COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77240 ROSALYN AND LOUIS KOLAR : : JOURNAL ENTRY Plaintiffs-Appellants : : AND vs. : : OPINION THE OHIO CASUALTY GROUP : : Defendant-Appellee : : DATE OF ANNOUNCEMENT NOVEMBER 9, 2000 OF DECISION: CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court Case No. CV-359936 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellants: PATRICK J. PEROTTI PATRICK T. MURPHY Dworken & Bernstein Co., L.P.A. 60 South Park Place Painesville, Ohio 44077 RONALD A. MARGOLIS Finelli & Margolis, P.L.L. 730 Leader Building 526 Superior Avenue Cleveland, Ohio 44114 For Defendant-Appellee: THOMAS E. DOVER TIMOTHY J. FITZGERALD MARK J. SAVAGE Gallagher, Sharp, Fulton & Norman Seventh Floor, Bulkley Building 1501 Euclid Avenue Cleveland, Ohio 44115 TERRENCE O'DONNELL, PRESIDING JUDGE: Rosalyn and Louis Kolar appeal from a decision of the common pleas court which granted summary judgment to The Ohio Casualty -2- Group, on the basis that the Kolars lacked standing to initiate a class action lawsuit. On appeal, the Kolars argue the court erred in granting summary judgment and in denying their request for leave to substitute a new party to represent the class in their class- action suit. Having determined that no genuine issues of material fact are in dispute and that Ohio Casualty is entitled to judgment as a matter of law, we affirm the judgment of the court. The record in this case reflects that on July 22, 1998, Rosalyn and Louis Kolar filed a class action lawsuit against The Ohio Casualty Group on behalf of themselves and all Ohio Casualty insureds who paid multiple premiums for uninsured/underinsured motorists coverage contrary to the court's decision in Martin v. Midwestern Group Ins. Co. (1994), 70 Ohio St.3d 478, which disallowed this type of billing. The complaint alleged breach of contract and fiduciary duty, fraudulent misrepresentation, negligence, conversion, and unjust enrichment. Following discovery, Ohio Casualty moved for summary judgment, claiming the Kolars lacked standing to bring a class action lawsuit, because they had not been policyholders between October 5, 1994 and September 3, 1997, the relevant time period between the court's decision in Martin and enactment of H.B. 261, which permitted insurers to include an other-owned vehicle exclusion in an insurance policy. The Kolars conceded that they did not have standing to present this case but responded to the motion for summary judgment asserting that genuine issues of material fact exited as to whether Ohio Casualty intentionally deceived its -3- customers into paying multiple premiums for uninsured coverage. Subsequently, on June 28, 1999, the Kolars requested leave to substitute Carol Lazarus as a new party representative of their class action lawsuit. Additionally, in this case, it is undisputed that the court never certified the matter as a class action. Thereafter, on October 4, 1999, the court entered the following order: [Defendant's] motion for summary judgment (filed 4/22/99) is well taken on the issue of [plaintiff's] standing and granted. This Court finds, and [plaintiffs] concede, that [plaintiffs] lack standing to sue [defendant]. Thus, this Court lacks subject matter jurisdiction over [defendant] and this action. Case dismissed on summary judgment. All pending motions are moot. From this order the Kolars appeal and set forth the following assignment of error for our review: THE TRIAL COURT ERRED IN DISMISSING APPELLANTS' COMPLAINT AND DENYING APPELLANTS' REQUEST FOR LEAVE TO SUBSTITUTE CLASS REPRESENTATIVE. The Kolars contend the court erred because it should have allowed a substitution of parties instead of granting summary judgment on the issue of standing. Ohio Casualty, however, contends the court properly granted summary judgment because no genuine issues of material fact exist and it is entitled to judgment as a matter of law. Thus, we are concerned with whether the court properly granted summary judgment. Civ.R. 56(C) states in pertinent part: *** Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence -4- in the pending case, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Further, the court in Dresher v. Burt (1996), 75 Ohio St.3d 280 stated: *** a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion that the nonmoving party has no evidence to prove its case. *** If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden *** to set forth specific facts showing that there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party. In Martin, the court stated in paragraph three of its syllabus: An automobile liability insurance policy provision which eliminates uninsured motorist coverage for persons insured thereunder who are injured while occupying a motor vehicle owned by an insured, but not specifically listed in the policy, violates R.C. 3937.18 and is therefore invalid. (State Farm Auto. Ins. Co. v. Alexander (1992), 62 Ohio St.3d 397, 583 N.E.2d 309, syllabus, approved and followed; Hendrick v. Motorists Mut. Ins. Co. (1986), 22 Ohio St.3d 42, 22 OBR 63, 488 N.E.2d 840, overruled.) Based on the court's holding in Martin, the Kolars filed a class action lawsuit against Ohio Casualty in an effort to recover for multiple premium payments made for uninsured/underinsured coverage on separate vehicles because under Martin, they had such coverage by paying one premium. Subsequent to the Martin decision, -5- however, the legislature drafted H.B. 261, which became effective on September 3, 1997, and permitted insurers to include an other- owned vehicle exclusion in insurance policies providing uninsured/underinsured coverage. The Kolars admit they had not been Ohio Casualty insureds prior to September 3, 1997 and as such, could not be representatives of the class which they sought to have the court certify in this case. Civ.R. 23(A) provides in part: One or more members of a class may sue *** as representative parties on behalf of all only if *** the representative parties will fairly and adequately protect the interests of the class. In Lusardi v. Xerox Corp. (1992), 975 F.2d 964, the court stated: Article III requires that a plaintiff's claim be live not just when he first brings the suit but throughout the entire litigation, and once the controversy ceases to exist the court must dismiss the case for lack of jurisdiction. *** However, special mootness rules apply in the class action context, where the named plaintiff purports to represent an interest that extends beyond his own. *** A different general rule operates when a class has yet to be certified. Normally, when claims of the named plaintiffs become moot before class certification, dismissal of the action is required. *** In such a situation, there is no plaintiff (either named or unnamed) who can assert a justiciable claim against any defendant and consequently there is no longer a `case or controversy' ***. (citations omitted). In support of their position, the Kolars rely on two cases, Norman v. Connecticut State Board of Parole (1972), 458 F.2d 497 and American Pipe & Construction Co. et al. v. Utah et al. (1974), 414 U.S. 538. -6- In Norman, where the issue of the right to representation by counsel at a parole hearing had been advanced as a class action, the court, referencing Bailey v. Patterson (1962), 369 U.S. 31, determined that since the state dismissed all criminal charges against Norman pending his appeal, he lacked standing to prosecute the class action; the court remanded the case to the district court with instructions to dismiss the action without prejudice on grounds of inadequacy of representation unless the court grants another member of the class the right to intervene. There, however, Norman had been part of the class he sought to represent at the time he filed the action. In this case, Kolars were never part of the class they sought to represent. Hence, Norman is factually distinguishable from the instant case. Furthermore, in American Pipe, the issue presented there concerned whether the commencement of a class action suit suspended the statute of limitations as to all asserted members of the class who would have been parties had the requisites of the rule regarding class actions been met. That case is also distinguishable from the instant matter because the Kolars never commenced a class action, the court never certified the matter as a class action, and the Kolars admitted they never had standing to file suit. After a careful review of the facts, we have concluded the court properly granted summary judgment in favor of Ohio Casualty because the Kolars lacked standing to initiate this lawsuit. In accordance with Lusardi, the Kolars' claim became moot prior to -7- class certification requiring dismissal of the action; since no plaintiff existed to prosecute the claim, no case or controversy existed at the time and hence there could be no intervention or substitution of a party. Accordingly, the trial court correctly granted summary judgment and dismissed the case. Thus, this assignment of error is not well taken, and the judgment of the court is affirmed. Judgment affirmed. -8- It is ordered that appellee recover of appellants its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TIMOTHY E. McMONAGLE, J., and JAMES M. PORTER, J., CONCUR PRESIDING JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(a). .