source: Caselaw Access Project

author: Justice MARTINEZ

license: Public Domain

text:
    Laura FINNIE, Petitioner, v. JEFFERSON COUNTY SCHOOL DISTRICT R-1, Respondent.
    No. 02SC598.
    Supreme Court of Colorado, En Banc.
    Dec. 1, 2003.

      Tamas Viski-Hanka, Denver, Colorado, Attorneys for Petitioner.
    Caplan and Earnest LLC, Colleen A. O'Laughlin, Derek H. Kiernan-Johnson, Boulder, Colorado, Attorneys for Respondent.
   Justice MARTINEZ

delivered the Opinion of the Court.

Petitioner challenges the court of appeals' decision, Finnie v. Jefferson County School District R-1, No. 01CA1433 (Colo.App. July 25, 2002), which affirmed the trial court's grant of a motion to dismiss the petitioner's tort action against the Jefferson County School District. We must determine whether a plaintiff's filing of notice with a public entity's Risk Management Department, given allegations that the Risk Management Department represented that such filing was proper, can comply with the requirements of the Governmental Immunity Act (GIA) to serve notice upon a public entity. See § 24-10-109(3), 7B C.R.S. (2003).

We hold that to determine whether the plaintiff fulfilled the requirement contained in section 24-10-109(3), the trial court must consider principles of agency and equity, the intent and purposes of the notice statute, and whether the Risk Management Department misrepresented that the filing of notice was proper. Attempting to apply these principles to the case before us, we conclude that the record contains insufficient facts to determine whether the plaintiff complied with the statute. Thus, we further hold that trial courts must decide all issues of immunity before trial, regardless of whether the immunity issue is jurisdictional. To do so, trial courts may conduct Trimity hearings if necessary to determine the relevant facts.

I. Facts and Procedural Background

Laura Finnie, Petitioner, suffered injuries when she fell headfirst through an opening in the floor of a high school auditorium stage into an orchestra pit below. Finnie, a high school student, was crossing the dimly lit stage to perform with her school band when she fell eight to ten feet through the unmarked ' opening into the orchestra pit, breaking a ladder with her head as she fell. She alleges that she suffered multiple injuries from the fall, including brain damage resulting in epilepsy, a concussion, and the loss of the ability to read.

In an affidavit submitted to the trial court, Finnie's counsel claims that when preparing to file an action against the Jefferson County School District (the "School District"), he telephoned the School District's Risk Management Department to inquire where he must serve notice of claims as required by the GIA. The affidavit states that a receptionist referred the attorney to two Risk Management Department employees, one of whom returned the attorney's call. The affidavit further states that the employee informed the attorney that the Department was authorized to receive the statutory notice for the Jefferson County School Board (the "School Board"). In the affidavit, the attorney further alleges that, relying on this information, he then submitted a notice of claim to the Risk Management Department. Clearly framed as a "notice of claim," the letter appears to comply entirely with the GIA's notice requirements, except that the attorney sent it to the Risk Management Department rather than the School Board or its attorney as required by the GIA. See § 24-10-109(2)-(3), 7B C.R.S. (2003).

Upon receiving the notice, the Risk Management Department sent a letter to Finnie's attorney acknowledging receipt of the notice of claim. The letter further stated that "Iwlithout admitting or denying the timeliness or the sufficiency of notice, [the Risk Management Department had] taken an investigation into this matter." Subsequently, Finnie filed this tort action against the School District.

The School District moved to dismiss the complaint for failure to state a claim on the basis that the plaintiff failed to send notice of the claim to the School Board or its attorney as required by the GIA. See § 24-10-109(3). The trial court granted the School District's motion to dismiss without a hearing on the matter. The trial court first stated that it must adjudicate section 24-10-1098) disputes under a "strict compliance" standard, as required by Brock v. Nyland, 955 P.2d 1037 (Colo.1998). The trial court reasoned that, under this standard, statutory notice is proper only when filed with either the School Board or its attorney, as required by the GIA. See § 24-10-109(3) (requiring filing of notice with the governing body of a public entity or its attorney). The trial court then determined that the "strict compliance" standard did not allow for agency arguments and that Finnie could not rely on the "oral assertions and 'apparent authority' " of Risk Management Department employees because the attorney had access to controlling case law requiring service on the governing body or its attorney.

On appeal, the court of appeals affirmed. Finnie v. Jefferson County Sch. Dist. R-1, No. 01CA1433, slip op. at 6 (Colo.App. July 25, 2002). The court of appeals observed that the trial court had determined under C.R.C.P. 12(b)(5) that the complaint was insufficient, but believed that the trial court had considered matters outside the pleadings. Noting that a court must convert a motion to dismiss to one for summary judgment when "information outside of the complaint is submitted to the trial court," the court of appeals applied a summary judgment standard on review. Id. at 4-5 (citing Dunlap v. Colorado Springs Cablevision, Inc., 829 P.2d 1286 (Colo.1992)). The court of appeals recognized that the School Board could delegate its authority to receive statutory notice, contrary to the trial court's statement. The court of appeals, however, held that Finnie failed to show that the Board or its attorney delegated apparent authority to the Risk Management Department because she did not establish that the principal, the School District, created apparent authority through words or conduct. Id. at 5-6. Thus, the court rejected Finnie's argument that the School District conferred apparent authority on the Department's employee and affirmed the trial court's decision.

IL. Standard of Compliance

We begin our analysis by examining the trial court's application of a "strict compliance" standard to section 24-10-109(3). After reviewing the various opinions of the court in Brock, we conclude that each supports a substantial compliance standard.

The GIA establishes governmental tort immunity from actions filed against public entities or their employees and then provides exceptions and waivers under which individuals may maintain such actions. See §§ 24-10-105 to -106, 7B C.R.S. (2003). Under the GIA, an injured person seeking damages from a public entity or employee must provide written notice of the claim within 180 days of discovery of the injury. § 24-10-109(1), 7B C.R.S. (2003). The GIA then sets forth a series of criteria that the notice must satisfy. See § 24-10-109(2)-(6).

This court has interpreted one of the GIA's notice provisions as a jurisdictional prerequisite for suits against public entities and other notice provisions as presenting statutory defenses to claims. See Brock v. Nyland, 955 P.2d 1037, 1042-43, 1045-46 (Colo.1998) (Scott, J.; Kourlis, J., concurring); Reg'l Transp. Dist. v. Lopez, 916 P.2d 1187, 1193 (Colo.1996). We characterized section 24-10-109(1), which requires injured parties to submit written notice within 180 days of the discovery of an injury, as a jurisdictional prerequisite to suit that therefore requires strict compliance with its terms. Lopez, 916 P.2d at 1192-95; East Lakewood Sanitation Dist. v. Dist. Court, 842 P.2d 233, 235-36 (Colo.1992). In contrast, we characterized section 24-10-109(3) as providing a statutory defense to claims rather than creating a jurisdictional prerequisite to suit. Brock, 955 P.2d at 1042-43, 1045-46; Lopez, 916 P.2d at 1193.

Subsection three of the statute requires litigants to file notice with either the governing body of the public entity or the entity's attorney. It states:

If the claim is against the state or an employee thereof, the notice shall be filed with the attorney general. If the claim is against any other public entity or an employee thereof, the notice shall be filed with the governing body of the public entity or the attorney representing the public entity. Such notice shall be effective upon mailing by registered mail or upon personal service.
§ 24-10-109(3).

Though we have struggled to articulate the extent to which a plaintiff must comply with section 24-10-1098) to fulfill its notice requirement, we have not completed this task. See Brock, 955 P.2d at 1037 (holding, in a plurality opinion, that section 24-10-109(3) "mandates more than substantial compliance"); Woodsmall v. Reg'l Transp. Dist., 800 P.2d 63 (Colo.1990) (suggesting that a substantial compliance standard applies to section 24-10-109(3)). Most recently, in Brock, the court produced three separate opinions regarding the necessary level of compliance. Brock, 955 P.2d at 1037. Comparing the three separate opinions of the Brock court, we conclude the reasoning of all three opinions agree that determinations of compliance with section 24-10-109(3) must consider principles of ageney and equity, as well as the intent and purposes of the statute. Therefore, we reject any reasoning in Brock that requires a strict compliance standard.

In the lead opinion, Justice Seott, joined by one other justice, may have appeared to argue that section 24-10-109(3) requires strict compliance. Specifically, he stated that "the plain language of section 24-10-109(3) mandates more than substantial compliance" and rejected any interpretations of prior case law that endorsed a substantial compliance standard. Brock, 955 P.2d at 1043 (rejecting an interpretation of Reg'l Transp. Dist. v. Lopez, 916 P.2d 1187 (Colo.1996)). He grounded his position in both the text of the statute and a concern that a more expansive standard would result in the ability to file notice with too many persons. Justice Seott first argued that "substantial compliance cannot be applied in a manner consistent with the plain language of the statute." Id. at 1042. He then explained that if the court articulated a substantial compliance standard, "so that the filing of notice with a claims adjuster in the [public entity's] claims department has the same effect as a filing with the governing body or attorney," the court could not control which parties may receive notice. Id.

Although he advocated a more stringent standard than substantial compliance, Justice Seott also indicated that strict compliance with section 24-10-109(3) was not always required. He listed a series of considerations that, if present in Brock, might have yielded a different outcome. These considerations are inconsistent with a strict compliance standard, which requires absolute compliance and cannot be waived. See Woodsmall, 800 P.2d at 67. For example, he stated that the governing body of a public entity could delegate its authority to receive statutory notice to an agent, but noted that the plaintiff in Brock failed to advance such an argument. Brock, 955 P.2d at 1044. Similarly, he noted that the plaintiff did not argue waiver, estop-pel, or that the public entity's governing body or its attorney had actual notice of the claims. Id. Furthermore, he noted that the plaintiff "was not acting upon representations by [the public entity] that his filing with the claims department met the notice requirements of the GIA." Id. Finally, he observed that the plaintiff in Brock "was not acting pro se and his attorney had ample opportunity during the interaction with the claims department to ascertain whether or not the claim had been forwarded to the [governing body] or its attorney." Id. Although the plaintiff did not advance these arguments, Justice Scott indicated that his standard of compliance allowed the court to consider them. Thus, because he advocated that the court take into account equitable arguments and other considerations, Justice Seott appeared to champion a standard less stringent than strict compliance.

Justice Kourlis, in a concurring opinion also joined by one other member of the court, called for determinations of compliance on a case-by-case basis. Id. at 1046 (Kourlis, J., concurring). She argued that the determination of compliance should not focus on either "substantial versus strict compliance or substantial versus impliedly strict compliance," id., nor "the jurisdictional or non-Jurisdictional import of the provision." Id. at 1045. Rather, she advocated that compliance should "turn[] on the language and intent of the provision." Id. Specifically, she called the court to "look to the language and intent of the statute and also take into account any relevant equitable considerations." Id. at 1046. She considered, for example, that the governing body of the public entity had not "taken any action or made any representation which would constitute a waiver or ere-ate an estoppel argument." Id. at 1047. Ultimately, Justice Kourlis only agreed with Justice Scott that the plaintiff failed to comply with the provisions of the subsection.

In a dissenting opinion joined by two other justices, I argued that a substantial compliance standard applies to section 24-10-109(3). The opinion reasoned that substantial compliance is attained when the plaintiff makes a "good faith effort to satisfy the notice requirements" and when any errors or omissions do not prejudice the public entity. Id. at 1050 (Martinez, J., dissenting) (quoting Woodsmall, 800 P.2d at 68-69). The opinion explained that no prejudice occurs if the "error does not prevent the public entity from investigating and remedying any dangerous conditions, making adequate fiscal arrangements to meet any potential Hability, or preparing a defense to the claim." Id. (citing Woodsmall, 800 P.2d at 68).

Since Brock, we have not further articulated what constitutes compliance with the GIA's notice provision. In Jefferson County Health Services Ass'n v. Feeney, 974 P.2d 1001 (Colo.1998), we only stated that section 24-10-109(3) requires litigants to file notice with one of two persons: the governing body of the public entity or the entity's attorney. Id. at 1003 (citing Brock, 955 P.2d at 1040). We did, however, explain that the purposes behind the GIA's notice provisions are "not to set a trap for the unwary." Id. We explained that the notice provision instead functions "to allow a public entity to promptly investigate and remedy dangerous conditions, to foster prompt settlement of meritorious claims, to make necessary fiscal arrangements to cover potential liability, and to prepare for defense of claims." Id. Although these cases explain the purposes and function of the notice provision, they do not further clarify the compliance necessary to satisfy section 24-10-109(3). In addition, our very recently announced decisions in University of Colorado v. Booth, 78 P.3d 1098 (Colo.2003), and Tidwell v. City & County of Denver, No. 02SC532, 83 P.3d 75, 2003 WL 22533402 (Colo. Nov. 10, 2003), do not further address this issue. Thus, the three opinions in Brock provide the only basis for determining the necessary standard of compliance.

With our fractured vote in Brock, we not only were unclear about the degree of compliance necessary, but we failed to agree on common terminology. However, despite the inconsistencies among the opinions in Brock, all of the members of the court agreed on some basic underlying principles. The entire Brock court agreed that in some circumstances, service on the statutorily designated entity is not necessary and that principles of agency and equity apply. See Brock, 955 P.2d at 1044, 1047, 1050-51 (Scott, J.; Kourlis, J., concurring; Martinez, J., dissenting). Moreover, a majority of the court either specifically stated or implied that in determining whether a plaintiff complied with section 24-10-109(3), the intent and purposes of the statute are critical. Id. at 1047, 1050-51 (Kourlis, J., concurring; Martinez, J., dissenting). Thus, a determination of whether a plaintiff complied with section 24-10-109(3) should consider whether the purposes of the statute were satisfied. Generally, the purposes of the statute include avoiding prejudice to the governmental entity, encouraging settlement, and providing public entities the opportunity to investigate claims, remedy conditions, and prepare defense of claims. Feeney, 974 P.2d at 1003.

Consistent with these purposes, the GIA's notice provision acts to help the governmental entity manage claims. Although governmental immunity protects the government from unlimited liability, it can act as an "inequitable doctrine" with harsh consequences for plaintiffs. See § 24-10-102, 7B C.R.S. (2003). Allowing public entities to mislead plaintiffs about how to meet the requirements of the notice provision, and then to assert the affirmative defense of noncompliance, is beyond the legitimate purposes of the GIA's notice provision. We reiterate that the GIA's notice provision should not act as a "trap for the unwary." See Feeney, 974 P.2d at 1003. Therefore, interpretations of the GIA should not permit public entities to manipulate the notice provision to dodge otherwise proper suits.

Today we attempt to clarify that the purposes behind the statute are critical when determining whether a plaintiff complied with section 24-10-109(3). Furthermore, we stress that governmental entities may not mislead potential claimants by incorrectly indicating that they have complied with section 24-10-109(3). We recognize that case-by-case determinations of compliance, which consider principles of ageney and equity, the purposes of the statute, and concerns of protecting plaintiffs from misrepresentations by governmental entities, are required. Thus, without necessarily endorsing previous determinations of whether compliance with section 24-10-109(3) was substantial, we recognize that the standard we explain today is best described as substantial compliance, and to the extent that Brock suggests a different standard for section 24-10-109(3), we overrule.

III. Procedural Considerations

In this case, we cannot determine whether Finnie substantially complied with the notice requirement contained in section 24-10-109(3). The trial court did not determine the facts relevant to substantial compliance both because it applied a strict compliance standard that did not allow for agency arguments and because it resolved the case on a C.R.C.P. 12(b)(5) motion for failure to state a claim. Having concluded that the trial court applied the wrong standard of compliance, we now address the procedure the trial court used to dismiss Finnie's claim.

We hold that the GIA requires the trial court to definitively resolve all issues of immunity before trial, regardless of whether the issues have been classified as jurisdictional. Trial courts must employ the procedures used in Trinity Broadcasting of Denver v. City of Westminster, 848 P2d 916 (Colo.1993), and its progeny to resolve issues of immunity, even when such issues are not jurisdictional. Accordingly, trial courts may conduct Trinity hearings to determine the facts necessary to definitively resolve all disputed issues of immunity, including those deemed non-jurisdictional. Therefore, we reverse the court of appeals' judgment and remand for proceedings consistent with this opinion.

A. Procedure to Resolve Issues of Immunity

The trial court concluded that Finnie did not strictly comply with the notice requirement in section 24-10-109(3) and dismissed Finnie's case for failure to state a claim, pursuant to C.R.C.P. 12(b)(5). Because the trial court considered matters outside the pleadings in issuing its ruling, however, the court of appeals reviewed the trial court's determination under a summary judgment standard. See C.R.C.P. 12(b)(5). After reviewing the text and purposes of the GIA, we conclude that such procedures are inappropriate for resolving issues of immunity.

We first examine the text of section 24-10-108, 7B C.R.S. (2003), of the GIA and determine that it requires trial courts to resolve all issues of immunity before trial. Because summary judgment procedures sometimes fail to definitely resolve issues of fact before trial, we conclude that summary judgment procedures pursuant to C.R.C.P. 12(b)(5) are inconsistent with the requirement of section 24-10-108. Next, we acknowledge that C.R.C.P. 12(b)(1) is limited to jurisdictional issues. We conclude that the GIA dictates a procedure identical to C.R.C.P. 12(b)(1) but not limited to jurisdictional issues. Thus, trial courts must resolve all issues of immunity before trial through the procedures employed in Trinity Broadcasting of Denver v. City of Westminster, 848 P.2d 916 (Colo.1993), and its progeny, regardless of whether the notice compliance at issue is a jurisdictional prerequisite. Similarly, we allow trial courts to hold evidentiary hearings, or "Trinity hearings," to determine whether plaintiffs fulfilled the GIA's notice requirements in section 24-10-109, even when such requirements do not present jurisdictional bars to suit.

The GIA contains a requirement that trial courts must weigh evidence to resolve issues of sovereign immunity, such as compliance with the statute's notice requirements, before trial. Section 24-10-108 states:

If a public entity raises the issue of sovereign immunity prior to or after the commencement of discovery, the court shall suspend discovery, except any discovery necessary to decide the issues of sovereign immunity, and shall decide such issue on motion.

§ 24-10-108 (emphasis added). In Trimity, we interpreted this provision to require trial courts to resolve factual disputes regarding issues of immunity prior to trial. Id. at 924-25. We explained that the text of section 24-10-108 requires "that issues of sovereign immunity are to be decided by the trial court if raised before trial." Id. at 924.

To implement the requirements of section 24-10-108, we reasoned in Trinity that courts should resolve sovereign immunity issues through motions to dismiss for lack of subject matter jurisdiction pursuant to C.R.C.P. 12(b)(1), rather than through motions to dismiss for failure to state a claim pursuant to C.R.C.P. 12(b)(5). See id. at 924-25. Unlike C.R.C.P. 12(b)(5), C.R.C.P. 12(b)(1) allows a trial court to weigh evidence and make findings of fact regarding the existence of its jurisdiction. Id. at 925. Therefore, C.R.C.P. 12(b)(1) allows the trial judge to definitively resolve disputed factual issues relating to immunity before trial begins, in accordance with the mandate of section 24-10-108. In contrast, C.R.C.P. 12(b)(5) requires a court to convert a motion to dismiss into a motion for summary judgment if the court considers matters outside the pleadings. See C.R.C.P. 12(b)(5).

Unlike motions under CRCP. 12(b)(1), summary judgment proceedings following CRCP. 12(b)(5) motions are inconsistent with the mandate in section 24-10-108 that the trial court resolve immunity issues before trial. When material facts are in dispute, summary judgment requires the jury to resolve such facts at trial,. See C.R.C.P. 56(c). Therefore, we concluded in Trinity that factual issues of compliance with notice requirements should be resolved by motions to dismiss pursuant to C.R.C.P. 12(b)(1). Trinity, 848 P.2d at 924. Furthermore, consistent with C.R.C.P. 12(b)(1), we permitted trial courts to "allow limited discovery and conduct an evidentiary hearing" to resolve questions of fact. Id.

Today we apply our reasoning in Trinity that summary judgment procedures following C.R.C.P. 12(b)(5) motions are inconsistent with the mandate contained in section 24-10-108 to resolve issues of immunity. We hold that because section 24-10-108 requires trial courts to resolve issues of immunity before trial, it requires a procedure that mirrors CRCP. 12(b)(1) but also addresses non-jurisdictional issues.

The factual issue in Trinity arose under the 180-day notice requirement contained in section 24-10-109(1). Since Trinity, we have distinguished the requirements in the various subsections of section 24-10-109, classifying subsection 24-10-109(1) as a jurisdictional bar to suit and subsection 24-10-109(1) as merely presenting a statutory defense to claims. See Brock v. Nyland, 955 P.2d 1037, 1042-43, 1045-46 (Colo.1998) (Scott, J; Kourlis, J., concurring); Reg'l Trans. Dist. v. Lopez, 916 P.2d 1187, 1192-95 (Colo.1996). Our case law has not specifically addressed the procedure through which courts should resolve issues of compliance with the non-jurisdictional subsections in section 24-10-109. To resolve this issue, we again look to section 24-10-108 and its requirement that trial courts must resolve all issues of immunity before trial.

Section 24-10-108, through its mandate that trial courts resolve all immunity issues before trial, does not distinguish between jurisdictional and non-jurisdictional immunity issues. See Trinity, 848 P.2d at 924; § 24-10-108. In that regard, section 24-10-108 differs from C.R.C.P. 12(b)(1) procedures, which only apply to resolve jurisdictional issues. See CRCP. 12(b)(1). Yet section 24-10-108 mandates a procedure identical to a CRCP. 12(b)(1) motion to resolve factual issues regarding compliance with the GIA's notice provisions, exeept that use of this procedure does not depend on whether the notice provision at issue presents a jurisdictional bar.

We therefore hold that the procedure used in Trinity and its progeny applies to all issues of immunity under the GIA, regardless of whether the provision at issue is jurisdictional. This procedure is identical to that mandated by C.R.C.P. 12(b)(1) without the jurisdictional limitation. Trial courts should now resolve factual issues of immunity in Trinity proceedings before trial upon a motion by the governmental entity that the plaintiff failed to comply with section 24-10-109.

We clarify that the Trinity procedure that courts must use to resolve issues of immunity includes discovery, ruling without hearings, and affording parties the opportunity to request Trimity hearings. We base this conclusion on the text of section 24-10-108. Section 24-10-108 allows courts to conduct "any discovery necessary" when deciding issues of immunity. § 24-10-108. We stated in Trimity that courts must hold evi-dentiary hearings when facts relating to immunity are in dispute. Trinity, 848 P.2d at 924-26; Tidwell v. City & County of Denver, No. 02SC532, 83 P.3d 75, 85-86, 2003 WL 22533402, at *11 (Colo. Nov. 10, 2003). We have also noted that "[when there is no evidentiary dispute, the trial court may rule without a hearing" and on the pleadings alone. Tidwell, 83 P.3d at 85-86, 2003 WL 22533402, at *11 (emphasis added). Today, however, we hold that courts have discretion to conduct Trinity hearings to develop facts relating to immunity issues when such facts are not directly disputed.

If we did not require courts to resolve all issues of immunity through Trimity procedures but instead allowed courts to decide such issues through motions under C.R.C.P. 12(b)(5) and summary judgment procedures, we would create an inefficient and asymmetrical situation. Factual issues arising under the GIA's jurisdictional provisions would be resolved by the judge before trial in one discreet proceeding, but disputed issues arising under the non-jurisdictional provisions, such as section 24-10-109(3), would proceed to trial. For example, a judge would resolve an issue regarding the 180-day notice requirement in subsection (1) through a Trinity hearing. However, if a factual issue exists regarding whether a plaintiff filed that notice with the proper entity, as in this case, the second question of immunity would be resolved at trial. Rather than resolving immunity questions in separate proceedings, the interests of efficiency and judicial economy compel trial courts to determine all factual issues regarding immunity prior to trial in a single proceeding. For this reason, we have tacitly approved trial courts use of such Trinity procedures in the past to resolve factual issues of compliance with all subsections of section 24-10-109. See, e.g., Booth v. Univ. of Colo., 64 P.3d 926, 927 (Colo.App.2002) (acknowledging that the trial court conducted an evidentiary hearing to resolve both questions of compliance with section 24-10-109(3) and issues arising under section 24-10-106(1)(c), 7B C.R.S. (2003)), aff'd, Univ. of Colo. v. Booth, 78 P.3d 1098 (Colo.2003).

Moreover, our holding today comports with both the GIA's purpose and general principles of sovereign immunity. Through the GIA, the General Assembly sought to protect the government from "excessive fiscal burdens," which include not only the costs of judgments against the government but the costs of unnecessary litigation as well. See § 24-10-102. Therefore, the GIA acts "to shield public entities and employees from being forced to trial or exposed to the other burdens of extended litigation, when the viability of the proceedings is dependent on the resolution of an essentially legal question." Bresciani v. Haragan, 968 P.2d 153, 157 (Colo.App.1998). When determining whether a notice of claim complied with the terms of the statute, the disputed facts usually "are separate from those determinative of Hability and can be resolved early in the litigation process, without significant discovery." Id. at 158. Thus, to subject a public entity to a "meaningless" trial defeats the GIA's purpose of protecting public entities from liability. See id.

We therefore hold that trial courts must resolve issues of immunity before trial through the procedures used in Trinity, regardless of whether the provision in question is jurisdictional or non-jurisdictional. Furthermore, we emphasize that when resolving issues of compliance with the notice provisions contained in section 24-10-109, courts may conduct Trinity hearings to develop full factual records and shall allow the parties latitude in discovering evidence necessary to determine the immunity issues.

B. Procedure upon Remand

In the present case, the trial court, relying on prior case law, did not resolve the issue of Finnie's compliance with section 24-10-109(3) as a motion to dismiss pursuant to C.R.C.P. 12(b)(1), but rather granted a motion to dismiss for failure to state a claim under C.R.C.P. 12(b)(5). Because we only now specify the procedure that courts must follow when resolving all issues of compliance with section 24-10-109, we remand this case to the court of appeals with directions to return it to the trial court to afford the defendant the opportunity to file a Trimity motion to resolve the issue of compliance.

In the subsequent proceedings, Finnie bears the burden of demonstrating that notice was properly filed so that the suit may proceed; however, we have described this burden as "relatively lenient." See Tidwell, 83 P.3d at 86, 2003 WL 22533402, at *12. Although Finnie must carry this burden, our narrow construction of statutes granting governmental immunity requires that Finnie "be afforded the reasonable inferences of [her] evidence" in proving compliance with section 24-10-109(3). Id. at 85-86, at *11. The evidence Finnie presented in the current proceeding may yield several "reasonable inferences." We again emphasize that trial courts have discretion to conduct Trinity hearings to accept and weigh evidence to determine whether a plaintiff fulfilled the GIA's notice requirements. See Trinity, 848 P.2d at 925. We also note that in such hearings, we have directed trial courts to "allow the parties latitude in discovering or introducing evidence" that tends to prove or disprove a plaintiff's compliance with the notice provisions. See Tidwell, 83 P.3d at 85-86, 2003 WL 22533402, at *11 (citing Trinity, 848 P.2d at 924).

In this proceeding, Finnie offered evidence from which one can draw multiple "reasonable inferences," specifically the alleged statements by the Risk Management Department employee and the letter sent to Finnie by the Risk Management Department acknowledging receipt of her notice of claim. Additionally, it may be necessary to develop some of the other relevant facts, such as the relationship between the School Board and the Risk Management Department, to determine factually whether an agency relationship existed or whether Finnie's notice fulfilled the purposes of the notice requirement. Although courts have discretion to conduct Trinity hearings, this procedure serves as a sometimes necessary tool for courts to resolve cases in which the facts presented raise multiple questions that require development before the court can determine whether the case should proceed.

Furthermore, our prior case law holds that a court should conduct a Trinity hearing when alleged facts are in dispute. Tidwell, 83 P.3d at 85-86, 2003 WL 22533402, at *11; see Trinity, 848 P.2d at 924-27. In proceedings after remand, a denial by the School District that Finnie complied with section 24-10-109(3) may put some of Finnie's alleged facts at issue, even though the School District did not previously dispute facts that were irrelevant to the strict standard of compliance incorrectly applied by the trial court.

In this case, we are unable to resolve whether Finnie substantially complied with the notice provision in section 24-10-109(3). Instead, we can only conclude that the case arrived before us through procedures that we have now determined to have been incorrect and that the trial court applied the wrong standard. Therefore, a remand of this case is necessary to allow the parties to submit pleadings in accordance with the procedures outlined above and to properly explore and develop the facts necessary to determine whether the filing of notice was sufficient.

IV. Conclusion

In sum, we hold that section 24-10-1098) requires substantial compliance with its terms. Thus, courts should evaluate compliance on a case-by-case basis, considering principles of ageney and equity, the purposes of the notice statute, and concerns of preventing governmental entities from misleading plaintiffs. We also hold that trial courts must resolve issues of compliance with the notice requirements set forth in section 24-10-109 before trial through Trinity procedures, regardless of whether the notice requirement is a jurisdictional bar to suit,. Accordingly, we reverse the judgment of the court of appeals and remand this case to the court of appeals to return it to the district court for proceedings consistent with this opinion.

      . Specifically, we granted certiorari on the issue of "whether the Risk Management Department of the Respondent School District had apparent authority to accept Petitioner's 180-day notice under the Colorado Government Immunity Act, ("Statutory Notice"), where a specific employee of the School District was put in the position to represent that it may do so, and where it is within the Risk Management Department's ordinary duties to otherwise accept notice of claims."

      . The court of appeals applied the rule that, under the doctrine of apparent authority, a principal is liable for an agent's actions when the principal, through his words or conduct, causes a third party to believe that the principal authorized the agent's actions, See Townsend v. Daniel, Mann, Johnson & Mendenhall, 196 F.3d 1140, 1146 (10th Cir.1999) (citing Nation v. City & County of Denver, 685 P.2d 227, 229 (Colo.App.1984)).

      . Specifically, the parties in Trinity disputed when a 180-day period began, during which the plaintiffs had to file statutory notice of claims pursuant to section 24-10-109(1). Trinity, 848 P.2d at 924.


author: REIF, J.

text:
    2000 OK CIV APP 69
    Kendra LAWSON, Personal Representative of the Estate of Tommy Charles Lawson, Appellee. v. NATIONAL STEEL ERECTORS CORPORATION, Appellant.
    No. 91,437.
    Court of Civil Appeals of Oklahoma, Division No. 4.
    Feb. 22, 2000.
    Certiorari Denied May 9, 2000.

      Tom Colbert, Colbert & Associates, Oklahoma City, Oklahoma, Bill Settle, Settle & Landrum, Muskogee, Oklahoma, Kevin Krahl, Hornbeek, Krahl & Vitali, Oklahoma City, Oklahoma, For Appellee.
    Michael F. Smith, John H. Tucker, Rhodes, Hieronymus, Jones, Tucker & Gable, P.L.L.C., Tulsa, Oklahoma, For Appellant.
   REIF, J.

T 1 This appeal concerns the judgment entered upon the jury verdict that found National Steel Erectors Corporation liable for the death of Tommy Charles Lawson. National has contested its liability from the earliest stages of this case to its post-judgment motions for new trial and judgment notwithstanding verdict. National has contended that it has no liability for the fatal accident even though the bucket of concrete that struck and killed Mr. Lawson was being moved by a National crane with a National operator at the controls. National has stressed that the crane and operator had been leased to Mr. Lawson's employer, Manhattan Construction Company, for use "as directed." National points out that it was undisputed that the National crane operator only moved the concrete bucket as directed by hand signals given by a Manhattan supervisor. National has argued that Manhattan had complete control over the crane and operator at the time of the accident which relieves National from liability as a matter of law.

2 In the alternative, if it was proper for the jury to determine National's liability, National has also argued that the jury did not have adequate guidance on allocating liability. National contends that this error resulted from the trial court refusing to allow National's counsel to discuss allocating liability in closing argument, and in not giving such guidance in response to a question by the jury. National further claims prejudicial error occurred in the admission of plaintiff's "accident reconstruction" video and exelusion of certain medical records of the deceased.

T3 Lastly, if the judgment survives the foregoing challenges, National has argued that it should be reduced. National contends the 1.7 million dollar damage verdict was excessive and that attorney fees and costs were improperly awarded.

L.

T4 National relies on the "loaned servant" doctrine in arguing that it has no liability for the death of Mr. Lawson. The "loaned servant" doctrine provides:

Servant lent by master to another for particular employment, although remaining general servant of master, must be dealt with as servant of one to whom he is lent, as regards anything done in the latter's employment.

Smith v. Hall, 1966 OK 103, ¶ 11, 418 P.2d 665, 669 and syllabus 8 (citing Wylie-Stewart Mach. Co. v. Thomas, 1948 OK 88, 137 P.2d 556 (syllabus 2)). In applying the "loaned servant" doctrine,

The controlling factor in determining whether a regular employee of one master has become the special or loaned servant of another is: Has the general employer released, for the time required to perform some particular work, all authority to control or direct the manner and method of the work to be done and surrendered such direction and control to the special [borrowing] employer?

Smith, 1966 OK 103, ¶ 13, 418 P.2d at 669 and syllabus 4; Hodges v. Holding, 1951 OK 48, 229 P.2d 555 (syllabus 8).

15 National stresses that the Smith case and the Wylie-Stewart case hold that the trial court can properly determine the application of the "loaned servant" doctrine as a matter of law. Under these cases, "loaned servant" is a question of law when the factual cireumstances concerning the lending of the servant and equipment, and their use by the borrowing employer, are not in dispute.

T6 In response, Mr. Lawson's personal representative argues that a question of law does not always arise simply because there is no dispute about factual cireumstances concerning the lending of the employee and equipment, and their use by the borrowing employer. Mr. Lawson's personal representative points out that the Hodges case recognizes that a question of fact can exist concerning the application of the "loaned servant" doctrine, if different inferences may be drawn from the undisputed facts.

17 Smith, Wylie-Stewart, and Hodges are noteworthy not only for their application of the loaned servant doctrine, but for their application of the loaned servant doctrine to factual cireumstances that are closely analogous to the factual cireumstances of the case at hand. Like the case at hand, the foregoing cases involve the alleged loaned servant's operation of equipment that his general employer had hired out to the borrowing employer. In Smith, Wylie-Stewart, and Hodges, the loaned servants had been directed by the borrowing employer to use the hired equipment to move something as part of a larger project. Additionally, like the instant case, the foregoing cases did not involve any serious controversy over the borrowing employer's deployment of the equipment and the alleged loaned servant.

[8 In Smith, the loaned servant was operating a winch to move an oil rig substructure. The borrowing employer's supervisor instructed the loaned servant to attach a single loop of cable around the middle of a cross member on the substructure in order to move it. The loaned servant followed the. supervisor's instruction even though "he knew this was not safe." The loaned servant followed this instruction because he "didn't have the authority to tell them" to use a different type of hook-up. 1966 OK 103, ¶ 7, 418 P.2d at 668.

T9 In the Wylie-Stewart case, the loaned servant was operating a power shovel to load rock into trucks for removal. The borrowing employer's supervisor "exercised close control ... giving orders as to the position of the shovel, its procedure for loading the trucks, and ... the route and routine of the trucks as they approached the shovel to be loaded." 1948 OK 83 at ¶ -, 187 P.2d at 560. The supervisor "gave his directions by hand signs." Id. Due to "the way the rock had been dynamited and the manner in which it lay, it was necessary to place the shovel in a position with respect to the rock ... and the trucks that had not been theretofore used." Id. Likewise, "it was necessary to have the trucks approach the shovel in a position not theretofore used and not as safe or desirable as the other approach." Id. The supervisor "had been taking extra precautions when having the loaded and emptied shovel moved over the trucks." Id. The accident that formed the basis of the suit against the regular employer of the loaned servant occurred because the loaned servant "violated [the supervisor's] instructions" by swinging the shovel over the cab of a truck. Id.

1 10 In the Hodges case, the loaned servant was operating a truck with a winch to move drilling equipment from its location around a well up to the well, and unloading it wherever directed. In response to a direction by the borrowing employer's supervisor to bring certain equipment to the well, the loaned servant began backing the truck toward the ordered equipment. In backing the truck, the loaned servant struck another employee of the borrowing employer. The court observed that the borrowing employer "had the authority to give orders" to the extent that the borrowing employer "knew when certain equipment was needed and where it was needed." 1951 OK 48 at ¶ -, 229 P.2d at 558. However, the borrowing employer "did not have the authority to tell [the loaned servant] how to drive the truck or how to use the winch or gin pole." Id. The only directions given by the borrowing employer to the loaned servant about "how to operate [the] winch and gears that operated it" consisted of "tellling] him to pick [an object] up a little higher or let it down, or whatever they wanted done with it." Id., 229 P.2d at 559. Under such circumstances, the supreme court concluded that the general employer's liability for the negligence of its "loaned" employee was a jury question.

T11 A common point between the Smith case and the Hodges case is their emphasis on the requirement that the regular or lending employer surrender "full control" over the loaned servant. The Smith case states:

[I]f the general employer has not resigned full control of the servant for the time during which the work is being performed, then the servant does not become the servant of the person for whom the work is performed merely because such person points out the work to the servant or gives him directions as to details of and manner of doing the work.

1966 OK 103 at ¶ 15, 418 P.2d at 669-70 (citation omitted). The Hodges case similarly states:

To escape liability the original master must resign full control of the servant for the time being, it not being sufficient that the servant is partially under the control of a third person.

1951 OK 48 at ¶ -, 229 P.2d at 559 (citation omitted). The Hodges case further states that if the original master "does not surrender full control over the servant, he remains liable for his negligence during the time he acts for the person to whom he is loaned." Id.

[ 12 The Hodges case notes that the requisite "full control" is "authoritative control" and not "mere suggestions as to details or the necessary cooperation where the work furnished is part of a larger operation." Id. The Hodges case further observes:

A servant of one employer does not become the servant of another for whom the work is performed merely because the latter points out the work to the servant, or gives him signals calling the service into activity, or gives him directions as to the details of the work and the manner of doing it.

Id.

113 The reason that the loaned servant doctrine was applied as a matter of law in the Smith and Wylie-Stewart cases was the undisputed fact that the borrowing employer in each case exercised "authoritative control" over the loaned servant concerning the operation of their equipment. The borrowing employer in each case directed the operation of the equipment in ways that created the danger from which the accidents and injuries arose. In contrast, the borrowing employer in Hodges merely directed the loaned servant to move certain equipment up to the well and did not tell the loaned servant "how to reach the equipment he had been ordered to bring to the well." 1951 OK 48 at ¶ -, 229 P.2d at 558.

114 In the instant case, it cannot be said that the borrowing employer, Manhattan Construction Company, exercised "authoritative control" over the loaned crane operator in the same way as the borrowing employers in the Smith and Wylie-Stewart cases. Also, different inferences can be drawn from the undisputed facts about whether National surrendered "full control" of the operator and crane to Manhattan.

1 15 The cireumstances of the instant case are more like those of A.K. McBride Constr. Co. v. Arkhoma Steel Erection Co., 1959 OK 196, 348 P.2d 541, where the supreme court held the application of the loaned servant doctrine was a question of fact. The record in the AK. McBride case revealed that AK. McBride Construction rented a machine to Arkhoma Steel to pick up, move, and set some tanks. AK. McBride Construction furnished the operator of the machine and paid him. The operator of the machine successfully moved two tanks with the assistance of riggers who worked for Arkhoma Steel. While moving a third tank, the machine toppled and fell. In holding that the application of the loaned servant doctrine was a question of fact, the court observed that (1) the operator had complete and exelusive control of the machine and operation thereof; (2) the riggers who assisted the operator used hand signals and "spotted" the machine where the tank could be picked up; (8) after securing lines to a tank, the riggers gave hand signals to the operator to pick the tank up and then directed him where to set it; (4) at no time did any of the riggers have anything to do with the operation of the machine.

16 In the instant case, (1) the National crane operator had complete and exclusive control of the crane; indeed, no one was permitted in the cab of the crane except the National operator; (2) even though employees of Manhattan used hand signals to direct the movement of the cement bucket from where it was filled to the place where it would be poured, and back to the fill site, none of Manhattan's employees had anything to do with the operation of the crane; (8) the hand signals were "signals calling the service into activity" and provided "the necessary cooperation [to complete] a larger operation;" they were more like the directions in Hodges, 1951 OK 48 at ¶ -, 229 P.2d at 559, "to pick [an object] up a little higher or let it down, or whatever they wanted done with it;" they were nothing like the controlling, precautionary directives given in Wylte-Stewart, 1948 OK 83 at ¶ -, 187 P.2d at 560, to load trucks with a power shovel in a way "not as safe or desirable as the other approach;" (4) the National crane operator decided where the crane should be positioned, whereas in Wylie-Stewart, id., the borrowing employer's supervisor gave "orders as to the position of the shovel;" (5) the National crane operator decided how full the bucket should be, whereas in Wylie-Stewart, id., it was the borrowing employer's supervisor who gave "orders as to [the shovel's] procedure for loading the trucks" (which included "extra precautions when having the loaded and emptied shovel moved over the trucks"); in Smith, it was the borrowing employer's supervisor who instructed the loaned servant to employ the unsafe procedure of attaching a single loop of cable on a cross member to move the substructure of an oil well; and (6) it was National, and not Manhattan or its supervisor, that provided a crane with broken safety features for him to operate.

117 The foregoing factors do not conclusively establish National's liability nor automatically negate National's loaned servant defense. They do demonstrate, however, that the loaned servant defense cannot be decided as a matter of law. Accordingly, we find no error by the trial court in submitting this question to the jury.

{18 National makes no complaint about the instructions that the trial court gave the jury concerning National's loaned servant defense and National's liability in general. In reviewing the instructions on these issues in light of the record as a whole, we find no fundamental error in the instructions and no other reason to disturb the jury's resolution of these issues against National.

IL.

$19 National alternatively argues that the jury did not have adequate guidance to determine the degree of any liability that National may have for Mr. Lawson's death. National contends that the inadequacy of the instructions did not become apparent until National's counsel began his closing argument and attempted to address the issue of allocating liability. National specifically complains about the trial court sustaining an objection to the attempt by National's counsel to explain allocating liability in closing argument. National also asserts that the fundamental inadequacy of the instructions on the issue of allocating liability, and the jury's confusion on this issue, was clearly demonstrated by a note that the jury submitted to the judge during deliberations.

120 In the course of closing argument, National's counsel attempted to explain allocating liability between Mr. Lawson, National, and Manhattan. National's counsel premised his discussion by stating "(aind you can get this out of the instructions, if you read it, but with all respect to the Court, the instructions are kind of difficult to follow." After National's counsel gave the jury a hypothetical example of applying the jury instruction, counsel for Mr. Lawson's personal representative objected on the ground "[hle's telling them more than what the law requires or O.U.J.L. requires ... [that's more instructions on the law ... [tlhe court's the entity that does that, not the lawyers."

121 When the court indicated that the hypothetical explanation "seems ... to be a departure from the spirit of the instructions that the Court has given," National's counsel indicated that he would "just move on from that and talk about comparative negligence . and make no further reference to the hypothetical." - Before allowing National's counsel to continue closing argument, however, the trial court gave the jury an additional charge on the subject of allocating liability. National's counsel did not object to the additional charge.

123 National contends that the inadequacy of the instructions on allocating liability is further demonstrated by (1) a note submitted by the jury during deliberations, and (2) a post-trial meeting between the court and three jurors who sought to explain the jury's allocation of liability. National believes that the trial court erred in the response it gave to the jury's note and should have granted National a new trial when the jury confusion became clear. °

T 24 In their note, the jury indicated that they had voted 10-2 that both National and Manhattan were responsible, but indicated that they did not want to sign the blue verdict form without both parties on the form. The record reflects that the court shared his interpretation of the note with counsel:

So, what they're saying, I think, is that we don't find that the plaintiff is negligent to any extent, whatsoever. But they don't want to return a blue form without an indication that Manhattan is culpable in this along with the defendant.

When the court stated: "I can sure put Manhattan on the blue form," National's counsel responded:

Your Honor, I'd have a very serious objection to that. All the law you're supposed to give them, you already gave them. And the effect of the blue form, the effect of joint responsibility of Manhattan is specifically addressed in your instructions.

Counsel for National further stated:

Your Honor, I suggest that you look at unnumbered instruction which is the instructions on how to use the blue verdict form, and would suggest that the jury be referred to the instructions for using any verdict form, and if further instruction is required, it would be to look at the instructions on how to fill out the verdict forms. (Emphasis added.)

T25 The trial court ultimately responded to the jury's note with the following written direction:

Consult 0.U.J.1. 9.26 blue verdict form for plaintiff non-party involved directions.
As it directs, if the occurrence was directly caused by the negligence of defendant, or of both defendant and Manhattan Construction Company, and not by any contributory negligence on the part of the decedent, then you shall use the blue verdict form.
It does not matter that Manhattan is not named on the form.

$26 National's only objection to this directive was that the trial court referred the jury only to instructions for using the blue verdict form. National's counsel felt that the direction singled out the blue form. National's counsel recommended that the jury be referred back to the instructions on all verdict forms.

127 The jury's note addressed the use of the blue verdict form. This is the only subject upon which the jury sought clarification. The jury did not indicate that they had any problems in understanding the other verdict forms or the instructions for using those forms. Under such cireumstances, the trial court did not err by limiting his response to the narrow inquiry of the jury's note. Given the jury's notice that they had voted 10-2 that both National Steel and Manhattan are responsible, and their choice of the blue form, we do not believe that the trial court's limited response singled out or improperly suggested that the blue verdiet was the verdict that the jury should return. The trial court simply addressed the subject upon which the jury sought clarification and we find no error in this.

128 Lastly, the fact that three jurors gave an explanation of the verdict after the trial and their discharge cannot be considered by either the trial court for purposes of new trial, or this court on appeal. It is well settled that jurors will not be heard by affidavit, deposition, or other sworn statements to impeach or explain their verdict, or show on what grounds it was rendered. Willis v. Davis, 1958 OK 288, ¶ 24, 333 P.2d 311, 814.

IH.

$29 National also claims that the trial court made evidentiary rulings that were prejudicial to the point that the trial court should have granted a new trial. National specifically complains about the exclusion of certain past medical records of Mr. Lawson and the admission of plaintiff's "accident reconstruction" video.

130 National argues that the past medical records were relevant to show the "earning capacity, health habits, and probable duration of the decedent's life." National notes that those are factors for determining pecuniary loss under Oklahoma's wrongful death statute and were factors upon which the jury was instructed. National also contends that the medical records were relevant to "refute" or "challenge Plaintiff's [economic] expert's assumption that decedent had a normal life expectancy."

131 The record reflects that the trial court granted a motion in limine to exclude the records in question. However, we find no instance at trial where National made an offer of proof to preserve this issue for appeal. "If the evidence is excluded by an in limine ruling, the party seeking to introduce it must at trial-out of the hearing of the jury-make an offer to show for the record the essence of testimony sought to be elicited. In this manner the trial court is afforded an opportunity to make its in-trial ruling upon the issue in contention. It was incumbent upon the [party] to make an offer of proof in order to preserve the error for our review." Braden v. Hendricks, 1985 OK 14, ¶¶ 9-10, 695 P.2d 1343, 1348-49 (footnotes omitted).

132 As concerns the admission of the computer animation video, we likewise find no reversible, prejudicial error. Mr. Lawson's personal representative offered the video "to help illustrate [the expert's] opinion." At the time it was offered, the trial court viewed the video out of the presence of the jury and allowed National's counsel to specify objections to various matters depicted in the video. After viewing the video and considering the objections, the trial court stated:

In my view, it is sufficiently accurate to be shown to the jury. I do not think its potential to mislead exceeds its value in describing to the jury what these witnesses have been laboring to describe. I think it is more helpful in that the defects that you've described and accurately brought to my attention are such that they would affect only the weight to be given the evidence, and not its admissibility. And I will allow it to be demonstrated to the jury over the defense objection.

1 33 Having reviewed the video, we agree with the trial court's assessment. We also agree that an "animation as illustrative of the expert's testimonial theory of the accident" is properly admissible. Robinson v. Missouri Pacific R.R. Co., 16 F.3d 1088, 1087 (10th Cir.1994) (citation omitted). The trial court did not err or abuse its discretion in denying National's motion for new trial on this ground.

IV.

134 National has also sought a reduction in the judgment on grounds that the damages were excessive and that the trial court improperly awarded attorney fees and costs.

135 In rejecting the excessive damages portion of this request, it is sufficient to note that the expert testimony of the economic expert called by Mr. Lawson's personal representative alone supports the verdict. It was for the jury to determine the weight to be given such evidence. "A verdict of a jury cannot be set aside as excessive unless it strikes mankind, at first blush, as beyond all measure unreasonable and outrageous and such as manifestly shows it was actuated by passion, prejudice, partiality or corruption." Strubhart v. Perry Memorial Hosp. Trust, 1995 OK 10, ¶ 18, 903 P.2d 263, 270 (citation omitted). We cannot conclude that a verdict supported by otherwise competent expert testimony is "beyond all measure unreasonable and outrageous."

€86 Finally, National asserts that the trial court erred in awarding Plaintiff an attorney fee and costs pursuant to 12 0.8. Supp.1997, § 1101.1(A)(d). This statute states:

In the event a defendant rejects the counteroffer(s) of judgment and the judgment awarded to the plaintiff is greater than the final counteroffer of judgment, the plaintiff shall be entitled to recover reasonable litigation costs and reasonable attorneys fees incurred by the plaintiff from the date of filing of the final counteroffer of judgment until the date of the verdict. Such costs and fees may be added to the judgment entered in favor of the plaintiff.

137 National rejected plaintiffs pretrial counter-offer of judgment in the amount of $1,799,000.50. After the jury returned a verdict of $1,700,000, the trial court added prejudgment interest and costs of $251,515.86, for a total judgment of $1,951,515.86. This calculation was in accord with the holding in Bohnefeld v. Honey, 1996 OK CIV APP 141, ¶¶ 7-8, 931 P.2d 90, 91, whereby the trial court is to receive the verdict, compute the prejudgment interest, and add the interest amount to the verdict amount to arrive at the "judgment" to be rendered against the defendant.

1 38 National's argument that the prejudgment interest amount should be added to the counter-offer of judgment amount to determine what the "actual" offer of judgment amount was is unpersuasive and without merit. The plain wording of the statute and the holding in Bohnefeld dictate that, without specific words to the contrary, an amount contained in an offer of judgment is inclusive of all items of damage which the trial judge would include when rendering judgment.

v.

89 We hold that the trial court did not err or abuse his discretion in denying National's motion for new trial, motion for judgment notwithstanding verdict, and motion for remittitur. We affirm the judgment entered on the jury verdict and the award of costs and attorney fees to the personal representative of decedent, Tommy Charles Lawson.

1 40 AFFIRMED.

41 GOODMAN, C.J., and STUBBLEFIELD, J., concur.


author: JOPLIN, Judge:

text:
    2000 OK CIV APP 73
    Robert HYDE, Petitioner, v. BUDGET INDUSTRIES, National American Insurance and the Workers' Compensation Court, Respondents.
    No. 93,568.
    Court of Civil Appeals of Oklahoma, Division No. 3.
    Feb. 25, 2000.
    Certiorari Denied May 9, 2000.
    Jackson M. Zanerhaft, Tulsa, Oklahoma, For Petitioner.
    Paul V. McGivern, Ir., McGivern, Gilliard & Curthoys, Tulsa, Oklahoma, For Respondent.
   JOPLIN, Judge:

11 Petitioner Robert Lloyd Hyde (Claimant) seeks review of an order of a three-judge panel of the Workers' Compensation Court affirming the trial court's order denying Claimant compensation for accidental personal injury allegedly arising out of and in the course of Claimant's employment with Respondent Budget Industries (Employer). In this proceeding, Claimant asserts the Workers' Compensation Court erred as a matter of fact and law in holding Claimant's injury did not arise out of Claimant's employment. Having reviewed the record, we conclude the lower court indeed erred as alleged. We consequently hold the order of the Workers' Compensation Court should be vacated and the cause remanded for further proceedings.

T2 The facts are uncontroverted. Claimant worked for Employer as a welder. Employer maintained the employees' restroom in a building adjacent to the building in which Claimant normally worked. Claimant testified that during his normal work hours, he sustained an injury on Employer's premises when he slipped and fell on ice between his building and the adjacent building as he went to use the restroom. Claimant also testified that he subsequently notified one of Employer's office employees of the occurrence, and that the co-employee averred a belief that the icy spot had been previously salted, or had been directed to be salted.

T3 On the evidence, the trial court denied the claim, holding:

-] .-
THAT claimant's injury did not arise out of his employment within the meaning of the Workers' Compensation Act. Odyssey/Americare of Oklahoma v. Worden, 1997 OK 136, 948 P.2d 309.

Claimant appealed, and a three-judge panel, over a "strongly dissent[ing]" vote, affirmed the order of the trial court.

14 Claimant now seeks review in this Court, first asserting the lower court misapplied the "increased risk" test, now codified at 85 0.8. 3(10)(a) and restated in Odyssey/Americare of Oklahoma, supra, in holding his injury did not "arise out of" the employment. In this respect, 85 O.S. 3 (10)(a), formerly § 3(7)(a), provides that "[oluly injuries having as their source a risk not purely personal but one that is causally connected with the conditions of employment shall be deemed to arise out of the employment," and the Oklahoma Supreme Court has construed § 3(7)(a), and hence § 8(10)(a), to "[demand] that the risk responsible for injury be causally connected to employment and exceed the ordinary hazards to which the general public is exposed." American Management Systems, Inc. v. Burns, 1995 OK 58, ¶ 7, 903 P.2d 288, 292.

T5 The facts of the present case undeniably show occurrence of the complained-of injury on Employer's premises, not at some location remote from the employer's place of business as in Odyssey/Americare of Oklahoma. The on-premise/off-premise distinction, in our view, constitutes a substantial factor in the present case, because even an injury sustained in the course of "personal comfort missions (eg. using restroom facilities), during working hours on employer's premises" is "appropriate[ly] ... view[ed] . as having arisen out of employment." Barnhill v. Smithway Motor Express, 1999 OK 82, ¶ 16, 991 P.2d 527, 532. (Emphasis original.) Accord, Furr v. Wal-Mart, 1998 OK CIV APP 147, ¶¶ 7-11, 966 P.2d 1193, 1195-96. In this respect, and analyzing the on-premises/off-premises distinction, our sister division has held:

'[Wlhen they occur on premises owned or controlled by the employer, injuries sustained by an employee ... may be com-pensable ... if ... the claimant's employment is shown to have a connection to the causative risk encountered" - (Citation omitted.) ... 'When the employee's presence in the workplace ... is unquestionably employment_related, there is no need for the court to further inquire into the "arising out of" prong as a separate issue. (Citation omitted.)

Barre v. TCIM Services, Inc., 1998 OK CIV APP 179, ¶ 13, 971 P.2d 874, 877-878. (Emphasis added.) Barre quoted the emphasized language from Corbett v. Express Personnel, 1997 OK 40, ¶ 8, 936 P.2d 932, 934, n. 7.

T 6 In this vein, the facts uncontrovertedly show that Employer maintained the employees' restroom on Employer's premises but in a different building from Claimant's normal workplace, i.e., that Claimant had no choice of restrooms to use, and that this cireum-stance required Claimant to traverse the patch of ice in order to reach the employees' toilet. The uncontroverted facts also show that Claimant sustained an injury on Employer's premises when he slipped on the patch of ice, and there is no question that Claimant's presence at the workplace on Employer's premises was employment-related. The uncontroverted evidence thus established both that Claimant's presence at the workplace on Employer's premises was employment-related, and that "the [Claimant's employment [had] a connection to the causative risk encountered." Claimant's injury thus "arose out of" Claimant's employment. Barre, 1998 OK CIV APP 179, ¶ 13, 971 P.2d at 877-878; Corbett, 1997 OK 40, ¶ 8, 936 P.2d at 934, n. 7.

T 7 We consequently find the Odyssey/Americare of Oklahoma analysis inapplicable, and hold the lower court erred as a matter of both fact and law in holding Claimant sustained no accidental personal injury arising out of and in the course of his employment with Employer. The order of the three-judge panel denying the claim is consequently VACATED, and the cause REMANDED for further proceedings.

T8 HANSEN, V.C.J., and ADAMS, J., concur.

      . In Barnhill, the Oklahoma Supreme Court cited Furr with apparent approval.

      . In Barnhill, the Oklahoma Supreme Court also cited Barre with apparent approval.


author: BUETTNER, Judge:

text:
    2000 OK CIV APP 72
    Michael SIAS, Individually and as Representative of a Class of All Those Similarly Situated, Plaintiff/Appellant, v. EDGE COMMUNICATIONS, INC., a Maryland Corporation, Defendant/Appellee.
    No. 93,028.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    March 3, 2000.
    Certiorari Denied May 9, 2000.

      (Giregg R. Renegar, Joan A. Renegar, Kornfeld, Franklin, Renegar & Randall, Oklahoma City, Oklahoma, For Plaintiff/Appellant.
    William S. Leach, Michael F. Smith, Rhodes, Hieronymus, Jones, Tucker & Gable, P.LL.C., Tulsa, Oklahoma, For Defendant/Appellee.
   BUETTNER, Judge:

11 Plaintiff/Appellant Michael Sias, individually and as representative of a class of all those similarly situated (Sias or Class) appeals from the trial court's order denying class certification. Sigs filed his class action suit alleging fraud, deceit and negligent misrepresentation - regarding the - amount charged on prepaid calling cards sold by Defendant/Appellee Edge Communications, Inc. (Edge). Because we find no abuse of discretion in the trial court's decision to deny class certification, we affirm.

T2 Class actions are governed by 12 0.8. 1991 20238 (A) and (B). That section provides:

A. PREREQUISITES TO A 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.
B. CLASS ACTIONS MAINTAINABLE. An action may be maintained as a class action if the prerequisites of subsection A of this 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 interests;
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. The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
a. the interest of members of the class in individually controlling the prosecution or defense of separate actions,
b. the extent and nature of any litigation concerning the controversy already commenced by or against members of the class,
c. the desirability or undesirability of concentrating the litigation of the claims in the particular forum, and
d. the difficulties likely to be encountered in the management of a class action.

According to the statute, a, class action may be maintained if all of the prerequisites of § 2023(A) are met along with one of the prerequisites listed under § 2028(B). In addition to all four of the § 2028(A) prerequisites, Sias argues that $ 2023(B)(8) has been met in the instant case.

3 In his petition, Sias sought certification of a class defined as:

All persons and entities in the continental United States who have purchased long distance telephone calling cards issued by Edge Communications, Inc.

Sias further alleged that the class includes over 1000 members so that joinder is impracticable, that the class members have common issues of law and fact, and that Sias would fairly and adequately represent the class members. The basis of Siag's claim is his assertion that Edge, a Maryland corporation, sold prepaid calling cards falsely advertising a rate of 19 cents per minute which he and class members relied on to their detriment. Sias claimed that the calling cards failed to mention either that the minutes are rounded up or that interconnect fees or access fees would be charged against the card, resulting in a higher per minute charge. Sias asserted causes of action for fraud and deceit as well as negligent misrepresentation.

14 Edge responded with a denial of all of Sias's allegations. Edge later filed its motion to strike class action allegations. Edge asserted that it had sold more than 4.5 million prepaid calling cards during the preceding four years. Edge further asserted that the cards it sold had more than 10 designs, came in denominations of $5.00, $10.00, $20.00, $25.00 and $50.00, and that the point of sale materials for the cards vary significantly throughout the country. Edge next averred that it had no way of identifying the purchasers of the calling cards. Rather, each prepaid calling card included a code which the user entered on the phone to access the prepaid calling time.

T5 In its motion to strike class action allegations, Edge asserted 1) that the proposed class does not satisfy the predominance requirement of § 20283(B)(8) because each class member would have to prove reliance on the alleged misrepresentation and because the case would require the application of differing state laws to class members from other states, 2) that the class does not meet the superiority - requirement - of § 2028(B)(8) because the amount of recovery would be consumed by the cost of notice to such a large class and because the primary beneficiaries of the action would be counsel for the class, 3) that a class action would be unmanageable because the proposed class members could only be identified through evidentiary hearings to determine if each had purchased a card issued by Edge, and 4) that Sias's action does not satisfy the representativeness prerequisite of § 2023(A)(4) because, Edge alleged, Sias's potential recovery is so small that Sias would not have an incentive to monitor the litigation in order to represent the class's interests.

T 6 In its order denying class certification, the trial court held that the numerosity prerequisite, § 2028(A)(1), was met based on its finding that even if only 10% of the 4.5 million card purchasers participated, the class would include 450,000 members. The court expressly held that it did not decide the issues of commonality, § 2028(A)(2), typicality, § 20283(A)(8), or representativeness, § 20283(A)(d). The court held, however, that a class action would not be the superior method of adjudicating Sias's claims because the costs of administering such a large class action would greatly exceed any potential recovery. The trial court further held that the task of administering the class and identifying class members would overwhelm the court. Finally, the court held that due process concerns exist with bringing a class action involving residents of other states being bound by a judgment made under Oklahoma law. The court concluded that Sias's proposed class action does not satisfy the superiority requirement of § 2023(B)(8).

T7 We review an order denying class certification for an abuse of the trial court's discretion. Shores v. First City Bank Corp., 1984 OK 67, 689 P.2d 299, 301; Bunch v. KMart Corp., 1995 OK CIV APP 41, 898 P.2d 170, 171. Denial of class certification is appropriate where any of the five prerequisites for certification, found in § 2028(A) and (B), is absent. Mattoon v. City of Norman, 1981 OK 92, 633 P.2d 785, 736. Because of the similarity between $ 2023 and Rule 28 of the Federal Rules of Civil Procedure, we may look to federal authority for interpretation of the § 2028 requirements for class certification. Id. at 787. The party seeking class certification bears the burden of proving that each of the requirements for a class action are clearly met. Rex v. Owens ex rel. State of Oklahoma, 585 F.2d 432, 435 (10th Cir.1978).

T8 In the instant case, the trial court based its denial on its finding that a class action is not the superior method of adjudicating Sias's claim. The court also found problems with applying Oklahoma law to residents of other states. In effect, this is a finding. that common issues of law do not predominate over other issues. We therefore review only the trial court's determination of these issues, the requirements of § 2023(B)(8) (predominance and superiority), because their absence would justify denial of class certification, and because the trial court did not rule on the prerequisites of § 2023(A), except for the numerosity requirement which Sias does not appeal.

T9 On appeal, Sias argues that the trial court's finding that a class action is not the superior method of adjudicating his case constitutes an abuse of discretion. Sias asserts that the benefits of elasswide resolution of common issues outweigh any difficulties which may arise in the management of the class, citing Tana Oil and Gas Corporation v. Bates, 978 SW.2d 785 (Tex.App.1998). Sias further asserts that the trial court failed to realize that a class action is the "only" manner in which members of the class could seek redress.

- 10 Conversely, Edge presented evidence of the difficulty in managing such a large class action. The difficulty in managing a class action is a factor to be considered in determining whether a class action is the superior method of adjudication. 1% O.S. 1991 2028 (B)B)(d). The evidence in the instant case indicated that Edge had sold 4.5 million prepaid calling cards, with the sales occurring in every state. The trial court noted that even if only 10% of those purchasing cards elected to participate, the class would include 450,000 members. The evidence also indicated that Edge produced several different designs of calling cards and that purchasers generally would discard the card after use. Therefore, it would be very difficult for the trial court to identify class members. We find that these management problems support the trial court's discretionary finding that a class action would not be the superior method of adjudicating the claims.

§11 Sias next asserts that the trial court abused its discretion in denying class certification "because the claims of class members are small." Sias correctly asserts that one of the policy goals behind class action statutes is to protect litigants whose claims are too small to proceed individually, citing Phillips Petroleum Co. v. Shuttz, 472 U.S. 797, 105 S.Ct. 2965, 86 L.Ed.2d 628 (1985); Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980); West Virginia v. Charles Pfizer & Company, 440 F.2d 1079 (2nd Cir.1971). However, we note that in its order, the trial court found that the costs of administering the case would greatly exceed any recovery.. This finding is not synonymous with a denial because the claims are small. Rather, it appears the trial court found that because of the overwhelming expense of administering such a large class, a class action would not be the superior method of adjudicating the matter. We do not find an abuse of discretion in the court's decision in this regard.

$12 In a related assertion of error, Sias argues that the trial court incorrectly determined that the costs of the litigation would exceed any recovery. Sias bases this argument on his statement that he would bear the expense of affording publication notice to potential class members. We disagree with Sias's reading of the notice provision, however. Section 2028(C) provides for the notice to be afforded members of a class:

C. DETERMINATION BY ORDER WHETHER CLASS ACTION TO BE MAINTAINED; NOTICE; JUDGMENT; ACTIONS CONDUCTED PARTIALLY AS CLASS ACTIONS.
1. As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subsection may be conditional, and may be altered or amended before the decision on the merits.
2. In any class action maintained under paragraph 3 of subsection B of this section, the court shall direct to the members of the class the best notice practicable under the ctreumstances, including individual notice to all members who can be identified through reasonable effort. The notice shall advise each member that:
a. the court will exclude him from the class if he so requests by a specified date,
b. the judgment, whether favorable or not, will include all members who do not request exclusion, and
c. any member who does not request exclusion may, if he desires, enter an appearance through his counsel.
Where the class contains more than five hundred (500) members who can be identified through reasonable effort, it shall not be necessary to direct individual notice to more than five hundred (500) members, but the members to whom individual notice is not directed shall be given notice in such manner as the court shall direct, which may include publishing notice in newspapers, magazines, trade journals or other publications, posting it in appropriate places, and taking other steps that are reasonably calculated to bring the notice to the attention of such members, provided that the cost of giving such notice shall be reasonable in view of the amounts that may be recovered by the class members who are being notified. Members to whom individual notice was not directed may request exclusion from the class at any time before the issue of liability is determined, and commencing an individual action before the issue of liability is determined shall be the equivalent of requesting exclusion from the class. (Emphasis supplied).

Sias asserts that the cost of administering the class would simply be the expense of providing publication notice in major newspapers across the - country. However, § 2023(C) provides for publication notice where the class contains more than 500 members who can be identified through reasonable efforts. No evidence in the record indicates that any members, beyond Sias, can be identified through reasonable efforts. Instead, the evidence indicates that potential class members likely do not possess any proof of their qualification as class members because the cards are intended to be discarded. Nor is there evidence that Edge can identify potential class members with reasonable efforts. According to § 2023(C), individual notice must first be sent to 500 identifiable members. Even if we were to agree with Sias that he would bear the expense only of publication notice, that fact does not require reversal in light of the other factors bearing on the superiority requirement.

118 Additionally, it is evident the trial court was persuaded by Edge's evidence that identification of class members would be unduly burdensome on the court. Although there is no explicit requirement concerning the class definition in Rule 28, Fed.R.Civ.P. courts have held that the class must be adequately defined and clearly ascertainable before a class action may proceed. Harris v. General Dev. Corp., 127 FRD. 655, 658 (N.D.Ill.1989). - An identifiable class exists if its members can be ascertained by reference to objective criteria, but not if membership is contingent on the prospective member's state of mind. Gomez v. Illinois State Bd. of Education, 117 F.R.D. 394, 397 (N.D.Ill.1987). The class represented must be ascertainable since the outcome of the class action is res judicata as to all unnamed class members. Harris 127 F.R.D. at 658. In Harris the court noted that identification of class members would entail individual adjudications and determined that the class definition was overly imprecise and speculative. Id. See also Luedke v. Delta Airlines, Inc., 155 B.R. 327 (S.D.N.Y.1998) ("A 'basic requirement' of a class action under Rule 28 is that class membership must be 'capable of ascertainment under some objective standard."" ).

1 14 Sias next asserts error in the decision that identification of the class members would overwhelm the court. In this proposition, Sias again focuses on notice, However, the evidence presented by Edge indicated that, after notice, the actual identification of class members would be difficult because Edge has no means of identifying purchasers of its calling cards and generally card users discard the cards after use so that potential class members would have a difficult time proving class status. Edge asserted that these circumstances would result in the court being required to hold evidentiary hearings to determine whether potential class members qualified for class membership. As noted above, a class must be reasonably identifiable. We find no abuse of discretion in the trial court's determination that identification of class members would be unduly burdensome to the court.

1 15 Sias further agues that the trial court abused its discretion in noting it had due process concerns. Sias argues that the trial court should not have concerned itself with the impact of differing state laws because non-Oklahoma residents would have the opportunity to opt out of the class and thereby not be bound by the class judgment. However, with respect to those non-residents who did not opt out, the trial court would be faced with determining and applying the fraud laws of all 50 states. There is no argument that the law of Oklahoma should be applied to sales transactions in other states.

116 Sias further asserts that Edge may not raise the issue of conflicting state laws without providing proof of such differences. Edge asserted in its motion to strike class allegations that the elements of fraud differed from state to state and prevented the trial court from binding non-residents. Sias, who bears the burden of proof, has failed to offer any proof that other states' laws are in conformity with Oklahoma law on the elements of fraud. Further, the OKkla-homa Supreme Court has held that a fraud case is not proper for a class action suit because of the individualized determination of reliance required to prove fraud. See Bunch, supra, 898 P.2d at 171-2.

{ 17 In Bunch, the plaintiffs sought certification of a class of all those, in 49 states, who were damaged as a result of fraudulent and deceptive conduct related to automotive service and repairs at K-Mart. The trial court certified the class and K-Mart appealed. On appeal, this court held that because reliance must be proven for each individual class member, a common issue of fact did not predominate. This court further found that fraud claims must be decided using the law of the state which "has the most significant relationship to the occurrence and the parties." This court further noted that there are significant differences in the substantive law of fraud among the 49 states in which K-Mart operates. This court accordingly concluded that a common issue of law did not predominate, and reversed and remanded the class certification order. 898 P.2d at 172. Furthermore, in a case involving residents of several states with differing negligence laws, it has been noted that the trial court would "face an impossible task of instructing a jury on the relevant law." - In re American Medical Systems, Inc., 75 F.3d 1069, 1085 (6th Cir.1996).

118 We find that the reasoning in Buneh applies here. The trial court correctly concluded that purported class members residing in other states could not be bound by a fraud action governed by Oklahoma law. Additionally, as noted in Bunch, the issue of reliance is an individual determination. Accordingly, common issues of law and fact do not predominate, making class certification improper under $ 2023(B)(8). We note that Black Hawk Oi Co. v. Exxon Corp, et al., 1998 OK 70, 969 P.2d 337 distinguishes Bunch. In Black Hawk, the plaintiffs relied on written misrepresentations made in monthly oil accountings. The court found no requirement to prove individual reliance where the misrepresentations were uniform. We are unable to extend that holding to the instant case because of the evidence that Edge sold prepaid calling cards with at least 20 different designs. Sias has not established that the different designs uniformly indicated a 19 cents a minute rate or failed to mention access and interconnect fees, or that the point of sale marketing was in other material respects uniform.

119 Sias next asserts that he has established a prima facie case for class certification. Sigs asserts that the class action statutes are to be liberally construed, citing Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 563 (2nd Cir.1968). Sias further asserts that there is a presumption in favor of certification of class actions. For this argument, Sias relies on Black Hawk, 969 P.2d at 342, which provides "... in the face of a close question as to certification, has been to sustain certification because if it develops later during the course of the trial that the order is ill advised, the order is always (prior to judgment on the merits) subject to modification." However, in that case, the court was faced with determining whether the trial court abused its discretion in certifying a class. In the instant case, we must determine whether the trial court abused its discretion in denying class certification. We note the following determination made in a case similar to the one at bar:

First, the size of the class was apt to be enormous even restricted to Illinois residents. -~Second, identification of the class was virtually impossible since there are no records upon which to rely. Third, the cost of administration is likely to be prohibitive when viewed against the basic suggested recovery of 30 cents per sandwich. Fourth, the variability of damages weighs against a class action in that defendants' franchises are located in different parts of the state and pay different amounts for their meat. The court further considered that even if a formula could be utilized to determine damages, the time-consuming nature and complications of these proofs seem insurmountable. There is no index, documents or other objective parameters for the damages so that each individual consumer would have to establish how many sandwiches he purchased and at what price. Finally, the trial court concluded that a class action would not be an appropriate method for the fair and efficient adjudication of this controversy because: (1) it would leave an open-ended, unidentifiable class; (2) administrative costs would consume de minimus recoveries; and (8) verification of claims defies proof and objective corroboration. Insubstantial recoveries by class members, high administrative costs in relation to aggregate recovery and difficulty in corroborating claims are valid considerations in determining whether a class action is manageable.

Hayna v. Arby's, Inc., 99 Ill.App.3d 700, 55 Ill.Dec. 1, 425 N.E.2d 1174, 1183-4 (1981). Arby's involved a class action suit challenging the misrepresentation that imitation roast beef was real roast beef,. In Arby's, claimants would have had a difficult time proving they purchased a sandwich from Arby's. In the instant case, claimants would have difficulty proving they purchased a calling card from Edge and that they relied on the advertised per minute rate. Further, the amount of damages would vary according to the number of cards purchased, their denominations, and their usage in each calling transaction. The trial court's explanation for its denial is reasonable in light of the factors included in the § 2023(B)(38) prerequisite. The task of administering a nationwide class of hundreds of thousands of members would be overwhelming to the trial court, particularly in light of the required application of various states' laws and in light of the difficulty in identification of class members. We consequently find no abuse of discretion in denial of class certification.

1T 20 AFFIRMED.

21 CARL B. JONES, P.J., and GARRETT, J., concur.