[Cite as Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373, 2013-Ohio-4733.] 

CULLEN, APPELLEE, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE 

COMPANY, APPELLANT. 

[Cite as Cullen v. State Farm Mut. Auto. Ins. Co., 137 Ohio St.3d 373, 

2013-Ohio-4733.] 

Class actions—Civ.R. 23—Certification issues overlapping with issues on merits 

of claims—Burden of proof for certification—Declaratory judgments. 

(No. 2012-0535—Submitted February 26, 2013—Decided November 5, 2013.) 

APPEAL from the Court of Appeals for Cuyahoga County, 

No. 95925, 2011-Ohio-6621. 

__________________ 

SYLLABUS OF THE COURT

1. A trial court must conduct a rigorous analysis when determining whether to 

certify a class pursuant to Civ.R. 23 and may grant certification only after 

finding that all of the requirements of the rule are satisfied; the analysis 

requires the court to resolve factual disputes relative to each requirement 

and to find, based upon those determinations, other relevant facts, and the 

applicable legal standard, that the requirement is met. 

2. In resolving a factual dispute when a requirement of Civ.R. 23 for class 

certification and a merit issue overlap, a trial court is permitted to examine 

the underlying merits of the claim as part of its rigorous analysis, but only 

to the extent necessary to determine whether the requirement of the rule is 

satisfied. (Ojalvo v. Bd. of Trustees of Ohio State Univ., 12 Ohio St.3d 

230, 466 N.E.2d 875 (1984), clarified.) 

3. A party seeking certification pursuant to Civ.R. 23 bears the burden of 

demonstrating by a preponderance of the evidence that the proposed class 

meets each of the requirements set forth in the rule. 
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4. Claims for declaratory relief that merely lay a foundation for subsequent 

determinations regarding liability or that facilitate an award of damages do 

not meet the requirement for certification set forth in Civ.R. 23(B)(2). 

___________________ 

O’DONNELL, J. 

{¶ 1} State Farm Mutual Automobile Insurance Company appeals from a 

judgment of the Eighth District Court of Appeals affirming class certification of 

claims brought by Michael Cullen alleging that State Farm failed to disclose all 

benefits available to policyholders who made claims for damaged windshields. 

This case clarifies the standards to apply when an appellate court reviews 

certification of a class action pursuant to Civ.R. 23. 

{¶ 2} A class action is an exception to the general rule that litigation is 

conducted by and on behalf of the named parties only, and therefore, to justify a 

departure from this rule, the representative of the putative class is required to 

affirmatively demonstrate that each requirement of Civ.R. 23 has been satisfied. 

When determining whether to certify a class, a trial court must conduct a rigorous 

analysis, and it may grant certification only after resolving all relevant factual 

disputes and finding that sufficient evidence proves that all requirements of 

Civ.R. 23 have been satisfied. 

{¶ 3} Here, the appellate court affirmed certification of the class 

pursuant to Civ.R. 23(B)(2) and (3). However, because the declaratory relief at 

issue here is incidental to an individualized claim for monetary damages, Cullen 

has not met the requirement for certification set forth in Civ.R. 23(B)(2). In 

addition, because individual questions predominate over the questions common to 

the proposed class, Cullen has not proven that this action satisfies Civ.R. 

23(B)(3). Accordingly, we reverse the judgment of the court of appeals and 

remand the matter to the trial court for further proceedings consistent with this 

opinion. 
January Term, 2013 

3 

Facts and Procedural History

{¶ 4} In 2003, Michael Cullen contacted his automobile insurance 

carrier, State Farm, to report damage to the windshield of his car. After speaking 

with his agent, Cullen spoke to a representative from Lynx Services, L.L.C., a 

company that began handling windshield claims for State Farm in 1996. As a 

result of that conversation, Twinsburg Glass & Mirror repaired his windshield. 

{¶ 5} In 2005, Cullen sued State Farm, requesting class certification and 

a declaratory judgment that State Farm’s practices were illegal and violated 

obligations owed by fiduciaries pursuant to Ohio law. In addition, Cullen asserted 

claims for breach of contract, bad faith, and breach of fiduciary duty and sought 

compensatory and punitive damages. The complaint defined the class to include 

all State Farm policyholders on or after February 18, 1990, and alleged that State 

Farm had denied them full payment on windshield claims because, instead of 

replacing windshields, it repaired some windshields with a chemical compound 

that it knew or should have known was “only temporary, not entirely translucent, 

and incapable of restoring the windshield to its preaccident condition” and that 

State Farm was not “paying the insured to replace the glass,” less any deductible. 

As a result of State Farm’s alleged breach, Cullen and the class demanded 

“damages in an amount to be determined at trial under principles of Ohio 

common law” or that State Farm be ordered to “tender benefits sufficient to 

replace the windshields in accordance with policy requirements.” 

{¶ 6} The trial court held a hearing on the certification issue. Although 

Cullen could not remember speaking to a representative of Lynx or whether he 

had been offered the choice of replacing his windshield or receiving the cash 

value of a new windshield, less his deductible, he asserted that State Farm agents 

and representatives failed to disclose to policyholders making “glass-only” claims 

that the policies contained a benefit referred to as the “cash-out” option. 

According to Cullen, although the State Farm policy promised its insureds the 
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option of receiving a cash payment of the replacement cost of the windshield, less 

any deductible, it prepared a script for representatives to induce policyholders to 

repair their windshields without disclosing the cash-out option. State Farm 

referred to the outline it provided to its agents and representatives handling glassonly claims as a “word track,” arguing that it gave them discretion to respond to 

questions asked by insureds. 

{¶ 7} The trial court concluded that Cullen and the class satisfied the 

requirements of Civ.R. 23(A) and (B)(2) and (3), specifically finding that the 

class satisfied Civ.R. 23(B)(2) because “it appear[ed] that the same practices 

which the Named Plaintiff experienced [were] still ongoing” and it further 

determined that a declaratory judgment and injunctive relief were “potential 

available remedies which can be issued on a class wide [sic] basis in the event 

that [Cullen] prevails upon the merits of his claim.” In finding that Cullen and the 

class met the requirements for certification pursuant to Civ.R. 23(B)(3), the trial 

court explained: 

The Court is sufficiently convinced that Plaintiffs’ claims for relief 

are founded squarely upon standardized policies and practices 

which had been adopted and employed by State Farm throughout 

Ohio on a systematic basis during the Class Period. Given that the 

maximum individual recoveries will be relatively modest, separate 

lawsuits are not realistic. And it is doubtful that the Ohio judicial 

system could afford full and fair relief to thousands of aggrieved 

insureds on a case-by-case basis. A class action is thus the most 

preferable and superior method for adjudicating the common 

questions of law and fact, which the Court concludes, predominate 

over any individual questions which may exist. 
January Term, 2013 

5 

{¶ 8} The trial court defined the class as follows: 

All persons and business entities covered under an Ohio 

motor vehicle insurance policy issued by [State Farm] who made a 

“Glass Only” physical damage comprehensive coverage claim on 

or after January 1, 1991 for cracked, chipped or damaged 

windshields and received a chemical filler or patch repair, or 

payment thereof, instead of a higher amount for actual cash value 

or replacement cost of the windshield. The lesser of the amount of 

the actual cash value or the replacement cost of the windshield for 

each claim must exceed the insured’s applicable deductible. 

The trial court further divided the class into two subclasses: those insureds who 

had their claims administered by Lynx and those who did not. 

{¶ 9} State Farm appealed, and the Eighth District Court of Appeals 

affirmed the order certifying the class pursuant to Civ.R. 23(B)(2) and (3), but it 

reversed that portion of the decision defining the class and remanded with 

instructions to the trial court to redefine it. The court of appeals explained: 

For claims handled using a common script or word track, 

the trial court did not err in certifying the class in this case. 

Individual questions do not predominate because the script used by 

Lynx and developed by State Farm establishes class-wide 

treatment under Cullen’s theory that State Farm breached its 

contracts with insureds by dissuading individuals from replacing 

their windshields and not informing them of their option to receive 

a check for the value of the windshield less their deductible. For 

claims made prior to the use of a common script, Cullen argues 
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that the policy language simplifies the case to a showing that the 

policy in question required State Farm to restore vehicles to their 

preloss condition and that a windshield repair cannot do so. The 

theory, while dubious, does provide a means to resolve the case on 

a class-wide basis for these members. Therefore, the trial court did 

not err in certifying this class. However, the class definition must 

be restricted to exclude those who had their windshields replaced 

after repair. 

2011-Ohio-6621, 970 N.E.2d 1043, at ¶ 56. 

{¶ 10} We accepted State Farm’s discretionary appeal regarding the class 

certification and the standards that apply to a review of an order certifying a class 

pursuant to Civ.R. 23(B)(2) and (B)(3).

Class Actions 

{¶ 11} A class action is “an exception to the usual rule that litigation is 

conducted by and on behalf of the individual named parties only,” Califano v. 

Yamasaki, 442 U.S. 682, 700-701, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979), and 

“[t]o come within the exception, a party seeking to maintain a class action ‘must 

affirmatively demonstrate his compliance’ with Rule 23,” Comcast Corp. v. 

Behrend, ___ U.S. ___, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013), quoting 

Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___, 131 S.Ct. 2541, 2551-2552, 180 

L.Ed.2d 374 (2011). 

{¶ 12} Civ.R. 23 provides seven requirements for maintaining a class 

action: 

“(1) an identifiable class must exist and the definition of the class 

must be unambiguous; (2) the named representatives must be 

members of the class; (3) the class must be so numerous that 
January Term, 2013 

7 

joinder of all members is impracticable; (4) there must be 

questions of law or fact common to the class; (5) the claims or 

defenses of the representative parties must be typical of the claims 

or defenses of the class; (6) the representative parties must fairly 

and adequately protect the interests of the class; and (7) one of the 

three Civ.R. 23(B) requirements must be met.” 

Stammco, L.L.C. v. United Tel. Co. of Ohio, 125 Ohio St.3d 91, 2010-Ohio-1042, 

926 N.E.2d 292, at ¶ 6, quoting Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 

71, 694 N.E.2d 442 (1998), citing Civ.R. 23(A) and (B) and Warner v. Waste 

Mgt., 36 Ohio St.3d 91, 521 N.E.2d 1091 (1988). 

{¶ 13} This appeal does not challenge the determination of the trial court 

that Cullen and the class met the requirements of Civ.R. 23(A), but rather focuses 

on whether the class met the requirements of Civ.R. 23(B)(2) and (3), which 

allow a class action in either of the following situations: 

(2) the party opposing the class has acted or refused to act 

on grounds generally applicable to the class, thereby making 

appropriate final injunctive relief or corresponding declaratory 

relief with respect to the class as a whole; or 

(3) the court finds that the questions of law or fact common 

to the members of the class predominate over any questions 

affecting only individual members, and that a class action is 

superior to other available methods for the fair and efficient 

adjudication of the controversy. The matters pertinent to the 

findings include: (a) the interest of members of the class in 

individually controlling the prosecution or defense of separate 

actions; (b) the extent and nature of any litigation concerning the 
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controversy already commenced by or against members of the 

class; (c) the desirability or undesirability of concentrating the 

litigation of the claims in the particular forum; (d) the difficulties 

likely to be encountered in the management of a class action. 

{¶ 14} Because Civ.R. 23 is virtually identical to Fed.R.Civ.P. 23, we 

have recognized that “federal authority is an appropriate aid to interpretation of 

the Ohio rule.” Marks v. C.P. Chem. Co., Inc., 31 Ohio St.3d 200, 201, 509 

N.E.2d 1249 (1987). In Marks, we reviewed certification of a class action against 

the manufacturer, distributor, and installers of foamed-in-place insulation which 

allegedly emitted dangerous levels of formaldehyde. In the complaint, the class 

representative sought injunctive and declaratory relief ordering future diagnostic 

testing for every class member. The trial court denied certification pursuant to 

Civ.R. 23(B)(2) and (B)(3), and the court of appeals reversed. We reinstated the 

trial court’s decision that Civ.R. 23(B)(2) did not permit class certification, 

relying on decisions of federal circuit courts construing Fed.R.Civ.P. 23(b)(2) and 

holding that “this provision is inapplicable where the primary relief requested is 

damages.” Marks at 203, citing Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d 

Cir.1968), vacated on other grounds, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 

732 (1974), and School Dist. of Lancaster v. Lake Asbestos of Quebec, Ltd., 789 

F.2d 996 (3d Cir.1986). We also reversed the appellate court’s determination that 

the class action could proceed pursuant to Civ.R. 23(B)(3), because individual 

questions—such as the products used, the manner of their storage and installation, 

and defects in the structures where installed, which affected the emission of 

formaldehyde—predominated over common ones. 

The Rigorous Analysis of the Trial Court 

{¶ 15} In Comcast, 133 S.Ct. at 1432, 185 L.Ed.2d 515, quoting Wal–

Mart, 131 S.Ct. at 2551-2552, 180 L.Ed.2d 374, the court stated that Civ.R. 23 
January Term, 2013 

9 

“ ‘does not set forth a mere pleading standard.’ * * * Rather, a party must not only 

‘be prepared to prove that there are in fact sufficiently numerous parties, common 

questions of law or fact,’ typicality of claims or defenses, and adequacy of 

representation, as required by Rule 23(a). * * * The party must also satisfy 

through evidentiary proof at least one of the provisions of Rule 23(b).” And this 

court has held that a party seeking certification pursuant to Civ.R. 23 bears the 

burden of demonstrating by a preponderance of the evidence that the proposed 

class meets each of the requirements set forth in the rule. Warner v. Waste Mgt., 

36 Ohio St.3d at 94, 521 N.E.2d 1091; see also Amchem Prods., Inc. v. Windsor, 

521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). 

{¶ 16} Moreover, a trial court must conduct a rigorous analysis when 

determining whether to certify a class pursuant to Civ.R. 23 and may grant 

certification only after finding that all of the requirements of the rule are satisfied; 

the analysis requires the court to resolve factual disputes relative to each 

requirement and to find, based upon those determinations, other relevant facts, 

and the applicable legal standard, that the requirement is met. State ex rel. Davis 

v. Pub. Emps. Retirement Bd., 111 Ohio St.3d 118, 2006-Ohio-5339, 855 N.E.2d 

444, at ¶ 20, citing Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d at 70, 694 N.E.2d 

442 (1998); see also Comcast, 133 S.Ct. at 1432, 185 L.Ed.2d 515, Wal-Mart, 

131 S.Ct. at 2551, 180 L.Ed.2d 374, and Initial Pub. Offering Sec. Litigation, 471 

F.3d 24, 40-41 (2d Cir.2006) (“In re IPO”). 

{¶ 17} In Ojalvo v. Bd. of Trustees of Ohio State Univ., 12 Ohio St.3d 

230, 233, 466 N.E.2d 875 (1984), we stated, “Class action certification does not

go to the merits of the action.” (Emphasis sic.) However, deciding whether a 

claimant meets the burden for class certification pursuant to Civ.R. 23 requires the 

court to consider what will have to be proved at trial and whether those matters 

can be presented by common proof. 7AA Wright, Miller & Kane, Federal 

Practice and Procedure, Section 1785 (3d Ed.2005). Thus, Wal-Mart instructs 
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that in resolving a factual dispute when a requirement of Civ.R. 23 for class 

certification and a merit issue overlap, a trial court is permitted to examine the 

underlying merits of the claim as part of its rigorous analysis, but only to the 

extent necessary to determine whether the requirement of the rule is satisfied. 

Wal-Mart at 2551-2552; Ellis v. Costco Wholesale Corp., 657 F.3d 970, 981 (9th 

Cir.2011). 

{¶ 18} In Comcast, the Supreme Court reiterated 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, 133 S.Ct. at 1432, 185 L.Ed.2d 515, quoting Wal-Mart, 

131 S.Ct. at 2541, quoting Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 

147, 160-161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The court noted that “[t]he 

same analytical principles govern Rule 23(b)” and explained that “[s]uch an 

analysis will frequently entail ‘overlap’ with the merits of the plaintiff’s 

underlying claim” because “ ‘ “class determination generally involves 

considerations that are enmeshed in the factual and legal issues comprising the 

plaintiff’s cause of action.” ’ ” Comcast at 1432, quoting Wal-Mart at 2551, 

quoting Gen. Tel. Co. of the Southwest at 160. 

Standard of Review 

{¶ 19} “A trial judge has broad discretion in determining whether a class 

action may be maintained and that determination will not be disturbed absent a 

showing of an abuse of discretion.” Marks, 31 Ohio St.3d 200, 509 N.E.2d 1249, 

syllabus; see also Howland v. Purdue Pharma L.P., 104 Ohio St.3d 584, 2004-

Ohio-6552, 821 N.E.2d 141, at ¶ 17. A trial court, however, abuses its discretion 

when its decision is “unreasonable, arbitrary, or unconscionable.” Wilson v. 

Brush Wellman, Inc., 103 Ohio St.3d 538, 2004-Ohio-5847, 817 N.E.2d 59, at 

¶ 30. This standard applies to the ultimate decision of the trial court, Marks,
January Term, 2013 

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syllabus, as well as to its determination regarding each requirement of the rule. 

See In re IPO, 471 F.3d at 40-41. 

{¶ 20} However, as we clarified in Eastley v. Volkman, 132 Ohio St.3d 

328, 2012-Ohio-2179, 972 N.E.2d 517, “[i]n a civil case, in which the burden of 

persuasion is only by a preponderance of the evidence, rather than beyond a 

reasonable doubt, evidence must still exist on each element (sufficiency) and the 

evidence on each element must satisfy the burden of persuasion (weight).” Id. at 

¶ 19. 

Certification of the Class 

Civ.R. 23(B)(2) 

{¶ 21} Civ.R. 23(B)(2) provides that class treatment may be maintained 

when “the party opposing the class has acted or refused to act on grounds 

generally applicable to the class, thereby making appropriate final injunctive 

relief or corresponding declaratory relief with respect to the class as a whole.” 

Claims for individualized relief are not compatible with Civ.R. 23(B)(2), because 

the relief sought must affect the entire class at once. Wal-Mart, 131 S.Ct. at 

2557-2558, 180 L.Ed.2d 374. Thus, the Supreme Court clarified in Wal-Mart that 

Fed.R.Civ.P. 23(b)(2) 

applies only when a single injunction or declaratory judgment 

would provide relief to each member of the class. It does not 

authorize class certification when each individual class member 

would be entitled to a different injunction or declaratory judgment 

against the defendant. Similarly, it does not authorize class 

certification when each class member would be entitled to an 

individualized award of monetary damages. 

(Emphasis sic.) 131 S.Ct. at 2557. 
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{¶ 22} For these reasons, certification depends on “what type of relief is 

primarily sought, so where the injunctive relief is merely incidental to the primary 

claim for money damages, Civ.R. 23(B)(2) certification is inappropriate.” Wilson 

v. Brush Wellman, Inc., 103 Ohio St.3d 538, 2004-Ohio-5847, 817 N.E.2d 59, at 

¶ 17. 

{¶ 23} In the instant case, the court of appeals appears to have relied on 

our decision in Hamilton v. Ohio Sav. Bank, 82 Ohio St.3d 67, 694 N.E.2d 442, 

which it viewed as holding that when the Civ.R. 23(A) prerequisites have been 

met and injunctive or declaratory relief has been requested, the action should be 

allowed to proceed pursuant to subdivision (B)(2), without the need for 

conducting a rigorous analysis. However, Hamilton does not allow a court to 

dispense with the more rigorous analysis of whether a class should be certified. 

Instead, Hamilton directs that “[t]he trial court is required to carefully apply the 

class action requirements and conduct a rigorous analysis into whether the 

prerequisites of Civ.R. 23 have been satisfied.” Id. at 70. We did not create an 

exception to this requirement for actions brought pursuant to Civ.R. 23(B)(2), but 

rather we emphasized that certification of a class is not permitted by Civ.R. 

23(B)(2) when the primary relief sought is damages, not injunctive or declaratory 

relief. 

{¶ 24} Furthermore, Hamilton is distinguishable from this case on its 

facts. There, the class sought to enjoin the practice of overcharging interest and 

misamortizing loans. We concluded that without injunctive or declaratory relief, 

the class would not be able to recover for ongoing injuries caused to each class 

member by continuing practices. In contrast, the proposed Cullen class seeks a 

declaration “establishing that State Farm’s practices as herein described are illegal 

and/or violative of the terms of the standard policies and the obligations owed by 

fiduciaries under Ohio law,” as well as one “establishing the damages and 

remedies that are due to them.” This does not allege that any ongoing practice 
January Term, 2013 

13 

continues to injure all class members, some of whom, like Cullen himself, are no 

longer State Farm policyholders and could not be injured by future actions taken 

by State Farm. And for any current policyholders to be harmed by this practice, 

they necessarily would have to suffer another damaged windshield that State 

Farm repaired rather than replaced. 

{¶ 25} As the Supreme Court explained in Wal-Mart, “The key to the 

(b)(2) class is ‘the indivisible nature of the injunctive or declaratory remedy 

warranted—the notion that the conduct is such that it can be enjoined or declared 

unlawful only as to all of the class members or as to none of them.’ ” (Emphasis 

added.) 131 S.Ct. at 2557, 180 L.Ed.2d 374, quoting Nagareda, Class 

Certification in the Age of Aggregate Proof, 84 N.Y.U.L.Rev. 97, 132 (2009). In 

this case, claimants have not demonstrated that all class members would benefit 

from the declaratory relief sought because, for example, some of the class 

members are not currently policyholders. 

{¶ 26} The appellate court also relied on Allison v. Citgo Petroleum 

Corp., 151 F.3d 402 (5th Cir.1998), for the proposition that certification of a class 

pursuant to Civ.R. 23(B)(2) is permissible when “the relief sought includes 

money damages that require individualized analyses as to the proper amount, but 

that relief flows from the declaratory judgment sought.” Cullen, 2011-Ohio-6621,

970 N.E.2d 1043, at ¶ 50. But in Wal-Mart, the court questioned the Fifth 

Circuit’s conclusion that the federal analogue to Civ.R. 23(B)(2) permits 

certification when the monetary damages sought are “incidental to requested 

injunctive or declaratory relief.” 131 S.Ct. at 2560. 

{¶ 27} Even if Civ.R. 23(B)(2) did allow certification when the monetary 

damages are only incidental to the declaratory relief, the damages in this case are 

not merely incidental to the declaratory relief but, rather, are the primary relief 

sought. The effect of a declaration on members of the proposed class could 

establish liability, thereby allowing an individualized award of monetary damages 
SUPREME COURT OF OHIO

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to each class member. However, claims for declaratory relief that merely lay a 

foundation for subsequent determinations regarding liability or that facilitate an 

award of damages do not meet the requirement for certification as set forth in 

Civ.R. 23(B)(2). Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 893 

(7th Cir.2011) (“this case is unsuitable for class certification: An injunction would 

not provide ‘final’ relief as required by Rule 23(b)(2). An injunction is not a final 

remedy if it would merely lay an evidentiary foundation for subsequent 

determinations of liability”); Richards v. Delta Air Lines, Inc., 453 F.3d 525, 530 

(D.C.Cir.2006). 

{¶ 28} Accordingly, Cullen’s action seeking a declaration that State 

Farm’s practices are illegal and violated fiduciary obligations merely lays a 

foundation for a subsequent individual determination of liability and does not 

satisfy the requirements for class certification pursuant to Civ.R. 23(B)(2). 

Civ.R. 23(B)(3) 

{¶ 29} Certification pursuant to Civ.R. 23(B)(3) requires the trial court to 

make two findings: first, “that the questions of law or fact common to the 

members of the class predominate over any questions affecting only individual 

members” and, second, “that a class action is superior to other available methods 

for the fair and efficient adjudication of the controversy.” This inquiry requires a 

court to balance questions common among class members with any dissimilarities 

between them, and if the court is satisfied that common questions predominate, it 

then should “consider whether any alternative methods exist for resolving the 

controversy and whether the class action method is in fact superior.” Ealy v. 

Pinkerton Govt. Servs., Inc., 4th Cir. No. 12-1252, 2013 WL 980035, *7 (Mar. 14, 

2013). 

{¶ 30} “For common questions of law or fact to predominate, it is not 

sufficient that such questions merely exist; rather, they must present a significant 

aspect of the case. Furthermore, they must be capable of resolution for all 
January Term, 2013 

15 

members in a single adjudication.” Marks, 31 Ohio St.3d at 204, 509 N.E.2d 

1249. “ ‘To meet the predominance requirement, a plaintiff must establish that 

issues subject to generalized proof and applicable to the class as a whole 

predominate over those issues that are subject to only individualized proof.’ ” 

Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 544 (6th Cir.2012), quoting 

Randleman v. Fid. Natl. Title Ins. Co., 646 F.3d 347, 352-353 (6th Cir.2011), 

citing Beattie v. CenturyTel, Inc., 511 F.3d 554, 564 (6th Cir.2007). 

{¶ 31} Rather than determining that Cullen proved compliance with 

Civ.R. 23(B)(3) by a preponderance of the evidence, the appellate court 

hypothesized that “if Cullen’s theory of the case is believed, the use of a common 

plan to steer claimants to opt for repair rather than replacement or disclosure of a 

cash payment for the value of the glass, less deductible, is a significant class-wide 

issue.” (Emphasis added.) 2011-Ohio-6621, 970 N.E.2d 1043, at ¶ 21. Thus, in 

reviewing the question of whether State Farm violated a duty to fully disclose all 

pertinent benefits and coverages pursuant to Ohio Adm.Code 3901-1-54(E)(1), 

the court did not evaluate the evidence presented to the trial court but noted only 

that “Cullen argues that this was not done.” (Emphasis added.) Id. at ¶ 22. And 

although the appellate court recognized that these issues were “hotly contested by 

the parties,” it concluded that “none of these issues need be decided at this time 

because class certification is not akin to a motion for summary judgment.” Id. at 

¶ 24. 

{¶ 32} Similarly, when deciding whether the pre-1997 policies obligated 

State Farm to restore the claimant’s vehicle to preloss condition and whether 

expert testimony could establish that repair of a windshield will never return it to 

preloss condition, the appellate court declined to consider the merits of the 

claim—even though the court described this theory of recovery as “dubious”—but 

presumed that this theory “provide[s] a means to resolve the case on a class-wide 

basis for these members.” Id. at ¶ 56. 
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{¶ 33} Most importantly, the crux of Cullen’s class action is that the 

insurance policies at issue provided policyholders with the option of a cash 

payment in lieu of repair or replacement of the windshield, but the appellate court 

did not determine whether the policies provided any such benefit, deciding that 

“[t]his goes to the heart of the merits of the case and is inappropriate at this point. 

Class certification does not address the merits of the claim.” 2011-Ohio-6621, 

970 N.E.2d 1043, at ¶ 55. The appellate court further noted, “The trial court 

examined these issues and determined that Cullen has raised a colorable claim

sufficient to satisfy the Civ.R. 23 standards. That was not an abuse of discretion.” 

(Emphasis added.) Id. at ¶ 26. 

{¶ 34} A colorable claim does not satisfy the requirements of Civ.R. 23. 

Nor can compliance with the rule be presumed from allegations in a complaint. 

Rather, in this instance, Cullen had to demonstrate, and the trial court had to find, 

that questions common to the class in fact predominate over individual ones, and 

proof of predominance necessarily overlaps with proof of the merits in this case. 

Because the appellate court rejected any consideration of the underlying merits, it 

did not review whether the trial court conducted a rigorous analysis or whether 

sufficient evidence supported the trial court’s findings. 

{¶ 35} Further, the appellate court did not even consider whether any of 

State Farm’s defenses to liability raise individualized issues not susceptible of 

generalized proof. For example, State Farm asserts that it is not liable if an 

individual class member knowingly chose windshield repair—but individual 

consent and knowledge cannot be proven with common evidence. And if a 

windshield repair could return a vehicle to preloss condition—a question that 

neither the trial nor the appellate court resolved—State Farm’s liability would be 

subject to individual examinations of each vehicle, not common questions. 

{¶ 36} Rather than remand this matter to the court of appeals to consider 

these issues, our review of the record reveals that individual issues overwhelm the 
January Term, 2013 

17 

questions common to the class, and the trial court therefore abused its discretion 

in certifying the class action. 

{¶ 37} First, this putative class action is premised on State Farm’s alleged 

failure to disclose policy benefits through Lynx by using a script to steer insureds 

toward windshield repair. However, the class includes claims made beginning in 

1991, even though Lynx began administering claims in 1997, and prior to that 

time individual State Farm agents handled windshield claims. But even after 

Lynx began to administer claims, policyholders had various individual, unscripted 

conversations with Lynx representatives, insurance agents, and repair-shop 

personnel, and there is no common proof of what any individual policyholder 

knew when consenting to windshield repair. Determining whether State Farm 

breached any obligations to insureds necessarily entails an individualized inquiry 

into each of these communications. 

{¶ 38} Second, different versions of the policy covered putative class 

members on claims that span a period greater than 20 years. The policy in effect 

from 1991 to March 31, 1998, stated that State Farm would “pay for loss” to the 

policyholder’s vehicle and that it had the right to settle the loss by paying the 

actual cash value of the property at the time of the loss, as determined by 

agreement or appraisal. State Farm could also pay to repair or replace the 

damaged property, and the policy limited its liability to the lower of the actual 

cash value or the costs to repair or replace the property. But even if, as Cullen 

contends, this language allowed class members to elect to receive the actual cash 

value of the windshield, the policy provides that “[a]ctual cash value is 

determined by the market value, age and condition at the time the loss occurred. 

Any deductible amount that applies is then subtracted.” Significant individual 

questions therefore exist concerning the market value, age, and condition of a 

particular windshield, the costs of repairing or replacing it, and the amount of the 

deductible in establishing State Farm’s liability to any given class member. 
SUPREME COURT OF OHIO

18 

{¶ 39} Policies issued between April 1, 1998, and August 31, 2005, 

contained the same language as the prior policies, but they also stated: “If we 

offer to pay for repair of the damaged windshield glass instead of replacement of 

the windshield and you agree to have such repair made, we will pay the full cost 

of repairing the windshield regardless of your deductible.” Thus, in addition to 

the individual questions regarding the actual cash value of the windshield 

compared to the costs of its repair or replacement, this version of the policy 

introduces new individualized questions concerning whether the policyholder 

knowingly chose and consented to repair in exchange for State Farm’s waiver of 

the deductible. 

{¶ 40} State Farm later removed the deductible waiver for windshield 

repairs from subsequent policies, but individual questions regarding the actual 

cash value of a particular windshield and the costs to repair or replace it remain 

under this third variation of the policy. 

{¶ 41} Third, the covered automobile, and therefore the value of the 

windshield compared to the cost of repairing or replacing it, varied. Multiple 

replacement windshields were available to glass shops over the decades-long 

period that the proposed class spans, and the costs of these windshields and the 

materials and labor needed to install them differed. State Farm adjusted the price 

it would pay based on the “market designation” assigned to each county, and 

these designations changed over time. The features of the covered windshield, 

such as tinting and rain sensors, also affected value and replacement cost. Thus, 

the costs to repair or replace a particular windshield varied by make, model, and 

year of the covered vehicle and by time and place of repair. 

{¶ 42} Fourth, expert testimony presented in this case does not provide 

common proof that repairs failed to return all windshields to preloss condition. 

Cullen proffered the opinion of Craig Carmody that “[w]indshield repair fails to 

restore the windshield glass to an acceptable condition in terms of appearance and 
January Term, 2013 

19 

functionality in all cases.” But Carmody claimed to have examined only 17 to 22 

repaired windshields, and it does not appear that his theories on glass repair have 

been thoroughly tested, peer-reviewed, evaluated for rate of error (including 

sampling error), or generally accepted in the scientific community. See generally

Terry v. Caputo, 115 Ohio St.3d 351, 2007-Ohio-5023, 875 N.E.2d 72, ¶ 24-25, 

citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 

2786, 125 L.Ed.2d 469 (1993). However, even if the trial court found Carmody 

qualified as an expert witness and his theories scientifically reliable, his opinion 

that a repair fails to restore the windshield to preloss condition does not establish 

that common questions predominate. 

{¶ 43} Although Carmody testified that a repaired windshield will 

eventually fail, he could not say whether that failure would occur during the life 

of the vehicle or even during a ten-year period. Although he asserted that 

repaired windshields were more prone to failure, Carmody agreed that “you’d 

have to look at each of those windshields” to determine whether the PVB 

interlayer of laminated glass had been compromised and affected the function of 

the glass, causing it to fail. He also knew of no report of or statistics regarding 

windshield repairs causing delamination and spalling of glass, and he admitted 

that there is “no strong data” showing that the strength of repaired glass does not 

equal the original strength of laminated glass; moreover, he understood that one 

study found Ultra Bond resin to be as strong as glass and that the type of resin 

used in the repair “has some effect on the quality of the repair in addition to the 

other variables.” 

{¶ 44} Thus, Carmody acknowledged “the huge variation that occurs in 

any repair, even in controlled conditions.” And notably, in examining Cullen’s 

windshield with a microscope, Carmody could not determine that the repair had 

failed or that the crack had spread, and his assertions that a repaired windshield 
SUPREME COURT OF OHIO

20 

could delaminate and spall did not apply to Cullen’s windshield, because the onetenth-inch chip in it had not penetrated the PVB interlayer. 

{¶ 45} Carmody also criticized a repaired windshield as not being as 

transparent as new glass. But he acknowledged that the transparency of repaired 

glass could “depend on the repair” and could be affected by real-world conditions, 

such as windshield-wiper abrasion and exposure to UV light and chemicals in the 

air. He also agreed that repair can restore transparency to windshield damage, 

and he did not know whether tests had shown that repairs can restore windshields 

to the transparency required by safety standards. 

{¶ 46} Cullen’s other proffered expert, Gary Derian, admitted that he had 

no expertise in windshield repair and relied on Camody’s glass analysis in 

forming his opinion that repairing a windshield failed to restore it to preloss 

condition, both aesthetically and from a safety standpoint. But he acknowledged 

that determining whether the resin in a repaired windshield had degraded and 

failed required individually examining that windshield and that performance 

varied based on the type of resin used and conditions such as “temperature, 

humidity, cleanliness, preparation.” When asked “whether or not the color of a 

resin changes over time,” Derian indicated that a change could not be assumed: 

“One would want to inspect and determine how much in cases of that, that 

particular [resin].” And when asked how he would decide whether a repaired 

windshield violated established standards, Derian responded, “[I]t would have to 

be done on a car by car basis with an automobile engineer present at each repair.” 

{¶ 47} Both Carmody and Derian asserted that the repair could not restore 

a windshield to preloss condition, but neither had sufficient evidentiary 

foundation for those opinions. Derian relied on Carmody’s report, and Carmody 

in turn based his opinion on an unscientific sample of at most 22 vehicles in 

addition to a single study questioning whether resin should be used to repair 

longer cracks. Neither Carmody nor Derian performed any tests on repaired 
January Term, 2013 

21 

windshields to quantify the strength, durability, and transparency of repairs, and 

neither knew of any tests or studies that proved their opinions and methods. 

{¶ 48} Thus, this expert testimony raises more individual questions than it 

resolves, and deciding whether State Farm breached any duty to restore 

policyholders’ windshields to preloss condition will require an individual 

inspection of each class member’s windshield to determine the preloss and 

postrepair conditions, and these individualized issues necessarily predominate 

over any questions common to the class. 

{¶ 49} Our analysis conforms with Avery v. State Farm Mut. Auto. Ins. 

Co., 216 Ill.2d 100, 138, 296 Ill.Dec. 448, 835 N.E.2d 801 (2005), where the 

Supreme Court of Illinois considered a claim for breach of contract that depended 

on restoring an automobile to its preloss condition and held that “[a] necessary 

first step in making this showing would be to examine each class member’s 

vehicle to determine its preloss condition.” It further explained that “the 

determination of the preloss condition of each subclass member’s vehicle would 

require the individual examination of hundreds of thousands, if not millions, of 

vehicles. Undoubtedly, these examinations would overwhelm any question 

common to the subclass, rendering it impossible for such questions to 

predominate.” Id. For this reason, the court concluded, “a claim for breach of the 

preloss condition promise cannot be maintained as a class action.” Id. 

{¶ 50} In sum, the determination of preloss and postrepair condition, the 

preloss value and the costs to repair or replace a particular windshield, and the 

individual knowledge and consent of each class claimant entail inspection of tens 

of thousands of automobiles and an individualized assessment of the damages 

each class member sustained, if any. For these reasons, this action does not 

satisfy the predominance requirement of Civ.R. 23(B)(3). 

 
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22 

Conclusion 

{¶ 51} Review of the certification of a class action requires the appellate 

court to determine whether the trial court conducted a rigorous analysis that 

resolved all relevant factual disputes and found by a preponderance of the 

evidence that the requirements of Civ.R. 23 have been satisfied. In making this 

determination, some consideration of the underlying merits of the cause of action 

may be necessary. 

{¶ 52} Here, this action does not satisfy the requirements for class 

certification pursuant to Civ.R. 23(B)(2), because the declaratory relief sought is 

at best only incidental to an award of monetary damages, and the trial court 

abused its discretion in granting class certification pursuant to Civ.R. 23(B)(3), 

because a rigorous analysis of the evidence presented by the parties demonstrates 

that individual questions predominate over issues common to the class. 

{¶ 53} Accordingly, we reverse the judgment of the appellate court and 

remand this matter to the trial court for further proceedings consistent with this 

opinion. 

Judgment reversed 

and cause remanded. 

 O’CONNOR, C.J., and KENNEDY and MCFARLAND, JJ., concur. 

 LANZINGER, J., concurs in paragraph three of the syllabus and in the 

judgment. 

 PFEIFER and O’NEILL, JJ., dissent. 

 MATTHEW W. MCFARLAND, J., of the Fourth Appellate District, sitting for 

FRENCH, J. 

__________________ 

 O’NEILL, J., dissenting.

{¶ 54} This is not a difficult class to define, and this case represents a 

perfect opportunity to breathe life into class actions in Ohio. Class actions 
January Term, 2013 

23 

promote judicial economy and allow resolution of issues that are economically 

unsolvable via individual actions. It goes without saying that one lawsuit that 

resolves one question is preferable to one thousand lawsuits on the same question. 

For the following reasons, I must respectfully dissent. 

{¶ 55} The majority’s analysis fails to differentiate between the factual 

showing that plaintiffs must make to be entitled to class certification and the 

factual showing that plaintiffs must make to survive a motion for summary 

judgment. While it may be difficult to separate them in some cases, here it is not. 

Civ.R. 23(B)(3) requires that “the questions of law or fact common to the 

members of the class predominate over any questions affecting only individual 

members, and that a class action is superior to other available methods for the fair 

and efficient adjudication of the controversy.” The theory justifying certification 

of the class in this case is twofold. First, it is alleged that State Farm had an 

obligation to disclose to its policyholders that it would pay the actual cash value 

or replacement cost of a windshield, less the policy deductible, in the same 

circumstances in which it would pay for the cheaper and less reliable repair of a 

windshield. In addition, it is alleged that State Farm and its subcontractor Lynx 

Services used a common plan, including failure to disclose other options, to steer 

policyholders away from replacement toward the less costly and less reliable 

repair option. 

{¶ 56} Insofar as the plaintiffs have limited their class definition to those 

policyholders who were damaged by these two actions, they have formulated a 

class definition that satisfies Civ.R. 23, and their case should be permitted to 

proceed in accordance with the appellate court’s decision. And given the fact that 

State Farm had already lost a motion for summary judgment before class 

certification was even addressed, the argument that the manageability of the class 

was not explored by the trial court is not supported by the record. Perhaps it is this 

unusual process that inspires the majority to shoehorn the merits of the case into 
SUPREME COURT OF OHIO

24 

its review of the class certification, under the guise of the “rigorous analysis” a 

trial court is required to undertake prior to certifying a class. But in so doing, the 

majority fails to accord the trial court the deference to which it is entitled. 

{¶ 57} The majority first faults the appellate court for failing to determine 

whether the policies in fact provided the option of a cash payout in lieu of repair 

or replacement of the windshield, and then faults the trial court for its decision 

that “ ‘Cullen has raised a colorable claim sufficient to satisfy the Civ.R. 23 

standards.’ * * * (Emphasis added.)” Majority opinion at ¶ 33, quoting the court 

of appeals, 2011-Ohio-6621, 970 N.E.2d 1043, at ¶ 26. The majority boldly 

asserts that “Cullen had to demonstrate, and the trial court had to find, that 

questions common to the class in fact predominate over individual ones * * *.” 

Majority opinion at ¶ 34. This holding is irreconcilable with our prior cases, most 

notably Ojalvo v. Bd. of Trustees of Ohio State Univ., 12 Ohio St.3d 230, 466 

N.E.2d 875 (1984), syllabus, in which we held, “A court abuses its discretion in 

denying certification of a class action * * * when it requires a certainty that a 

common issue of fact ‘probably exists’ based on the merits of the class claim 

* * *.” The majority has not “clarified” Ojalvo, majority opinion at paragraph two 

of the syllabus, so much as it has overruled it. 

{¶ 58} And ironically, the appellate court noted that the trial court had 

gone too far into the facts of the case at the certification stage by finding that “a 

cash-payout option was available and that State Farm failed to disclose that 

option.” 2011-Ohio-6621, 970 N.E.2d 1043, at ¶ 55. In its rush to end this 

litigation, the majority faults the appellate court for failing to do something that it 

had no duty to do under our prior cases, and something that the trial court did in 

fact do, at State Farm’s request. The majority has reached the opposite conclusion 

on this factual issue from the trial court, but the different perspectives are readily 

explained. The majority of this court did not have the benefit of the ten-hour 
January Term, 2013 

25 

certification hearing that the trial court did. That is precisely why we generally 

defer to the findings of trial courts. 

{¶ 59} Our review in these matters is for an abuse of discretion. Such an 

abuse does not exist in this case. The class certification of the trial court was not 

unreasonable, arbitrary, or unconscionable. It should be upheld. Accordingly, I 

respectfully dissent. 

PFEIFER, J., concurs in the foregoing opinion. 

__________________ 

Bashein & Bashein Co., L.P.A., W. Craig Bashein, and John P. Hurst; and 

Paul W. Flowers Co., L.P.A., and Paul W. Flowers, for appellee. 

Baker & Hostetler, L.L.P., Mark A. Johnson, Joseph E. Ezzie, Robert J. 

Tucker, and Michael K. Farrell, for appellant. 

Carpenter, Lipps & Leland, L.L.P., Michael H. Carpenter, and Katheryn 

M. Lloyd, urging reversal for amici curiae Nationwide Property and Casualty 

Insurance Company, Nationwide Mutual Fire Insurance Company, Nationwide 

Mutual Insurance Company, Nationwide Insurance Company of America, 

Nationwide Assurance Company, and Nationwide General Insurance Company. 

Thompson Hine, L.L.P., and Stephen J. Butler; and Severson & Werson 

and Jan T. Chilton, urging reversal for amicus curiae American Financial Services 

Association. 

Thompson Hine, L.L.P., Elizabeth B. Wright, Brian A. Troyer, and 

Stephanie M. Chmiel, urging reversal for amici curiae Washington Legal 

Foundation and Ohio Chemistry Technology Council. 

Vorys, Sater, Seymour & Pease, L.L.P., Philip F. Downey, Robert N. 

Webner, and Robert J. Krummen, urging reversal for amici curiae Grange 

Indemnity Insurance Company and Grange Mutual Casualty Company. 
SUPREME COURT OF OHIO

26 

Vorys, Sater, Seymour & Pease, L.L.P., Thomas E. Szykowny, and 

Michael Thomas, urging reversal for amicus curiae National Association of 

Mutual Insurance Companies and Ohio Insurance Institute. 

Bricker & Eckler, L.L.P., Kurtis A. Tunnell, and Anne Marie Sferra; and 

Shook, Hardy & Bacon, L.L.P., Victor E. Schwartz, Mark A. Behrens, and Cary 

Silverman, urging reversal for amicus curiae Ohio Alliance for Civil Justice. 

Shook, Hardy & Bacon, L.L.P., Victor E. Schwartz, Mark A. Behrens, and 

Cary Silverman, urging reversal for amici curiae Ohio Chamber of Commerce, 

Ohio Alliance for Civil Justice, Chamber of Commerce of the United States of 

America, and American Tort Reform Association. 

______________________