No. 5-99-0830 IN THE APPELLATE COURT OF ... - Appellate.net

not sooner, that plaintiffs could not possibly meet the standard adopted by this Court for
judging predominance, it was a clear abuse of discretion for the circuit court to refuse to
decertify the class.
d. State Farm’s Affirmative Defenses Could Be Litigated Only On
An Individual Basis.
Class certification was also improper because it effectively deprived State Farm of
affirmative defenses it would have been entitled to raise if class members’ claims had been
tried individually. For example, in at least eight states, State Farm was required by state law
to secure the consent of its policyholders before specifying non-OEM parts on repair
estimates; if a policyholder insisted on OEM parts, State Farm was required to pay for them,
at no additional charge to the policyholder. See note 4, supra. In these states, State Farm
had a potential waiver defense to any breach of contract claim, on the ground that the
policyholder had explicitly consented to the use of a particular non-OEM part at the time of
the repair and therefore could not seek damages if he or she later decided that the use of non-
OEM parts was unacceptable. Whether this defense would succeed in any individual case
would depend both on the law in the particular state where the repair took place and on the
facts and circumstances surrounding the transaction.
By certifying a class, however, the circuit court made it impossible for State Farm
to raise this and other similar defenses with respect to any class member’s claim, no matter
how clear the consent or waiver might be. 25/
There is no way that State Farm could have
25/
There are a variety of other situations in which State Farm might have defenses
unique to the individual policyholder. For example, a policyholder who agreed to the use
of non-OEM parts in order to avoid having his vehicle declared a total loss — because the
cost of repairs using OEM parts would have exceeded the value of the vehicle — should be
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