whether the lower tribunal’s order is clearly erroneous as a matter of law; (4) 

whether the lower tribunal’s order is an oft repeated error or manifests 

persistent disregard for either procedural or substantive law; and (5) whether 

the lower tribunal’s order raises new and important problems or issues of law 

of first impression. These factors are general guidelines that serve as a useful 

starting point for determining whether a discretionary writ of prohibition 

should issue. Although all five factors need not be satisfied, it is clear that the 

third factor, the existence of clear error as a matter of law, should be given 

substantial weight. 

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be allowed to proceed on behalf of the class proposed by the 

party. 

214 W. Va. 52, 585 S.E.2d 52 (emphasis added). Erie contends that the Respondents failed 

to satisfy the commonality and typicality requirements of Rule 23(a) and the predominance 

requirement of Rule 23(b). We need only address the circuit court’s findings with respect 

to the commonality requirement of Rule 23(a).5 This is because “[i]f only one prerequisite 

is not met, class certification is not appropriate.” Jones v. Am. Gen. Life & Accident Ins. Co., 

213 F.R.D. 689, 699 (S.D. Ga. 2002). See Wiener v. Dannon Co., 255 F.R.D. 658, 664 (C.D. 

Cal. 2009) (“A court should not grant class certification unless it is satisfied, after a rigorous 

analysis, that all of the requirements of Rule 23(a) are met.” (internal quotations and citation 

omitted)); McCall v. Drive Fin. Servs., L.P., 236 F.R.D. 246, 249 n.3 (E.D. Pa. 2006) (“[T]he 

court must be satisfied that the plaintiffs satisfy all four prerequisites of Rule 23(a).”); Noerr 

v. Greenwood, No. 14320-NC, 2002 WL 31720734, at *2 (Del. Ch. Nov. 22, 2002) (“The 

plaintiff must satisfy all four requirements of Rule 23(a).”); Rene ex rel. Rene v. Reed, 726 

N.E.2d 808, 816 (Ind. Ct. App. 2000) (“To obtain class certification, the students must satisfy 

all of the requirements of Trial Rule 23(A).”); Jacobsen v. Allstate Ins. Co., 310 P.3d 452, 

460 (Mont. 2013) (“[c]lass certification requires that the plaintiff satisfyall four requirements 

of Rule 23(a).”); In re South Dakota Microsoft Antitrust Litig., 657 N.W.2d 668, 671 (S.D. 

2003) (“In order to obtain certification of a class, the plaintiffs must satisfy all the 

requirements of SDCL 15-6-23 (FRCP 23(a)).”);. 

To begin we will note that the Respondents’ third amended complaint appears to have 

been motivated by our decision in Thomas v. McDermitt, 232 W. Va. 159, 751 S.E.2d 264 

(2013).6 The decision in Thomas presented a certified question wherein we were asked to 

5

In Syllabus point 11 of Rezulin, 214 W. Va. 52, 585 S.E.2d 52, we explained the 

commonality requirement as follows: 

The “commonality” requirement of Rule 23(a)(2) of the West Virginia 

Rules of Civil Procedure [1998] requires that the party seeking class 

certification show that “there are questions of law or fact common to the 

class.” A common nucleus of operative fact or law is usually enough to satisfy 

the commonalityrequirement. The threshold of “commonality” is not high, and 

requires only that the resolution of common questions affect all or a substantial 

number of the class members. 

6

The circuit court’s order specifically found that “[t]he State Supreme Court’s ruling 

in Thomas prompted the Plaintiff to seek leave to amend her Complaint to clarify the relief 

sought.” 

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determine what was the effect of an insurer’s failure to use the Insurance Commissioner’s 

underinsured motorist coverage forms pursuant to W. Va. Code § 33-6-31d. We answered 

the certified question in Syllabus point 12 of Thomas, 232 W. Va. 159, 751 S.E.2d 264, as 

follows: 

An insurance company’s failure to use the West Virginia 

Insurance Commissioner’s prescribed forms pursuant to West 

Virginia Code § 33-6-31d (2011) results in the loss of the 

statutory presumption and a reversion to the standards 

enunciated in Bias v. Nationwide Mutual Insurance Co., 179 

W. Va. 125, 365 S.E.2d 789 (1987).[7] 

(Footnote added). See State ex rel. State Farm Mut. Auto. Ins. Co. v. Cramer, 237 W. Va. 

60, ___ n.7, 785 S.E.2d 257, 263 n.7 (2016) (“We made clear in Thomas that an insurer must 

use the Commissioner’s form in order to gain the benefit of the statutory presumption that 

its offer of uninsured/underinsured coverage was effective, and that the insured’s rejection 

of such coverage was knowing and intelligent.”).8 

The circuit court relied on the holding in Thomas in determining that the Respondents 

satisfied the commonality requirement of Rule 23(a): 

7

The third amended complaint expressly cited to the decision in Bias as part of the 

basis for relief. The second amended complaint did not mention Bias. 

8

Subsequent to our decision in Thomas, the Legislature amended W. Va. Code 

§ 33-6-31d in 2015 and added the following new provision: 

(f) Notwithstanding any of the provisions of article six of this chapter 

to the contrary, including section thirty-one-f, for insurance policies in effect 

on December 31, 2015, insurers are not required to offer or obtain new 

uninsured or underinsured motorist coverage offer forms as described in this 

section on any insurance policy to comply with the amount of the minimum 

required financial responsibility limits set forth in subsection (b), section two, 

article four, chapter seventeen-d of this code. All such offer forms that were 

executed prior to January 1, 2016, shall remain in full force and effect. 

The briefs of the parties have not mentioned nor cited to the amendment to W. Va. Code 

§ 33-6-31d. We therefore refrain, at this time, from determining the impact of the 

amendment, if any, on our decision in Thomas and this litigation. 

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18. The Court finds that there are numerous common 

questions of law and fact present in this case amongst all of the 

proposed class members with respect to the validity of Erie’s 

selection/rejection form. Specifically, Erie is alleged to have 

used the same defective underinsured motorist coverage 

selection/rejection form with respect to all members of the 

proposed class and its use of the form presents the same factual 

scenario in the case of each. Both the Plaintiff and the proposed 

class must prove that Erie violated W. Va. Code § 33-6-31d by 

failing to use the selection/rejection form promulgated by the 

Insurance Commissioner to offer underinsured motorists 

coverage to its customers and, therefore is not entitled to a 

statutory presumption under Thomas. The same proof is 

applicable to the claims of all of the putative class members 

since it is alleged that Erie used the same form throughout West 

Virginia over a period of many years (at least the entire time 

period encompassed by the class). Moreover, the effect of such 

proof would be the same with respect to each claim since the 

failure to make a commercially reasonable offer of underinsured 

motorists coverage using the Commissioner’s form in each case 

would result in the loss of the presumption in each case. 

Therefore, Erie’s use of an improper and defective 

selection/rejection form to offer underinsured motorists 

coverage is a common question of fact among all members of 

the proposed class which, if proven, would resolve in one action 

an issue which is central to all of the class members’ claims for 

underinsured motorists coverage. 

19. The Court further finds that issues regarding Erie’s 

use of a defective form will be common to the class in light of 

the fact that the rights of all putative class members with respect 

to the loss of the statutory presumption under Thomas are 

affected by Erie’s use of the same form and the same alleged 

defects in the form. Thus, proof of Erie’s use of a defective 

selection/rejection form by one class member would be 

applicable to the claims of all other class members and a 

determination that Erie’s UIM selection/rejection form is 

defective would apply to all other Erie customers who received 

offers of underinsured motorists coverage on the non-compliant 

form. 

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. . . . 

24. In addition, the Court finds that the issue of the 

validity of the UIM selection/rejection form utilized by Erie in 

making mandatory offers of UIM coverage is a common issue 

necessary to the resolution of the claim for UIM benefits of 

every putative class member. As it is the burden of the insurer, 

in this case Erie, to prove that a commercially reasonable offer 

of UIM benefits has been made to the insured, it is a central 

issue to the claim for UIM benefits of every putative class 

member whether Erie utilized the form promulgated by the 

Insurance Commissioner or, instead, used a defective form. The 

Court has determined that Erie failed to use the prescribed form, 

and that the form utilized by Erie failed to inform Erie’s 

insureds of the total cost for each optional level of UIM 

coverage. Without this essential information, Erie’s insureds 

were unable to make . . . knowing and informed selections 

and/or rejections of coverage, since they could not compare the 

relative costs of the optional limits of UIM coverage available 

to them. This material issue, therefore, is a common issue that 

exists as a necessary foundation block for the claim of every 

class member, since Erie has based its rejection of UIM 

coverage for each putative class member solely upon its use of 

the defective form at issue in the present action. 

A careful reading of the above findings reveals that the circuit court said the same 

thing numerous ways, as opposed to setting out “numerous common questions of law and 

fact.” Distilled to its essence, the circuit court found that all purported class members would 

have to litigate the issue of whether Erie used an underinsured motorist coverage form that 

was not in compliance with the form required by the Insurance Commissioner, which would 

result in a loss of the presumption. We do not believe that this issue satisfies the common 

question of fact or law for class certification purposes. Erie has cited to two cases that have 

rejected the issue of noncompliance with a statutoryform for underinsured motorist coverage 

as satisfying the commonality requirement for class certification. 

The case of Martin v. State Farm Mutual Automobile Insurance 

Co., 809 F. Supp. 2d 496 (S.D. W. Va. 2011), was litigated 

before Judge Chambers in the United States District Court for 

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the Southern District of West Virginia. The plaintiffs in Martin 

filed a complaint seeking, among other things, a declaratory 

judgment providing that, because the forms used by State Farm 

to offer UIM coverage to its insureds did not comply with West 

Virginia Code § 33-6-31d, State Farm failed to make 

commercially reasonable offers to each plaintiff and their 

policies must be reformed to carry UIM coverage in an amount 

equal to the respective policy’s liability coverage limits. 

Martin, 809 F. Supp. 2d at 500. The insurer in Martin moved for summary judgment as to 

only two of the three named plaintiffs, and the plaintiffs moved for an order certifying the 

case as a class action. As an initial matter, the district court found that the defendant did not 

use the underinsured motorist form required by the West Virginia Insurance Commissioner; 

therefore, the defendant lost the statutory presumption of making an effective offer of the 

optional coverages to the two summary judgment plaintiffs. The decision went on to find 

that the defendant made an effective offer of underinsured motorist coverage and that the two 

plaintiffs’ rejection of such coverage was knowing and intelligent.9 The opinion went on to 

address the class action certification issue as follows: 

While Plaintiffs’ Motion for Class Certification is 

mooted by the dismissal of two of Plaintiffs’ named plaintiffs, 

the Court nonetheless addresses the impact of its foregoing 

conclusions on the viability of class certification with respect to 

this action. By finding that Bias controls where the statutory 

presumption does not apply, the Court is now confronted with 

a proposed class of State Farm insureds, the resolution of whose 

cases require individual fact-finding under the Bias standard. 

. . . Here, the varying claims presented by the proposed class 

will require an intensive, individual fact-finding, as 

demonstrated by the Court’s discussion of Martin’s and 

Fleming’s decedent’s claims. Accordingly, the class proposed 

by Plaintiffs fails to meet the commonality requirement under 

Rule 23(a) of the Federal Rules of Civil Procedure. The Court 

therefore DENIES Plaintiffs’ motion for class certification. 

9

See Thomas, 232 W. Va. at 173, 751 S.E.2d at 278 (“This Court agrees with the 

reasoning of the Martin court and also adopts that interpretation of the application of the 

statute.”). 

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Martin, 809 F. Supp. 2d at 509-10. 

In Blake v. State Farm Mutual Automobile Insurance Co., 523 N.E.2d 85 (Ill. App. Ct. 

1988), superseded by statute on other grounds as stated in Royal Imperial Grp., Inc. v. 

Joseph Blumberg & Assocs., Inc., 608 N.E.2d 178 (Ill. App. Ct. 1992), the plaintiff was 

injured in an automobile accident. The tortfeasor was underinsured. However, the plaintiff 

did not have underinsured motorist coverage. The plaintiff sued his insurer for failing to 

offer him underinsured motorist coverage. The plaintiff contended that he did not obtain 

underinsured motorist coverage because the insurer used an inadequate insurance form, 

called an acknowledgment/rejection form, that did not comply with statutory requirements. 

The plaintiff sought to litigate his claim as a class action on the theory that the defendant’s 

“use of the inadequate ‘acknowledgement/rejection’ form for ‘new business’ provided a 

sufficient basis for the similarity of law or fact required for class actions[.]” Blake, 523 

N.E.2d at 87. The trial court refused to certify the case as a class action. On appeal, the 

appellate court affirmed the denial of class certification as follows: 

Blake inaccurately characterizes the instant case as one 

that turns on a pervasive question of law common to all class 

members. In the cases cited by Blake, the common question of 

law or fact was the basis for the law suit. The defendants’ 

actions harmed all class members, although the harm to the 

individual class members may have varied somewhat by degree 

or circumstances in which it arose. In contrast, no commonality 

among members of the proposed class arose from the transaction 

of September 5, 1980, between Mr. and Mrs. Blake and State 

Farm’s agent Ms. Trennert, and proof of Blake’s claim would 

not give other proposed class members a right to recover. The 

instant case arose from an auto accident between Blake and an 

unnamed third party, and the allegations of improper offer stem 

from individual negotiations with State Farm’s agent. The 

circumstances of the case shows predominant individual issues 

despite an incidental question of law that may extend to other 

insureds. 

Blake, 523 N.E.2d at 88 (emphasis added). 

The circuit court’s certification order in the instant case attempted to distinguish 

Martin by addressing the factual differences in the coverage forms used in Martin and the 

instant case. This distinction is meaningless. Martin rejected class certification because the 

use of an unauthorized underinsured motorist coverage form was overwhelmed by the 

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requirement of individual fact-finding. The Respondents have attempted to distinguish 

Martin and Blake by arguing that, “[u]like Martin and Blake . . . , the class in this case was 

only certified for the purpose of resolving the common issue concerning the validity of Erie’s 

selection/rejection forms. No individual factual determinations will be required.” The 

Respondents have misunderstood the essence of class actions. 

The United States Supreme Court addressed a similar issue in Wal-Mart Stores, Inc. 

v. Dukes, 564 U.S. 338, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). In Wal-Mart, the 

Supreme Court rejected class action certification of an employment discrimination case. One 

of the issues addressed in that case was the commonality requirement of federal Rule 23(a). 

The opinion made the following relevant comments about the commonality requirement: 

The crux of this case is commonality–the rule requiring 

a plaintiff to show that there are questions of law or fact 

common to the class. That language is easy to misread, since 

any competently crafted class complaint literally raises common 

questions. . . . Commonality requires the plaintiff to 

demonstrate that the class members have suffered the same 

injury. This does not mean merely that they have all suffered a 

violation of the same provision of law. . . . Their claims must 

depend upon a common contention. . . . That common 

contention, moreover, must be of such a nature that it is capable 

of classwide resolution–which means that determination of its 

truth or falsity will resolve an issue that is central to the validity 

of each one of the claims in one stroke. 

Wal-Mart, 564 U.S. at 349-50, 131 S. Ct. at 2550-51, 180 L. Ed. 2d 374, (emphasis added) 

(internal quotations and citations omitted)). 

The decisions in Wal-Mart, Martin, and Blake stand for the proposition that a 

violation of law as a common issue may not support class certification in a setting where 

individualized fact-finding is necessary. As noted by the Fourth Circuit, “[w]hat matters to 

class certification . . . is not the raising of common questions–even in droves–but, rather the 

capacity of a classwide proceeding to generate common answers apt to drive the resolution 

of the litigation.” Scott v. Family Dollar Stores, Inc., 733 F.3d 105, 128 (4th Cir. 2013) 

(internal quotations and citation omitted). See M.D. ex rel. Stukenberg v. Perry, 675 F.3d 

832, 840 (5th Cir. 2012) (“[t]he members of a proposed class do not establish that ‘their 

claims can productively be litigated at once,’ merely by alleging a violation of the same legal 

provision by the same defendant.”); Likes v. DHL Express, 288 F.R.D. 524, 536 (N.D. Ala. 

2012) (rejecting class certification because resolution of the common issue meant “that 

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individualized determinations of fact would need to be decided as to each DHL contractor 

relationship”). 

In the instant case, under Syllabus point 12 of Thomas, a violation of W. Va. Code 

§ 33-6-31d by Erie would permit the Respondents to litigate their underinsured claim under 

Syllabus point 1 of Bias. The dispositive common issues or contentions in this case are set 

out in Syllabus point 1 of Bias as follows: 

Where an offer of optional coverage is required by 

statute, the insurer has the burden of proving that an effective 

offer was made, and that any rejection of said offer by the 

insured was knowing and informed. 

179 W. Va. 125, 365 S.E.2d 789. Resolving the common contentions of whether Erie made 

“an effective offer” to each of the members of the class, and whether each class member’s 

rejection of that offer was “knowing and informed,” requires individual determination. That 

is, resolution of these issues for the Respondents will not resolve the issues for any other 

class member. See, e.g., Jewell v. Ford, 211 W. Va. 592, 596, 567 S.E.2d 602, 606 (2002) 

(“[E]ven if an effective offer of optional uninsured motorist coverage was made to Jewell, 

we believe that a genuine issue of material fact exists as to whether she made a knowing and 

intelligent waiver of the additional, optional coverage.”); Parham v. Horace Mann Ins. Co., 

200 W. Va. 609, 620, 490 S.E.2d 696, 707 (1997) (“[T]he trial court clearly informed the 

jury that Appellees had the burden to prove it made a commercially reasonable offer of 

insurance and that Appellants made a knowing and intelligent rejection of such insurance.”); 

Riffle v. State Farm Mut. Auto. Ins. Co., 186 W. Va. 54, 55, 410 S.E.2d 413, 414 (1991) (“A 

jury decided that the Riffles’ rejection of this coverage was not knowing and informed; 

therefore, the trial court held State Farm liable under this Court’s decision in Bias v. 

Nationwide Mut. Ins. Co., 179 W. Va. 125, 365 S.E.2d 789 (1987).”); Miller v. Hatton, 184 

W. Va. 765, 768, 403 S.E.2d 782, 785 (1991) (“The appellants contend that Travelers did not 

prove that there was an effective offer and a knowing and intelligent waiver by the insured 

at the time the insurance was procured. . . . The appellants, however, presented no evidence 

in opposition to Travelers’ explanation of the negotiations regarding underinsurance 

coverage.”). See also Webb v. Shaffer, 694 F. Supp. 2d 497, 505 (S.D. W. Va. 2010) 

(“Because the Court finds the required offer was commercially reasonable, the only 

remaining issue presented is whether, when viewed in the light most favorable to the 

plaintiff, there is a genuine issue of material fact with respect to whether Mr. Kilgore 

knowingly and intelligently rejected such offer. The Court finds that there is not.”). 

The Bias issues are the central common questions in this litigation. The circuit court 

totally ignored these substantive issues in order to certify a class on Thomas’ holding 

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involving the loss of a presumption. The loss of the presumption under Thomas is a matter 

that a trial court may resolve as a matter of law, i.e., it ordinarily would not be a jury 

question. 

In view of the foregoing, the writ of prohibition prayed for is granted, and the trial 

court is prohibited from enforcing its class certification order of July 13, 2016. 

Writ Granted. 

ISSUED: February 13, 2017 

CONCURRED IN BY: 

Chief Justice Allen H. Loughry II 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Menis E. Ketchum 

Justice Elizabeth D. Walker 

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