In Safi v. Cent. Parking Sys. Ohio, Inc., 5th Dist. No. C-150021, 2015-Ohio-5274, the Ohio Court of Appeals for the Fifth District reversed the trial court’s order granting class certification for claims alleging, inter alia, breach of contract against Central Parking Systems Ohio, Inc. (“Central Parking”).  

Central Parking operates a number of parking lots around Cincinnati, Ohio.  If Central Parking discovered vehicles parked on its lots in violation of its policies, it would issue a ticket to the vehicle.  When issuing a ticket, if Central Parking discovered that a vehicle had three prior outstanding unpaid tickets, it would tow the vehicle and charge the owner for the towing and storage fees until the owner reclaimed the vehicle.  The plaintiff, Safi, filed suit against Central Parking alleging that the fees that Central Parking charged were in excess of the statutory maximum amounts for towing and storage of vehicles, and sought to represent a class of similarly situated individuals.  The trial court granted class certification.

On appeal, the Fifth District reversed the order granting class certification, holding that the trial court erred in finding that the typicality and adequacy requirements of Ohio Civ. R. 23 were satisfied.  The Fifth District’s conclusion was grounded in the fact that when individuals sought to reclaim their towed vehicles, Car Barn (the third-party Central Parking used to tow and store the vehicles) only collected fees for the first three outstanding violations, and did not require immediate payment of the fourth violation (which is what led to the vehicle being towed) or any additional damages.  Thus, many class members still owed money to Central Parking. 

In order to satisfy typicality, the Fifth District noted that it was not sufficient for a plaintiff to show the existence of a common potential injury, but that he must also show that the relief sought “is not repugnant to class members.”  Safi conceded that if he prevailed in the action, Central Parking would be able to initiate collection proceedings against class members for the unpaid amounts and seek a set-off of any damages owed to class members.  The court observed:

To qualify as a class member, a litigant would have to affirmatively assert that his or her vehicle was parked illegally on up to four occasions and was towed.  Thus, a class action would expose class members to potential liability in excess of what they had already paid.  That risk would place Safi’s interests at odds with those of class members who would opt to settle and avoid the risks of litigation.

Because class members could end up owing Central Parking, the Fifth District held that typicality was not satisfied because some class members could be in a worse position than if they had pursued their claims individually.  This not only made Safi’s claim atypical of other class members, but the Fifth District also concluded that the superiority requirement of Ohio Civ. R. 23(B)(3) was not satisfied. 

Accordingly, the Fifth District reversed the order granting class certification and remanded the case to proceed on Safi’s individual claim.