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, on behalf of herself and all others similarly situated, Plaintiff, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant. ______________________________________________________________________ DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S AMENDED MOTION FOR CLASS CERTIFICATION Defendant ("Prudential") submits this memorandum in opposition to the amended class certification motion ("Am. Motion") of plaintiff ("Fincher").1 Prudential's motion for leave to exceed the 15 page limitation remains pending. I. INTRODUCTION Fincher seeks certification of a class of insureds with claims to Additional Personal Injury Protection ("APIP") coverage under automobile policies sold by Prudential. Fincher alleges that from 1992 until 1999, Prudential offered APIP coverage which did not comply with C.R.S. §10-4-710 of the Colorado Auto Accident Reparations Act ("No-Fault Act") and that class members are entitled to additional benefits under reformed policies. Amended Class Action Complaint ("Complaint"), ¶35.

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Fincher recently withdrew her request for leave to amend the class definition in the Complaint ("Complaint Class") to add insureds who have no claims. She asserts that, without amending the Complaint, she can simply redefine the class in her opening brief 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 proposed class definitions here.

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The overwhelming weight of authority is that these types of PIP claims seeking benefits are highly individualized and, therefore, unsuitable for class action treatment.2 Fincher belatedly attempts to avoid denial of certification by requesting certification only of the reformation claim and proposing a new class definition--never before articulated in the Complaint, her discovery responses or the Final Pretrial Order--that is not dependent on claimed entitlement to benefits: "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. Motion at 3. This definition adds to the Complaint Class only those who have no claim to additional benefits, and it includes post-1999 policies and alleged deficiencies never previously alleged by Fincher in the nearly six years this case has been pending. Although certification of only the reformation claim for this broader class ostensibly removes from the case any claims for benefits or money damages except Fincher's own, the case still is not suitable for class treatment. Reformation is moot as far as Fincher is concerned and would do nothing to provide additional benefits for the
2

In nine Colorado APIP cases with similar class definitions, including one decided by this Court, and each brought by the same counsel as here, class certification has been denied. 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) (alleging class identical to class alleged in Fincher's 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 (District Court, El Paso County, November 21, 2002); Womack v. Safeco Ins. Co., No. 01CV133 (Dist. Ct., Fremont County, May 13, 2003) (affirmed by Colorado Court of Appeals, 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 when discovery indicated only 23 members). Copies of these opinions are attached, collectively, as Ex. A.

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class. The class, if certified, would require unnecessary, wasteful and complex individual proceedings leading to a pointless, abstract declaration of Colorado insurance law. Fincher fails to satisfy any of the requirements of Rule 23, Fed.R.Civ.P. with either class definition. Certification of either proposed class would raise numerous and predominating individual issues. If, as it appears, Fincher's intention is to get a foot in the door with a class reformation ruling as prelude to a second phase on benefits and damages for the class, her approach would provide no benefit to newly-added class members and would merely postpone the even greater difficulties inherent in class treatment of such claims. After unnecessary and protracted proceedings for class members who have no claim to additional benefits, the case would revert to the Complaint Class. For all of these reasons, Fincher's class certification motion should be denied. II. FACTUAL STATEMENT Kelly Fincher was ten on May 8, 1994, when she was riding a bicycle and was struck by a car driven by Anthony Bekeshka, a Prudential insured under a policy issued on April 23, 1992. Bekeshka had not elected optional APIP benefits. Ex. B, Bekeshka Aff., ¶¶1&3. Bekeshka's policy, under which Fincher is claiming, was the 1992-1994 form with the $150,000 cap. Complaint, ¶¶20, 25-26. After the accident, Prudential promptly paid Fincher PIP benefits for medical and rehabilitation expenses up to and slightly beyond the $100,000 limit of basic PIP coverage. Ex. C, Deposition of James Fincher ("Fincher Dep."), p. 25, ll. 18-20. Fincher's father's medical insurance paid her

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remaining medical and rehabilitation bills. Id., p. 25, ll. 14-17; p. 28, ll. 14-17. As a minor, never employed, Fincher did not submit a wage loss claim. Id., pp. 31-32, ll. 1025, 1-3; p. 35, ll. 10-12. Fincher alleges Prudential failed to comply with the No-Fault Act by offering extended benefits with an aggregate limit of $150,000 rather than $200,000 in the policy form in effect 1992-1994, and not offering an option of wage loss benefits unlimited in time and amount in the 1994-1998 form. Complaint, ¶¶24-27; Ex. D, Plaintiff's

Response to Defendant's First Set of Discovery ("Plaintiff's Discovery Responses"), Interrog. No. 3;, Ex. E, Amended Final Pretrial Order at 2-3. Only these two deficiencies are alleged in the Complaint, Plaintiff's Discovery Responses, and the Final Pretrial Order. Fincher admits that Prudential began using a corrected form, with a complying cap on benefits of $200,000, in 1994, after Fincher's accident. Am. Motion at 5.3/ When Prudential increased the APIP cap to $200,000, it inadvertently changed the wage loss option to introduce the weekly limits on those benefits that are the basis for Fincher's allegations about the 1994-1998 form. This Court previously ruled that the 1994-1998 period is irrelevant to this lawsuit because it involved a different policy and alleged deficiency than the one under which Fincher is claiming, and she has no
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Due to a 1989 statutory increase in the minimum aggregate cap on benefits from $100,000 to $200,000, the $150,000 cap in Prudential's policy became non-compliant. Prudential revised its policy forms to incorporate a $200,000 cap and submitted them to the Colorado DOI for approval in 1989. Am. Motion, Ex. 3, Fincher Reformation Order at 5-6. Prudential believed it was legally prohibited from using the new forms prior to DOI approval. Ex. F, Affidavit of Mary Rowe ("Rowe Aff."), ¶3; Ex.G, Deposition of Mary Henry ("Henry Dep."), p. 149, ll. 14-25, p. 150, ll. 1-10. In the interim, Prudential instructed its employees and agents to explain the new coverage limits and offer them to customers. Ex. H, Affidavit of Ralph Clayton ("Clayton Aff."), ¶7; Ex. I, Affidavit of Mary Henry ("Henry Aff."), ¶8. Prudential's policy included self-conformance language to insure compliance when statutory revisions occurred. Ex. F, Rowe Aff., ¶4. Prudential also treated all APIP benefit policies as having a $200,000 cap while awaiting formal approval of the policy forms and rates. Id.

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standing to assert claims involving the later policy. Ex. J, Minute Order, October 1, 2001 & Prudential's Response to Motion to Compel filed September 17, 2001 (denying Fincher's motion to compel for reasons stated in Prudential's response). In addition, as Fincher has admitted, Prudential corrected this language in policy forms it began using in 1998. Am. Motion at 5 & Exs. 6-9. Fincher filed this lawsuit in September 2000. The separate violations of the NoFault Act alleged in the Complaint for the 1992-1994 and 1994-1998 policies form the basis of four causes of action for APIP benefits and other damages that are still in the case: (1) reformation of contract; (2) breach of contract--failure to pay PIP benefits; (3) breach of the duty of good faith and fair dealing; and (4) willful and wanton breach of contract. As relief for Fincher and the putative class, the Complaint requests

reformation of the policies to provide extended medical, rehabilitation and wage loss benefits compliant with the No-Fault Act, an order requiring payment of those benefits or compensatory damages, treble and exemplary damages, interest and attorneys' fees. Complaint, pp. 14 -15. In discovery, Fincher claimed she was entitled to APIP benefits in excess of $1,000,000, essentially a lifetime of lost earning capacity. Ex. K, Plaintiff's Rule 26(a)(1) Disclosures at 3. The Court, in April 2005 after a trial, reformed the Bekeshka policy, effective the date of her accident, to include APIP benefits for her with a $200,000 cap on aggregate benefits. Am. Motion, Ex. 3 at 29-30. Despite the cap, Fincher has named four experts to testify at her damages trial, which she anticipates will last several days on her claims

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relating to the delay in Prudential's reimbursement of the balance of her medical bills (paid by her father's medical insurance). Ex. E, Final Pretrial Order at 10-11. Fincher admitted in her 2001 Motion for Class Certification that Prudential's policies were compliant after 1998. Ex. L at 3. In her motion, she now proposes to expand the class by alleging vague new deficiencies, not pled in the Complaint, for policies in effect after 1998. Am. Motion at 13. It is not clear what these are, but they have never been in the case and have not been the subject of discovery. In any event, this Court found that the 1999 policy was compliant in granting summary judgment to Prudential in a similar PIP class action. Ex. M, Stapish v. Prudential Prop. & Cas. Ins. Co., No. 03-RB-718 (D. Colo. March 7, 2005), Order Concerning Motions for Summary Judgment, at 7, 9 &14. Moreover, since the Court has ruled that the 1994­1998 policy is irrelevant to this lawsuit, a fortiori, 1999 and later policies are irrelevant for the same reasons. The Colorado Legislature repealed the No-Fault Act effective July 1, 2003. C.R.S. §1-4-726. Prudential sold its auto insurance business in 2003, and all of its Colorado automobile policies have expired. Ex. N, October 22, 2004 Brown Aff. at ¶3. III. ARGUMENT Courts are required to conduct a "rigorous analysis" into whether the prerequisites of Rule 23 have been met before certifying a class. Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982); Kohn v. Am. Hous. Found. Inc., 178 F.R.D. 536, 539 (D. Colo. 1998); Masri v. Wakefield, 106 F.R.D. 322, 324 (D. Colo. 1984). A court must probe behind the pleadings to determine whether the elements of

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Rule 23 are satisfied. Davoll v. Webb, 160 F.R.D. 142, 143 (D. Colo. 1995), aff'd, 194 F.3d 1116 (10th Cir. 1999); Joseph v. Gen. Motors Corp., 109 F.R.D. 635, 637 (D. Colo. 1986); Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978). Accordingly, Fincher must show, under a strict burden of proof, that each requirement of Rule 23(a) has been met. Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997); Rex v. Owens ex rel., 585 F.2d 432, 435 (10th Cir. 1978); Borwick v. Bober, 529 P.2d 1351, 1354 (Colo. App. 1974). She must also show that the claims fall within one of the categories of Rule 23(b) under the same strict burden of proof. Rex, 585 F.2d at 435. See also Rossin v. S. Union Gas Co., 472 F.2d 707, 712 (10th Cir. 1973). As discussed below, Fincher does not meet her burden to satisfy any of the requirements of Rule 23. A. The Proposed Classes Cannot Be Certified Because Neither Is Properly Defined.

As this Court has observed, a threshold class action issue is whether the plaintiff has proposed a reasonable definition of the class. Ex. A, Order Denying Motion for Class Certification, Biby at 2 (citing Cook v. Rockwell Int'l Corp., 151 F.R.D. 378, 383 (D. Colo. 1993)). See also Colorado Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 356 (D. Colo. 1999); Daigle v. Shell Oil Co., 133 F.R.D. 600, 602 (D. Colo. 1990); Ex. O, Findings and Conclusion, Smith v. Allied Group Inc., No. 2000CV822 Colo. Dist. Ct., City and County of Denver, January, 25, 2002 at 25, ¶47. Indeed, the existence of a properly defined class is the sine qua non of all class action litigation. Vaszlavik v. Storage Tech. Corp., 175 F.R.D. 672, 683 (D. Colo. 1997). As is explained more fully below, each proposed class here is improperly defined. The Complaint Class

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requires factual determinations as to which insureds are entitled to additional benefits in order to identify its members. The newly proposed class is overly broad because it adds persons with no claims to additional benefits, who would constitute a large majority of the class. Both class definitions also are deficient because they include wage loss claimants and claimants under different policy forms whom Fincher has no standing to represent. 1. The Complaint Class Is Improper Because It Would Require Individualized Fact-Finding To Identify Its Members. Fincher defines her Complaint Class as: "All injured persons covered under a Prudential automobile insurance policy who were not offered extended coverage as required by C.R.S. §10-4-710 of the Colorado Accident Reparations Act, and who were not provided the additional benefits provided for therein." Complaint ¶9. This definition requires substantial factual inquiry into issues such as whether the injured person was offered,4 either orally or in writing, compliant APIP coverage. See Ex. A, Biby at 3-4 (class cannot be defined by reference to whether a proper offer of APIP benefits was made to the insured); Ex. P, Padhiar v. State Farm Auto. Ins. Co., No. 03-CV-1969 (D. Colo. March 2, 2006), at 7-8 (oral offer sufficient).5 The definition also requires a determination of whether the injured person's benefit claim exceeded the amount provided by basic PIP, or APIP if purchased, and whether Prudential paid less than that

4

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, Womack at 2. 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. Q.)

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amount. If an insured's injuries did not result in a claim for medical, rehabilitation or wage loss benefits exceeding the limits of the coverage purchased, the insured would not be in the class. Numerous other individual questions need be resolved. For

example: Which policy was in effect at the time of the accident? What APIP coverage was the policyholder offered, in writing or orally? Was a compliant offer made prior to the accident? Does the insured claim PIP benefits exceeding the PIP coverage

purchased? Was the insured paid APIP benefits in accordance with the statute, without regard to what the policy provided?6 A class definition that will "depend on subjective criteria or the merits of the case or require extensive factual inquiry to determine who is a class member" is improper. Nicodemus v. Union Pac. Corp., 204 F.R.D. 479, 487 (D. Wyo. 2001), aff'd, 318 F.3d 1231 (10th Cir. 2003). 2. The Newly Proposed Class Is Improper Because It Has Never Been Alleged Or Disclosed And Is Overbroad, Adding Only Persons Who Cannot Benefit. Fincher attempts to sidestep the defects in the Complaint Class by now changing the class definition 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." This change adds persons who by definition have no claim to additional PIP benefits, including 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, although non-compliant, was sufficient to cover all of their

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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, Hudgins at 39 (holding APIP class may not be defined with a "fail-safe" provision that requires a resolution of the liability issue to determine who is in class). See also Goebel v. Colorado Dep't of Inst., 764 P.2d 785, 808 (Colo. 1988).

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claims; (3) who had APIP claims in excess of the $150,000 cap but received payment from Prudential, as was its practice, in accordance with the $200,000 statutory limit; (4) who would be entitled to lower benefits under reformed policies than they previously had received; and (5) to whom an adequate offer of APIP benefits was made.7 The fact that most PIP claims are very small indicates that most of the members of this proposed class would not have claims large enough to require APIP benefits. Fincher's own evidence in support of this motion shows that the average amount paid for PIP claims in Colorado was only $5,062 in 1997 and $7,749 in 2002. Am. Motion, Ex. 16. Indeed, as discussed in Section III.B.1 below, there is no evidence that any other insured exists who has such a claim. It is improper to certify a class which includes everyone receiving PIP benefits, whether or not they have a claim for more benefits. Ex. A, Ganyard at 4 (only Colorado case directly on point--class improperly included "members who have no claims").8 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 state law); Ex. A, Biby at 2 (denying certification of class including

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This latter category includes Kimberly Stapish, whose case was brought by Fincher's counsel and dismissed by this Court on summary judgment (Ex. M), and others like her. Fincher cites insurance cases, none from Colorado and none on point, as authority for certifying such a class. Am. Motion at 3. None of these cases 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.

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time-barred and unripe claims).9 Colorado courts will not entertain suits which seek useless orders, Lego v. Schmidt, 805 P.2d 1119, 1125 (Colo. App. 1990), such as reforming expired policies under an expired statute for insureds without claims.10 3. Neither Class Could Include Insureds Claiming Lost Wages Or Under Policies After 1994 Because Fincher Lacks Standing To Assert These Claims. This Court previously held that the 1995-1998 policy is not relevant here as it is not the one under which Fincher is claiming. Ex. J. In addition, as a minor who never worked, she has no claim for lost wages and never submitted one. Ex. C, p. 31, ll. 1324; p. 35, ll. 9-12. 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.11 Fincher also lacks standing to assert deficiencies in post-1998 policies. As

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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). Significantly, Fincher's counsel admitted that uninjured policyholders have no claim and deleted them for that reason from the class definition in Stapish (Ex. R, Stapish's Response to Prudential's Motion for Summary Judgment at 26-27). This, of course, is equally true of injured insureds whose claims were paid in full. 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); 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 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. S, Estate of April Hill v. Allstate Ins. Co.,et. al., No. 04-CV-00865 (D. Colo., Order dated August 9, 2005), and motion referenced therein.

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with the 1994-1998 policies, she has no claim with respect to these policies. The alleged defects (e.g., relating to death benefits) do not apply to her. It is hornbook law that a class representative must be a member of the class. 7A Charles Alan Wright, Federal Practice and Procedure §1761 (2d ed. 1986). Before class representatives may assert a class claim, they must be able to establish their own standing, without relying on the standing of other class members. Allee v. Medrano, 416 U.S. 802, 828-29 (1974); Hernandez v. Gray, 530 F.2d 858, 859 (10th Cir. 1976); Monarch Asphalt Sales Co. v. Wilshire Oil Co., 511 F.2d 1073, 1077 (10th Cir. 1975). Fincher simply cannot show she is a member of any class post 1994. B. 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); Joseph, 109 F.R.D. at 639. Fincher has not met this burden with either class definition. 1. Fincher Has Not Shown That There Would Be Anyone Other Than Herself In The Complaint Class. Here, because the members of the class are not readily ascertainable, it is not possible for the Court to tell whether this proposed class is so numerous that joinder is impracticable. Kohn, 178 F.R.D. at 540; Ex. A, Biby at 44; Joseph, 109 F.R.D. at 638639; Rodriguez v. Bar-S Food Co., 567 F. Supp. 1241, 1247 (D. Colo. 1983). Fincher's estimates of the size of the class are nothing more than speculation, and misleading speculation at that.

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In her 2001 motion, Fincher estimated the number of persons with injuries and expenses significant enough to qualify them as class members (i.e., insureds with claims to extended benefits) on the basis of discovery evidence that: (1) 33 individuals, with dates of loss July 1, 1992 to February 4, 1995, were paid at least $50,000 for medical claims, and (2) 168 individuals, with dates of loss July 1, 1992 to February 4, 1995, were paid for wage loss claims. Ex. L at 15. See also Am. Motion at 7. Fincher combines the 33 and the 168 to arrive at a claimed total of 201 (Am. Motion at 7), even though most of the 33 likely would be included in the 168, the upper limit on the size of the class. See III.A.3 above.12 But Fincher does not have standing to represent the 168 wage loss claimants. See III.A.3 above. That leaves a class of just 33 medical benefit insureds, which does not satisfy the numerosity requirements. Monarch, 511 F.2d at 1077-78 (class of 37 members too small to be certified).13 Moreover, Fincher has no information for either the 33 medical benefit claimants or the 168 wage loss claimants showing that any of them could qualify as a class member by being entitled to additional APIP benefits.

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Fincher complains that Prudential's response to her discovery requests was limited to 1992­1995 (Am. Motion at 8, n. 6), ignoring that the Court denied her motion to compel and ruled that the later period is irrelevant (Ex. J). See also Crawford v. Western Elec. Co., 614 F.2d 1300 (5th Cir. 1980) (34 members not enough to satisfy numerosity); Ansari v. New York Univ., 179 F.R.D. 112 (S.D.N.Y. 1998) (35 class members not enough); John Doe v. Meese, 690 F. Supp. 1572 (S.D. Tex. 1988) (59 - 62 class members not enough); Uniondale Beer Co. v. Anheuser-Busch, Inc., 117 F.R.D. 340 (E.D.N.Y. 1987)( 100 members not enough because joinder of all defendants was practicable). Fincher has made no showing that joinder would be impracticable for a group this size, and there is no reason that number of insureds could not be joined as parties in this case. Kohn, 178 F.R.D. at 540; Colorado CrossDisability Coalition, 184 F.R.D. at 359. Given the amount of individual fact finding required just to identify an insured as a member of the class, joinder certainly would not be any more impracticable than class certification.

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In any event, the mere fact that 33 people received at least $50,000 in medical benefits does not establish that any one of them 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. X, 5-14-04 Brown Aff., ¶7.14 Alternatively,

medical payments for some may have exceeded the $50,000 limit because, under the No-Fault Act, basic PIP medical and rehabilitation benefits are practically identical,15 and insurers are required to provide an additional $50,000 in rehabilitation coverage. An insured with a $50,000 limit on basic medical benefits could have received up to $50,000 more for medical benefits under the basic PIP rehabilitation coverage. Id. ¶6.16 Only 17 of the 33 medical claimants, including Fincher, met or exceeded the $100,000 limit of combined basic medical and rehabilitation benefits. The other 16 medical

claimants are unlikely to be members of the proposed class because their expenses did not reach the combined limit for basic medical and rehabilitation benefits. However, some of the 17 receiving more than the $100,000 limit may have been paid in full under basic or APIP coverage. All of this demonstrates that the only way to determine

whether a claimant is a member of the proposed class is to conduct a detailed review of each file. Not only does Fincher lack standing to assert a wage loss claim, the fact that 168 insureds received at least one wage loss payment in excess of $400 proves nothing.

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For example, the insured in claim 14L09854 received medical benefits of $61,968.05. Am. Motion, 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. For example, the insured in claim 14N00251 is listed as having received medical benefits of $50,000 and rehabilitation benefits of $40,733.09. Am. Motion, Ex. 14 at p. 01497.

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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, these payments were for varying work periods, and those periods are not ascertainable from the computer records, although it is likely that a given payment was for more than one week.17 None of the evidence Fincher offered answers the relevant question: How many insureds would have been entitled to more compensation from APIP wage loss benefits than from basic benefits?18 Fincher has provided no evidence on this point. Her evidence suggests, at most, that there might be two individuals among the 168 who would have received more from wage loss coverage--the two insureds paid $20,800, the maximum they could have been paid for basic wage loss coverage of $400 per week for 52 weeks. Am. Motion, Ex. 14 (claim 14NO1392 at p. 01471 and claim 14PO1619 at p. 01480). Fincher argues that the claims of most class members would be too small to justify costs of litigation, but that does not apply to her, Stapish,19 and any others with sufficient expenses to actually have claims that exceeded basic PIP benefits. Class actions were not designed for persons who, like Fincher, allege million dollar claims. Colorado Cross-Disability Coal., 184 F.R.D. at 359.

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19

Ex. X, May 14, 2004 Brown Aff., ¶¶3-4. For example, Am. Motion, Ex. 14 indicates that 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). Insureds whose wage loss was less than $250 per week got greater benefits under basic PIP than under APIP: under basic PIP, insureds received 100% of the first $125 of weekly wage loss and 70% of the next $125 per week, whereas APIP provided 85% of all lost wages, Compare C.R.S. §10-4706(1)(d)(I) with C.R.S. §10-4-710(2)(a)(II). For example, an insured making $1,000 per week who, as a result of an accident, is required to work 20% fewer hours would have lost income of $200 per week and would be better off receiving basic PIP benefits. Fincher states that she is not aware of any other similar litigation against Prudential (Am. Motion at 13), even though her lawyers brought the overlapping Stapish case.

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2.

Fincher Has Not Shown That The Proposed Amended Definition Would Satisfy the Numerosity Requirement of Rule 23(a)(1). A class of Prudential insureds who received PIP benefits since 1992 likely would

be numerous, but nearly all of them would have had small claims well below the threshold for APIP benefits. Am. Motion, Ex. 16 (average paid PIP claim in Colorado in 1997 was $5,062). Fincher should not be allowed to satisfy the numerosity requirement by inflating the proposed class to add individuals who, by definition, have no claim to more benefits. An improper class definition cannot be the basis for satisfying

numerosity.20 In any event, for reasons of standing explained in Section III.B.1 above, this class is limited to those who claimed benefits under 1992­1994 policies and does not include wage loss claimants. In addition, most of the 1992-1994 claims would be time barred. See Section III.H.1 below; Ex. A, Biby at 2 (denying certification where class included time-barred and unripe claims); Ex. A, Ganyard at 4. C. Fincher Fails to Satisfy The Commonality Requirement Of Rule 23(a)(2) . Rule 23(a)(2) requires that the "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., 457 U.S. at 155 (quoting Califano v. Yamasaki, 442 U.S. 682, 701 (1979)). Fincher, recognizing that her damages claims raise numerous individual issues fatal to class certification, now resorts to a reformation class.

20

Alternatively, the Court could decline to exercise supplemental jurisdiction over those members of this broad class who have no claims because they necessarily fall below the $75,000 jurisdictional threshold. See Ex. T, Sanford v. Allstate Indemnity Co., No. 05-CV-00728 (D. Colo., Order and Memorandum of Decision dated January 27, 2006), at 7 (denying certification of identical class; Fincher's counsel argued that approximately ninety percent of PIP claims are less than $1,500).

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Fincher alleges three purported reformation issues are common:

(1) did

Prudential policies contain the coverages described in Colo. Rev. Stat. § 10-4-710;21 (2) if not, did this failure violate Colo. Rev. State. § 10-4-710; and (3) if so, are she and class members entitled to reformation because of the failure to offer. Am. Motion at 9. With respect to the first, the issue is not whether every Prudential policy since 1992 had some flaw, rather: (1) whether, for every member of the proposed class, the policy under which the class member is claiming has the same flaw, and (2) whether the claim of every member of the proposed class is based on that flaw. Because Fincher claims different deficiencies for policy forms in effect during three different time periods, including the post-1998 period belatedly added, the question of whether Prudential's policy forms contained required coverages necessarily would involve different facts for policies purchased at different times. Consideration of Fincher's second "common" issue--whether the failure to have required coverage in the policy form violates § 10-4-710--also would vary with the applicable policy form and the time the policy was purchased. It not sufficient to find, as Fincher suggests, that the various versions of the policy form in effect over the class period violated the statute in some way; any finding of a violation must be specific to the policy in question. Moreover, there is no violation if, as discussed in III.A.1 above, compliant oral or written offers were made ­ another individual inquiry.
21

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 noncompliance in its summary judgment and reformation rulings. See Ex. U (Judgment dated June 10, 2002) at 4; Am. Motion, Ex. 3 (Fincher Reformation Order) at 13.

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Consideration of the third "common" issue--whether the class is entitled to reformation because Prudential failed to offer compliant coverage--raises all of the individual questions noted for the first two issues and more. Thus, the Court also would be required to consider, for each insured, the relationship between the flaw alleged to be in the policy in effect at the time the policyholder purchased the policy 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 at the time it was purchased related to wage loss benefits (e.g., 1994-1998 deficiency). The policyholder in this example had been offered and did not purchase the correct enhanced PIP medical coverage, with the required minimum $200,000 cap. There would be no equitable basis for reforming the policy to include the same coverage that Prudential in fact had offered, and other alleged flaws in the policy would be irrelevant to the decision on entitlement to reformation. Ex. P, Padhiar at 1718 (failure to offer APIP coverage for pedestrians irrelevant to whether injured policyholder was entitled to reformation). The Court cannot remedy violations that did not occur on the basis of other violations that had no causal link to the insured's claim. Fincher reformation. oversimplifies the requirements for establishing entitlement to

Fincher claims that: "If no coverage compliant with section 10-4-710

existed, then no offer was made and reformation is mandated." Am. Motion at 12. This revives the automatic incorporation argument that the Tenth Circuit twice rejected, in both Clark v. State Farm Mutual Auto. Ins. Co., 319 F.3d 1234 (10th Cir. 2003) and this

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case, Fincher v. Prudential Prop. & Cas. Ins. Co., 2003 WL 22245945 (10th Cir. October 1, 2003). Indeed, the Tenth Circuit has confirmed that determination of whether an adequate APIP offer has been made is highly individualized and fact-intensive. Ex. V, Johnson v. State Farm Mut. Auto. Ins. Co., 2005 WL 3346563, *2 (10th Cir. 2005) ("In the final analysis, the sufficiency of the offer `must be resolved under the totality of the circumstance,'"--quoting Allstate Ins. Co. v. Parfrey, 830 P.2d 905, 914 (Colo. 1992)). As part of the reformation proceedings, Prudential would be allowed to present evidence, for each putative class member, of offers of compliant coverage other than what appeared in the policy forms. 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; and Prudential paid in accordance with the new forms in the period before their use. Exs. H, I & F. Prudential was not able to introduce evidence of such an offer for the policy under which Fincher is claiming because the agent was not located but would be entitled to do so for other members of the proposed class. Am Motion, Ex. 3 at 15. See Ex. A, Biby at 3 (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"); Ex. A, Ganyard at 6. Fincher suggests, incorrectly, that analysis of equitable factors determining the effective date of reformation would involve common questions, stating that "Prudential's conduct in understanding its obligations and acting or failing to act on them is the same

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as to each class member, as its knowledge and intent insofar as the obligations relating to 10-4-710 is concerned." Am. Motion at 9. This Court made a "discretionary and equitable" decision, applicable to Fincher's situation alone, that the date of reformation for Fincher was the date of her accident. Am. Motion, Ex. 3 (Fincher Reformation Order) at 20. The Court would have to make the same sort of individualized

determination for each class member.22/ D. 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. This premise, of course, would not apply to the breach of contract, bad faith, and willful and wanton breach damages claims. Only Fincher is pursuing these claims.

22/

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 Motion, 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. Prudential would be entitled to raise questions for each class member relating to the prompt payment issue, as it did in the Fincher hearing, such as the date of the class member's accident, the amount and type of additional benefits claimed, and the extent to which the class member was reimbursed for medical, rehabilitation, or wage loss through other insurance. See id. at 20-21. Some of the facts considered in assessing each of these factors did relate to Prudential's conduct and intentions, but the Court ultimately decided by balancing those facts against facts relating to Fincher's circumstances.

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The typicality requirement cannot be met when individualized inquiries are necessary to determine liability and damages. 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); McDonald v. Prudential Ins. Co., 1999 WL 102796, at *4 (N.D. Ill. Feb. 19, 1999); Hylaszek v. Aetna Life Ins. Co., 1998 WL 381064, at *4 (N.D. Ill. July 1, 1998); Fietsam v. Connecticut Gen. Life Ins. Co., 1994 WL 323313, at *6 (N.D. Ill. June 27, 1994). (Copies of these unpublished cases are provided at Ex. W.) Even in a trial limited to reformation issues, there are numerous individualized inquiries (See Section III.C above), and individualized issues demonstrate a lack of typicality. When a class representative is even arguably subject to unique defenses, class certification should be denied. Ex. A, Weber at 3; Hudgins at 39. Dubin, 132 F.R.D. at 275. If absent class members are not subject to the same defense, plaintiff's claim is not typical of the claims of the class. Robinson v. Lynmar Racquet Club, Inc., 851 P.2d 274 (Colo. App. 1993); accord Masri, 106 F.R.D. at 325; Kent v. Sun America Life Ins. Co., 190 F.R.D. 271 (D. Mass. 2000). Fincher is subject to defenses that other

purported class members would not face such as lack of standing to pursue wage loss claims and claims under policies after 1994. See Section III.A.3 above. 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."). Conversely, as a minor, Fincher does not have a limitation, laches or tolling problem that other class members who are not minors would have. Her claim is not typical, such that, as her claim goes, so goes the class.

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E.

Fincher Fails to Satisfy The Adequacy Requirement Of Rule 23(a)(4).

To satisfy the adequate representation requirement, Fincher must show that she is able to prosecute the action vigorously through qualified counsel and that there are no disabling conflicts between her interests and the class's interests. 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. (Rule 23(a)(4) "serves to uncover conflicts of interest between named parties and the class they seek to represent.") Fincher "must be part of the class and `possess the same interest and suffer the same injury' as the class members." Id. at 625-6. Basic due process requires that the "plaintiffs possess Broussard v. Meineke Disc. Muffler

undivided loyalties to absent class members." Shops, Inc., 155 F.3d 331, 338 (4th Cir. 1998).

Fincher fails this requirement as to wage loss claimants or those claiming under later policy forms. See Section III.A.3 above. Moreover, an attempt like this to "certify the case as a class action across the board calls into question [her] adequacy as class representative." Frahm v. Equitable Life Assur. Soc'y, 137 F.3d 955, 957 (7th Cir. 1998).23 She also cannot adequately represent any class member for a claim that

Prudential's offers were inadequate, especially oral offers, because neither she nor her father, who represents her, was a policyholder to whom offers were made. Ex. A, Biby at 3 (questioning whether pedestrian can adequately represent interests of

23

Kauffman v. Dreyfus Fund, Inc., 434 F.2d 727, 734 (3d Cir. 1970) ("[a] plaintiff who is unable to secure standing for himself is certainly not in a position to `fairly insure the adequate representation' of those alleged to be similarly situated"); Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1157 (7th Cir. 1999) (if, when class certification is sought, "it is already apparent . . . that the class representative's claim is extremely weak, this is an independent reason to doubt the adequacy of his representation"); Ex. A, French at 16 (statute of limitations defense).

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policyholders or other categories of eligible insureds); Ex. A, Ganyard at 4 (pedestrians not typical of class). Fincher is not an adequate representative because her father is interested in the case solely as it may benefit her personally. They are not acting in the interests of other class members. This fact became obvious in the Amended Motion, where Fincher abandoned the claims of class members for benefits and damages, but it was also evident before that in discovery. 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. E (Response to Defendant's First Set of Discovery and Supplemental Response to Request for Admissions) at Interrog. 2. Fincher's father made it clear in his deposition that he is concerned about

getting money for his daughter and is not concerned about the proposed class. "Q: Who are you seeking to represent in this lawsuit? A: My daughter, Kelly Fincher." Ex. C., 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. Fincher's father now submits an affidavit describing his involvement in the case (Am. Motion, Ex. 22), and a two-page summary of "Rights and Responsibilities of the

23

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Class Representative" (Id., Ex. 21);24 but the record belies this purported evidence of involvement in and knowledge of the case. He has shown a complete lack of

knowledge regarding the Complaint, which he did not think he had seen, or what this class action is about. Ex. C, Fincher Dep., p. 45, ll. 6-23. He could not even describe the class and has spent minimal time on the litigation. Id. p. 52, ll. 7-12. Indeed, he did not even know what PIP or punitive damages means, or whether the lawsuit sought punitive damages. Id. p. 54, ll. 8-12. Likewise, he was not aware of any financial obligations he might have as a class representative. Id. p. 54, ll. 13-15. Courts

routinely deny class certification when the named representative lacks basic knowledge or understanding what the suit is about or gives unfettered discretion to class counsel. Ex. A, Biby at 3 (denying class certification in APIP case because plaintiffs failed to demonstrate class representative was knowledgeable about status and underlying legal basis of action or was willing and able to pay notification and other costs). 25 Moreover, Fincher's interests and those of an undetermined portion of the proposed class in having the policies reformed are in irreconcilable conflict. See Ex. A,

24 25

This document was not produced in discovery, and Fincher should not now be permitted to use it. See also Larry James Oldsmobile-Pontiac-GMC Truck Co. v. General Motors Corp., 175 F.R.D. 234 (N.D. Miss. 1997) (when named representative demonstrates so little knowledge of an involvement in the case that the class representative is unable to protect class interests from possibly competing class counsel interest, due process concerns require the finding of inadequacy of class representation); In re Telectronics Pacing Sys., Inc., 168 F.R.D. 203 (S.D. Ohio 1996) (class representatives would not provide adequate representation where representatives were not told what it meant to be a representative, had not found out how the defective wires affected anyone else, and did not know what it meant to be part of a class action ); Rolex Employees Ret. Trust v. Mentor Graphics Corp., 136 F.R.D. 658 (D. Or. 1991) (class representative was not adequate when his deposition revealed that he was unfamiliar with the basic elements of the case, had contributed nothing to drafting the complaint, and was unable to adequately fund the suit); Kelley v. Mid-America Racing Stables, Inc., 139 F.R.D. 405 (W.D. Okla. 1990) (plaintiffs were not adequate class representatives when they lacked familiarity with the facts of the case and did not understand much more than that they were involved in a bad business deal).

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French at 7-8.

Insureds whose wage loss was less than $250 per week received

greater benefits under basic PIP than they would receive under APIP if their policies are reformed, and reformation of their policies would actually result in a reduction of available wage loss coverage. See Section III.B.1 above at 15, n. 18. Finally, although Prudential does not dispute that Fincher is represented by experienced counsel, courts are "surely entitled to consider what has been done in the case before it in order to evaluate whether counsel has adequately represented the class." Dubin, 132 F.R.D. at 273; Dunn v. Midwest Buslines, Inc., 94 F.R.D. 170 (E.D. Ark. 1982). The tactic of redefining the class to exclude all meaningful class relief to get any class certified is an indication of inadequacy of counsel. The fact that the same counsel filed a duplicative class action against Prudential for APIP benefits (Stapish) suggests they are filing as many class actions as possible with the hope that, by forum and judge shopping, they ultimately will get a court to certify a class.26 Counsel has already been found to be abusing the judicial process by these tactics.27

26

27

The class was 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. Y (Complaint in Stapish v. Prudential) at 4. Fincher is a member of the class alleged in Stapish and vice versa. After having class certification denied in a similar APIP action in El Paso County, Colorado, the same class counsel as here filed a second class action in Adams County, naming the same defendants. See Ex. A., French and Marshall. Lead counsel for the putative class 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." Marshall at 26. In response, 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. Z, Order and Memorandum of Decision, Breaux v. American Family Mut. Ins. Co., No. 04-N-191(D. Colo. March 23, 2005), (discussing same lead counsel's repetitive filing of class claims concerning offers of a APIP coverage).

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G.

Fincher Fails to Satisfy Rule 23(b)(2).

In her Amended Motion, Fincher argues that Rule 23(b)(2) and (b)(3) are satisfied. Rule 23(b)(2) 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. 7A Charles Alan Wright, FEDERAL PRACTICE AND PROCEDURE §1775 (2d ed.1986). Fincher

incorrectly argues 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. Motion at 11. Fincher argues that the policies themselves constitute an offer of non-compliant coverage that is generally applicable to the class as a whole; but the policy under which Fincher is claiming did not have the same alleged flaw as the later policies, and vice versa. Moreover, Prudential would be entitled to prove for each class member that its agents and representatives made oral or written offers of compliant coverage. In addition, any alleged refusal to acknowledge an obligation to provide enhanced coverage because of a failure to offer compliant coverage (that is, presumably, any refusal to reform a policy) would depend on the highly individual circumstances of each class member's claim to coverage, including what oral offers were made and what claims for benefits were rejected. The 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. She has not met her burden

26

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under Rule 23(b)(2) of showing that Prudential acted generally toward the class by providing evidence how Prudential acted toward any other putative class member. By limiting the certification request to reformation, Fincher tries to avoid the rule that certification under Rule 23(b)(2) is not appropriate when the plaintiff seeks primarily monetary relief; but, in order to provide any meaningful relief, the Court would eventually have to reach the issue of individual entitlement to benefits. Clearly,

Fincher's counsel contemplate proceedings on entitlement to benefits later in this case. This lawsuit has been all about damages since the date it was filed. The Complaint still alleges that the entire class is entitled to additional PIP benefits and damages, including bad faith and punitive damages, for failure to provide those benefits. The same theme is carried through in interrogatory answers, deposition testimony and the Final Pretrial Order. Fincher's counsel plan to use four experts to establish the extent of her

impairment and the magnitude of her lost earning capacity just for Fincher alone. It is unlikely that they are permanently forgoing similar damages for the rest of the class. Fincher 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. §104-710(2)(a)." Am. Motion at 11. A declaration of entitlement to benefits sounds a lot like a determination of liability for damages, relief that supposedly was not included in the request for certification. Any consideration of entitlement of individual class

members to benefits would raise more individual issues such as the amount of medical and rehabilitation expenses incurred or the amount of wages lost because a class member who was fully compensated by whatever coverage the applicable unreformed

27

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policy provided would not be entitled to any benefits.

Ex. BB, Borden v. Farmers

Exchange, No. 2001CV554, Dist. Ct., El Paso County, Colo., April 7, 2003 (denying class certification where same concerns regarding certification of damages claims apply to declaratory judgment--because defendant may be able to demonstrate than many vehicle owners within class received all reasonable compensation pursuant to contract). Even if this determination were postponed by use of the proposed amended class definition, the Court would have to make it eventually in order to be able to decide this issue of entitlement to benefits. Fincher's request for notice to class members even under Rule 23(b)(2), where it is not provided, suggests, at a minimum, a plan to recruit class members who actually might have a claim as participants in the proceedings at some point in the future. Am. Motion at 12, n. 7.28 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, Ganyard at 9. See also Ex. A, Biby at 3 (Rule 23(b)(2) not met in an APIP case "because although couched in terms of a declaratory judgment, their complaint seeks primarily monetary relief"); French at 18 (stating that Colo. R. Civ. P. 23(b)(2) not met in
28

Fincher argues that money damages do not predominate in this action because the injunctive relief and reformation she is seeking is a prerequisite to even making a claim for damages. Am. Motion at 11. In fact, this argument proves that money damages do predominate. As so many courts have recognized, injunctive and declaratory relief that serves simply as a springboard for a subsequent damages award cannot justify class certification under Rule 23(b)(2). Bolin v. Sears Roebuck & Co., 231 F.3d 970, 978 (5th Cir. 2000); Sarafin v. Sears Roebuck & Co., 446 F. Supp. 611, 615 (N.D. Ill. 1978). A "plaintiff cannot transform a claim for damages into an equitable action by asking for an injunction that orders the payment of money." Jaffee v. United States, 592 F.2d 712, 715 (3d Cir. 1979).

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an APIP case because "the predominant relief sought by plaintiffs, as exhibited by the numerous claims therefor, is the recovery of monetary damages"); Hudgins at 40 ("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"); Womack at 2 (unclear how declaratory judgment serves any purpose other than to grant monetary relief); Marshall at 7; 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). H. Fincher Fails to Satisfy The Predominance And Superiority Requirements Of Rule 23(b)(3).

Rule 23(b)(3) requires that common questions must predominate over any questions affecting only individual members and that a class action must be superior to other available methods for the 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. 1. Fincher Fails to Satisfy the Predominance Test.

When there are no questions that are truly common to the class as a whole, common questions simply cannot predominate29. 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

29

The predominance requirement under Rule 23(b)(3) "tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation." Amchem, 521 U.S. at 623; Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 1968). In failing to clear the commonality hurdle, plaintiff necessarily fails to satisfy the significantly more stringent standard of predominance required by Rule 23(b)(3).

29

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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.C above. When the case reaches issues of benefits and damages for the class, which it eventually must, the predominance of individual issues would only be magnified. Prudential is entitled to present a statute of limitations defense as part of the proceedings to determine the entitlement of individual class members to reformation, which raises numerous individual questions. The reformation claim, which is based on a failure to offer the proper coverage, accrued within three years of the date of purchase of the policy. Nelson v State Farm, 419 F.3d 1117 (10th Cir. 2005). Absent some tolling of the statute, the claim of any class member claiming under a policy purchased before September 1997 is barred. Class members would argue that the statute should be tolled until the date the policyholder knew or should have known that the offer was noncompliant ­ another individual question and inquiry. Ex. Q, Folks at 15-16. Minors, pedestrians whose claims were affected by the Brennan v. Farmers Alliance Mut. Ins. Co., decision, 961 P.2d 550 (Colo. App. 1998), cert. denied 1998 Colo. LEXIS 587 (Colo. Aug. 24, 1998); and insureds who are not the policyholder have different tolling arguments peculiar to their individual 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. §10-4-

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706(4)(b)." Am. Motion at 6.30 No case cited by Fincher addresses the issue of classwide determination of a limitations issue. Instead, these 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. These cases actually demonstrate tolling issues are complex and individualized and, therefore, not suited for class tre