RENDERED: JULY 2, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-1500-ME
AT&T CORP. AND BELLSOUTH
TELECOMMUNICATIONS, LLC APPELLANTS
APPEAL FROM FRANKLIN CIRCUIT COURT
v. HONORABLE THOMAS D. WINGATE, JUDGE
ACTION NO. 16-CI-00986
DONNA FELTNER, ON BEHALF OF
HERSELF AND A CLASS OF
SIMILARLY SITUATED
INDIVIDUALS APPELLEES
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: ACREE, CALDWELL, AND LAMBERT, JUDGES.
CALDWELL, JUDGE: Appellants AT&T Corp. and BellSouth
Telecommunications, LLC (collectively, “AT&T”) appeal the Franklin Circuit
Court order granting Appellee Donna Feltner’s (“Feltner”) motion for class
certification. Following a careful review of the record and the law, we vacate and
remand.
BACKGROUND
As part of its vast telecommunications network, AT&T maintains
several outdoor service terminals across the Commonwealth. AT&T’s
telecommunications equipment is often located on property owned or leased by
third parties. For AT&T to access and service its equipment, the company must
possess easements on many of these properties. One such easement is on located
Feltner’s real property in New Castle, Kentucky.
The central issue in this case surrounds AT&T’s use of a pesticide
known as “Rainbow Weed Killer.” To prevent its service terminals from being
damaged and its technicians from being harmed by the overgrowth of weeds
around the terminals, AT&T allowed its technicians to apply Rainbow Weed Killer
to the areas around the equipment.
In June of 2015, Feltner notified AT&T that several plants in her
garden on her property, which was near AT&T’s service terminal, were dying.
AT&T sent Mark Bullock, an area manager in AT&T’s Corporate Environment
Health and Safety Field Support division, to inspect the area. Bullock observed
some distressed areas surrounding AT&T’s telephone equipment, but he noticed no
areas of distress in Feltner’s garden.1
1
Bullock testified to these facts in a deposition on September 29, 2017. Bullock also testified—
and AT&T noted in its brief—that an environmental consultant, Adam Flegge, tested the soil on
Feltner’s property for potential contamination and found no evidence of pesticide contamination
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Feltner contacted the Kentucky Department of Agriculture regarding
the alleged damage to her property from the pesticides applied by AT&T.
Representatives from the Department collected and analyzed soil samples from
Feltner’s property and determined that two active ingredients in Rainbow Weed
Killer were in fact present in the soil. The Department’s inspector also observed
that the amount of Rainbow Weed Killer detected was more than was appropriate
for the tested area. As a result of its investigation, the Department of Agriculture
issued two notices of violation to AT&T: one for failure to obtain a license to use
pesticides in violation of Kentucky Revised Statutes (KRS) 217B.120(17), and one
for failure to use pesticides as directed on their warning label in violation of KRS
217B.120(2).
On September 15, 2016, Feltner filed a class action lawsuit against
AT&T, alleging that she and a class of similarly situated individuals had suffered
property damage as a result of AT&T’s use of Rainbow Weed Killer. The five-
count complaint included claims against AT&T for nuisance, trespass, negligence,
negligence per se, and strict liability. Feltner then moved for class certification,
and by order entered on November 16, 2020, the circuit court granted Feltner’s
class-certification motion. AT&T appealed.
in the soil samples taken from Feltner’s garden. However, there is no evidence in the record of
Flegge’s official credentials, his own deposition testimony, or his alleged report.
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STANDARD OF REVIEW
We review a trial court’s decision to certify a class for an abuse of
discretion. Sowders v. Atkins, 646 S.W.2d 344, 346 (Ky. 1983). Under an abuse
of discretion standard, this Court may reverse a trial judge’s decision only if the
decision was “arbitrary, unreasonable, unfair, or unsupported by sound legal
principles.” Goodyear Tire & Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky.
2000) (citation omitted). Moreover, in our review, we may only address
certification of the class, and we cannot make a conclusive determination on the
merits.
Because of the strict parameters of interlocutory appeals,
the only question this Court may address today is
whether the trial court properly certified the class to
proceed as a class action lawsuit. We must focus our
analysis on this limited issue [of class certification] and
in so doing scrupulously respect the limitations of the
crossover between (1) reviewing issues implicating the
merits of the case that happen to affect the class-
certification analysis and (2) limiting our review to the
class-certification issue itself. Most importantly, “As the
certification of class actions . . . is procedural, such
process cannot abridge, enlarge, or modify any
substantive right of the parties.” “The right of a litigant
to employ the class-action mechanism . . . is a procedural
right only, ancillary to the litigation of substantive
claims.”
Hensley v. Haynes Trucking, LLC, 549 S.W.3d 430, 436-37 (Ky. 2018) (footnote
omitted).
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ANALYSIS
On appeal, AT&T argues that the circuit court abused its discretion in
certifying the class for two main reasons: (1) the proposed class is an
impermissible fail-safe class; and (2) the proposed class does not meet the
requirements under Kentucky Rules of Civil Procedure (CR) 23.01 and 23.02.
A “fail-safe” class is a class that cannot be defined until the case is
resolved on its merits; it bases its membership not on objective criteria, but on the
legal validity of each member’s claim. Manning v. Liberty Tire Services of Ohio,
LLC, 577 S.W.3d 102, 110 (Ky. App. 2019). “By its very nature, a fail-safe class
includes only those who are entitled to relief.” Id. at 110-11 (internal quotation
marks and citations omitted). That is, the class definition “predicates inclusion of
class members on the ultimate finding of liability that the court must make.”
Hensley, 549 S.W.3d at 449.
In Hensley, the Kentucky Supreme Court examined the appellant’s
claim that the circuit court had certified an improper fail-safe class. Id. at 449-50.
There, the circuit court certified a class of plaintiffs as follows:
All persons who were employed by Haynes Trucking, at
any time since 1995, who have not been paid prevailing
wages or proper overtime but who transported asphalt,
gravel, sand and/or other road building materials to
various locations on the site of public works projects in
the Commonwealth, distributed road building materials
from the truck bed in a controlled manner on the site of
the project, unloaded asphalt directly into paving
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machinery at a specific regulated rate so that such
machinery could lay asphalt concurrently on the site of
the project, and/or loaded recyclable and non-recyclable
materials in conjunction with other heavy machinery for
removal of the same from the site of the project.
Id. at 435-36. The Court’s discussion on whether the class definition was fail-safe
is instructive:
Hartford also alleged that the class definition was
an improper “fail-safe” definition, as the Sixth Circuit
has articulated. But Hartford misunderstands what a
“fail-safe” class is. The Sixth Circuit in [Randleman v.
Fidelity Nat. Title Ins. Co., 646 F.3d 347 (6th Cir. 2011)]
found an abuse of discretion in the trial court’s initial
class definition, which included “[a]ll persons who . . .
were entitled to receive [a certain insurance rate].”
Defining the class in such way was improper because it
“shields the putative class members from receiving an
adverse judgment. Either the class members win or, by
virtue of losing, they are not in the class and, therefore,
not bound by the judgment.”
Essentially, a fail-safe class is one that predicates
inclusion of class members on the ultimate finding of
liability that the court must make. The class definition in
this case is not fail-safe. To be fail-safe, the definition in
this case needed to have said something akin to, “All
truck drivers who are entitled to the prevailing wage.”
The trial court’s class definition makes no statement as to
whether the truck drivers are entitled to the prevailing
wage, which is the ultimate liability determination it must
make. The current class definition only includes those
truck drivers “not . . . paid the prevailing wage.” Such a
statement affords class membership and the ability to
pursue a claim for the prevailing wage to those truckers
who were not paid the prevailing wage on the jobsite—it
does not say one way or the other whether those who
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pursue a claim for the prevailing wage are entitled to that
wage.
Id. at 449-50 (footnotes omitted) (emphasis added). Since the decision in Hensley,
this Court has entertained arguments regarding fail-safe classes several times. See,
e.g., Compliance Advantage, LLC v. Criswell, No. 2019-CA-0872-ME, 2020 WL
2510913, at *4 (Ky. App. May 15, 2020) (citation omitted) (holding that a class
definition comprised of individuals who received false laboratory reports was not
fail-safe because “[b]y merely receiving a false laboratory report, the class member
is not automatically entitled to recover on the claims set forth against appellants.
Rather, individuals who have received false laboratory results are included in the
class and can pursue class action tort claims against appellants.”); Hitachi Auto.
Sys. Americas, Inc. v. Held, No. 2019-CA-1318-ME, 2020 WL 2510534, at *3
(Ky. App. May 15, 2020) (holding that the class definition was not fail-safe
because it included “all supervisors who worked at the Hitachi facility during the
relevant time and is not dependent on ultimate liability.”); Sullivan Univ. Sys., Inc.
v. McCann, No. 2020-CA-0118-ME, 2020 WL 5587316, at *2 (Ky. App. Sep. 18,
2020) (holding that a class definition that included all supervisors who worked for
the defendant as admissions officers during the relevant time period was not fail-
safe, as it was not dependent on ultimate liability).
In Manning, residents of a neighborhood located near a tire recycling
facility filed a class action against the owner and tenants of the facility, alleging
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that their reckless, intentional, and negligent conduct in allowing tires to burn
caused substantial damages to the named plaintiffs and members of a putative
class. 577 S.W.3d at 108. The plaintiffs sought certification of the following two
subclasses:
All persons whose dwelling was within an area
approximately one mile from the tire fire at 14201
Bohannon Avenue, Louisville, Kentucky, and was
subject to a Shelter in Place Order between November 3,
2014 and November 4, 2014.
All persons or property owners on whose property the
tire fire at Liberty Tires caused soot, ash, smoke, or other
physical remnants to land on November 3 and/or
November 4, 2014.
Id. at 110. Although the circuit court denied class certification on other grounds,
the appellees argued on appeal that the proposed class definitions were
impermissibly fail-safe. We held that the class definitions were sufficiently
defined as to not constitute a fail-safe class. “Stated another way, the class
definition does not hinge on a ‘fail-safe’ definition that requires a merit-based
analysis before membership can be determined. Class members need only reside
in the one-mile [Shelter In Place] radius, or in the smoke plume radius as modeled
by Appellants’ expert, or both. Indeed, Appellees make much of the fact that some
of the putative class members experienced little or to no harm as a result of the
[Shelter In Place] order or the smoke plume.” Id. at 111.
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In the present case, Feltner’s proposed class definition was “[a]ll real
property owners in the Commonwealth of Kentucky on whose real property
Defendants committed trespass, nuisance and/or negligent property damage due to
the unlawful use of Rainbow Weed Killer pesticides.” We must determine whether
membership in the proposed class is “dependent on whether a person holds a valid
legal claim.” Manning, 577 S.W.3d at 111. We hold that the proposed class
definition is fail-safe because it inevitably bases membership on the merits of each
individual’s claim.
Feltner argues that the proposed class definition here is akin to the
permissible language in Hensley because the class is defined as real property
owners against whom AT&T “committed trespass, nuisance, and/or negligent
property damage,” rather than those “entitled to compensation” due to the alleged
commission of those torts. However, either variation requires each individual class
member to prove, on the merits, that AT&T committed a tort against him and that
he is entitled to compensation as a result.
The circuit court must ultimately determine whether AT&T
committed the torts of trespass, nuisance, and/or negligent property damage against
each individual class member. The current class definition not only affords class
membership and the ability to pursue such claims, it presupposes whether those
who pursue a claim are entitled to damages. Hensley, 549 S.W.3d at 450. To
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qualify as a class member, individuals must own real property on which AT&T
committed certain torts. The ownership of such real property as a requisite for
class membership implies that class members are not only entitled to pursue those
tort claims, but are entitled to recover on those tort claims.
As currently articulated, whether an individual is a member of the
class is predicated on the ultimate finding that AT&T committed the torts of
trespass, nuisance, and/or negligent property damage. Therefore, we hold that this
is an impermissible fail-safe class.
Accordingly, the class certification order of the Franklin Circuit Court
is vacated, and this matter is remanded for further proceedings consistent with this
Opinion. Because we vacate the circuit court’s order on this basis, we do not reach
AT&T’s remaining contentions of error.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
W. Blaine Early, III Jasper D. Ward IV
Marshall R. Hixson Alex C. Davis
Lexington, Kentucky Sean A. McCarty
Randal A. Strobo
Marjorie A. Farris Clay A. Barkley
Chadwick A. McTighe Louisville, Kentucky
Louisville, Kentucky
Clifford J. Zatz
Washington, D.C.
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