State of Louisiana VS Ford Motor Company, William Clay Ford, Jr., Allan Gilmour, Nick Scheele, Bill Hood Ford, L.L.C., Hixson Autoplex of Alexandria, Inc., d/b/a Hixson Autoplex and Hixson Autoplex of Alexandria - Ford

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 1810 STATE OF LOUISIANA VS FORD MOTOR COMPANY WILLIAM CLAY FORD JR ALLAN GILMOUR NICK SCHEELE BILL HOOD FORD L L C AND HIXON AUTOPLEX OF ALEXANDRIA INC D B A HIXSON AUTOPLEX AND HIXSON AUTOPLEX OF ALEXANDRIA JUN 2 7 2007 JUDGMENT RENDERED l 1I 1Jil ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT J DOCKET NUMBER 514 913 DIVISION 0 PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE WILSON FIELDS JUDGE COUNSEL FOR PLAINTIFF APPELLEE TONY CLAYTON PORT ALLEN STATE OF LOUISIANA LA AND BEN D BEYCHOK BATON ROUGE LA AND CHARLES C FOn JR BATON ROUGE LA COUNSEL FOR DEFENDANT APPELLANT ALLEN V DAVIS FORD MOTOR CO MICHAEL T PULASKI CHARLES E SUTTON HIXSON AUTOPLEX OF ALEXANDRIA INC JR HILLARD F KELLY III COVINGTON LA AND BRIAN C ANDERSON WILLIAM R NIFONG WASHINGTON D C COUNSEL FOR DEFENDANT APPELLANT PAUL L BILLINGSLEY HAMMOND Kt BILL O f 1 CL y eS tJ Hj dE fiflj J lCDONAL llD 1 j cU JJ Jf Af S f O P f S4 s C fN IP 1 1lA t HOOP FORD L LC NS c fe aSs LA 0J i If A r Oj frr vt l f D 21 j 12tJ MCDONALD J The petition of Louisiana in the matter before us was in December 2003 State for filed by the plaintiff the State injunctive relief declaratory relief and damages pursuant to Louisiana redhibition law et Unfair seq Trade Procurement Code Practices La R S Act La Ford Company The dealerships is focused opinion vehicle was enforcement marketed et as of the vehicle a are representatives of Ford and two 711 paragraph petition petitioners to on rear reduction in the end which this Interceptor be used hidden defect a and combustion in a to specially designed but that it contained leakage the seq The defendants contracts that the Ford Crown Victoria Police personnel which entitles individual allegations are increased risk of fuel some 51 1401 and miicle 2315 of the Louisiana 39 1679 Civil Code for intentional interference with the Ford Motor RS La C C art 2520 law by causing an impact collisions purchase price and other damages After removal 2004 a to federal first amended and represent a class of all departments law comi and remand supplemental petition Police enforcement for amended who have enforcement districts and other Interceptors use as a petition sought an action for the since purchased 1992 that was filed to exclude from this class damages for personal injury July seeking to and sheriff political subdivisions and were law enforcement vehicle in state comi governmental parish municipal police within the State of Louisiana who have Victoria to Ford Crown own Paragraph death law LXVI of the any persons or to provided or entities arising out of post collision fuel fed fires in the Ford Crown Victoria Police Interceptor original 64 paragraph petition was amended This opinion is based put fOlih by plaintiffs in both the original and the amended petition The 2 on allegations The amended petition reiterated to La sought damages pursuant the claim of unfair trade R S 51 1401 et seq practices and and reiterated the claims of violation of the Louisiana Procurement Code and intentional contract relief class certification as well as was not the trial motion for class celiification political Interceptors since asselis predominate certifying a over or in certifying as State a the plaintiffs granted and judgment class All as parishes of Louisiana This appeal timely filed by court erred common to in 1 celiifying in certifying a a adjudication 2 appeal 3 a class in which are class in which the class action is methods for the fair and efficient The individual defendants did not as the defendants class members representative fairly and adequately protect the class in which named the members of the class do questions affecting only individual 3 was 2 Ford fact have law enforcement vehicles use as was who Ford Crown Victoria Police acquired class in which the claims of the not on behalf of the Louisiana State Police on that the the claims of the class party will the the 1992 model year for collectively designated questions of law within otherwise or representative Ford 23 and sheriff depmiments law enforcement districts and The State of Louisiana the class was defining the 2004 subdivisions leased purchased the trial comi hearing heard argument comi Class celiification 15 signed December municipalities police other a appealed In November 2004 was Following injunctive injunctive relief by judgment rendered September denied the request for 2004 which The and plaintiff sought declaratory interference with not superior to in typical of representative interest of the class not 2 not and 4 other available of the controversy The trial be certified as a court has much discretion in class action The factual findings celiification is based should be reviewed clearly After the trial standard wrong fact it exercises its discretion must judgment Boudreaux So 2d 114 The CC P be reviewed on State DOTD v to deciding whether upon which class action a appeal by the manifest on court or This not discretionary appeal by the abuse of discretion standard 96 0137 4 p La App 1st Cir 14 2 97 690 118 for prerequisites art 591 A One a class action provided are follows as or maintaining members of more class may a be sued sue or as representative parties on behalf of all only if 1 The class is so numerous that joinder of all members is impracticable 2 There are questions of law or fact common to the class 3 The claims are or defenses of the of the claims typical representative parties or 4 The protect 5 representative parties defenses of the class will and adequately objectively in terms of fairly the interests of the class The class is or asceliainable may be defined criteria such that the comi may the class for purposes constituency of of the conclusiveness of any judgment that may be determine the rendered in the B error makes its determination of the class certify suit should a case An action may be maintained as a class action the prerequisites of Paragraph A of this Article only are if all of satisfied and in addition 1 The prosecution of separate actions by or against individual members of the class would create a risk of a Inconsistent or varying adjudications with respect to individual members of the would establish class which incompatible standards of conduct for the party opposing the class b Adjudications with respect or to individual members of the class which would practical matter be dispositive interests of the other members not as a of the parties substantially adjudications impair or impede their ability to protect to the or their interests 4 or in La 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 3 The as a whole questions of law finds that the court common or to the members of the class over questions affecting any members and that a class action is available for methods the or fact predominate only individual superior to other fair and efficient The adjudication of the controversy peliinent to these findings include matters The interest of the members of the class a in the individually controlling prosecution or defense of separate actions b The and extent nature of any litigation concelning controversy already commenced by or against members of the the class desirability or undesirability of concentrating the litigation in the particular forum d The difficulties likely to be encountered The c in the management of a class action The practical ability of individual class e members their claims without to pursue class celiification plausibly against the The extent to which the relief f demanded behalf of on or including the vindication of such public policies or legal rights as may be implicated justifies the costs and burdens of class litigation or class 4 The patiies to Subparagraph settlement request certification under B 3 for purposes of settlement even a though the requirements of Subparagraph B 3 might not otherwise be met C Certification shall claims or be for the purpose of adjudicating defenses dependent for their resolution on proof individual to a not member of the class certification the court shall retain defenses to The a and on over proof claims or individual member of the class A of atiicle 591 are referred to as the numerosity commonality typicality adequate representation objectivity definability action jurisdiction dependent for their resolution requirements of Paragraph elements of following However Boydv Allied Signal and all must 2003 1840 5 be present 1842 1843 p to 10 maintain La a class App 1st Cir 898 So 2d 450 12 30 04 So 2d 606 seeking alone The burden of to maintain the are insufficient 97 0838R p 5 to writ denied 2005 0191 457 The issue before class action us on we were numerosity The disturbed by as a Inc 96 1458 p Production Co At the 1012 1001 concerning the trial hearing 11 on is not based vehicle on sic at least subsequently had it dismissed whatsoever as to v plaintiff has to failed to establish In fact class certification on an initial review of no on the issue of evidence The a Exploration and 698 So 7 30 97 this vehicle law enforcement Therefore GAF Inc v was 2d introduced statement by the the number of entities that have this the numbers of appellate level pleading simply by alleging Texaco The record does filed suit and had agencies the record contains at the the record before us no The potential plaintiffs reference is found in the argument of counsel both the our any evidence in the record confinn that two not met App 1st Cir this matter using In lack of evidence Lewis La numbers of agencies that based off comi class action numerosity requirement is large number of potential claimants the pmiy broadly is whether the considered seeming a Carr a 897 711 So 2d 802 805 4 8 98 appeal on of Conclusory allegations establish the existence of a class lawsuit should have been certified this record the necessary elements is proving App 1st Cir La 1 4 05 La evidence only such trial level and we at find that the element necessary to establish entitlement numerosity and the decision of the trial comi cannot be affirmed However other for the sake of assigmnent of errors has not met its burden of representation made judicial efficiency by appellants we Ford will also consider asselis that the State proving commonality typicality and adequate Under Louisiana law there 6 must be a common character among the in order make class action and the absent members of the class rights of the representatives to must establish that class predominate questions of law over To appropriate fact or satisfy common State DOTD 690 So 2d at 120 v character requirement restricts class actions economies achieve uniformity of decision procedural failness v or as the to common other those and issues a different packages member in of La Inc 0828 cases over the alleged s decision defect over to to p procedure Orleans Parish v 14 La App 4th plaintiffs to in the each separate issues class member cited reasons acquire the vehicle each member time vehicle a Cir claims are nearly infinite in variation and require variations each 1 questions affecting only Johnson 0828 1984 step inquiry two a La cited therein of evidence with respect representations made member are promote Id McCastle 456 So 2d at 616 predominate 0827 744 and nature Among and expense Ford maintains that the issues involved in the specific in which it determination that the class action 0826 common similarly situated without sacrificing procedural mechanisms 790 So 2d 735 claimant cases bringing about other undesirable results School Bd 2000 0825 6 27 01 to effort to persons individual members and 2 superior members of the Additionally the commonality requirement involves determination that is of time Rollins Environmental Services Thus to the plaintiffs questions affecting only individual members any Boudreaux would this element s proposed by Ford influencing class are each knowledge of the design changes and post sale retrofits the various purposes for which the vehicles are used and the various sources of puncture ignition and fire Some common Victoria Police issues cited Interceptor CVPI by the has 7 a State are whether the Crown redhibitory defect and whether members of the proposed class of the CVPI because of the price issues are impOliant and existence of class action involving as though the patiies even New York Life Ins Co The a are reduction in the a defect 3 While all members of the to of law common too to redhibitory common question a common entitled are to be safety the CVPI dating killed in crash and fire in risks to filed police back to 1997 in Arizona and in Texas were Police Vehicle a 4 safety La 7 2 99 CVPI in 737 So 2d 1275 responsibility changes modifications 3 designed were killed in crashes on Engineering the 1280 for to were to made and retrofit Act would was involving the CVPI and law part of Ford driving the CVPI had owners However Ford collisions in impact The State of Florida a outlining letter its to the concerns the CVPI of Michael Blackmer indicates that Ford deny that notifying rear Division ofFord in 1999 deposition was personnel regarding Motor Vehicles addressed s of any a potential problems by 2002 Ford existing was offering CVPI vehicles s design defect and refuse position changed through the We do not address at this Liability v Law enforcement officers May 1998 of law enforcement officers initial response was be enforced to A Louisiana law enforcement officer alleging liability The evidence make a joined practicably Banks officers involved in Department of Highway Safety and for the class the majority of the evidence submitted by the plaintiffs chronicle law increased suits these by itself justify right suits and documentation from other law enforcement a arguably proposed not character of the numerous 98 0551 p 5 fact does or purchase an or paying to years design upgrade kit that In the 2003 year model point whether the exclusivity of the prohibit maintaining this allegation of design Louisiana Products defect as a suit in redhibition 4 Among the evidence introduced by the plaintiff was the deposition of Helen Pitreukis a Ford representative taken on February 25 1992 and concerns similar issues with respect to the 1986 Crown Victoria We do not see the relevance of that deposition to this lawsuit involving vehicles purchased after 1992 8 substantial design changes which in addition perceived danger had been the in the to only issue to considered Hixson Bros 7 31 02 Mathews 831 issue in this 2d So case of the CVPI v 995 s programs hearing is the appropriateness Plaintiffs since are in pertinent pmi that knew or is presumed thing sold prescribes buyer There is facts in this case claiming the one as 124 no comi 3rd Cir prescription is members of the class against can was to or reason prescription a 2534 seller who of the defect in the day the defect evidence an purchasers Louisiana Civil Code art the manufacturer to the class App La assert should be prescription action for redhibition that the issue of plaintiffs by inquiry as year from the absolutely 02 by the trial 1992 to have known in Inc As noted model year provides fault and comparative 1000 the eliminate procedural device the possibility that the defendants will as all attempt allegations of numerous lawsuits the certification at affirmative defenses such the an subject of nationally broadcast television news While the of the made were discovered by believe under the be resolved on behalf of Each individual representative only potential plaintiff may have different issues regarding prescription Fmiher that the an essential requirement to maintain complained of defect is hidden alleges that information the defect is hidden probability of notice the aforementioned to and indeed Given the concerning problems with the death the plaintiff s petition widespread dissemination of CVPI Louisiana law enforcement 1998 suit in redhibition is a and considering personnel knowledge of the possessed by each member of the putative class and when it S lberville Parish Sheriff John Brent Allain testified in that he had seen a television broadcast featuring CVPI 9 a deposition concerns over rear occasioned the by alleged defect was discovered taken in May 2003 end collisions in the will be raised regard to as defense a by Ford and will have each individual class member The also plaintiff CVPI under certain circumstances for which the expressly marketed and sold was individual basis that the hidden defects increase the risk of alleges fuel leaks and fuel fed fires on an circumstances the record the various by confonn under which the risk is increased This also and the acquired were class members addressing this issue it will be necessary to Therefore establish that the purposes for which the vehicles made of them be determined with to We find implicates the to no use certain evidence in the element of typicality A trial court decision to s certify class action is a The trial comi must first determine whether action certification If the trial celiification must it then celiify the class Boyd elements of numerosity objectivity C CP definability mi 591 B Even if the numerosity finds that court Allied 898 Signal a factual basis exists for deciding whether at 456 So 2d be present must to maintain class action a to All of the c01ll1nonality typicality adequate representation and La 898 So 2d at 457 plaintiff has met its burden typicality regarding adequate the elements of representation and it is then necessary for the court to evaluate whether the class superior to other available adjudication of the controversy inquiry into the suitability of a methods Mathews lawsuit to La C C P B 591 which the trial court must So 2d be celiified end with the establishment of the elements art for the fair and 831 not paragraph step process factual basis exists for class exercise its discretion in commonality objectivity action is Boyd v a two a at 1004 as a efficient Judicial class action does required by paragraph evaluate the requisite A of factors of generally address the issues of fairness and efficiency 10 In detennining whether fairness and of the case class action in a efficiency the trial court must and should not hesitate to a particular will promote case actively inquire into every require showing beyond the aspect pleadings Me Castle 456 So 2d at 616 The trial The court that are comi made noted the factors requisites number of no factual findings whatsoever in this provided in paragraph A of La of class certification and said C CP The state has agencies that have this particular vehicle The and typicality of the and that the state issue in would tenns the trial court was aware of or There is no a feels that Interceptor the entire class the court is grant the class certification of this particular suit 591 commonality of the Crown Victoria Police fairly represent art alleged comi based off the number of entities that have this vehicle and the matter going to evidence that considered whether the lawsuit is suitable for class celiification in conformance with any of the factors contained in paragraph B of La C C P art 591 We do are not agree with Ford that the issues However nearly infinite in number without any factual findings by the trial the issues of law and fact individual issues establishing pursuant common court underlying plaintiff s claims on we are We hold that the C CP art 591 unable to class members plaintiff has the elements necessary to maintain to La the record before a and to conclude that predominate not met its suit us as a over burden of class action Therefore the certification of this suit as a class action is reversed and the matter is remanded to the district court Costs in the 2 296 04 Public amount of are assessed Safety and Corrections REVERSED AND REMANDED 11 to the State Department of STATE OF LOUISIANA STATE OF LOUISIANA COURT OF APPEAL VERSUS FIRST CIRCUIT FORD MOTOR COMPANY WILLIAM CLAY FORD JR ALLAN GILMOUR NICK SCHEELE L L C BILL HOOD FORD HIXSON AUTOPLEX OF ALEXANDRIA INC B D A AlKA HIXSON AUTOPLEX HIXSON AUTOPLEX OF ALEXANDRIA WHIPPLE J dissenting 1 Ford appeal Appellants e Ford Crown Victoria Police urt J f decision s to certify absent manifest appeal 06 0437 La Hospitals In its that the NUMBER 2006 CA 1810 FORD a a Robichaux App 1st Cir class certification v 12 28 06 State requirements representative party will fairly superior to demonstrated of LSA C C P 2002 only for and art commonality is test La App 3rd Cir that there be at least 7 2 01 one not 779 So 2d 1070 issue Hood Ford LLC are Ford Motor members The other named defendants Hixson are 2 A detailed statement of the factual and applicable law and standard review is set forth 05 1127 La App 1 st Cir 5 3106 finding conformity with all of the 591 Specifically Ford or unpublished not one Duhe 1078 v that the class party to Commonality requires or a The at 1078 of Alexandria Inc this 99 Texaco Inc Duhe 779 So 2d Autoplex a avers that the the resolution of which will affect all Company on the controversy demanding a ed in en commonality typicality adjudicating significant number of the putative class IAppellants court adequately represent the class other methods of The A trial Dept of Health and reI ex to 952 So 2d 27 33 that the State did not prove the elements of action is class action as a of enor Ford contends that the trial the State of Louisiana plaintiff CVPI Interceptor relating class merits great discretion and should be affirmed en or assignments the instant suit judgment celiifying and Bill appeal procedural history of this suit in this court s previous opinion as well State v as the Ford of this crux redhibitOlY as to one defect This s use commonality West Compare calls for will 3 The of the vehicle nor which knowledge 274 287 question require class member will be answered class member defeat is whether the Ford manufactured CVPI vehicles contain case question claims defeats the vehicle to of individuals App 3rd Cir 8 01 1453 La pre purchase commonality 28 02 832 So 2d redhibitori1y defective and proof Thus the common and when answered modifications made issue is whether the CVPI is questions and proof I do not find that the individual all the redhibition H See Co primmy common rebut to even do I find that the may G v or as common a test for commonality is satisfied typicality is Likewise the test for Here the class members and are class test based on the representative not claims arise out of the legal theory of redhibition are the same type as Davis 844 So 2d demanding The 256 of Ford CVPI vehicles purchase 4 at damages suffered by the those of other class members Thus the for typicality is satisfied After thorough review conclusions that the I find no manifest allegedly defective celiainly arise 3See product the Ford CVPI and common Eatelcorp inquiry under a v superior to adjudication of the controversy I find that also Mire in the trial court s representative party will fairly and adequately protect the interest of the class and that the class action is for fair and efficient error Inc other available methods This case concerns a although individual questions will questions predominate 02 1705 La single App 1 Cir 5 03 9 Moreover I am 849 So 2d 608 614 redhibition claim does not involve the buyer s subjective stating that the knowledge or reliance but rather is an objective inquiry into the deficiency and whether it diminishes the product s value or renders it so inconvenient that the reasonable buyer would not have purchased it had he known ofthe deficiency of its contention that the claims ofother class members will be based on other Ford directs our attention to petitions filed in other class action lawsuits 4In support legal theories However Ford admits that those petitions do not fonTI pad of the record before us on appeal We cannot take judicial notice of those petitions and as evidence outside the appellate record those petitions cannot be considered herein See LSA C E art 201 2 mindful that any certification doubt as to by the trial court I find of defendant manifest favor of III abuse of discretion elTor or and conclude that this liability s The trial court s for is proper for class case damages in redhibition and breach of judgment states that Thus I would amend the judgment issues no I note here that the State moved for class certification certification only should be resolved West 832 So 2d at 292 Considering the foregoing committed certification only and memorandum as amended to the State s motion to would affirm the trial I respectfully dissent 3 the issues contract walTant certify is granted clarify that the class is certified court s opinion issued in compliance with URCA Rule 2 Accordingly on lB 16 as to these judgment by STATE OF LOUISIANA FIRST CIRCUIT VERSUS COURT OF APPEAL FORD MOTOR COMPANY WILLIAM CLAY FORD JR ALLAN GILMOUR NICK SCHEELE L L C BILL HOOD FORD AND HIXSON AUTOPLEX OF ALEXANDRIA INC STATE OF LOUISIANA DIBIA HIXSON AUTOPLEX AND HIXSON AUTOPLEX OF ALEXANDRIA concurring KUHN J I NO 2006 CA 1810 concur in the conclusion that the plaintiff failed to establish the numerosity element Nothing in the record sufficiently identifies group of aggrieved certification of of persons so class action a as to Inc Simply alleging La 96 1458 definable for satisfy the numerosity requirement potential claimants is insufficient Production Co a that there Lewis are a Texaco v large number Exploration and 7 30 97 698 So 2d 1001 hearing is whether the class App 1st Cir 1012 Although the issue action is at a class certification procedurally preferable not whether any of the has chosen point out to consider other assignments of that under the facts of this incompatible with subjective issues redhibitory relief a class certification of individual opinion enor a raised it appears A knowledge and a by defendants redhibition claim is reliance of Thus to receive liability and defense If it is recovelY under the Louisiana Products design defect that plaintiff seeks specific allegations justify such relief must be I redhibition claim involves plaintiff by plaintiff adjudication issues will be necessalY Liability Act for case will be because the primary successful in urging the merits of their claims plaintiffs made to

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