Stewart v. Farmers Ins. of Columbus, Inc.

[Cite as Stewart v. Farmers Ins. of Columbus, Inc., 2026-Ohio-1451.]


                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

JAMES STEWART, INDIVIDUALLY                            :
AND ON BEHALF OF ALL OTHER
SIMILARLY SITUATED,                                    :

                 Plaintiff-Appellee,                   :
                                                                       No. 115049
                 v.                                    :

FARMERS INSURANCE OF                                   :
COLUMBUS, INC.,
                                                       :
                 Defendant-Appellant.


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: April 23, 2026


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-23-981091


                                            Appearances:

                 Dworken & Bernstein Co., LPA, and Patrick J. Perrotti;
                 Garson Johnson LLC, and James A. DeRoche, for
                 appellee.

                 Tucker Ellis LLP, Karl A. Bekeny, Benjamin C. Sasse, and
                 Ariana E. Bernard; Akerman LLP, and Bryan T. West, pro
                 hac vice, for appellant.
KATHLEEN ANN KEOUGH, J.:

               Appellant Farmers Insurance of Columbus, Inc. (“Farmers”) appeals

the judgment of the trial court granting class certification. Finding merit to the

appeal, this court reverses the trial court’s decision.

I.   Procedural and Factual Background

               In 2022, Farmers issued a car insurance policy (“the policy”) to James

Stewart insuring his 2008 Honda Element that he purchased in 2016 for “around”

$12,000. The relevant portions of the policy, which are not in dispute, are as follows:

      Part IV – Damage to Your Car

      ...

      Coverage G – Collision

      [Farmers] will pay for loss to your insured car caused by collision
      less any applicable deductibles.

      ...

      Limits of Liability

      [Farmers’] limits of liability for loss shall not exceed:

      1. The amount which it would cost to repair or replace the damaged or
      stolen property with other or like kind and quality; or with new
      property less an adjustment for physical deterioration and/or
      depreciation.[1]



      1 The policy originally stated that Farmers’ limits of liability would not exceed the

lowest of “1. The actual cash value of the stolen or damaged property. 2. The amount
necessary to repair or replace the property.”

       The policy was amended by an endorsement, (OH013-1st Edition — 94-1085 1st
Edition 10-08) replacing number 2 with a new provision.
       Payment of Loss

       [Farmers] may pay the loss in money or repair or replace damaged or
       stolen property.

       ...

       Appraisal

       [Policy holder] or [Farmers] may demand appraisal of the loss. Each
       will appoint and pay a competent and disinterested appraiser and will
       equally share other appraisal expenses. The appraisers, or a judge of a
       court having jurisdiction, will select an umpire to decide any
       differences. Each appraiser will state separately the actual cash value
       and the amount of loss. An award in writing by any two appraisers will
       determine the amount payable, which shall be binding on the parties.

(Emphasis in original.)

                In December 2022, while the policy was in effect, Stewart was

involved in an automobile accident. Farmers declared the vehicle a total loss and

pursuant to the policy, elected to pay Stewart for the loss in money, as opposed to

repairing or replacing the damaged vehicle. In January 2023, Farmers paid Stewart

$9,795, which represented the adjusted vehicle value of $10,295 plus fees, but minus

Stewart’s $500 deductible. According to the record, Stewart did not, at the time,

dispute the payment or invoke the appraisal process under the policy.

                In June 2023, Stewart filed a class-action complaint against Farmers,

asserting claims individually and as representative of a class of insureds by Farmers


       The policy was again amended by an endorsement (J6712-1st Edition — 93-6712
1st Edition 10-08) by deleting the entirety of the “Limits of Liability” provision and
replacing it with the above-cited relevant language.

        In Stewart’s motion for class certification, Stewart acknowledges this endorsement
as the relevant provision for “Limits of Liability.” See Motion for Class Certification, page
4; Docket No. 46.
who suffered total losses of their vehicles. The alleged claims included (1) breach of

contract; (2) unjust enrichment; and (3) fraud and fraudulent/negligent

misrepresentation and omission. The underlying class issue Stewart raised was

whether Farmers breached its policies for each insured by applying a “condition

adjustment” not mentioned in the policy and is otherwise contrary to law. According

to Stewart and the putative class, Farmers breached the insurance contracts by not

paying the insureds “actual cash value” for their total-loss vehicles. According to

Stewart, “actual cash value” was not defined in the policy nor did the policy explain

how Farmers calculated “actual cash value.”2

               Stewart alleged that Farmers also breached the policy by using a

third-party company, CCC Intelligent Solutions (“CCC”), to reduce the payment to

him and the putative class by subtracting an arbitrary “condition adjustment” from

the actual cost of the comparable vehicles used to determine the actual cash value.


      2 According to Stewart, ACV means the “actual cost to buy a comparable car less

any applicable deductible amount contained in the policy.” Adm.Code 3901-1-54(H)(7).
The full provision of the cited portion of Adm.Code. 3901-1-54(H)(7) states, in relevant
part:

      In settlement of claimants’ automobile total losses on the basis of actual
      cash value or replacement of the automobile with another of like kind and
      quality, an insurer which elects to offer a cash settlement to claimant shall
      base the offer upon the actual cost to purchase a comparable automobile
      less any applicable deductible amount contained in the policy, and/or
      deduction for betterment as contained in paragraph (H)(2) of this rule.

The code section then sets forth how that settlement value may be derived from, including
the average costs of two or more comparable vehicles, average of two or more quotes from
licensed dealers, or cost as determined from a generally recognized used motor vehicle
source such as an electronic database or guidebook. See Adm.Code. 3901-1-54(H)(7)(a-
e).
According to Stewart, this practice is not disclosed in the policy and Farmers

fraudulently concealed it from policyholders.

               The complaint set forth the following class definition:

      All Ohio residents who: 1) were insured by Defendant under a motor
      vehicle policy providing coverage for Damage to Your Car, or similar;
      2) suffered damage to their auto determined to be a total loss, made a
      claim to Defendant, and Defendant made payment claimed to be the
      actual cash value of the vehicle; 3) the payment was in the amount of
      the TOTAL on a CCC One® Market Valuation Report, or less
      applicable deductible; or was the result of any other similar process
      applying a deduction not provided for in the Policy. The class excludes
      any insured whose payment was made based on an appraisal;
      Plaintiff’s counsel; officers of the court handling this matter; and
      employees of Defendant. The class period is 15 years before the filing
      of this action, and thereafter.

(Emphasis added.)

               After the complaint was filed and in accordance with the policy,

Farmers made an appraisal demand, which resulted in Farmers formally filing a

motion to compel appraisal. The appraisal process provided: “Each appraiser will

state separately the actual cash value and the amount of loss. An award in writing

by any two appraisers will determine the amount payable, which shall be binding on

the parties.” (Emphasis added.) Accordingly, the appraisers would determine the

“actual cash value” of Stewart’s vehicle.

               Ultimately, in December 2023, the trial court granted Farmers’

August 2023 motion to compel appraisal of the claim. The trial court concluded,

after relying on and applying the criteria in Saba v. Homeland Ins. Co., 159 Ohio St.

237 (1953), that the Policy language contained “plain, inescapable language” that the
appraisal provision was mandatory. Moreover, relying on Bobel v. Safeco Ins. Co.

of Indiana, 2018 US Dist. LEXIS 240663 (N.D. Ohio May 10, 2018), the court found

no merit to Stewart’s argument that the appraisal provision did not apply if a lawsuit

was already filed. The court stated, “As in Bobel, there is no language in the Farmers

policy precluding appraisal after the commencement of litigation.” Finally, despite

Stewart challenging the appraisal because it would not resolve the legal issue before

the court, the trial court ordered Stewart to submit to the appraisal process as

invoked by Farmers.

              In March 2024, following discovery and while the parties waited for

the appraisal, Stewart moved for class certification, amending the class as defined

in the complaint by removing the exclusion of appraisal-based claims, adding a

reference to “condition adjustments,” and shortening the class period. Stewart’s

new class definition provided:

      All Ohio residents who: 1) were insured by Defendant under a motor
      vehicle policy; 2) suffered damage to their auto declared a total loss by
      Defendant, and Defendant made a cash payment to resolve the claim
      on or after June 16, 2017; 3) the payment was derived using a CCC
      One® Market Valuation Report that applied a “condition adjustment”
      reducing the comparable vehicle value. The class excludes Plaintiff’s
      counsel; officers of the court handling this matter; and employees of
      Defendant.

              Stewart stated that the common question was whether Farmers

breached its policies for each person by applying a “condition adjustment” not

mentioned in the Policy and is otherwise contrary to law. According to Stewart, CCC

reduced payments to all class members by subtracting an arbitrary amount termed
a “condition adjustment” from the actual cost of the comparable vehicles used to

determine the actual cash value owed to all class members pursuant to the members’

respective policies. He maintained that class certification was warranted because it

would efficiently address the merits of the dispute in one action for all Ohioans

harmed by Farmers’ alleged conduct.

               In April 2024, the appraisal was completed. In accordance with the

appraisal provision, the two appraisers jointly issued an award finding the “actual

cash value” for Stewart’s vehicle to be $11,564.08, which was higher than the amount

Farmers originally paid Stewart. Farmers issued a check payable to Stewart for

$1,393.29, representing the difference between the original amount and the

appraisal award. Stewart declined to cash the check and continued the litigation

without amending the complaint. Notably, this subsequent payment was also higher

than the complained-about “condition adjustment” applied to the comparable

vehicles in assessing Stewart’s total loss. Stewart did not move to set aside the

appraisal award.

               Because the appraisal had been completed and Farmers tendered the

check to Stewart for the difference, Farmers opposed Stewart’s motion for class

certification, contending that Stewart lacked standing as a class representative or his

claims were otherwise moot because he was fully compensated following the policy’s

binding appraisal process, which was also mandated by the court. Because it

complied with the contract by promptly paying the appraisal award, Farmers

contended that Stewart’s extra-contractual claims — unjust enrichment, negligent
misrepresentation, and fraud — are not viable claims to maintain a class action.

Moreover, it further opposed class certification because Stewart improperly

broadened the class definition without leave of court. Finally, Farmers contended

that Stewart could not satisfy the Civ.R. 23 requirements because of the onerous

review of individual claim files.

               Stewart opposed Farmers’ assertion that he lacked standing or that

his claims were otherwise moot by virtue of the appraisal. He characterized the

appraisal process as a “gambit,” citing to case law that portrays this tactic as “efforts

to ‘pick off’ claims of the named plaintiff.” In support, Stewart cited to Hoban v.

Natl. City Bank, 2004-Ohio-6115, ¶ 23 (8th Dist.), in which this court held that

individual and class claims will not be mooted where the defendant’s conduct did

not afford the plaintiff a reasonable opportunity to file a motion for class

certification prior to tendering plaintiff the relief sought.

               The trial court agreed with Stewart. The court found that invoking

the policy’s appraisal process did not moot Stewart’s standing to maintain the class

action. Relying on this court’s decision in Hoban, the trial court stated that “the

facts of this case make clear that this is a dispute that is capable of repetition and

could forever evade review by invoking the appraisal provision.” The court also

found it significant that Stewart did not cash or accept the tendered check following

the court-ordered and contractually binding appraisal. Accordingly, the trial court

found that despite the appraisal process, Stewart had “standing to bring his claim.”
                Further, the court found that Stewart satisfied the Civ.R. 23

requirements and certified the following proposed class:

       All Ohio residents who: 1) are or were insured by Defendant under a
       motor vehicle policy; 2) suffered damage to their auto declared a total
       loss by Defendant, and 3) received a cash payment to resolve the claim
       on or after June 16, 2017; 4) the payment was derived using a CCC
       One® Market Valuation Report that applied a “condition adjustment”
       reducing the comparable vehicle value. The class excludes Plaintiff’s
       counsel; officers of the court handling this matter; and employees of
       Defendant.[3]

                This appeal followed.

II. The Appeal

                In its sole assignment of error, Farmers contends that the trial court

erred in granting class certification, raising the following issues:

       (1) Whether Stewart’s individual and class claims are moot because
       (a) the valuation of his total-loss car was fully resolved in a court-
       ordered appraisal; and (b) he alleges no other injury and cannot move
       to certify a class on an unstated liability theory that would include him
       as a class member;

       (2) Whether Stewart satisfied the requirements of Civ.R. 23(A) by
       showing a properly defined class, typicality, and commonality; and

       (3) Whether Stewart satisfied the predominance test of Civ.R.
       23(B)(3).




       3 When the court reviewed the language of the policy, it did not cite or quote the

subsequent endorsements to the policy that amended Farmers’ limits of liability, but
rather relied on the policy’s original language that stated that Farmers’ liability “shall not
exceed the lowest of: 1. The actual cash value of the stolen or damaged property. 2. The
amount necessary to repair or replace the property.” Again, the policy was amended,
deleting Farmers’ contractual obligation to pay the undefined term of “actual cash value.”
      A. Are the Individual and Class Claims Moot?

               We review the issue of mootness de novo because it is a question of

law. Biesiada v. City of N. Royalton Mayor, 2024-Ohio-965, ¶ 10 (8th Dist.). Under

the de novo standard, “‘this court conducts an independent review of the trial court’s

decision, giving no deference to the trial court’s determination.’” Id., quoting

Jacobson v. Akron Children’s Hosp., 2023-Ohio-2225, ¶ 53 (9th Dist.).

               Farmers first contends that Stewart’s individual claim is moot and

thus he cannot seek class relief. It maintains that Stewart’s individual and class

claims are moot because (a) the valuation of his total-loss car was fully resolved in a

contractual and court-ordered appraisal; and (b) Stewart alleged no other injury and

cannot move to certify a class on an unstated liability theory that would include him

as a class member.

               It is undisputed that when Stewart filed his complaint, he had

standing to bring his individual claims and as the class representative. “If a plaintiff

possesses standing from the start, later factual changes cannot deprive the plaintiff

of standing.   Those changes instead create ‘mootness’ issues and trigger that

doctrine’s more forgiving rules.” Fox v. Saginaw Cty. 67 F.4th 284, 295 (6th Cir.

1992.).

               As a general rule, courts will not resolve issues that are moot. See

Miner v. Witt, 82 Ohio St. 237 (1910). “The doctrine of mootness is rooted both in

the ‘case’ or ‘controversy’ language of Section 2, Article III of the United States

Constitution and in the general notion of judicial restraint. . . . While Ohio has no
constitutional counterpart to Section 2, Article III, the courts of Ohio have long

recognized that a court cannot entertain jurisdiction over a moot question.”

(Citations omitted.) James A. Keller, Inc. v. Flaherty, 74 Ohio App.3d 788, 791 (10th

Dist. 1991). An action is moot when it becomes “‘fictitious, colorable, hypothetical,

academic or dead’” and involves “‘no actual genuine, live controversy.’” State ex rel.

Cincinnati Enquirer v. Hunter, 2014-Ohio-5457, ¶ 4, quoting In re L.W., 2006-

Ohio-644, ¶ 11 (10th Dist.).

               Farmers contends that Stewart’s individual and class claims are moot

because the valuation of his total-loss vehicle was fully resolved in a contractually

binding and court-ordered appraisal that was ordered prior to Stewart seeking class

certification and was fully completed prior to the trial court granting class

certification. Where the named plaintiff’s individual claim becomes moot before

class certification, dismissal of the entire action, including the class claims, is

required. Fuller v. Univ. Hosps. Med. Group, Inc., 2021-Ohio-2518, ¶ 29 (8th Dist.),

citing FV-I, Inc. v. Townsend-Young, 2020-Ohio-5184, ¶ 74 (8th Dist.), citing

Brunet v. Columbus, 1 F.3d 390, 399 (6th Cir. 1993).

               In support, Farmers relies on a similar case in which a federal court,

applying Ohio law, held that performance of contractual appraisal provisions

mooted the underlying claims — Urbassik v. Am. Family Mut. Ins. Co., 657

F.Supp.3d 1015 (N.D. Ohio 2023). In Urbassik, an insured under an automobile

policy sued his insurer for allegedly failing to pay the actual cash value of his total-

loss vehicle. According to the plaintiff, the insurance company breached the policy
by applying a “selling price adjustment,” which plaintiff alleged violated Ohio law.

The insurance company filed a motion to compel appraisal, seeking to enforce the

appraisal provision provided in the policy. The court granted the motion, and

following the appraisal process, the insurance company issued plaintiff payment in

accordance with the policy. The plaintiff deposited the payment. The Urbassik

Court determined that under the policy, the appraisal conclusively determined the

amount payable to plaintiff, and thus the breach-of-contract action was now moot.

Id. at 1022.

               Stewart and the trial court found Urbassik distinguishable because

unlike the plaintiff in Urbassik who accepted and deposited the appraisal payment,

Stewart did not cash Farmers’ check. Stewart and the trial court contended that by

not accepting or cashing the check, Stewart either rejected the award, or it did not

moot the controversy between the parties. Both Stewart and the court classified

Farmers’ issuance of the payment from the appraisal as “a settlement offer and

refused to accept the additional payment.” However, Farmers did not issue the

payment as a “settlement offer,” it was issued as contractually mandated under the

policy.

               Stewart and the trial court focused on caselaw applying a “pickoff”

exception to the mootness doctrine in class action contexts. The trial court cited

Deposit Guar. Natl. Bank, Jackson, Miss v. Roper, 445 U.S. 326 (1980), for the

proposition that “[t]o deny the right to appeal simply because the defendant has
sought to ‘buy off’ the individual private claims of the named plaintiffs would be

contrary to sound judicial administration.” Id. at 327.

               Stewart relied on this court’s decision in Hoban, 2004-Ohio-6115

(8th Dist.). In Hoban, the plaintiff sought class certification on a breach-of-contract

action regarding credit card finance charges. During the proceedings, National City

Bank unilaterally reversed the disputed charges and then moved for summary

judgment, contending that plaintiff’s breach-of-contract action was moot. The trial

court granted summary judgment in favor of the bank, finding that the plaintiff no

longer had a “case or controversy” and noted that because no class action

certification was pending at the time, plaintiff’s class claim became moot.

               Relying on Deposit Guar., this court in Hoban reversed the trial

court’s decision, finding that notwithstanding the bank’s reversal of the charges,

there were “serious questions” as to whether the dispute was capable of repetition

but could evade review. Id. at ¶ 23. Quoting Woods v. Oak Hill Community Med.

Ctr., 134 Ohio App.3d 261 (4th Dist. 1999), this court stated that “‘in situations

where a pending motion for class action is pursued with reasonable diligence, the

class action will not be mooted by a defendant’s efforts to “pick off” claims of the

named plaintiffs by tendering the relief sought.’” Id. at ¶ 14, quoting Woods at 269.

               In Hoban, this court stated that plaintiff did not have a reasonable

opportunity to file a motion for certification before the bank reversed the charges.

Finding that the dispute was capable of repetition, thus applying an exception to the

mootness doctrine, this court further noted that although the bank made a blanket
assertion that plaintiff would not be responsible for any charges subsequently

imposed, the bank did not rebuke its underlying policy of charging finance charges.

Id. at ¶ 23. Accordingly, the court found that the mootness doctrine did not apply

in this context.

               Stewart also relied on Wilson v. Directions Credit Union, 2024-Ohio-

105 (6th Dist.), that determined that attempts to “pick off” class representatives and

claims prior to seeking class certification will not moot those cases. In Wilson, the

plaintiff brought an action “on behalf of herself and a class of similarly situated

individuals” against the credit union alleging that it breached its contract with its

members by charging overdraft fees on checking account transactions for which

customers had adequate funds in their accounts at the time the credit union

authorized the transactions. A few months after the lawsuit was filed, the credit

union credited plaintiff’s account, reversing the fees, and then moved to dismiss the

complaint for lack of jurisdiction, contending that the controversy was now moot.

The trial court agreed and dismissed the action. On appeal, the Sixth District

reversed, finding that the credit union’s conduct of unilaterally depositing funds into

the plaintiff’s account was an attempt to “pick off” plaintiff’s claims and thus, this

conduct did not moot her individual or class claims. Id. at ¶ 19-20.

               But unlike Hoban and Wilson, the payment Farmers tendered was

not issued as a means of a “settlement offer” or a unilateral attempt to circumvent

class claims. Rather, the payment was issued as a result of a binding contractual

provision in the policy that was previously enforced by a court order. Significantly,
the trial court specifically found that the policy required the parties to submit to the

binding appraisal process. Moreover, Stewart did not seek to legally declare the

policy appraisal provision unenforceable or ask that the appraisal award be set aside

once the award was issued. See, e.g., One Church v. Bhd. Mut. Ins. Co., 2024-Ohio-

1601 (10th Dist.) (grounds to set aside an appraisal award); Miller v. Mgt. Recruiters

Intl., Inc., 2009-Ohio-236 (8th Dist.) (setting aside an arbitration award can only be

done in limited circumstances).4 Accordingly, the appraisal process and subsequent

payment was not a “settlement offer” or attempt to “pick off” plaintiffs, but a

fulfillment of contractual obligation as agreed to by the parties.

               The trial court relied on the plain language of the policy when it

ordered Stewart to undergo the appraisal process.             Applying that same plain

language, the policy also renders the appraisal award binding. And because the

subsequent appraisal payment represents payment for the “actual cash value” for

his vehicle — what Stewart claimed Farmers did not pay him — there can be no




             4 “Generally, a court will not interfere with an appraisal award but,

      to the contrary, will indulge in every reasonable presumption to sustain it
      in the absence of fraud, mistake, or misfeasance. A court will not substitute
      its judgment for that of the appraisers or set aside an award for inadequacy
      or excessiveness unless it is so palpably wrong as to indicate corruption or
      bias on the part of the appraisers.” Lakewood Mfg. Co. v. Home Ins. Co. of
      New York, 422 F.2d 796, 798 (6th Cir.1970), citing 44 American
      Jurisprudence 2d, Insurance, Section 1719 (1969). “The law of Ohio,
      applicable here, is essentially in line with the general rule. In Ohio, fraud or
      manifest mistake is a proper legal basis upon which to set aside an appraisal
      award.” Id., citing Baltimore & Ohio RR. v. Stankard, 56 Ohio St. 224, 46
      N.E. 577 (1897).

One Church at ¶ 19-20.
breach and thus the controversy no longer exists. Farmers performed under the

contract by issuing the check for the amount. Stewart’s not cashing or accepting the

check does not change this result.

               Stewart and the trial court also focused on the two recognized

exceptions to the mootness doctrine — cases involving issues capable of repetition,

yet evading review, and cases involving a matter of great public or general interest.

Gajewski v. Bd. of Zoning Appeals, 2008-Ohio-5270, ¶ 22 (8th Dist.). Stewart

contends that these two exceptions apply, thus allowing his claims to move forward.

               A court may hear an appeal that is otherwise moot when the issues

raised are “capable of repetition, yet evading review.” State ex rel. Plain Dealer

Publishing Co. v. Barnes, 38 Ohio St.3d 165 (1988), paragraph one of the syllabus.

The “capable of repetition, yet evading review” exception to the mootness doctrine

“applies only in exceptional circumstances in which the following two factors are

both present: (1) the challenged action is too short in its duration to be fully litigated

before its cessation or expiration, and (2) there is a reasonable expectation that the

same complaining party will be subject to the same action again.” State ex rel.

Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231 (2000).

               We find that this is not the exceptional case where the issues evade

review. The issue of whether application of the condition adjustment breaches an

insurance policy when calculating payment for a total loss vehicle is capable of

repetition. However, the circumstances surrounding the case before us is premised

on timing, procedural maneuvers, and rulings that could be challenged in
subsequent proceedings. Accordingly, under different circumstances, individual

and class claims on this issue may survive the mootness doctrine.

                 Moreover, we recognize that the underlying issue — whether an

insurer applying line-item adjustments when calculating payment for total loss

under an automobile insurance policy — is currently pending in the Ohio Supreme

Court.      See 11/12/2025 Case Announcements, 2025-Ohio-5078, accepting

Davenport v. Progressive Direct Ins., 2025-1102 (Propositions of Law I and II). In

Davenport, the second proposition of law reads: “A putative class cannot satisfy

[Civ.R.] 23’s predominance requirement by alleging that only a single adjustment to

an insurance valuation process is flawed when liability for class members’ claims

turns on the undervaluation of insured property.” Id. The resolution of that case

will lend guidance and resolve the issue in Ohio that many other courts have faced

across the nation.

                 Additionally, “‘although a case may be moot with respect to one of the

litigants, the court may hear the appeal where there remains a debatable

constitutional question to resolve, or where the matter appealed is one of great

public or general interest.’” State ex rel. White v. Koch, 2002-Ohio-4848, ¶ 16,

quoting Franchise Developers, Inc. v. Cincinnati, 30 Ohio St.3d 28 (1987),

paragraph one of the syllabus. This court has observed:

         On rare occasions, the court may retain an otherwise moot action for
         determination when it involves an issue of great public importance so
         that the question can be properly determined on its merits. See
         McDuffie v. Berzzarins (1975), 43 Ohio St.2d 23, 330 N.E.2d 667.
         Ordinarily, however, it is only the highest court of the state that adopts
      this procedure rather than a court whose decision does not have
      binding effect over the entire state.

Harshaw v. Farrell, 55 Ohio App.2d 246, 251 (8th Dist. 1977).

              In this case, a constitutional question does not exist, and we find that

the matter appealed is not one of great public or general interest. As previously

stated, the overall issue is currently pending in the Ohio Supreme Court in

Davenport.

              For the foregoing reasons, this court finds merit to Farmers’ first

assignment of error. Because the appraisal award was binding on both parties after

being invoked and Farmers’ tendering payment to Stewart, representing the actual

cash value for Stewart’s vehicle, there was no longer a live controversy between the

parties. Accordingly, because Stewart’s individual claims were resolved prior to

class certification, dismissal of the entire action, including the class claims, was

required. The trial court erred in failing to find the claims moot and dismiss the

action. Farmers’ first assignment of error is sustained.

              Finding merit to Farmers’ first issue raised in its assignment of error

renders the other two issues, challenging the trial court’s decision granting and

certifying the class, moot. See generally App.R. 12(A)(1)(c).

              Judgment reversed and remanded.

      It is ordered that appellant recover from appellee costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to said 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.



KATHLEEN ANN KEOUGH, JUDGE

SEAN C. GALLAGHER, P.J., and
DEENA R. CALABRESE, J., CONCUR