Ralph v. American Family Mutual Insurance Co.

SMITH, Presiding Judge.

Plaintiffs appeal from an order of summary judgment. The entry of that judgment determined all claims of all parties thereby remedying the defect which caused our dismissal of a prior appeal. Ralph v. American Family Mutual Insurance Company, 809 S.W.2d 173 (Mo.App.1991). We affirm.

This dispute between Ralph and defendant has a long and somewhat tortured history, but we do not find it necessary to detail that. It is sufficient to say that plaintiffs sought to bring a class action as representatives of persons insured by defendant who had not received full medical payment benefits because of a set-off provision contained in defendant’s policy reducing medical payments by amounts received under uninsured motorist coverage. In Kuda v. American Family Mutual Insurance Company, 790 S.W.2d 464 (Mo. banc 1990) the court held such provision was invalid because it was contrary to public policy expressed in § 379.203, RSMo 1986.

Following the Kuda decision defendant tendered to plaintiff Ralph the full amount of his claim for medical payments. That tender was refused. In an amended petition Wurtz was added as a plaintiff and defendant tendered to her the full amount of her claim. That tender was also refused. The tendered amounts have been paid into the registry of the court. The effect of the summary judgment is to refuse to allow the matter to proceed as a class action. It is from this effect alone that plaintiffs appeal.

Determination of whether an action should proceed as a class action under Rule 52.08 ultimately rests within the sound discretion of the trial court. City of St. Peters v. Gronefeld, 609 S.W.2d 437 (Mo.App.1980) [1]. The rule sets out four prerequisites to maintenance of a class action i.e. (1) the class be so numerous that joinder of all members is impractical, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of all. Id. The rule specifically states that “only if” those prerequisites are met may the matter be brought as a class action. We need look no further than requirement (2). This case was filed two days after the decision in Kuda. At that time the only question of law or fact common to the class, i.e., the validity of the set-off provision, was no longer a question, it had been answered. If a case existed for class action treatment it was Kuda. After Kuda the issues remaining in cases to recover medical payments were fact questions such as whether the policy contains medical payment coverage, the amount of medical treatment, whether that treatment was necessary, whether the charges are reasonable, and whether the treatment was for injuries sustained in the accident. All of those questions are specific to the individual claimant, not common to the class.

The thrust of plaintiffs’ argument is that if this case is not certified as a class action, people entitled to medical payment benefits who did not receive them will not be aware of their entitlement to them. This “vicarious avenger” argument may be accurate but it does not satisfy the procedural requirement for a common question of law or fact.

Judgment affirmed.

KAROHL and AHRENS, JJ., concur.