Class Action

To a very large extent the applicable law is general class action law, which applies generally in the insurance context as it applies in every other context.

As a preliminary observation, one point which too often seems to get lost in the shuffle is that the touchstone of every class action must be the text of Rule 23 itself. Certainly for the essential elements of a class action, it is always necessary to focus on sections (a) and (b) of Rule 23. Yet many attorneys and even some judges bypass the rule and cite early court decisions for these elements, tending to leave the impression that that these are matters of common law. However, if the daisy chain of such citations is followed backward, it necessarily leads, sooner or later, back to the text of the rule itself.

The text of Rule 23, C.R.C.P., is as follows:

Prerequisites to Class Action
One or more members of a class may sue or be sued as representative parties on behalf of all only if: (1) The class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Class Actions Maintainable
Any action may bemaintained as a class action if the prerequisites of "Prerequisites" section are satisfied, and in addition:

1. The prosecution of separate actions by or against individual members of the class would create a risk of:
(A) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the
class; or
(B) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interest; or

2. The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

3. Determination by Order Whether Class Action to Be Maintained; Notice; Judgment; Actions Conducted Partially as Class Actions.

4. Orders in Conduct of Actions. In the conduct of actions to which this Rule applies, the court may make appropriate orders:
(A) Determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;
(B) Requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, the notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;
(C) Imposing conditions on the representative parties or on intervenors;
(D) Requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly;
(E) Dealing with similar procedural matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time.

5. Dismissal or Compromise. A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.

6. Appeals. An appeal from an order granting or denying class certification under this rule may be allowed pursuant to the procedures set forth in C.R.S. § 13-20-901 (2003).