Free Motion to Certify Class - 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-02098-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, a New Jersey Corporation, Defendant.

PLAINTIFF'S AMENDED MOTION FOR CLASS CERTIFICATION

I.

PRELIMINARY STATEMENT

Plaintiff Kelly Fincher, by her guardian, James Fincher, individually, (hereinafter "Plaintiff") and by and through her attorneys, THE CAREY LAW FIRM, moves this Court for an order certifying Plaintiff's First Cause of Action, as provided for by Fed. R. Civ. P. 23(c)(4), under Rule 23(b)(2), and/or 23(b)(3) and appointing Plaintiff's counsel as class counsel and Plaintiff as class representative. Plaintiff does not seek to certify damages claims or bad faith claims (statutory or common law). She seeks only the mandated reformation described in Clark v. State Farm Mutual Automobile Insurance Co., 319 F.3d 1234 (10th Cir. 2003) [hereinafter Clark I]. Plaintiff asks to represent a proposed class of Prudential insureds who, at the time of their injuries, were covered by a Prudential car insurance policy suffering from the same or substantially similar legal defect as the policy covering Plaintiff. The right to reformation in this case arises from

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the inability, and consequent failure, of Prudential at all times in the class period to offer enhanced No-Fault ("APIP") benefits, as defined by Colorado Revised Statutes § 10-4710, for inclusion in a complying policy, which results in a statutory violation and mandated reformation of the policies under Colorado law. II. STATEMENT OF THE CASE

This is an insurance case in which Plaintiff is seeking to secure the reformation mandated by law. It is predicated on the precept that insurance companies whose policies do not contain enhanced PIP benefits in a manner prescribed by statute are in violation of the No-Fault Law. See Brennan v. Farmers Alliance Mut. Ins. Co., 961 P.2d 550 (Colo. Ct. App. 1998), Clark v. State Farm Mut. Auto. Ins. Co., 433 F.3d 703 (10th Cir. 2005) [hereinafter Clark III]. The statutory violation by Defendant ("Prudential") was uniform and can be entirely proven by standardized policy forms. The Court's ruling on certification will not affect Plaintiff's individual claim, including her right to declaratory relief and reformation, but will ensure that all those similarly situated will be advised of and receive the same rights. The limited relief sought in this motion is archetypal for class treatment. First, the relief sought is simple, and would directly benefit at least several hundred insureds. Second, the questions raised are common to all class members. The same statute governs each claim and the relevant insurance policies are identical or substantially similar. Third, each class member would argue the same legal theories and establish the same facts. Fourth, most class members' claims are insufficient in size to warrant individual litigation. Finally, Prudential withheld information from class members about the true scope of their rights and its obligations, rendering declaratory relief invaluable. See United States ex rel. Morgan v. Sielaff, 546 F.2d 218, 222 (7th Cir. 1976); Darling v.

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Bowen, 685 F. Supp. 1125, 1127 (W.D. Mo. 1988), aff'd, 878 F.2d 1069 (8th Cir. 1989). In Bailey v. Kemper Casualty Insurance Co., 83 S.W.3d 840 (Tex. App. 2002), the Texas court of appeals affirmed the trial court's finding that the request for declaratory relief of rights under a PIP contract was certifiable as a (b)(2) class in a very similar case. It also found that the declaratory relief predominated over monetary relief sought and that the claim was appropriately certified as a (b)(3) claim. Certification for similar cases is common. See Baughman v. State Farm Mut. Auto. Ins. Co., 727

N.E.2d 1265, 1274-75 (Ohio 2000); Lebrilla v. Farmers Group, Inc., 16 Cal. Rptr. 3d 25 (Cal. Ct. App. 2004) (declaratory and injunctive relief are not damages claims, but merely vehicles designed to make the insurer act on its obligations); Sitton v. State Farm Mut. Auto. Ins. Co., 63 P.3d 198, 204-05 (Wash. Ct. App. 2003); Spirek v. State Farm Mut. Auto. Ins. Co., 382 N.E.2d 111, 119 (Ill. App. Ct. 1978); Allstate Indem. Co. v. de la Rosa, 800 So. 2d 245 (Fla. App. 2001) (certifying PIP consumer class); Kromnick v. State Farm Ins. Co., 112 F.R.D. 124, 125-26 (E.D. Pa. 1986) (certifying class of estates of insureds killed in auto accidents seeking additional benefits). III. PROPOSED CLASS

Plaintiff respectfully requests that the Court define the class as follows: 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. Excluded from the class are all Prudential executives, their legal counsel, and their immediate family members, the Court and its staff, and all employees of The Carey Law Firm.1

1 Because of information developed since the filing of the complaint six years ago, Plaintiff has modified the class definition to better comport with the status of the case and the law.

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IV.

BACKGROUND

Eleven-year-old Kelly Fincher was severely brain damaged when she was struck by a car while riding her bicycle on May 8, 1994. The car's driver, Anthony Bekeshka, was insured under a Prudential Property and Casualty Insurance Company policy. Fincher v. Prudential Prop. & Cas. Ins. Co., 76 Fed. Appx. 917 (10th Cir. 2003). Prudential made only certain basic personal injury protection (PIP) benefits available to Fincher under Bekeshka's policy. She exhausted these benefits within a few months of her accident, at which time Prudential ceased paying any further PIP benefits on her behalf. (See generally Plaintiff's Am. Compl., ¶¶ 16-32.) Because the policies

Prudential offered for sale to Bekeshka, and to all Colorado insureds, did not comply with the obligations established in the Colorado Auto Accident Reparations Act (CAARA), Colo. Rev. Stat. §§ 10-4-701 et seq., Fincher, and others similarly situated, are entitled to reformation of those policies to include enhanced PIP (APIP) benefits. Fincher, 76 Fed. Appx. at 922. Beginning in 1992, Colo. Rev. Stat. § 7-10-710(2)(a) required all insurers to offer medical expenses unlimited in time and amount, and medical expenses and wage-loss benefits unlimited in time and amount. These benefits could be subjected to a $200,000 per person, per accident cap, Colo. Rev. Stat. § 10-4-710(2)(b), but had to be offered to all eligible insured persons. Brennan, 961 P.2d at 554. Failure to offer the required coverage results in mandatory reformation of the contract to include the additional coverage in conformity with the required offer. Thompson v. Budget Rent-A-Car Sys., Inc., 940 P.2d 987, 990 (Colo. Ct. App. 1996). Importantly, non-policy documents or statements or purchases of the insured do not alter or negate the duty to offer the coverage described in section 10-4-710(2). Brennan, 961 P.2d at 555; Clark III, 433 F.3d at 709-10; Thompson, 940 P.2d at 990. None of Prudential's policies offered for sale in Colorado from 1992 until the

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present met the statutory obligations established in section 10-4-710(2). From 1992 until the present, Prudential used only two versions of its specimen policy, PAC 190, for Colorado automobile insureds, and a periodically updated endorsement distributed with the policies (PAC 226). These policies were identified as either "PAC 190/CO 1/89" (Ex.1) or "PAC 190/CO 5/93." (Ex. 2). From 1992 until 1995, Prudential used, for all

Prudential insureds in Colorado, PAC 190/CO Ed. 1/89. This policy contained eleven APIP options. However, none of these contained an aggregate amount of benefits in excess of $150,000, in derogation of the $200,000 cap allowable under Colo. Rev. Stat. § 10-4-710(2)(b). Prudential began using the 5/93 edition of PAC 190 in 1994, but after the plaintiff's accident. While this policy corrected the aggregate cap, it contained no APIP option for extended benefits for wage loss without a weekly limitation on the amount payable. All versions of the PIP endorsement, PAC 226, and PIP selection

form, PAC 3821 used in conjunction therewith until 1999 imposed a weekly limit upon all wage loss benefits. (See Exs. 4-9.) The only other policy document that addressed substantive enhanced PIP coverage was the endorsement PAC 226/CO (Ed. 1/98, and successor documents) (Ex. 6), which was first used by Prudential no earlier than 1999. This was the first policy document since 1992 to modify either edition of the PAC 190/CO so as to contain a wage-loss option with no weekly restrictions on amount. However, revision did not cure all defects in PAC 190/CO Ed. 5/93 (Ex. 2). Prudential's policy was replete with other deviations from the statutorily required APIP coverage. First, all of the options 1-10 and A contained aggregate limits that violated sections 104-706 and/or 10-4-710. Second, until 1999 the policy's wage-loss benefits options, which were subject to the work-loss option selected by the insured in a PIP selection form, PAC 3821 (Ex's 4-7), were all capped on their weekly benefit amount. As the Division of Insurance noted, this was a violation of the obligation owing under section 10-4-710. (Market Conduct Exam [Ex. 10].) Finally, the policy options combined higher death benefits with all APIP options, and established wage-loss benefit combinations

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that made it impossible for an insured to purchase only the benefits described in section 10-4-710(2)(a)(I) and (2)(a)(II) without paying for additional options. Prudential's corrective actions addressed this problem. Without compliant coverage, Prudential's uniform violation of section 10-4-710 mandates reformation for eligible injured persons. Fincher, 76 Fed. Appx. at 922. V. THE REQUIREMENTS OF RULE 23 ARE SATISFIED None of

Class actions are suited to cases where large numbers of potential class members may have relatively small claims, the litigation of which may be economically impractical on an individual basis. Hawaii v. Standard Oil Co., 405 U.S. 251, 266

(1972). Under Colo. R. Civ. P. 23(a) a class action may be maintained only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Certification of a class action should be viewed liberally, because the class can always be modified. Colo. R. Civ. P. 23(c)(1), Cook v. Rockwell Int'l. Corp., 151 F.R.D. 378,

381 (D. Colo. 1993). Any doubt should be resolved in favor of permitting a class action. Esplin v. Hirschi, 402 F.2d 94, 99 (10th Cir. 1968). This case meets all requirements of Rule 23(a), and the proposed class is ascertainable and objective. Plaintiff can also prove on a class-wide basis that each member of the class has a timely filed claim. As in Civale v. State Farm Mutual

Automobile Insurance 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). See Civale v. State Farm Mut. Auto. Ins. Co., 02CA2331 (Colo. Ct. App. February 19, 2004) (Ex. 11); Kavka v. State Farm Mut. Ins. Co., U.S. District Court, 04N-483, Order and Memorandum of Decision dated December 10, 2004) (Nottingham, J.) (Ex. 12). Plaintiff alleges that Prudential concealed key facts in its representation

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that it did have the required coverage, in violation of its statutory obligation to advise insureds of their benefits, warranting a presumption of unawareness. See In re

Monumental Life Ins. Co., 365 F.3d 408, 415 (5th Cir. 2004).2 Because Plaintiff has class-wide proof on reformation, tolling and concealment, the class is appropriately defined, subject to any judicial modification based on the facts adduced. requirements of Rule 23 are met. 1. Rule 23(a)(1): The class is so numerous that joinder of all members is impracticable All other

There is no set formula to determine if a class is so numerous that joinder is impracticable. Rex v. Owens, 585 F.2d 432, 436 (10th Cir. 1978). Leading treatises say numerosity is presumed at forty members. Newberg on Class Actions, § 3.05 (3d ed. 1992).3 This requirement is relaxed when plaintiff seeks declaratory or injunctive relief, as she does here. Id.; Grant v. Sullivan, 131 F.R.D. 436, 446 (M.D. Pa. 1990). According to Prudential's own numbers,4 there are hundreds of class members. Prudential admits that during one 21-month period its PIP automobile policies generated 168 wage-loss claims and 33 medical claims, a total of 201. (See Def.'s Answer to Pl.'s Interrog. at 4 [Ex. 13]; see also Ex. 14, spread sheet of insureds.) However, Prudential generated figures only for those insureds who were paid the maximum $400 or more in
Class members who are policyholders, to appreciate that Prudential could not make the appropriate offer, would have to have knowledge of all of Prudential's available policies and endorsements, not just the versions provided to them, and Prudential as a standard practice would not disclose these documents to insureds.
3 See also Brady v. Thurston Motor Lines, 726 F.2d 136, 145 (4th Cir. 1984) (74 members); Arkansas Educ. Ass'n v. Board of Educ., 446 F.2d 763, 765 (8th Cir. 1971) (20 members); Swanson v. American Consumer Indus., Inc., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969) (40 members); Cypress v. Newport News Gen. & Nonsectarian Hosp. Ass'n, 375 F.2d 648, 653 (4th Cir. 1967) (18 members); Bishop v. N.Y.C. Dep't. of Hous. Pres. & Dev., 141 F.R.D. 229, 235 (S.D.N.Y. 1992) (32 members); Grant v. Sullivan, 131 F.R.D. 436, 446 (M.D. Pa. 1990) (14 members); Cervantez v. Sullivan, 719 F. Supp. 899, 907 (E.D. Cal. 1989) (50 members); Tietz v. Bowen, 695 F. Supp. 441, 445 (N.D. Cal. 1987) (27 members); Basile v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 105 F.R.D. 506, 508 (S.D. Ohio 1985) (23 members). 4 Plaintiffs are not required to precisely enumerate the members of the class. Weinberger v. Thornton, 114 F.R.D. 599, 602 (S.D. Cal. 1986); Schwartz v. Harp, 108 F.R.D. 279, 281 (C.D. Cal. 1985); Vernon J. Rockler & Co. v. Gra at Vol. II, pp. 113-114phic Enters., Inc., 52 F.R.D. 335, 339 (D. Minn. 1971). Instead, a reasonable estimate of the number of purported class members satisfies the numerosity requirement. In re Badger Mountain Irrigation Dist. Sec. Litig., 143 F.R.D. 693, 696-97 (W.D. Wash. 1992); see also Manual for Complex Litigation (4th ed.) § 21.222. 2

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weekly PIP wages, despite the fact that those below the maximum comprise a sizeable share of the class.5 Based on counsel's experience in the area, generally more than

seventy-five percent of the claimants would be below the weekly benefit limit for wage loss. (Decl. of Dan Rector [Ex. 15].) This means that there would be for this period at least an additional 504 class members, for a total of 672 class members for wage-loss benefits for this twenty-one month period. Calculations using the known average size of PIP claims and publicly available information on the amounts paid out for PIP claims by Prudential, and extrapolating from this data for the class period for which no data exists, indicate well over a thousand class members for the entire class period. See

http://www.dora.state.co.us/insurance/pb/pb.htm#Statistical (PIP payouts per year by carrier); see also Rocky Mountain Insurance Information Association, Survey of PIP Claims in 2001 (Ex. 16). Finally, these class members are strewn throughout Colorado and none of them has been advised of their rights, which further illustrates the impracticability of joinder. Whether based on a reasonable estimate of the class for the entire class period, or on Prudential's own limited numbers,6 numerosity is satisfied. 2. Rule 23(a)(2): There are questions of law or fact common to the class

Courts interpret the commonality requirement of Rule 23(a)(2) with common sense. When the class is united by a common interest in determining whether the defendant's course of conduct is legal, differences in the impact of this conduct on individual class members (and other individual differences such as damages) do not defeat class certification. Blackie v. Barrack, 524 F.2d 891, 902 (9th Cir. 1975). It is not required that the claims of class members be identical, Milonas v. Williams, 691 F.2d

5 Claimants entitled to under $400 per week in benefits would each be entitled to the difference between eighty-five percent of the wages lost and the amount paid under basic PIP.

Prudential refused to provide the numbers sought by Plaintiff on two separate occasions (discovery dated July 9, 2001, and November 13, 2001 [Exs. 13 and 17]), despite their representative acknowledging that an improper limitation applied and "promising" to run new searches. (See deposition excerpts of Mary Rowe on August 2, 2001, at Vol. II, pp. 113-114 [Ex. 18]; Letter from L. Dan Rector dated August 7, 2001 [Ex. 19].)

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931, 938 (10th Cir. 1982), just "that the harm complained of be common to the class," Penn v. San Juan Hosp. Inc., 528 F.2d 1181, 1189 (10th Cir. 1975). The commonality requirement is satisfied if the plaintiff "can show the existence of a `common nucleus of operative facts.'" Esplin, 402 F.2d at 99. This is so regardless of whether the

"underlying facts fluctuate over the class period and vary as to individual claimants." In re Asbestos School Litig., 104 F.R.D. 422, 429 (E.D. Pa. 1984), aff'd in part and vacated in part on other grounds, 789 F.2d 996 (3rd Cir. 1986). The common questions in the Complaint include whether Prudential had a policy that contained the coverages described in Colo. Rev. Stat. § 10-4-710; if not, whether this failure resulted in a violation of Colo. Rev. Stat. § 10-4-710; and whether Plaintiff and class members are entitled to reformation because of the failure to offer. These are questions of law common to the class: answering them for one answers them for all. The answers hinge on a review of common, standardized policy documents. Prudential's conduct in understanding its obligations and acting or failing to act on them is the same as to each class member, as is its knowledge and intent insofar as the obligations relating to 10-4-710 is concerned. These questions of fact and law, as well as the "common nucleus of operative facts," satisfy the commonality requirement of Rule 23(a)(2). 3. Rule 23(a)(3): The claims or defenses of the representative parties are typical of the claims or defenses of the class

The typicality requirement is satisfied if the representative plaintiff's claim "stems from the same event, practice, or course of conduct that forms the basis of class claims and is based upon the same legal or remedial theory." Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988); Penn, 528 F.2d 1181. Here, plaintiff alleges all class

members were subjected to the same Prudential practice and conduct. Only a few form documents need to be reviewed to answer the question of whether Prudential had a policy containing the statutory enhanced PIP. Each class member did what every other

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class member did: he or she purchased a Prudential policy during the class period. Causation is presumed as violation of the statute leads to a mandated reformation. Plaintiff is typical for purposes of Rule 23(a)(3). 4. Rule 23(a)(4): The representative parties will fairly and adequately protect the interests of the class

Plaintiff is committed to the action and is represented by experienced counsel. (Compl. at ¶13) Plaintiff has retained counsel highly experienced in class action litigation to prosecute her claims and those of the class. See Resumes of Plaintiff's Counsel (Ex. 20). The proposed class representative's active involvement throughout the case's sixyear history demonstrates his commitment. Mr. Fincher has (1) signed a Rights and

Responsibilities letter acknowledging his responsibilities to the class (Ex. 21); (2) fully participated in two depositions; (3) traveled from the greater St. Louis, Missouri, area to attend the hearing on the date of reformation; (4) answered and signed formal discovery questions; and (5) attended a court-ordered settlement conference on September 27, 2001. Mr. Fincher has at all times been attentive to the case and the class claims. (Affidavit of James Fincher [Ex. 22]). Finally, Plaintiff's interest is identical to the class' interests: to ensure that Prudential pays the amount required by law. B. The Requirements of Rule 23(b) Are Satisfied In addition to the four requirements discussed above under 23(a), the action must satisfy at least one of the three parts of 23(b) in order to be maintainable as a class action. Here, the action satisfies Rule 23(b)(2) and (b)(3). If the action qualifies for certification under (b)(2), and also under (b)(3), certification should be made under (b)(2), rather than (b)(3). In re A.H. Robins Co., 880 F.2d 709, 728 (4th Cir. 1989); First Federal of Michigan v. Barrow, 878 F.2d 912, 919 (6th Cir. 1989). This avoids the risk of inconsistent adjudication, and ensures the judgment has binding effect as to all class members. 3B James Wm. Moore, Moore's Federal Practice ¶ 23.31[3] (2d ed. 1987).

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1.

Rule 23(b)(2): The party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole

The requirements of this portion of Rule 23 are satisfied where "settling the legality of the [opposing parties] behavior with respect to the class as a whole, is appropriate." Fed. R. Civ. P. 23, advisory committee's note, subdivision (b)(2). Prudential has acted or refused to act on grounds generally applicable to the class by uniformly failing to offer enhanced PIP coverage to all policyholders, and then refusing to acknowledge the obligation to provide such enhanced coverage because of this failure. To remedy this conduct, plaintiff seeks, among other things, declaratory and injunctive relief declaring that Prudential neither had available to offer nor offered the enhanced PIP benefits required by section 10-4-710; declaring Prudential's failure to offer the coverages a violation of section 10-4-710; reforming every Prudential policy issued during the class period to include the enhanced PIP benefits described in section 10-4-710(2)(a); and declaring that all insureds, resident relatives, and pedestrians, as defined in section 10-4-707, who sustained injuries in a covered occurrence are entitled to the enhanced PIP benefits identified in section 10-4-710(2)(a). Plaintiff seeks reformation for the class as a whole. (See Compl., Prayer for Relief, ¶¶ B, D, and E.) This claim requires a determination of the legality of

Prudential's practice and, if Plaintiff succeeds, reformation of the automobile insurance policies to benefit the entire class. Without reformation of the policies, no damages claims exist; therefore the reformation claim is necessary and not incidental. damages claims are sought to be certified herein. No

Under 23(c)(4), the court has

discretion to certify Plaintiff's First Cause of Action, Reformation of Contract. In that

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count, Plaintiff appropriately asks this Court to acknowledge the violation of Colo. Rev. Stat. § 10-4-710 and reform the contract to comport with Colorado law. See Bailey, 83 S.W.3d 840; Lebrilla, 119 Cal. App. 4th 1070.7 2. Rule 23(b)(3): Questions of law or fact, to the members of the class, dominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy

Notwithstanding that Plaintiff's claim should be certified under subpart 23(b)(2), Plaintiff asks that this Court certify the same claim under subpart 23(b)(3), either coextensively or alternatively. Regardless of the decision by this Court on 23(b)(2) certification, certification is also appropriate under Rule 23(b)(3). a. Common Questions Predominate

The resolution of plaintiff's claim for reformation rests predominately, if not exclusively, on common questions of law and fact. The alleged coverages available for sale by Prudential were the same for all members of the class. Esplin, 402 F.2d at 99; see, e.g., 7A Charles Alan Wright et al, Federal Practice and Procedures, § 1788 (3d. ed. 2005). Plaintiff, to prove the claims of the class would (1) identify the policy

documents available to be used in Colorado during the class period; and (2) identify the enhanced PIP coverages contained in those policy documents.8 If no coverage

compliant with section 10-4-710 existed, then no offer was made and reformation is mandated. Courts have certified numerous other class actions challenging various insurance practices that deny or limit coverages. See, e.g., Sitton v. State Farm Mut. Auto. Ins. Co., Civ. No. 00-2-10013-2SEA, slip ops. (King Cty. Super. Ct., Wash. Nov. 13, 2000
7 In addition, Plaintiff asks this Court to provide notice under this subpart, assuming this case is not conditionally or alternatively certified under (b)(3). Notwithstanding that 23(b)(2) classes are not required to have individual notice, Plaintiff believes that notice should be provided, especially given the failure by Prudential to notify its insureds of the potential additional coverage at issue or of its failure to comply with the statutory offer obligation. Such discretion is fully within this Court's power. See Manual for Complex Litigation (4th ed.) § 21.311. 8

This refers only to policy forms, as only policy forms are relevant. See Brennan, 961 P.2d at 555.

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and April 3, 2001) (external medical utilization review);9 Van Noy v. State Farm Mut. Auto. Ins. Co., Civ. No. 94-2-17363-4, slip op. (King Cty. Super. Ct., Wash. Aug. 4, 1995) (retroactive denial of PIP benefits); Cranell v. State Farm Mut. Auto. Ins., Civ. No. 92-2-26433-1, slip op. (King Cty. Super. Ct., Wash. April 12, 1994) (use of a publication called "Fee Facts" to limit the amount paid on medical claims); Miller v. State Farm Mut. Auto. Ins. Co., No. CV 93-23576, slip ops. (Maricopa Cty. Super. Ct., Ariz. Feb. 8, 1994 and Sept. 7, 1994) (cost containment program and/or medical reviewers); see also Kromnick, 112 F.R.D. at 125-26 (certified class of the estates of insureds killed in auto accidents seeking additional benefits); Kleiner v. First Nat'l Bank, 97 F.R.D. 683, 692 (N.D. Ga. 1983) ("claims arising from interpretations of a form contract appear to present the classic case for treatment as a class action"). As the First Circuit noted in Tardiff v. Knox County, 365 F.3d 1 (1st Cir. 2004), if some but not all things can be handled on a class-wide basis to push the case forward and facilitate efficiencies in prosecuting members' claims, that should be done, even if one of those things is promoting settlement. The predominance requirement of subpart 23(b)(3) is satisfied. b. A Class Action Is Superior to Other Methods

Subpart 23(b)(3) also requires a finding that "a class action is superior to other available methods for the fair and efficient adjudication of the controversy." This case meets the standards for superiority. The number of class members here is far too large and, in most instances, the typical claim may be too small for each individual class member to prosecute a separate action. Plaintiff is not aware of any other similar litigation against Prudential. (See Compl. at ¶ 15.) Class members have little problem in not controlling the case, especially where they receive benefits of economy of scale. Most class members would not, especially where no statutory

attorneys' fees would be awardable, pursue such a claim, assuming they were even
9

Slip opinions and other cases not readily available are contained in Ex. 23.

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aware that such a claim exists. Here, Prudential failed to advise any of the insureds of the possible additional coverage and omitted such information in their statutory notification of benefits. Indeed, with the merits decided, Prudential should have

voluntarily reformed those policies. Any notion that all such claims should be litigated separately is wholly unrealistic and contrary to the purpose of Rule 23.10 Moreover, the claims of the class members are so similar that a class action would be vastly more efficient than separate actions. Management of this litigation through class treatment is far superior to any alternative adjudication technique, such as individual joinder. Prosecution of this action as a class action will "achieve economies of time, effort and expense, and promote uniformity of decisions as to persons similarly situated." Fed. R. Civ. P. 23(b)(3)

advisory committee's note. The alternatives to a class action are either no recourse for thousands of Prudential's insured or eligible injured persons to whom the courthouse would be prohibitively expensive or a "multiplicity and scattering of suits with the inefficient administration of litigation which follows in its wake." Green v. Wolf Corp., 406 F.2d 291, 301 (2nd Cir. 1968), cert. denied, 395 U.S. 977 (1969). The point of superiority is to review alternative mechanisms to resolving claims, not avoiding them for reasons other than the merits. In re Antibiotic Antitrust Actions, 333 F. Supp. 278, 282 (S.D.N.Y.), order amended, 333 F. Supp. 291 and 333 F. Supp. 299 (S.D.N.Y. 1971). Here, there is no alternative other than a class action to resolve these claims.

A class action for Plaintiff's reformation claim is a superior method of resolving the
10 Courts across the country recognize that in the absence of a class action, the meritorious claims of similarly situated citizens against well-financed corporate defendants may go unredressed. See In re Copley Pharm., Inc., 158 F.R.D. 485, 492 (D. Wyo. 1994) (certifying class because "no plaintiff with a legitimate claim for a jurisdictional amount should be eliminated from federal court because he does not have the resources to litigate, and . . . class certification is a superior method of adjudication."); Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1196 (6th Cir. 1988) (the class device serves the purpose of "assuring legal assistance in the vindication of small claims"); Seidman v. Stauffer Chem. Corp., 1986 U.S. Dist. Lexis 30264 at *27 (D. Conn. Jan. 17, 1986) ("[t]his requirement is satisfied where a large number of persons is alleged to be injured by a defendant's conduct and where their claims are too small to warrant separate suits"); In re Federal Skywalk Cases, 95 F.R.D. 483, 488 (W.D. Mo. 1982) ("[t]he need to treat each victim equitably and to protect each defendant from a multiplicity of suits compels the concentration of this litigation in a particular forum").

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Case 1:00-cv-02098-REB-MJW

Document 175

Filed 04/14/2006

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class' claims. VI. CONCLUSION

For the foregoing reasons, plaintiff requests that this court certify the designated claim under subparts 23(b)(2) and (b)(3), or, in the alternative, under subpart 23(b)(3) only. Respectfully submitted this 14th day of April, 2006. THE CAREY LAW FIRM s/L. Dan Rector L. Dan Rector Robert B. Carey The Carey Law Firm 2301 East Pikes Peak Ave. Colorado Springs, Colorado 80909 Phone: (719) 635-0377 Fax: (719) 635-2920 Email: [email protected] Attorneys for Plaintiff CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on 14th day of April, 2006, electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] s/L. Dan Rector L. Dan Rector The Carey Law Firm 2301 East Pikes Peak Ave. Colorado Springs, Colorado 80909 Phone: (719) 635-0377 Fax: (719) 635-2920 Email: [email protected]

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