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In a groundbreaking decision, the West Virginia Supreme Court of Appeals has issued a ruling that reverses the grant of class certification in an insurance coverage dispute, and in so holding, endorsed the commonality finding of SCOTUS in Wal-Mart v. Dukes. The case, State ex rel Erie Insurance v. Nibert, arose from a dispute over the application of underinsurance coverage. The class action allegations alleged that the forms used for election/rejection of underinsurance coverage did not comply with requirements of the state Insurance Commissioner. The trial court granted class certification, finding that the commonality requirements of WV's version of Rule 23 were met as long as the plaintiffs' claims all arose from a similar legal theory (the validity of the election/rejection form).

In reversing the grant of class certification, the Supreme Court of Appeals found that the commonality requirement of Rule 23 is not met unless there are common questions of law and fact. Most interestingly, for the first time, this Court endorsed the commonality finding of the SCOTUS in the Wal-Mart v. Dukes case.

This opinion is significant for a couple of reasons. One downside is that the opinion was issued as a Memorandum Decision, which means it will not be reported in the official reporters of the Court, but will be searchable on-line and on the Court's website. Under the Court's rules, Memorandum Decisions are still precedent, but are reserved for cases of "established law." What is ironic about this case is that the holding is more restrictive than prior cases on the issue of commonality. Not only has the Court not endorsed the Wal-Mart decision in the past, but other holdings on the issue have been much broader. Hopefully, this indicates a new approach by the WVSCA to class actions.

http://courtswv.gov/supreme-court/memo-decisions/spring2017/16-0884memo.pdf