Free Supplement/Amendment - District Court of Colorado - Colorado

Case 1:00-cv-01841-LTB-KLM

Document 226

Filed 08/31/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-cv-01841-LTB-PAC RICKY EUGENE CLARK, on behalf of himself and all others similarly situated, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois Corporation, Defendant

PLAINTIFF'S SUPPLEMENTAL SUBMISSION IN SUPPORT OF MOTION FOR CLASS CERTIFICATION ______________________________________________________________________________ Plaintiff Ricky Eugene Clark, by and through his counsel of record, hereby submits (i) an August 10, 2007, letter from Defendant State Farm Mutual Automobile Insurance Company ("State Farm") to James McVaney (Ex. A) and (ii) a letter from James McVaney to State Farm that predates State Farm's letter (Ex. B). In submitting these letters, Plaintiff states as follows: (1) Mr. McVaney only recently approached Plaintiff's counsel, and Plaintiff did not

have these letters in time to incorporate them and submit them with his Reply in Support of Motion for Class Certification, filed with this Court yesterday. (2) These letters further demonstrate the inadequacy of State Farm's "voluntary

compliance" program, and the superiority of the class action device for the full and fair resolution of all the claims at issue in this litigation.

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Case 1:00-cv-01841-LTB-KLM

Document 226

Filed 08/31/2007

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(3)

Mr. McVaney was a covered pedestrian under a State Farm policy, and he was

injured on September 9, 1997. He also incurred lost wages that would be covered under extended PIP (P4) coverage but were not covered under PIP (P1) coverage. See Ex. B. Therefore, according to State Farm's "voluntary compliance program," it should have contacted (or attempted to contact) Mr. McVaney, "re-calculated the wage loss benefits in accordance with the P4 formula . . . and sent a check" to Mr. McVaney. See State Farm's Response Opposing Plaintiff's Motion for Class Certification at 9-10. (4) In reality, even when Mr. McVaney contacted State Farm, State Farm refused to Instead, State Farm told Mr. McVaney: "We have been

provide him with P4 coverage.

unsuccessful in our attempt to contact our policyholder and, therefore, will continue to handle this claim with the P1 coverage listed on the policy." Ex. A. State Farm did not explain to Mr. McVaney why the decision as to whether to honor its obligations under Colorado law were dependant upon contacting the policyholder. Moreover, State Farm's description of its voluntary compliance program does not mention that it will only provide P4 coverage to pedestrians when it is able to contact the policyholder. (5) The attached exhibits further demonstrate why class certification and judicial

oversight are necessary to ensure that all eligible pedestrians receive Court-approved notice of their rights under Colorado law, as well as a full and fair assessment of the appropriate reformation date of their governing policies and the resultant remedies.

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Case 1:00-cv-01841-LTB-KLM

Document 226

Filed 08/31/2007

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Respectfully submitted this 31st day of August, 2007.

s/ Robert B. Carey Robert B. Carey Leif Garrison The Carey Law Firm 2301 East Pikes Peak Colorado Springs, CO 80909 Telephone: (719) 635-0377 L. Dan Rector Franklin D. Azar & Associates, P.C. 5536 Library Lane Colorado Springs, CO 80918 Telephone: (719) 527-8000 Andrew M. Volk Hagens Berman Sobol Shapiro LLP 1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 Telephone: (206) 623-7292 Attorneys for Plaintiff CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 31st day of August, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [email protected] [email protected] s/Robert B. Carey Robert B. Carey Leif Garrison The Carey Law Firm 2301 East Pikes Peak Colorado Springs, CO 80909 Telephone: (719) 635-0377

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