Dorothy Mathews v. Hixon Brothers, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1065
DOROTHY MATHEWS, ET AL.
VERSUS
HIXSON BROTHERS, INC., ET AL.
**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NUMBER 196,044
HONORABLE HARRY F. RANDOW, DISTRICT JUDGE

**********

BILLIE COLOMBARO WOODARD
JUDGE

**********
Court composed of Billie Colombaro Woodard, Elizabeth A. Pickett, and Arthur J.
Planchard,* Judges.

REVERSED AND REMANDED.
Linda Suzanna Harang Russell L. Potter
Law Offices of Linda S. Harang Andrew P. Texada
5817 Citrus Boulevard, Suite H Stafford, Stewart, & Potter
Jefferson, Louisiana 70123 Post Office Box 1711
(504) 734-2486 Alexandria, Louisiana 71309
Counsel for Plaintiffs/Appellants: (318) 487-4910
Dorothy L. Mathews Counsel for Defendants/Appellees:
Susan Robbins Hixson Brothers, Inc.
Hixson Brothers Funeral Home
Stephen Barnett Murray
Robert John Diliberto Susie Morgan
Murray Law Firm Mark L. Hornsby
909 Poydras Street, Suite 2550 M. Allyn Stroud
New Orleans, Louisiana 70112 Wiener, Weiss, & Madison
(504) 525-8100 Post Office Box 21990
Counsel for Plaintiffs/Appellants: Shreveport, Louisiana 71120-1990
Dorothy L. Mathews (318) 226-9100
Susan Robbins Counsel for Defendant/Appellee:
Kilpatrick Life Ins. Co.

*
Judge Arthur J. Planchard, Jr., Retired, participated in this decision by
appointment of the Louisiana Supreme Court as Judge Pro Tempore.

WOODARD, Judge.

The Plaintiffs appeal the trial court’s ruling to decertify the class in this action.
We reverse the trial court’s judgment and remand for further proceedings.

*****

This dispute concerns whether a class action is the proper procedural method
for adjudicating the Plaintiffs’ claims. The underlying claims involve burial insurance
policies that Central State Life Insurance Company (Central State) issued which
designated a Hixson Brothers Funeral Home as the provider of funeral benefits. These
policies provide that Hixson Brothers Funeral Home will furnish certain funeral
benefits, including a casket, when the policyholder dies. Plaintiff, Ms. Dorothy L.
Mathews, alleges that Hixson refused to furnish these benefits when her husband, Mr.
Joe Mathews, a holder of one of the described policies, died.
When her husband passed away, Ms. Mathews and her son, Joe, Jr., presented
Hixson with the policy. When Hixson showed her the press board box that it provided
under the policy, she found it to be completely unacceptable. When she refused to
accept the particular casket, Hixson informed her that she had to accept it in order to
receive the other benefits listed in the policy, such as embalming, a funeral coach, use
of the funeral home, and necessary cemetery equipment. Hixson would not allow her
to purchase another casket at retail price without forfeiting all of the benefits in the
policy. Rather than allowing her to buy another casket and substitute it under the
policy, Hixson required her to pay for the casket as well as current retail costs for the
additional services which were supposed to have been provided under the policy. They
simply gave her a credit of $1,000.00, the face value of the policy, against the total
amount of the funeral bill. Accordingly, Ms. Mathews spent $6,299.00 on burial
products and services and received a $1,000.00 credit against this amount with
Hixson.
Consequently, she instituted an action for breach of contract against Hixson
Brothers Funeral Home, Hixson Brothers, Inc. (collectively Hixson) and the insurance
company that has assumed Central State’s burial policies, Kilpatrick Life Insurance
Company (Kilpatrick). She, also, sought to certify a class of similarly situated
Plaintiffs; namely, other beneficiaries or heirs who purchased a Central State (now

1

Kilpatrick) or Hixson policy and made funeral arrangements under that policy at any
of Hixson’s funeral homes.
Subsequently, Ms. Susan Robbins joined as a Plaintiff in the action because
when Ms. Robbins made her grandmother’s funeral arrangements at Hixson, she, too,
found the casket that Hixson provided under her grandmother’s policy unacceptable.
Ms. Robbins offered to accept the particular casket and donate it or dispose of it in
order to receive the other benefits of the policy and to purchase another casket in
which to bury her grandmother. However, Hixson informed her she must, either, bury
her grandmother in the proffered casket or accept a credit for the face value of the
policy and apply it against her outright purchase of another casket and those services
which, otherwise, would have been provided under the policy.
Thus, Ms. Matthews sought to certify a class of persons like herself and Ms.
Robbins who had made funeral arrangements for a loved one at a Hixson Funeral
Home under a Kilpatrick or Hixson policy. Recognizing that contract claims prescribe
after ten years, she limited the class to those who made funeral arrangements from
May 26, 1989, ten years before the date that Ms. Mathews filed her action, until the
date of class certification.
The policies involved are not exactly the same; however, they all include a
casket as part of the funeral benefits. Hixson admits that only one casket was offered
on those policies which had a face value of $1,500.00 or less, and for policies with a
greater face value amount, they offered a different casket. Specifically, Plaintiffs
allege that “in servicing these burial policies, Hixson unilaterally decided that two
types of press board caskets (i.e. particle board) were the only caskets that would be
provided under the terms of the policies in question.” They are identified as Models
200 and 250. “The Model 200 is a cloth-covered particle board, i.e. press board box.
It is furnished to policyholders with a policy having a face value of less than $1500.
The Model 250 is also a cloth-covered particle board, i.e. press board box, with a
slightly different contour. It is furnished to those whose policies have a face value of
more than $1500.” “They were not kept on display in the casket showroom” but,
instead, one of them was “rolled out of a utility (broom) closet into the showroom.”
The maker of the policies did not specify the type of casket the funeral benefit
included to put potential purchasers on notice that it was, in fact, a pressboard casket.
Certain policies provided for a “casket - (selected by family).” In these instances,

2

Hixson gave the family a choice between these same two caskets, neither of which
they displayed in their showroom or offered for sale to the general public.
Furthermore, Hixson admits that its regular practice was to prohibit any casket
substitutions under these policies and to give, only, a credit in the amount of the
policy towards the purchase of any other casket and the purchase of the other goods
and services which, otherwise, would have been provided under the policy at no cost.
Because some of these policies contained a term limiting the right to sue on the
policy to two years after the insured’s death, the Defendants asserted that many of the
class members had lost their rights to bring an action. Consequently, they argued that
the class was not so numerous that it required class action treatment. The trial court
responded with a finding that any policy term, limiting the time period for bringing
an action, was null and void. Furthermore, it found that the action met all of the
prerequisites for class certification. Consequently, the Defendants appealed that
ruling.
A panel of this court reversed the trial court’s ruling that the burial policies’
time limit provisions were null and void but found that this reversal did not
automatically make certification inappropriate.1 Rather, this court acknowledged that
under La.Civ.Code art. 591(A)(3)(c), the trial court would have the power to enlarge
or restrict the class, amend or reverse certification at any time.2
Subsequently, the Defendants urged the trial court to decertify the class,
asserting that this court’s ruling on the time limit provisions effected such a dramatic
decrease in class members that the Plaintiffs no longer met the numerosity
prerequisite. They, also, argued that the class definition was overly broad because it
included members who were not necessarily aggrieved or harmed by the Defendants’
conduct; under an appropriately revised definition, the Plaintiffs did not meet their
burden to prove the numerosity prerequisite; and no additional claimants coming
forward since the certification hearing indicated that it is unlikely that a sufficient
number of Plaintiffs will file suit to make joinder impracticable; thus, a class action
was no longer a superior method of adjudication.

1
Mathews v. Hixson Bros., Inc., 02-124 (La.App. 3 Cir. 7/31/02), 831 So.2d
995, writs denied, 02-2286, 02-2305 (La. 12/13/02), 831 So.2d 984.
2
Id.

3

The trial court agreed with the Defendants and granted their motion to recall
class certification. The Plaintiffs have appealed. Therefore, we must review the trial
court’s decision to decertify.

*****

STANDARD OF REVIEW

Certification determination requires an analysis of the particular facts and
circumstances of each case and the trial court has broad discretion in deciding whether
to certify a class.3 Moreover, it has discretion to amend or reverse its decision at any
time.4 We may not disturb its decision unless it is manifestly erroneous.5
Notwithstanding, we must recognize that “[t]he recent jurisprudential trend is to
require the trial court to grant certification when the elements have been satisfied.”6
This trend is consistent with our supreme court’s statement in McCastle v. Rollins
Environmental Services of Louisiana, Inc.: “if there is to be an error made, it should
be in favor and not against the maintenance of the class action.”7

CLASS ACTION PREREQUISITES

One or more persons can sue and represent a class of other similarly situated
persons, only, if prerequisites are met under La.Code Civ.P. art. 591(A).8 First, the
class must be so numerous that joinder of all members as individual named parties is
“impracticable” (numerosity). This prerequisite requires an examination of the
specific facts of each case and imposes no absolute limitations.9 The Plaintiffs must,

3
Martello v. City of Ferriday, 01-1240 (La.App. 3 Cir. 3/6/02), 813 So.2d 467,
writs denied, 02-1002, 02-990, 02-1514 (La. 6/7/02), 818 So.2d 769, 770, 771.
4
La.Code Civ.P. art. 592(A)(3)(c).
5
Martello, 813 So.2d 467.
6
Boudreaux v. State, DOTD, 96-137, p. 14 (La.App. 1 Cir. 2/14/97), 690 So.2d
114, 124 (citing Dumas v. Angus Chem. Co., 25,632 (La.App. 2 Cir. 3/30/94), 635
So.2d 446.)
7
456 So.2d 612, 620 (La.1984).
8
La.Code Civ.P. art. 591.
9
La.Code Civ.P. art. 591(A)(1).

4

also, show that there are questions of law or fact common to the class
(commonality).10 The third factor, typicality, requires the representatives’ claims or
defenses to be typical of those of the class as a whole such that, in representing their
own interest, they represent the interest of the class members (typicality).11 Another
factor, adequacy of representation, ensures that the named representative(s) will fairly
and adequately represent the class.12 Interpreting the federal class action rule, upon
which La.Code Civ.P. art. 591 is based,13 the U.S. Supreme court has found that both
commonality and typicality “merge [and] serve as guideposts for determining whether,
under the particular circumstances, maintenance of a class action is economical and
whether the named plaintiff’s claim and the class claims are so interrelated that the
interests of the class members will be fairly and adequately represented in their
absence.”14 Finally, there must be an objectively definable class.15
In addition to these prerequisites under La.Code Civ.P. art. 591(A), the action
must fit into at least one of the categories listed in La.Code Civ.P. art. 591(B). The
relevant category in the instant action is section (B)(3), requiring that common
questions of law or fact predominate over questions that would be specific to each
individual and that a class action is a superior adjudicatory method.
The trial court recalled certification in the instant case based on its finding that
numerosity was no longer met and that a class action was no longer a superior method
of adjudicating the Plaintiffs’ claims. We examine its decision in light of these
particular factors.

NUMEROSITY

10
La.Code Civ.P. art. 591(A)(2).
11
La.Code Civ.P. art. 591(A)(3).
12
La.Code Civ.P. art. 591(A)(4).
13
Clark v. Trus Jois MacMillian, 02-676 (La.App. 3 Cir. 12/27/02), 836 So.2d
454, writ denied, 03-275 (La. 4/21/03), 841 So.2d 793.
14
General Tel. Co. of the S.W. v. Falcon, 457 US 147, 157 n.13, 102 S.Ct. 2364,
2370 (1982).
15
La.Code Civ.P. art. 591(A)(5).

5

The Plaintiffs presented evidence that between May 1989 and January 2000,
Kilpatrick made 2,464 payments to Hixson for Central State Policies and it made
2,142 other payments to Hixson but was unable to cross-reference them to specific
policies. The trial court found that even a small percentage of this total—
4,606—“foreshadow[s] the probability that numerous individual suits would or may
be filed if the class certification were denied.” However, this court’s ruling that the
two-year prescriptive terms of some of the policies is permissible decreases the
number of potential claimants. For example, a large percentage of the sample policies
in the record are subject to a two-year prescriptive period and, therefore, have
prescribed.
Nonetheless, Mr. Bruce Robinson, vice president and general manager of
Hixson Brothers, estimated that in 1999, Hixson provided 200 funerals under
Kilpatrick policies. Furthermore, the record indicates that from May 1997 to January
2000, there were 889 instances in which Kilpatrick made payments to Hixson under
a Central State policy, corroborating Mr. Robinson’s estimation. None of these
instances would be affected by the restrictive prescriptive terms. Accordingly, this
court affirmed certification in its prior decision on this case despite its ruling
concerning the prescriptive terms, finding that “a significant number of policyholders
would still be affected by this suit.”16 Thus, the decision that the prescriptive periods
may be enforced, alone, does not justify decertification.
Notwithstanding, the trial court also reconsidered its class definition in its
previous certification judgment. It had defined the class as follows:

Every private or juridical person (including, but not limited to
natural persons, corporations, partnerships, trusts, limited liability
corporations, joint ventures, estates, guardians, tutors, etc.):

1) Who is a beneficiary and/or heir of all known insured persons
who purchased burial insurance policies that were issued by Central
State Life Insurance Company or Hixson Life Insurance Company; and

2) Who, upon the death of the insured, made arrangements for the
burial of the named insured at a funeral home located in the State of
Louisiana and owned by Hixson Brothers, Inc., between May 26, 1989
through September 26, 2001.

16
Mathews, 831 So.2d at 1001.

6

However, in reconsidering this definition, the trial court agreed with the
Defendants that “those who were not dissatisfied with the proffered casket or did not
request a substitution are not aggrieved and should not be considered as part of the
class.” It stated further:

Plaintiffs have not offered evidence of whether such a definable
group of aggrieved persons exist. The fact that approximately 200
policies were issued each year for the 2-year period at issue does not
establish that there is a definable group of aggrieved persons whose
joinder is impracticable.

We cannot agree with the trial court’s reasoning here. First, the period at issue
is a four-year period. Even under policies containing a two-year prescriptive period,
the class would extend to those persons who buried their loved ones from May 26,
1997 to September 26, 2001. Furthermore, the record indicates that there were 889
instances in which Central State made payments to Hixson from May 1997 to January
2000. Additionally, the class would still include some members who buried their
loved ones as long ago as 1989 because some of the policies, albeit a small
percentage, do not contain the two-year prescriptive period.
Moreover, while the trial court’s recognition that its class definition may have
been overly broad may justify an amendment to the definition, we do not find that it
justifies a measure as drastic as decertification. Specifically, Mr. Robinson, vice
president and general manager of Hixson Brothers, stated that a very small amount of
those who presented Hixson with one of the described policies actually used the casket
that Hixson offered. This indicates that most were not satisfied with the casket. Thus,
we find that the Plaintiffs have, in fact, offered sufficient proof that a definable group
of aggrieved persons exists. Further, even a conservative approximation of the
number of persons in this group sufficiently satisfies the numerosity requirement.
Accordingly, we find no justification for class decertification on this basis.

PREDOMINANCE AND SUPERIORITY

The trial court gave two additional reasons for decertifying the class, both of
which involve La.Code Civ.P. art. 591(B)(3)’s requirement that “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

7

for the fair and efficient adjudication of the controversy.” The Article lists six factors
to guide in this determination:

(a) The interest of the members of the class in individually
controlling the prosecution or defense of separate actions;

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

(c) The desirability or undesirability of concentrating the litigation
in the particular forum;

(d) The difficulties likely to be encountered in the management of
a class action;

(e) The practical ability of individual class members to pursue
their claims without class certification;

(f) The extent to which the relief plausibly demanded on behalf of
or against the class, including the vindication of such public policies or
legal rights as may be implicated, justifies the costs and burdens of class
litigation.

First, the trial court considered that no additional claimants had come forward
since the certification hearing. It recognized that “judicial efficiency means
consideration of the existence of, or likelihood or improbability of future similar
suits,” and found that “the Court does not anticipate the filing of numerous suits in the
case sub judice.” However, as it previously recognized in its certification judgment,
“It is probable, if not a certainty, that numerous members of the proposed class are
unaware of their rights and, therefore, unlikely to file suit to vindicate said rights.”
We see no evidence in the record that discounts the trial court’s earlier finding
in any way. In fact, no new discovery or evidence was offered between the
certification and the hearing to decertify. Thus, the only new consideration before the
trial court was this court’s opinion, which reinforced the trial court’s conclusions
concerning La.Code Civ.P. art. 591(B)(3). This court agreed that three factors under
section (B)(3) supported certification. Specifically, we said, “Nothing in the record
suggests that this litigation will be unmanageable. Contrary to Defendants’
arguments, the individual claims appear relatively small, and it seems unlikely that the
class members will prosecute individual actions, either from their lack of knowledge

8

or of their rights or from the type of insurance involved.”17 Accordingly, the fact that
no additional claimants have come forward actually supports, rather than undermines,
certification of a class in this action, particularly under sections (e) and (f). Moreover,
judicial efficiency is but one of the factors to consider in determining whether a class
action is a superior method of adjudication.
Lastly, the trial court found that procedural superiority of a class action may be
further undermined if parol evidence becomes necessary to determine individual
intent. However, again, in its certification judgment, it adequately addressed this
concern, stating:

[T]he Defendants have not suggested that they have ever issued a
burial insurance policy that permits one to select an alternate casket
without negating the insurance policy. In the absence of any
demonstration that the Defendants have issued an insurance policy that
does permit an alternative casket selection, it follows an “individual-by-
individual, contract-by-contract” determination will not be a dispositive
factor in this case.

Again, this court affirmed the trial court’s reasoning, stating:

Defendants have not disputed that all Central State policyholders
were treated in the same manner in that they were not given the full
benefits of the policy if they chose to purchase a casket that was not
offered to them. Defendants apparently treated all Central State
customers in this manner, regardless of the specific provisions in the
policy presented to them. Thus, the differences in the individual policies
are not as significant as Defendants suggest, given this uniform course
of conduct.18

As the parties offered no new evidence and conducted no new discovery after
the trial court and this court made the above statements, we find no reasonable basis
for it to have reached an opposite conclusion at this juncture.
Accordingly, after reviewing the reasons for its decision, we believe that
decertification was premature.

17
Id at 1005.
18
Id. at 1005.

9

CONCLUSION

The Plaintiffs appeal the trial court’s decision to recall its prior class
certification. We find that the trial court erred in decertifying the class and, therefore,
reverse its judgment and remand for further proceedings. We assign the costs of this
appeal to Defendants/Appellees.

REVERSED AND REMANDED.

10