Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00 CV 2098-REB-MJW KELLY FINCHER, by her guardian, JAMES FINCHER, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant.
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DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S AMENDED MOTION FOR CLASS CERTIFICATION ______________________________________________________________________ Plaintiff ("Fincher") must satisfy a strict burden of proof for each requirement of Rule 23(a) and one category of Rule 23(b). Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997); Rex v. Owens ex rel., 585 F.2d 432, 435 (10th Cir. 1978). Fincher does not satisfy any of the requirements of Rule 23 with either proposed class definition.1 Accordingly, class certification should be denied as it has been in nine other Colorado PIP cases with similar class definitions brought by Fincher's counsel, including one decided by this Court.2 I. Neither Proposed Class Is Properly Defined. A threshold issue is whether the class definition is reasonable. Ex. A at 2,(Biby). Each proposed class here is improperly defined. The Complaint Class is: "All injured persons covered under a Prudential automobile insurance policy who were not offered extended coverage as required by [the former No-Fault Act], and who were not provided
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Fincher asserts that, without amending the class definition in the Amended Class Action Complaint ("Compl."), the "Complaint Class," she can redefine the class in her opening brief (as she has done) and later either the Court or she (in reply) can again change the definition. Plaintiff's Motion to Withdrawal [sic] Motion for Leave to Amend Complaint dated May 2, 2006, at n.1. For that reason, Prudential addresses both of her proposed class definitions here. Biby v. Titan Indem. Co., No. 04-CV-00293 (D. Colo. June 13, 2005); Ganyard v. Allstate Ins. Co., No. 02CV61 (Dist. Ct., El Paso County, November 2, 2004) (only Colorado case alleging class identical to new class alleged in Fincher's Amended Class Certification Motion (Am. Motion)); French v. American Family Mut. Ins. Co., No. 2000CV-3162 (Dist. Ct., El Paso County, December 4, 2002); Matthews v. Geico Cas. Co., No. 01-CV-244 (Dist. Ct., El Paso County, November 21, 2002); Womack v. Safeco Ins. Co., No. 01CV133 (Dist. Ct., Fremont County, May 13, 2003) (aff'd by Colo. App., 03-CA-972, reh. denied and cert. denied, en banc, June 27, 2005); Marshall v. American Family Inc. Co., No. 2003 CV 1081 (Dist. Ct., Adams County, November 13, 2003); Weber v. Allied Prop. & Cas. Ins. Co., No. 01CV2187 (Dist. Ct., El Paso County, March 26, 2004); Hudgins v. Fin. Indem. Co., No. 03CV1295 (Dist. Ct., City and County of Denver, April 28, 2005); Goodwin v. Homeland Central Ins. Co., 00CV44 (Dist. Ct., Otero County, October 30, 2003) (decertifying class). Copies attached as Ex. A and paginated sequentially for ease of reference.

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the additional benefits provided for therein." Compl. ¶9. This definition is improper because it requires substantial factual inquiry to determine class membership. Nicodemus v. Union Pac. Corp., 204 F.R.D. 479, 487 (D. Wyo. 2001), aff'd, 318 F.3d 1231 (10th Cir. 2003).3 One fact issue is whether each injured person received a

compliant offer of APIP coverage,4 either orally or in writing.5 See Ex. A at 3, (Biby-- class cannot be defined by whether proper offer of APIP benefits made). Another is whether each benefit claim exceeds the amount paid. If the injuries did not result in a claim exceeding the coverage purchased, the insured would not be in the class. Fincher now seeks to change the class definition by this motion to: "All persons who received medical or wage-loss personal injury protection benefits under a Prudential Colorado car insurance policy, and received those benefits no earlier than August 25, 1992." Am. Mot. at 3. This definition was not previously alleged or disclosed in discovery or the final pretrial order. Complaint; Ex. F (Plaintiff's Response to

Defendant's First Set of Discovery); Ex. G (Amended Final Pretrial Order at 4). The proposed change adds to the Complaint Class--persons allegedly not offered compliant APIP coverage and not provided compliant benefits--only persons who by definition have no claim to additional PIP benefits because they were offered such coverage or were provided such benefits.6 It is improper to certify a class which includes everyone
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Some of these questions relate to damages; and although damages in some cases can be decided in a separate phase after liability, in this case one of the elements of liability that defines the class is damages. Ex. A at 54-55 (Hudgins--Notwithstanding request for declaratory relief, certification inappropriate because damages were predominant form of relief sought). See also Goebel v. Colorado Dep't of Inst., 764 P.2d 785, 808 (Colo. 1988). As an injured person who was not a policyholder, Fincher is not even a member of the class. Only policyholders would have been offered coverage, compliant or not. See Ex. A at 35 (Womack). Ex. B, Padhiar v. State Farm Auto. Ins. Co., No. 03-CV-1969 (D. Colo. March 2, 2006), at 7-8 (considering oral offers). See also Stickley v. State Farm Mut. Auto. Ins. Co., No. 04-CV-01685 (D. Colo., November 18, 2005) at 10-12; Folks v. State Farm Auto. Ins. Co., No. 04-CV-00243 (D. Colo., June 30, 2005) at 23-24; Almarez v. Guideone, 03 CV 2013 (Colo. Dist. Ct., Boulder County, October 22, 2004). Copies provided at Ex. C. The newly added class members include those: (1) whose injuries were not serious and whose claims did not exceed the limits of basic PIP coverage; (2) who had APIP coverage that was sufficient to cover all of their claims; (3) who had APIP claims in excess of the $150,000 cap but received payment up to $200,000 in accordance with Prudential's practice (Ex. D, Rowe Aff. ¶4); (4) who would be entitled to lower benefits under reformed policies than they previously received; and (5) to whom an adequate offer of APIP benefits was made. This latter category includes Kimberly Stapish, whose case was brought by Fincher's counsel and dismissed by this Court on summary judgment (Ex. E, Order, Stapish v. Prudential Prop. & Cas. Ins. Co, No. 03RB718 (U.S. Dist. Ct., D. Colo. March 7, 2005)), and others like her whose accidents occurred after February 1999.

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receiving PIP benefits, whether or not they have a claim for more benefits. Ex. A at 9 (Ganyard--putative class identical to newly proposed class here improperly included "members who have no claims") & at 2 (Biby--denying certification of class including time-barred and unripe claims).7 Both proposed class definitions are improper because they include insureds claiming lost wages and under post-1994 policies, all of whom Fincher lacks standing to represent. Class representatives must establish their own standing, without relying on the standing of other class members. Monarch Asphalt Sales Co. v. Wilshire Oil Co., 511 F.2d 1073, 1077 (10th Cir. 1975); Allee v. Medrano, 416 U.S. 802, 828-29 (1974). Fincher claims under a 1992-1994 policy, which she alleges offered APIP benefits capped at $150,000 rather than the minimum $200,000 required by the No-Fault Act. She alleges a different deficiency for the 1994-1998 policy--placing weekly limits on wage loss benefits. Compl. ¶¶24-27; Ex. F, Interrog. No. 3; Ex. G at 2-3. This Court held that the 1995-1998 policy is not relevant because it is not the one under which Fincher claims (Ex. H); and, as a minor who never worked, Fincher has no claim for lost wages and never submitted one. Ex. I, p. 31, ll. 13-24; p. 35, ll. 9-12.8 She also lacks
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See also J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1290 (10th Cir. 1999) (denying certification of class that included children who had no claim because they received all services required by law); Cwiak v. Flint Ink Corp., 186 F.R.D. 494, 497 (N.D. Ill. 1999) (denying certification where plaintiff, in certification motion, attempted to broaden definition of complaint from nine employees denied infertility benefits to all who have incurred or will incur medical expenses related to infertility); Zapata v. IBP, Inc., 175 F.R.D. 578, 579 (D. Kan. 1997) (broadening class from workers of Mexican ancestry subjected to hostile work environment to all workers of Mexican ancestry); Pagan v. Dubois, 884 F. Supp. 25, 28 (D. Mass. 1995) (class of all Latino prisoners too broad to be certified for claims of lack of staff who speak Spanish because those who speak and write English are not harmed); O'Neill v. Gourmet Sys. of Minn., Inc., 219 F.R.D. 445, 451 (W. D. Wis. 2002) (class of all members of Indian tribe overly broad because it included many not at risk of suffering injury plaintiff sustained). Fincher cites cases from other states, none on point, as authority. Am. Mot. at 3. None involved a class defined so as to include mostly individuals who could not possibly have a claim for benefits or damages. Fincher relies most heavily on Bailey v. Kemper Casualty Ins. Co., a Texas state court case that, unlike here, involved a class alleged in an amended petition that did not add new issues to the case, and was limited to only those persons who had an interest in the Court's interpretation of what constitutes a valid assignment of benefits. Bailey is neither binding nor persuasive, and does not address numerous issues raised here against class certification. A PIP claim for wage loss benefits must relate to a loss of some measurable earnings and cannot be based on speculation about future earning capacity. Bondi v. Liberty Mut. Ins. Co., 757 P.2d 1101 (Colo. App. 1988) (future earning capacity of unemployed college student not compensable as PIP wage loss benefit). See also Bailey v. Mid-Century Ins. Co., 902 P.2d 411, 412 (Colo. App. 1994) (wage loss benefits only available if insured who was unemployed at time of accident received offer of employment within one-year period but was unable to perform work because of injury). Although the Court declined to grant Prudential's motion for partial summary judgment on Fincher's wage loss claim, subsequently the Court did grant summary judgment to Merastar/Prudential on an APIP

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standing to assert deficiencies in post-1998 policies, which she first mentions in this motion, six years after the case was filed. As with the 1994-1998 policy, she has no claim under these policies; and the alleged defects (e.g., those relating to death benefits) do not apply to her. II. Fincher Fails to Satisfy The Numerosity Requirement Of Rule 23(a)(1) Fincher has the burden of proving with competent evidence that the proposed class is "so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1); Kniffin v. Colorado W. Dev. Co., 622 P.2d 586, 592 (Colo. App. 1980) ("mere speculation" is not sufficient). Fincher has not met this burden with either class definition. Because Fincher merely speculates about the size of the Complaint Class, the Court cannot tell whether it is so numerous that joinder is impracticable. Kohn v. Am. Hous. Found. Inc., 178 F.R.D. 536, 540 (D.Colo. 1998); Ex. A at 3 (Biby). The only evidence Fincher offers is a Prudential document showing that, from July 1, 1992 to February 4, 1995: (1) 33 individuals were paid at least $50,000 for medical claims, and (2) 168 individuals were paid for wage loss claims. Am. Mot., Ex. 14.9 Even though most of the 33 likely would be included in the 168, Fincher combines the two groups to arrive at a claimed total of 201 (Am. Mot. at 7), the upper limit on the size of a class claiming under the 1992-1994 policy; but Fincher does not have standing to represent the 168 wage loss claimants. See Section I above. That leaves a class of just 33 medical benefit insureds, which does not satisfy numerosity. Monarch, 511 F.2d at 1077-78 (class of 37 members too small).10
lost income claim that was based on the earning capacity of a minor who had never worked, accepting the argument that APIP coverage is available only for actual wages lost, not potential future earnings. Ex. J, Estate of April Hill v. Allstate Ins. Co.,et. al., No. 04-CV-00865 (D. Colo., August 9, 2005), and related motion. 9 Fincher complains that Prudential's response to her discovery requests was limited to 1992­1995 (Am. Mot. at 8, n. 6), ignoring that the Court denied her motion to compel and ruled that the later period is irrelevant (Ex. H). 10 See also Crawford v. Western Elec. Co., 614 F.2d 1300 (5th Cir. 1980) (34 members not enough); Ansari v. New York Univ., 179 F.R.D. 112 (S.D.N.Y. 1998) (35 members not enough); John Doe v. Meese, 690 F. Supp. 1572 (S.D. Tex. 1988) (59 - 62 members not enough); Ex. A, Goodwin (23 members not enough).

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Moreover, that 33 people received $50,000 in medical benefits does not establish that they had unpaid medical claims. The amount paid may have exceeded the $50,000 limit on basic medical benefits because the policy included APIP benefits. Ex. K, May 14, 2004 Brown Aff., ¶7.11 Also, medical payments may have exceeded the $50,000 limit because, under the No-Fault Act, PIP medical and rehabilitation benefits are practically identical,12 and medical claims can be paid under the $50,000 rehabilitation coverage. Id. ¶6.13 Only 17 of the 33 medical claimants, including Fincher, met or exceeded the $100,000 limit of combined basic medical and rehabilitation benefits. Am. Mot., Ex. 14. The other 16 are unlikely to be class members because their expenses did not reach the combined limit for basic medical and rehabilitation benefits; and some of the 17 receiving more than $100,000 may have been paid in full under APIP coverage (or even under basic coverage where Prudential paid in excess of the $100,000 limit as it did with Fincher). Similarly, that 168 insureds received wage loss payments exceeding $400 proves nothing. Fincher incorrectly assumed these payments were for a single week,

exceeding the weekly maximum for basic PIP. If that were correct, payment in excess of $400 would actually suggest payment of APIP benefits. In fact, the periods covered by these payments vary, and it is likely that large payments were for more than one week.14 None of Fincher's evidence answers the relevant question: How many

insureds would be entitled to more in APIP wage loss benefits than they were paid?15
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E.g., the insured in claim 14L09854 received medical benefits of $61,968.05. Am. Mot., Ex. 14 at p. 01494. Compare C.R.S. 10-4-706(1)(b) with C.R.S. 10-4-706(II)(A) (1994 version). Fincher received more than $100,000 in medical and rehabilitation benefits, much of which was for identical services. 13 E.g., the insured in claim 14N00251 is listed as having received medical benefits of $50,000 and rehabilitation benefits of $40,733.09. Am. Mot., Ex. 14 at p. 01497. 14 Ex.K, May 14, 2004 Brown Aff., ¶¶3-4. E.g., Am. Mot., Ex. 14 indicates payments were made on April 12, 1994 of $1,066.77 on claim 14N01920 (p. 01471) and on October 18, 1994 of $931.92 on claim 14N90137 (p. 01479). 15 Insureds with wage loss less than $250 per week received greater benefits under basic PIP. An insured received 100% of the first $125 of weekly wage loss and 70% of the next $125 under basic PIP but 85% of all lost wages under APIP. Compare C.R.S. §10-4-706(1)(d)(I) with C.R.S. §10-4-710(2)(a)(II). For example, an insured making $1,000 per week who lost $200 of income in a week due to inability to work full time received $177.50 under basic PIP, but only $170 under APIP.

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Fincher's evidence suggests, at best, there might be two insureds among the 168 who would have received more from APIP coverage--the two paid $20,800, the maximum they could have been paid for basic wage loss coverage of $400 per week for 52 weeks. Am. Mot., Ex. 14 (claim 14NO1392, p. 01471; claim 14PO1619, p. 01480). Nearly all of the new class of Prudential insureds receiving PIP benefits since 1992 would have small claims below the threshold for APIP benefits. Am. Mot., Ex. 16 (average paid Colorado PIP claim in 1997 was $5,062). Fincher should not be allowed to satisfy the numerosity requirement by inflating the proposed class to add individuals who have no claim to more benefits. An improper class definition cannot satisfy

numerosity.16 Because Fincher lacks standing (see Section I above), this class cannot exceed the 33 who received medical benefits under 1992­1994 policies; and most of those claims would be time barred. Section VII below; Ex. A at 2 (Biby--denying

certification where class included time-barred and unripe claims) & at 9 (Ganyard). III Fincher Fails to Satisfy The Commonality Requirement Of Rule 23(a)(2) Rule 23(a)(2) requires that "issues involved are common to the class as a whole" and "turn on questions of law applicable in the same manner to each member of the class." Gen. Tel. Co. v. Falcon, 457 U.S. 147, 155 (1982). Fincher limits her request for certification to the reformation claim in order to eliminate individual damage issues fatal to certification, but her reformation claim raises no question common to the class. Fincher alleges three purportedly common reformation issues: (1) did Prudential policies contain the coverages described in Colo. Rev. Stat. § 10-4-710;17 (2) did this
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Alternatively, the Court could decline to exercise supplemental jurisdiction over those members of this broad class who have no claims because they fall below the $75,000 jurisdictional threshold. See Ex. L, Sanford v. Allstate Indemnity Co., No. 05-CV-00728 (D. Colo., Order and Memorandum of Decision dated January 27, 2006) at 7 (denying certification; Fincher's counsel argued approximately ninety percent of PIP claims are less than $1,500). 17 In fact, this supposedly common question is not really a question that remains in the case. There is no dispute that the policy form under which Fincher is claiming did not conform with the minimum $200,000 cap allowed on aggregate APIP benefits until 1994. Prudential acknowledged as much when it submitted new forms with a $200,000 aggregate limit option to the DOI for approval in 1989. Prudential's summary judgment motion assumed non-compliance, and this Court found non-compliance in its summary judgment and reformation rulings. See Ex. M (Judgment dated June 10, 2002) at 4; Am. Motion, Ex. 3 at 13.

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failure violate the statute; and (3) are she and class members entitled to reformation. Am. Mot. at 9. Because Fincher claims different deficiencies for policy forms in effect during three different time periods, the question whether Prudential's policy forms contained required coverages necessarily would involve different facts for policies purchased at different times. Consideration of whether the failure to provide coverages violated the statute also would vary with the policy form and date of purchase. Consideration of the third "common" issue--whether the class is entitled to reformation because Prudential failed to offer compliant coverage--raises additional individual questions involving the relationship between the flaw alleged to be in the policy form in effect at the time the policy was purchased and the type of APIP benefits the insured claimed. An insured would not be entitled to reformation to include APIP coverage for medical expenses, for example, if the only alleged deficiency in the applicable policy related to wage loss benefits. There is no equitable basis for reforming a policy to include the same compliant coverage Prudential in fact had offered; other alleged flaws in the policy are irrelevant to entitlement to reformation. Ex. B, Padhiar at 17-18 (failure to offer APIP coverage for pedestrians irrelevant to entitlement of injured policyholder to reformation). Fincher also oversimplifies the requirements for showing lack of a compliant APIP offer, claiming that only the content of the policy is relevant (Am. Mot. at 12). The inquiry is highly individualized and fact-intensive: "In the final analysis, the sufficiency of the offer `must be resolved under the totality of the circumstance.'" Ex. N, Johnson v. State Farm Mut. Auto. Ins. Co., 2005 WL 3346563, *2 (10th Cir. 2005) (quoting Allstate Ins. Co. v. Parfrey, 830 P.2d 905, 914 (Colo. 1992)). See also Ex. A at 3 (Biby-- certification not proper because "proposed class is defined by reference to whether a proper offer of extended PIP benefits was made to the insured, which in turn depends on the totality of the circumstances in each given instance") & at 9-12 (Ganyard).

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Prudential would be entitled to present evidence, for each putative class member, of written or oral offers of compliant coverage other than what appeared in the policy forms. See Section I above. While Prudential was waiting for DOI approval to use its new forms with the $200,000 cap, for example, it instructed its agents to explain that the cap actually was $200,000 rather than the $150,000 on the old forms; and Prudential paid in accordance with the new forms in the period before their use. Exs. O (Clayton Affidavit) ¶7; P (Henry Affidavit) ¶8; & D (Rowe Affidavit) ¶4. See also Am. Mot., Ex. 3 (Fincher Reformation Order) at 6, 13 & 15.18 Finally, Fincher states, incorrectly, that "Prudential's conduct in understanding its obligations and acting or failing to act on them is the same as to each class member, as its knowledge and intent insofar as the obligations relating to 10-4-710 is concerned." Am. Mot. at 9. This Court made a "discretionary and equitable" decision, applicable to Fincher alone, that the date of reformation for Fincher was the date of her accident. Am. Mot., Ex. 3 at 20. The Court would have to make the same sort of individualized determination for each class member as it made for Fincher.19 IV. Fincher Fails to Satisfy The Typicality Requirement Of Rule 23(a)(3). For a class to be certified, Fincher's claims must be typical of the class. In re Intelcom Group Sec. Litig., 169 F.R.D. 142, 149 (D. Colo. 1996); Dubin v. Miller, 132 F.R.D. 269, 274 (D. Colo. 1990). The premise is simply stated: as goes the claim of the named plaintiff, so go the claims of the class. The typicality requirement cannot be met

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In the interest of brevity, Prudential incorporates by reference and refers the Court to the record in Fincher's reformation proceedings and on summary judgment for Prudential's1989-1999 policies and practices. 19 For example, the Court considered the degree to which reformation from a particular effective date would upset past practices on which the parties may have relied. This examination included consideration of facts bearing on the knowledge and expectations of Bekeshka and Fincher regarding the $200,000 cap, which were peculiar to them, such as whether there was evidence that Prudential attempted to notify Bekeshka of the flaw in his policy prior to the date of the accident. Am Mot., Ex. 3 at 15. The Court also considered the degree of injustice or hardship reformation from a particular effective date would cause the parties, addressing arguments such as that (1) a later date of reformation would deprive Fincher of the benefit of prompt payment of benefits to a victim of an auto accident, and (2) reformation on the date of the order would deprive Fincher of her ability to pursue other enforcement mechanisms such as breach of contract and insurance bad faith claims. Id. at 19.

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when individualized inquiries are necessary to determine liability and damages.20 Even in a trial limited to reformation issues, there are numerous individualized inquiries (Section III above). In addition, a class representative even arguably subject to unique defenses is not typical of absent class members. Ex. A at 48 (Weber).21 Fincher is subject to defenses of lack of standing to pursue wage loss claims and claims under policies after 1994 (Section I above) that preclude a finding of typicality. Rector v. City and County of Denver, 348 F.3d 935, 950 (10th Cir. 2003) ("By definition, class representatives who do not have Article III standing to pursue the class claims fail to meet the typicality requirements of Rule 23."). In addition, as a minor, she cannot be typical of adults who are subject to statute of limitations and laches defenses. V. Fincher Fails to Satisfy The Adequacy Requirement Of Rule 23(a)(4). Fincher must show that she is able to prosecute the action vigorously and has no disabling conflicts with the class. Monarch, 511 F.2d at 1077-78; Steiner v. Ideal Basic Indus., 127 F.R.D. 192, 194-95 (D. Colo. 1987). Amchem, 521 U.S. at 625. Fincher fails this requirement as to wage loss claimants and claimants under later policies for lack of standing. See Section I above. Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 734 (3d Cir. 1970) (plaintiff unable to secure standing for himself certainly not in position to `fairly insure the adequate representation' of those alleged to be similarly situated). Fincher also cannot adequately represent any class member for a claim that Prudential's offers were inadequate because neither she nor her father was a policyholder to whom offers were made. Ex. A at 3 (Biby--questioning whether pedestrian can adequately

represent policyholders), & at 9 (Ganyard--pedestrians not typical). Basic due process requires that the "plaintiffs possess undivided loyalties to

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See, e.g., Ralph v. Am. Family Mut. Ins. Co., 835 S.W.2d 522, 524 (Mo. App. 1992); Scott v. Ambassador Ins. Co., 426 N.E.2d 952, 954 (Ill. App. 1981). 21 See also Ex. A at 53 (Hudgins); Dubin, 132 F.R.D. at 275; Robinson v. Lynmar Racquet Club, Inc., 851 P.2d 274 (Colo. App. 1993).

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absent class members."

Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d

331, 338 (4th Cir. 1998). Fincher is not an adequate representative because her father is interested only in her personal benefit. This fact became obvious when Fincher abandoned the claims of other class members for benefits and damages, but it also was evident before that in Fincher's father's deposition: "Q: Who are you seeking to represent in this lawsuit? A: My daughter, Kelly Fincher." Ex. I., p. 44, ll. 16-18. "Q: What is your understanding of your responsibilities in this case as a class representative? A: To do whatever I can for the welfare of my child." Id. p. 52, ll. 2-6.22 Similarly, in response to an interrogatory seeking all facts which support the allegation in the Complaint that "Fincher will fairly and adequately represent the interests of the class members," Fincher answered that "[t]he Fincher family is devoted to pursuing this case, as Mr. Fincher's daughter was severely injured in the attendant auto accident, and this case is the last avenue to her recovery for her injuries, having previously litigated a personal injury claim." Ex. F at Interrog. 2. Fincher's father now submits an affidavit and a two-page summary of "Rights and Responsibilities of the Class Representative" (Am. Mot., Exs. 21 & 22);23 but the record belies this "evidence" of involvement in and knowledge of the case. In his deposition, he showed a complete lack of knowledge regarding the Complaint, which he did not think he had seen, and what this class action is about. Ex. I, Fincher Dep., p. 45, ll. 623; p. 52, ll. 7-12; p. 54, ll. 8-12. He also was not aware of any financial obligations he might have. Id. p. 54, ll. 13-15. See Ex. A at 3 (Biby--failed to demonstrate knowledge of status and legal basis of action or willingness and ability to pay costs). Finally, Fincher's counsel have not adequately represented the class. Redefining
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Moreover, Fincher's interests and those of insureds with wage losses less than $250 per week are in conflict because they receive greater benefits under basic PIP than under APIP if their policies are reformed. See Section II above. This conflict makes Fincher an inadequate representative. See Ex. A at 21-23 (French). 23 This document, which contains a fee agreement, was requested in discovery but was not produced (Ex. F, Doc. Req. #2). Therefore, Fincher should not be permitted to use it.

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the class to exclude meaningful class relief indicates inadequacy. The fact that the same counsel filed a duplicative class action against Prudential evidences that they are filing as many as possible, hoping to eventually find a court to certify a class.24 Counsel already has been found to be abusing the judicial process by these tactics.25 VI. Fincher Fails to Satisfy Rule 23(b)(2). Fincher argues that a class should be certified under Rule 23(b)(2), which requires that 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 for the class as a whole. Fincher incorrectly claims that Prudential acted in a manner generally applicable to the proposed class by failing to offer coverage compliant with the No-Fault Act and "then refusing to acknowledge the obligation to provide such enhanced coverage because of this failure." Am. Mot. at 11. Fincher argues that the policies constitute an offer of non-compliant coverage that is generally applicable to the class as a whole. But the policy under which she claims did not have the same alleged flaw as the later policies; and Prudential can show that its agents and representatives made individual oral or written offers of compliant coverage. In addition, an alleged refusal to acknowledge an obligation to provide

enhanced coverage because of a failure to offer compliant coverage (presumably any refusal to reform a policy) would depend on the highly individual circumstances of each class member's coverage claim, including what claims for benefits were rejected. The
24

The class alleged in Stapish to be "[a]ll residents of the State of Colorado who were named insureds under an [sic] Prudential insurance policy where the policyholder was not offered extended coverage as required by the Colorado Auto Accident Reparations Act; and all eligible injured persons, as defined by §10-4-707, who incurred PIP-related expenses while insured under Prudential policies where the policy holder was not offered APIP coverage as required by the Colorado Accident Reparations Act." Ex. Q at 4. Fincher is a member of this class, and Stapish is a member of both of Fincher's classes. 25 Ex. A at 40 (Marshall). Lead counsel told Judge Phelps: "[T]he Judge's decision in El Paso District Court was wrong. The deficiencies found by that court were either wrong or have been corrected and in the event the court denies this class certification, we will continue to file the case in other Judicial Districts until some District Court grants the requested class certification." Id. at 26. The Court ruled that "such tactics in attempting to secure class action certification is an abuse of the judicial process and goes well beyond the intent of C.R.C.P. 23." Id. See also Ex. R, Breaux v. American Family Mut. Ins. Co., No. 04-N-191(D. Colo. March 23, 2005) (discussing same lead counsel's repetitive filing of APIP class claims).

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only evidence Fincher can show that Prudential has refused to acknowledge such an obligation is Prudential's assertion of defenses to Fincher's claims in this case. By limiting certification to reformation, Fincher tries to avoid the rule that Rule 23(b)(2) certification is improper if plaintiff seeks primarily monetary relief; but, at the same time, she seeks a declaration that all insureds "who sustained injuries in a covered occurrence are entitled to the enhanced PIP benefits identified in Colo. Rev. Stat. §10-4-710(2)(a)," Am. Mot. at 11, which sounds a lot like a determination of liability for damages, relief that supposedly was not included in the certification request. Any consideration of entitlement of individual class members to benefits raises what amount to damages issues. Ex. S, Borden v. Farmers Exchange, No. 2001CV554, Dist. Ct., El Paso County, Colo., April 7, 2003 (denying certification where same concerns regarding certification of damages claims apply to declaratory judgment). In any event, in order to provide any meaningful relief for the class, the Court would eventually have to reach the issue of individual entitlement to benefits. Clearly, Fincher's counsel contemplate future proceedings on entitlement to benefits. Fincher's request for notice to class members under Rule 23(b)(2), where it is not required, suggests, at a minimum, a plan to recruit class members as participants in such proceedings. Am. Mot. at 12, n. 7. A claim for monetary relief disguised as an equitable claim is not suitable for certification under Rule 23(b)(2): "Although Ganyard seeks declaratory relief and reformation, the Court FINDS that Ganyard has failed to demonstrate any use for such relief other than as a predicate to a further award of claimed monetary relief." Ex. A at 41 (Ganyard).26
26

See also Ex. A at 3 (Biby--"although couched in terms of a declaratory judgment, their complaint seeks primarily monetary relief"); at 26 (French--"the predominant relief sought by plaintiffs, as exhibited by the numerous claims therefor, is the recovery of monetary damages");at 54 (Hudgins--"it is apparent that the purpose of such relief is to permit the named representatives and members of the putative class to recover monetary damages in the form of APIP benefits"); at 35 (Womack--unclear how declaratory judgment serves any purpose other than to grant monetary relief); at 44 (Marshall); State v. Buckley Powder Co., 945 P.2d 841 (Colo. 1997); Cook v. Rockwell Int'l Corp., 181 F.R.D. 473, 479-80 (D. Colo. 1998); Boughton v. Cotter Corp., 65 F.3d 823, 827 (10th Cir. 1995).

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VII.

Fincher Fails to Satisfy Rule 23(b)(3). Rule 23(b)(3) requires that common questions predominate over questions

affecting only individual members and that a class action be superior to other available methods for fair and efficient adjudication of the controversy. In re Synergen, Inc. Sec. Litig., 154 F.R.D. 265, 267 (D. Colo. 1994). In this case, individual issues predominate overwhelmingly, and a class action is not a superior method. When there are no questions that are truly common to the class as a whole, common questions simply cannot predominate. Even if limited to reformation proceedings, a trial would require individual consideration of the applicable policy, the claimed defect in the policy, the relationship between the claimed defect and the benefits sought, the adequacy of oral and other supplemental offers of coverage, and the equitable factors weighed to determine effective date of reformation. See Section III above.27 When the case reaches issues of benefits or damages for the class, which it eventually must, the predominance of individual issues would only be magnified. Prudential is entitled to present a defense that the claims of class members are time-barred, which raises numerous individual questions. Absent some tolling of the statute of limitations, the reformation claim, which is based on alleged failure to offer proper coverage, accrued within three years of the date of purchase of the policy, an individual fact question. Nelson v State Farm, 419 F.3d 1117, 1120-1121 (10th Cir.

2005). In addition, to avoid this bar, class members claiming under a policy purchased before September 1997 would have to argue that the statute should be tolled until the policyholder knew or should have known the offer was non-compliant, id. at 1121, which raises more individual questions. Ex. C, Folks at 15-16. Minors, pedestrians whose
27

In a similar Colorado APIP case, the court held that certification would be inappropriate under the predominance factor because there would be "[i]ssues of when, where, how, and under what circumstances each class member received or did not receive written explanation and options. These individualized presentations would be relevant to both liability and remedy." Ex. A at 32-33 (Matthews). The court concluded that certification would result in numerous individual inquiries regarding individual factual circumstances. See also Ex. T, Smith v. Allied Group, Inc., No. 2000CV822 (Colo. Dist. Ct., City and County of Denver, January 25, 2002) at 34-35.

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claims were affected by the 1998 Brennan decision, and insureds who are not the policyholder have different tolling arguments peculiar to their circumstances. Fincher contends, however, that she can "prove on a class-wide basis that each member of the class has filed a timely claim," arguing that, as in Civale v. State Farm Mutual Automobile Ins. Co., "plaintiff alleges that tolling would exist for every member of the class because of Prudential's uniform failure to comply with Colo. Rev. Stat. §10-4706(4)(b)." Am. Mot. at 6. As is shown above, there was no uniform failure to comply; and, in any event, Fincher's cited cases merely decided that disputed facts bearing on entitlement to equitable tolling, which were specific to the individual plaintiff, precluded summary judgment for the defendant on statute of limitations grounds. Fincher suggests class-wide tolling can be based on allegations Prudential concealed the noncompliance (Am. Mot. at 6-7); but Fincher did not allege fraudulent concealment, only that Prudential did not notify insureds they had an APIP claim based on policy noncompliance. In fact, Prudential's policy coverage was available to every policyholder, and determining compliance was a matter of comparison of the policy with the statute.28 A Colorado court recently rejected this same tolling argument in

dismissing a PIP claimant's claims as time barred: "Plaintiff asserts that she did not and should not have known about her ability to file claims against Defendant and that the statute should be tolled because Defendant concealed claims from the Plaintiff and did not disclose information to the Plaintiff. It appears that Plaintiff is arguing that Defendant had an obligation to inform Plaintiff of the possibility of an action against Defendant. If Plaintiff's argument were to succeed, then statutes of limitation would be rendered meaningless." Ex. U, Murry v. Atlanta Cas. Co., No. 05 CV 8721 (Colo. Dist. Ct., City & County of Denver) at 2. In any event, even if Fincher were correct, the facts relevant to the argument would be specific to what each insured knew and when.29
28

Pagosa Lakes Prop. Owners Ass'n v. Caywood, 973 P.2d 698, 702 (Colo. App. 1998) (presumed to know law and publication of statutes is sufficient notice). See also Dikeman v. Charnes, 739 P.2d 870, 872 (Colo. App. 1987). 29 Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998) (court would have to determine when

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Fincher also fails to make the requisite showing (1) a class action is superior, (2) no realistic alternative exists, and (3) how a class trial could be conducted. Kohn, 178 F.R.D. at 544. A realistic alternative exists: the few class members who actually may have a claim to additional benefits could assert the same sort of substantial claims for damages as Fincher (and Stapish), with treble and punitive damages, attorneys fees, and 18% interest. See Ex. A at 28-30 (French). The predominance of individual reformation issues would result in an unmanageable administrative nightmare, and Fincher makes no showing how such a trial can be conducted. This problem is

exacerbated for the Complaint Class because just identifying class members requires determinations on entitlement, and her new definition only postpones the problem. Where certification "will in actuality require a multitude of mini-trials . . . then the justification for class certification is absent." Alabama v. Blue Bird Body Co., 573 F.2d 309, 328 (5th Cir. 1978). See, also, Ex. A at 49 (Weber) & at 36 (Womack); Kohn, 178 F.R.D. at 544. For all the foregoing reasons, Plaintiff's Amended Motion for Class Certification should be denied. Respectfully submitted this 1st day of June, 2006,

Bryan Cave LLP Bruce C. Oetter 211 N. Broadway, Suite 3600 St. Louis, MO 63102-2750 (314) 259-2000 Attorneys for Defendant

Campbell, Latiolais & Ruebel, P.C. By:_/s/ Clifton J. Latiolais, Jr.______ Clifton J. Latiolais, Jr., #13765 825 Logan Street Denver, CO 80203-3114 (303) 861-7760 (phone) (303) 861-7767 (fax)

each member knew facts concerning statute of limitations); Barnes v. Am. Tobacco Co., 161 F.3d 127, 132 (3d Cir. 1998) (individual issues concerning limitations defense); Emig v. Am. Tobacco Co., 184 F.R.D. 379 (D. Kan. 1998); Arch v. American Tobacco Co., 175 F.R.D. 469 (E.D. Pa. 1997).

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CERTIFICATE OF SERVICE I hereby certify that on this 1st day of June, 2006, a true and correct copy of the foregoing DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S AMENDED MOTION FOR CLASS CERTIFICATION was filed and served electronically via CM/ECF to the following: [email protected] THE CAREY LAW FIRM Robert B. Carey, #17177 L. Dan Rector, #7568 Leif Garrison, #14394 & HAGENS BERMAN, LLP Steve W. Berman, #12536 C/o THE CAREY LAW FIRM 2301 East Pikes Peak Colorado Springs, CO 80909 Attorneys for Plaintiff

/s/Denise L.Albares______