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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

REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION ______________________________________________________________________________

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TABLE OF CONTENTS PAGE I. II. INTRODUCTION ...............................................................................................................1 ARGUMENT.......................................................................................................................4 A. B. Plaintiff Has Standing, And The Class' Claim Is Not Mooted By Virtue Of The Involuntary Resolution Of Mr. Clark's Individual Claim................4 The Proposed Class Definition Is Proper.................................................................9 1. 2. C. State Farm's Merits-Based Attacks Provide No Basis For Limiting The Proposed Class Period .........................................................10 All Persons Entitled To Reformation Are Properly Included In The Class ................................................................................12

The Rule 23(a) Requirements Are Satisfied ..........................................................13 1. a. b. 2. 3. Numerosity Is Easily Met Here..................................................................13 Even By State Farm's Own Lights, Numerosity Is Met ............................14 In Reality, There Are Over 3,000 Class Members.....................................15 Commonality Is Satisfied Here..................................................................17 Mr. Clark Is An Adequate Plaintiff And His Claim Is Typical .................18

D.

The Proposed Class Satisfies Rule 23(b)(2) ..........................................................22 1. 2. The Prayer For Monetary Relief Does Not Bar Rule 23(b)(2) ..................23 The Behavior Complained Of Is Generally Applicable To The Class ......24

E.

The Proposed Class Also Satisfies Rule 23(b)(3)..................................................25 1. 2. Common issues predominate even though some individual issues may remain ......................................................................................25 A Class Action Is The Only Method Through Which All Claims Can Be Fairly And Finally Adjudicated ....................................................28

III.

CONCLUSION..................................................................................................................30

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TABLE OF AUTHORITIES CASES PAGE Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) .............................................................................................23 Allstate Ins. Co. v. Parfrey, 830 P.2d 905 (Colo. 1992).................................................................................................28 Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997)...........................................................................................................21 In re Am. Med. Sys., 75 F.3d 1069 (6th Cir. 1996) .............................................................................................25 Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975) .............................................................................................26 Bolin v. Sears Roebuck & Co., 231 F.3d 970 (5th Cir. 2000) .......................................................................................22, 23 Brennan v. Farmers Alliance Mut. Ins. Co., 961 P.2d 550 (Colo. App. Ct. 1998) ..................................................................................22 Charles v. Lawyers Title Ins. Corp., 2007 U.S. Dist. Lexis 48212 (D.N.J. July 2, 2007) .............................................................7 Clark v. State Farm Mut. Auto. Ins. Co., 292 F. Supp. 2d 1252 (D. Colo. 2003), aff'd, 433 F.3d 703 (10th Cir. 2005) .........3, 17, 27 Clark v. State Farm Mut. Ins. Co., 319 F.3d 1234 (10th Cir. 2003) .....................................................................................1, 18 Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354 (D. Colo. 1999) ........................................................................................23 Cook v. Rockwell Int'l Corp., 181 F.R.D. 473 (D. Colo. 1998) ........................................................................................26 Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326 (1980).........................................................................................................2, 6 In re Diasonics Sec. Litig., 599 F. Supp. 447 (N.D. Cal. 1984) ....................................................................................19 Dittimus-Bey v. Taylor, 2007 U.S. Dist. Lexis 55294 (D.N.J. July 31, 2007) .........................................................20 Ditty v. Check Rite, 182 F.R.D. 639 (D. Utah 1998) .........................................................................................21

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Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890 (7th Cir. 1981) .............................................................................................19 Epstein v. MCA, Inc., 50 F.3d 644 (9th Cir. 1995) ...............................................................................................27 Everett v. MCI, Inc., 2006 U.S. Dist. Lexis 71871 (D. Ariz. Sept. 29, 2006) .......................................................7 Grays Harbor Adventist Christian Sch. v. Carrier Corp., 2007 U.S. Dist. Lexis 31886 (W.D. Wash. 2007) .............................................................29 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ...........................................................................................25 Johnson v. State Farm Mut. Auto. Ins. Co., 158 Fed. Appx. 19 (10th Cir. 2005)...................................................................................28 Landers v. Leavitt, 232 F.R.D. 42 (D. Conn. 2005)..........................................................................................21 In re LifeUSA Holding, Inc., 242 F.3d 136 (3d Cir. 2001)...............................................................................................26 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).............................................................................................................4 Marcus v. Department of Revenue, 206 F.R.D. 509 (D. Kan. 2002)..........................................................................................21 Mastro v. Brodie, 682 P.2d 1162 (Colo. 1984)...............................................................................................11 In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004) .............................................................................................13 Moore v. PaineWebber, Inc., 306 F.3d 1247 (2d Cir. 2002).............................................................................................26 Morgan v. Account Collection Tech., LLC, 2006 U.S. Dist. Lexis 64528 (S.D.N.Y. Aug. 29, 2006) .....................................................7 Morris v. Geer, 720 P.2d 994 (Colo. App. Ct. 1986) ..................................................................................11 In re Nat'l Austl. Bank Secs. Litig., 2006 U.S. Dist. Lexis 94163 (S.D.N.Y. Nov. 8, 2006) .......................................................8 Nelson v. Appleway Chevrolet, Inc., 160 Wn. 2d 173, 157 P.3d 847 (2007).........................................................................22, 23 Nova Health Sys. v. Gandy, 416 F.3d 1149 (10th Cir. 2005) ...........................................................................................5

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Owen v. Regence Bluecross Blueshield of Utah, 388 F. Supp. 2d 1318 (D. Utah 2005)............................................................................5, 19 Pettit v. New Mexico, 375 F. Supp. 2d 1140 (D.N.M. 2004) ..................................................................................9 Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477 (10th Cir. 1995) .............................................................................................9 Radaj v. ARS Nat'l Servs., 2006 U.S. Dist. Lexis 68883 (E.D. Wis. Sept. 12, 2006) ....................................................7 Smilow v. Southwestern Bell Mobile Sys., 323 F.3d 32 (1st Cir. 2003)................................................................................................27 Smith v. MCI Telecommunications Corp., 124 F.R.D. 665 (D. Kan. 1989)..........................................................................................22 Smolow v. Hafer, 353 F. Supp. 2d 561 (E.D. Pa. 2005) ...................................................................................7 Sosna v. Iowa, 419 U.S. 393 (1975).............................................................................................................6 Sterling v. Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988) ...........................................................................................25 Stewart v. Rice, 25 P.3d 1233 (Colo. App. Ct. 2000), rev'd on other grounds, 47 P.3d 316 (Colo. 2002) ..................................................................................................................................27 Stout v. J.D. Byrider, 228 F.3d 709 (6th Cir. 2000) .............................................................................................26 Surowitz v. Hilton Hotels Corp., 383 U.S. 363 (1966)...........................................................................................................21 Tait v. Hartford Underwriters Ins. Co., 49 P.3d 337 (Colo. App. Ct. 2001) ....................................................................................27 Trevizo v. Adams, 455 F.3d 1155 (10th Cir. 2006) ...................................................................................14, 15 Valentino v. Carter-Wallace, Inc., 97 F.3d 1227 (9th Cir. 1996) .............................................................................................25 Wade v. Kirkland, 118 F.3d 667 (9th Cir. 1997) ...............................................................................................7 Wagner v. Grange Ins. Ass'n, 2007 WL 1839816 (Colo. App. Ct. June 28, 2007)...........................................................11 Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004).....................................................................................2, 5, 6, 7 - iv 001434-11 193265 V1

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Wilcox v. Commerce Bank of Kansas City, 474 F.2d 336 (10th Cir. 1973) ...........................................................................................28 Williams Corp. v. Kaiser Sand & Gravel Corp., 1992 U.S. Dist. Lexis 16947 (N.D. Cal. Oct. 8, 1992) ......................................................19 Womack v. Safeco Ins. Co., Case No. 03CA0972 (Colo. App. Ct. Nov. 4, 2004) .........................................................24 Wooden v. Board of Regents of the Univ. Sys., 247 F.3d 1262 (11th Cir. 2001) ...........................................................................................9 Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030 (5th Cir. 1981) ...........................................................................................19 Zeigenfuse v. Apex Asset Mgmt., L.L.C., 239 F.R.D. 400 (E.D. Pa. 2006)...........................................................................................7 STATUTES C.R.S. § 10-4-710 ..........................................................................................................................11 C.R.S. § 10-4-725(2)......................................................................................................................12 MISCELLANEOUS 2H. NEWBERG & A. CONTE, NEWBERG ON CLASS ACTIONS § 4.25 (4th ed. 2002) ........................26 7A WRIGHT, MILLER & KANE, FEDERAL PRACTICE AND PROCEDURE § 1778 (2d ed. 1986) ........25

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Plaintiff Ricky Eugene Clark, by and through his attorneys of record, hereby submits his Reply in Support of Motion for Class Certification and in response to State Farm's Response Opposing Plaintiff's Motion for Class Certification ("Def. Mem."). I. INTRODUCTION

It is undisputed that State Farm uniformly breached its obligation under Colorado's NoFault law to offer extended personal injury protection ("PIP") benefits for pedestrians in all of its automobile policies until January 1 of 1999, and it is also undisputed that each injured pedestrian covered under such a policy is entitled to the remedy of reformation as a result of State Farm's breach. See Clark v. State Farm Mut. Ins. Co., 319 F.3d 1234 (10th Cir. 2003) ("Clark I"). While the parties do dispute the parameters of the Class definition, even State Farm concedes that as a result of its breach there are at least 115 covered pedestrians who are absolutely entitled to reformation of the policies governing their claims. See infra at 14-15. (In fact, the proposed Class is much larger. See infra at 15-17). State Farm further concedes that, even after its belated and crabbed "voluntary compliance" program, there are at least 50 persons who are undeniably entitled to reformation and additional benefits ­ and that these people will not be located in the absence of certification. Id. Even accepting State Farm's arguments, then, certification is the only manner in which all of the claims arising from State Farm's breach of the Colorado NoFault statute can be fairly and finally resolved. In its efforts to avoid a full accounting of its undeniable obligations, State Farm makes several arguments that it repeats throughout its opposition papers. Because each of these arguments is readily debunked, this case should be certified for class treatment, and the Class definition should be as proposed by Plaintiff in his Memorandum in Support of Motion for Class Certification ("Pltf. Mem.") at 1.

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First, State Farm asserts that Mr. Clark cannot serve as a Class representative because (at State Farm's insistence and over Mr. Clark's objection) his individual claim has been resolved in advance of class certification. For good measure, State Farm parlays this "standing" argument into an assertion that Mr. Clark is not an "adequate" Class representative, and his claim is not "typical." See Def. Mem. at 12-13, 28-34. State Farm's argument, and even its terminology, is wrong. See infra at 4-9. In fact, the Tenth Circuit now recognizes that the issue flagged by State Farm is "mootness" ­ not "standing," which is determined as of the outset of the litigation. In a series of cases studiously ignored by State Farm, the United States Supreme Court has held that the involuntary resolution of a representative plaintiff's claim does not moot the claims of the class he seeks to represent, that under appropriate circumstances his stake in the case "relates back" to the filing of the complaint, and that he can continue to serve as a representative even after his individual claim is mooted. The Supreme Court has expressed a particular concern with allowing defendants to "pick off" class representatives by mooting their claims over their objection. See Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 339 (1980) (holding that plaintiff whose claim was involuntarily mooted could continue as class representative). Based on those cases, many courts have held that, where a representative plaintiff's claim is involuntarily mooted prior to the filing of a class certification motion, that plaintiff may nonetheless serve as a class representative. See, e.g., Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004). Under the logic of those cases, Mr. Clark can serve as a Class representative here. To hold otherwise would simply engender the filing of a new class action complaint by one or more of the plaintiffs whose motion to intervene was denied by this Court.

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Second, State Farm repeatedly asserts that a class action cannot proceed here because the reformation date must necessarily be different for every Class member. Accordingly, argues State Farm, the commonality requirement of Rule 23(a)(2) is not met (Def. Mem. at 25-28), common issues do not predominate as required by Rule 23(b)(3) (id. at 41-42), and Rule 23(b)(2) certification is improper because "the behavior complained of is not generally applicable to the Class." Id. at 38-39. In reality, given the law of the case as expressed by the Tenth Circuit in Clark I and this Court in Clark v. State Farm Mut. Auto. Ins. Co., 292 F. Supp. 2d 1252 (D. Colo. 2003) ("Clark II"), aff'd, 433 F.3d 703 (10th Cir. 2005), the date of reformation will not be determined based upon any individualized circumstances that are specific to any given Class member. Instead, the reformation date will determined based upon State Farm's knowledge of and attempt to comply with its obligations, and the impact of the reformation date on State Farm. See infra at 16-18. Given that State Farm will undoubtedly argue that the appropriate reformation date will in each case be the date of the Court's reformation order, it is disingenuous in the extreme for State Farm to now argue that the date of reformation must be separately determined for each Class member. In fact, the date of reformation should be determined once, for the entire Class. If the Court does so, commonality and predominance will be readily established, and the case can be certified either under Rule 23(b)(2) or Rule 23(b)(3). Finally, State Farm attempts to limit the size of the Class (such that numerosity is not met) by urging the Court to rule in its favor on the question of whether certain Class members' claims are barred by the statute of limitations. Yet State Farm does not (and cannot) contest Plaintiff's authorities demonstrating that the Court may not rule on the merits of Class members' claims at the class certification stage in general, and may not rule on disputed statute of limitations defenses in particular. See infra at 10-12. The impact of State Farm's statute of

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limitations defense is simply one more issue that can and should be resolved on a Class-wide basis ­ and if the Court were to resolve the issue now, State Farm would plainly lose under the governing authorities. Id. Accordingly, Plaintiff's motion for class certification should be granted so that the claims of the proposed Class may be finally and fairly resolved. II. A. ARGUMENT

Plaintiff Has Standing, And The Class' Claim Is Not Mooted By Virtue Of The Involuntary Resolution Of Mr. Clark's Individual Claim State Farm's lead argument against certification is that Mr. Clark lacks "standing" to

proceed as a Class representative in light of the fact that the Court chose to adjudicate Mr. Clark's claim in advance of class certification over Mr. Clark's objection. State Farm's argument must be viewed with a jaundiced eye in light of the fact that it both championed the current schedule and then insisted that Mr. Clark receive his check prior to the certification motion. See Def. Mem. at 7, 9. In fact, State Farm's erroneously-termed "standing" argument provides no basis for the denial of certification here. Although it first mistakenly characterized the question as an issue of "standing," the Tenth Circuit has since recognized that the issue is actually one of "mootness." Standing is assessed at the time the action is commenced, Lujan v. Defenders of Wildlife, 504 U.S. 555, 570 n.5 (1992), as the Tenth Circuit now recognizes: In Powder River Basin Res. Council v. Babbitt, we stated that a plaintiff had "lost standing" in the middle of a lawsuit. 54 F.3d 1477, 1484-85 (10th Cir. 1995). Although we used standing terminology, it seems that this was really a mootness question. Other courts have criticized Powder River for using standing terminology for what was really a mootness issue. See Becker v. FEC, 230 F.3d 381, 386 n.3 (1st Cir. 2000).

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Nova Health Sys. v. Gandy, 416 F.3d 1149, 1155 (10th Cir. 2005). This distinction is important, for State Farm's own authority recognizes the "flexible character" of the doctrine of mootness. Owen v. Regence Bluecross Blueshield of Utah, 388 F. Supp. 2d 1318, 1331 (D. Utah 2005) (quoting United States Parole Comm'n v. Geraghty, 445 U.S. 388, 400 (1980)). Indeed, the Owen court explicitly recognizes five exceptions to the mootness doctrine, at least one of which is applicable here. See Owen, 388 F. Supp. 2d at 1332. Under established precedent, Clark's claim is not moot for purposes of class certification. See Weiss v. Regal Collections, 385 F.3d 337 (3d Cir. 2004). In Weiss, the defendants made the putative class representative a Fed. R. Civ. P. 68 offer of judgment which the Third Circuit found "provided the maximum statutory relief available" to the plaintiff. 385 F.3d at 340. The plaintiff declined this offer, and the district court then dismissed the plaintiff's class action complaint on the grounds that the plaintiff's claim was mooted by the offer of judgment. Id. at 339. As the Third Circuit prefaced its analysis, "[b]ecause defendants' Rule 68 offer included no relief for the putative class . . . we address the mootness question in that context." Id. at 342. The Third Circuit cogently analyzed the relevant authorities in this area from the United States Supreme Court: [I]t appears to be settled that once a class has been certified, mooting a class representative's claim does not moot the entire action because the class "acquire[s] a legal status separate from the interest asserted by [the named plaintiff]." Sosna v. Iowa, 419 U.S. 393, 399, 42 L. #d. 2d 532, 95 S. Ct. 553 (1975). . . . In Geraghty, [ 445 U.S. at 390,] the question presented was "whether a trial court's denial of a motion for certification of a class may be reviewed on appeal after the named plaintiff's personal claim has become `moot.'" . . . The Court looked beyond the mootness of Geraghty's substantive claims and focused on his distinct "procedural . . . right to represent a class." Id. at 402. The Court held the action was not moot upon the expiration of the substantive claim, because the plaintiff retained a `personal stake' in the class certification decision. Id. at 404. -5001434-11 193265 V1

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Weiss, 385 F.3d at 342-43. Finally, the Weiss court discussed the case of Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326 (1980), a case that it noted was "of special significance" to the mootness issue before it. There, in again upholding the right of a plaintiff with mooted claims to appeal from the denial of certification, "the Supreme Court expressed concern at a defendant's ability to `pick off' named plaintiffs by mooting their private individual claims." Weiss, 385 F.3d at 343 (quoting Roper, 445 U.S. at 339). In Roper, the named plaintiffs refused an offer of judgment of the maximum amount to which they would have been entitled for their individual claims, but the district court entered judgment in their favor over their objections and dismissed the action as moot. Roper, 445 U.S. at 330. The Fifth Circuit reversed the trial court's decision, and the Supreme Court affirmed the Fifth Circuit's opinion: Requiring multiple plaintiffs to bring separate actions, which effectively could be `picked off' by a defendant's tender of judgment before an affirmative ruling on class certification could be obtained, obviously would frustrate the objectives of class actions; moreover it would invite waste of judicial resources by stimulating successive suits brought by others claiming aggrievement. [Roper, 445 U.S. at 339.] Answering the question left open in Roper, the Weiss court held that the very same rule applied when defendants sought to involuntarily moot a representative plaintiff's claim prior to the filing of a motion for class certification. Weiss, 385 F.3d at 344, 347-49. The Weiss court noted that there is "considerable authority that once a motion for class certification has been filed the `relation back' doctrine" of Sosna v. Iowa, 419 U.S. 393, 399 (1975) "comes into play." Weiss, 385 F.3d at 346. Under the "relation back" doctrine, the certification may "be said to `relate back' to the filing of the complaint," depending "upon the circumstances of the particular case . . . ." Sosna, 419 U.S. at 402 n.11. The Weiss court found that the "relation back" doctrine

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can apply to claims mooted prior to the filing of a class complaint when the named plaintiffs have not "voluntarily" mooted their claims. 385 F.3d at 349. The rule enunciated in Weiss is widely embraced across multiple jurisdictions. See Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir. 1997); Everett v. MCI, Inc., 2006 U.S. Dist. Lexis 71871, at *15-19 (D. Ariz. Sept. 29, 2006); Charles v. Lawyers Title Ins. Corp., 2007 U.S. Dist. Lexis 48212, at *12-13 (D.N.J. July 2, 2007); Zeigenfuse v. Apex Asset Mgmt., L.L.C., 239 F.R.D. 400, 402-03 (E.D. Pa. 2006); Radaj v. ARS Nat'l Servs., 2006 U.S. Dist. Lexis 68883, at *10-14 (E.D. Wis. Sept. 12, 2006); Morgan v. Account Collection Tech., LLC, 2006 U.S. Dist. Lexis 64528, at *8-27 (S.D.N.Y. Aug. 29, 2006) (discussing authorities); Smolow v. Hafer, 353 F. Supp. 2d 561, 567-68 (E.D. Pa. 2005); Owen, 388 F. Supp. 2d at 1332. Just like in Weiss, Clark's claim was resolved in advance of certification at the defendant's behest. 1 Like the plaintiff in Weiss, Clark opposed resolving his claim before class certification. 2 Like the defendant in Weiss, defendant State Farm fully intended to argue that resolving the merits of Clark's claim before class certification would defeat class certification by eliminating the class representative. Hence, as in Weiss, resolution via full relief was forced on the class representative, and, as in Weiss, defendant proposes that the result of this forced resolution is that the proposed class is now headless and uncertifiable. The Third Circuit stepped in to ward off this outcome, and the same result is proper here.

See State Farm's Case Management Proposal for Further Proceedings On Remand In Connection With The Status/Scheduling Hearing Set for April 24, 2003 (filed on April 22, 2003); State Farm's Response In Opposition to Plaintiff's Motion for Reconsideration of the Court's April 24, 2003 Order (filed on October 16, 2003). See Reporter's Transcript Status/Scheduling Conference (April 24, 2003) at 4:14-19, 5:3-5; Plaintiff's Motion for Reconsideration Of the Court's April 24, 2003 Order at 2-4 (filed on October 14, 2003). -7001434-11 193265 V1 2

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Plaintiff's authorities are all the more potent where, as here, the Court has denied leave to intervene. From this it follows that Mr. Clark's claim is not moot, since leave to intervene is freely granted where the named plaintiff's claims are moot. In re Nat'l Austl. Bank Secs. Litig., 2006 U.S. Dist. Lexis 94163, at *11-13 (S.D.N.Y. Nov. 8, 2006): Defendants' claim that final dismissal is required on the ground that there is no live action into which a new plaintiff may be substituted or intervene, is belied by the great weight of authority. See, e.g., Swan v. Stoneman, 635 F.2d at 102, n.6 (death of named plaintiff did not moot class claim to the extent a proposed intervenor could be substituted as a named plaintiff); Norman v. Connecticut State Bd. of Parole, 458 F.2d 497, 499 (2d Cir. 1972) (remanding to allow 30 days for another member of the putative class to intervene where claims of sole lead plaintiff were moot); Silva v. Vowell, 621 F.2d 640, 650 (5th Cir. 1980) (remanding to allow "an appropriate named plaintiff [to] intervene," where claim of originally named plaintiff was moot); Goodman v. Schlesinger, 584 F.2d 1325, 1332-33 (4th Cir. 1978) (remanding to allow counsel a "reasonable time" to find new plaintiffs with live claims); Cox v. Babcock and Wilcox Co., 471 F.2d 13, 16 (4th Cir. 1972) (same); Eckert, 227 F.R.D. at 63 (rejecting defendant's claim that action was rendered moot where lead plaintiff settled claims, and granting putative class member leave to intervene); see also Kremens v. Bartley, 431 U.S. 119, 97 S. Ct. 1709, 52 L. Ed. 2d 184 (1977) (remanding to district court to substitute plaintiffs and to redefine class, where class certification was in "grave doubt," and named plaintiffs' claims were moot). These cases demonstrate that courts not only may, but should, "respond to the pre-certification mooting of a class representative's claims by permitting substitution of a new class representative." In re Thornburgh, 276 U.S. App. D.C. 184, 869 F.2d 1503, 1509 (D.C. Cir. 1989) (citations omitted); 1 Newberg on Class Actions § 2: 26 (4th ed. 2006) ("When mootness of the named plaintiff's claims occurs, intervention by absentee members is freely allowed in order to substitute them as class representatives." (collecting cases)). "Such action is especially appropriate where," as here, the reason for "mootness has only individual rather than classwide impact." Id. (citation omitted); see also Crisci v. Shalala, 169 F.R.D. 563, 568 (S.D.N.Y. 1996) ("The fact that a live controversy still exists as to unnamed members of the class further indicates that relation back [to the original complaint] is appropriate in this case."). -8001434-11 193265 V1

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State Farm's authorities are inapposite. None address the situation here, where a court is asked to gauge the effect on a putative class of the putative class representative's claim having been settled over his objection. In Wooden v. Bd. of Regents of the Univ. Sys., 247 F.3d 1262 (11th Cir. 2001), for example, the district court first dismissed the claims of all named plaintiffs on the ground that they never had standing and then denied class certification for lack of a viable representative. The Eleventh Circuit affirmed the district court's denial of certification in principle, but reversed upon finding that one plaintiff was wrongfully dismissed. Similarly, the court in Pettit v. New Mexico, 375 F. Supp. 2d 1140, 1149 (D.N.M. 2004), did not address the situation where named plaintiffs are "picked off" before class certification by involuntary settlement. And Powder River Basin Resource Council v. Babbitt, 54 F.3d 1477 (10th Cir. 1995), wasn't a class action at all. Accordingly, this Court should reject State Farm's mootness argument and allow Mr. Clark to proceed as a Class representative. B. The Proposed Class Definition Is Proper As Plaintiff pointed out in his opening Memorandum, the modified Class definition is sufficient and addresses the concerns raised in the Court's Order of April 9, 2007. See Pltf. Mem. at 11-14. In response, State Farm does not contest that the Class is readily ascertainable and comports with this Court's prior Order, but instead argues that the Class is overbroad and asks this Court to limit Class membership based on, inter alia, the statute of limitations and the date upon which State Farm claims that its policies conformed with Colorado law. For the most part, State Farm's arguments here are improper attacks on the merits of the Class' claims; once again, State Farm's argument provides no basis for the denial of certification.

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1.

State Farm's Merits-Based Attacks Provide No Basis For Limiting The Proposed Class Period

Though State Farm pays lip service to the well-established rule that the Court "must refrain from actually deciding the merits of [Class members'] claims" in ruling on Plaintiff's class certification motion, Def. Mem. at 12, it nevertheless asks this Court to exclude certain Class members from the proposed Class by ruling that their claims are without merit. See id. at 15-18 (urging the exclusion of certain claimants based on State Farm's statute of limitations defense); id. at 18-19 (urging the exclusion of persons whose claims accrued on or after November 30, 1998 based on State Farm's view of the merits). Such attacks cannot succeed at this stage of the litigation. See Pltf. Mem. at 3-4. As anticipated, State Farm repeats its argument that the Class Period cannot begin until August 24, 1997, since "[t]he statute of limitations bars all claims that accrued before" that date. Def. Mem. at 15. Tellingly, in rehashing its argument, State Farm does not respond to (or even acknowledge) Plaintiff's authorities which unequivocally hold that a statute of limitations defense cannot bar certification. See Pltf. Mem. at 13-14 (citing cases). Instead, State Farm effectively seeks judgment in its favor on its statute of limitations defense with respect to putative Class members who incurred covered injuries prior to August 24, 1997. As State Farm correctly notes, a putative Class member's cause of action is "deemed to accrue when the injury, loss, damage, or conduct giving rise to the cause of action is discovered or should have been discovered by the exercise of reasonable diligence." Def. Mem. at 16 (citing C.R.S. § 13-80-108(a)) (emphasis added). Quite obviously, the conduct the putative

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Class complains about here is the failure to offer extended PIP coverage as required by C.R.S. § 10-4-710. See, e.g., Pltf. Mem. at 9-10. 3 Given that the putative Class members did not purchase the policies at issue, they could not have known that State Farm failed to offer the extended coverage to the policy-holder until such time as they became aware (or become aware) of this litigation. 4 Accordingly, the limitations period was tolled for all Class members as their claims do not accrue until such time as they become aware of State Farm's failure. See Wagner v. Grange Ins. Ass'n, 2007 WL 1839816 (Colo. App. Ct. June 28, 2007). The Wagner court considered the precise question of when a cause of action accrues in the context of a Brennan claim for reformation, and squarely held that such claims "accrue[] on the date when [the covered pedestrian] knew or should have known that [the insurer] failed to offer enhanced benefits to the policyholder." See also, e.g., Morris v. Geer, 720 P.2d 994 (Colo. App. Ct. 1986) (holding in a legal malpractice action that accrual occurs when a plaintiff has knowledge of facts which would put a reasonable person on notice that the damage was caused by wrongful conduct); Mastro v. Brodie, 682 P.2d 1162 (Colo. 1984) (holding that a limitations statute should only be applied if the plaintiff had or should have had knowledge not only of the conduct or injury, but also that the conduct was wrongful). In any event, the limitations issue can and should be resolved on a Class-wide basis.

It is simply false for State Farm to suggest that "[t]he inclusion of the Pedestrian Limitation in State Farm's policy is the basis for all of the putative class members' claims." Def. Mem. at 17. To the contrary, it would have been perfectly proper for the policies to contain that limitation provided that the purchaser of the policy had been offered extended PIP coverage and declined to accept it. Even State Farm concedes that all Class members' claims have been tolled by the pendency of this proposed Class action. See Def. Mem. at 18 (citing American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974), and conceding that the American Pipe doctrine has tolled all putative Class members' claims since the date this case was filed ­ August 24, 2000). - 11 001434-11 193265 V1 4

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Similarly, State Farm unabashedly asks this Court for a ruling on the merits when it argues that "Class members whose claim accrued on or after November 30, 1998 cannot state a claim for relief." Once again, State Farm presents its view of the merits to argue that (i) "State Farm eliminated the Pedestrian Limitation from all of its policies with the issuance of Endorsement 6850AJ in November 1998, and not in January 1999" as Plaintiff's proffered evidence shows; and (ii) the Class Period should therefore be "cut off for any individual whose claims accrued after November 30, 1998." State Farm's illogical merits-based argument should not even be considered by the Court on this motion. Indeed, Plaintiff proffered evidence (to which State Farm offers no response) that shows unequivocally that, according to the State of Colorado's Division of Insurance, Endorsement 6850AJ had an effective date of January 1, 1999. State Farm also does not contest that, pursuant to C.R.S. § 10-4-725(2), new insurance forms had to be sent to the Insurance Commissioner prior to being put into use. See Pltf. Mem. at 2 n.4 and surrounding text. Moreover, until a policyholder actually negotiated for and received a new policy, the defect in failing to offer the requisite coverage was not (and could not have been cured). Accordingly, Plaintiff's proposed Class properly includes those pedestrians who received No-Fault benefits where the governing policy documents at the time of the accident were issued prior to January 1, 1999. 2. All Persons Entitled To Reformation Are Properly Included In The Class

As Plaintiff pointed out in his opening Memorandum, "under Brennan, all non-compliant policies are subject to reformation." Pltf. Mem. at 13 n.16. That fact is significant, since reformation (and the resultant benefits owed) is the only remedy the putative Class seeks in this case. See, e.g., Pltf. Mem. at 2. In response, State Farm suggests that no class definition can ever include persons who may not benefit monetarily from a favorable resolution of the Class' claims. Def. Mem. at 20. - 12 001434-11 193265 V1

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State Farm's proffered "rule" would, of course, virtually invalidate the class action device, as it is usually impossible to define a class in such a manner as to include only those persons who will benefit monetarily from a favorable resolution. Such a "rule" is particularly inapposite here where the Class seeks the equitable remedy of reformation. 5 The Fifth Circuit considered (and rejected) another iteration of State Farm's proffered "rule" in In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004). There, the district court denied certification in part on the ground that "`many' proposed class members ­ those whose policies have lapsed, those whose policies have already been voluntarily adjusted by defendants, and those whose death benefits already have been paid ­ would not benefit from injunctive relief." Id. at 415. In rejecting that conclusion, the Fifth Circuit noted that "[a]lthough the exact number of class members continuing to pay discriminatory premiums is unknown, the proportion is sufficient . . . that the class as a whole is deemed properly to be seeking injunctive relief." Id. at 416. Likewise, there is simply no requirement that every member of a class benefit from the equitable remedy sought by the class ­ and State Farm's authorities are not to the contrary. Accordingly, this Court should reject State Farm's renewed attack on Plaintiff's proposed Class definition. C. The Rule 23(a) Requirements Are Satisfied 1. Numerosity Is Easily Met Here

As State Farm does not dispute, Plaintiff need not establish the exact number of potential Class members in order to satisfy the numerosity requirement of Rule 23(a)(1), and the Court

Moreover, State Farm puts the cart before the horse, since it is not possible to determine whether a Class member is entitled to additional benefits without notifying that Class member about her expanded entitlement as a result of the reformation of the policy governing her claim. This fact is significant since the medical and wage benefits are lifetime benefits. Unbeknownst to Class members who have incurred additional medical expenses or lost wages, they have an absolute entitlement to compensation from State Farm. - 13 001434-11 193265 V1

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may make commonsense assumptions based on the available data. See Pltf. Mem. at 14. Moreover, while there is no "magic number" establishing numerosity, courts have found numerosity satisfied by as few as 10 to 40 members. See id. at 15 n.21 (citing authorities). In challenging Plaintiff's showing on numerosity, State Farm both ignores these authorities and improperly assumes that it will prevail on the merits of its claims against the vast majority of Class members. As such, State Farm's attack on numerosity cannot prevail. a. Even By State Farm's Own Lights, Numerosity Is Met

Dispositively with respect to its numerosity challenge, State Farm effectively concedes that there are at least 115 Class members. Indeed, State Farm's own belated and crabbed "voluntary compliance" program identified "115 pedestrians to whom it might owe additional PIP benefits." Def. Mem. at 23. As State Farm does not contest, this number is easily sufficient to make out numerosity. While State Farm asserts that it has located 65 of these 115 Class members, there is (i) no indication that State Farm has reformed their governing polices; and (ii) no reason for this Court to simply take State Farm's word that it has paid them all to which they are entitled. Through the class action device, the Court can assure that these 65 Class members receive the full remedy to which they have long been entitled. Moreover, State Farm concedes that it did not locate 50 persons who are undeniably entitled to reformation and additional benefits. Def. Mem. at 24. Even this number ­ the very smallest number that State Farm can posit ­ is sufficient to make out numerosity. See Pltf. Mem. at 15 n.21. State Farm's only authority here, Trevizo v. Adams, 455 F.3d 1155, 1162 (10th Cir. 2006), is easily distinguished. While the Trevizo court held that the district court did not abuse its discretion in finding that 84 plaintiffs was "not such an overwhelmingly large number as to be prohibitive of joinder," the court specifically founded its holding on the fact that "there [was not] - 14 001434-11 193265 V1

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any problem locating the remaining individuals for joinder since all the names and addresses of potential plaintiffs had been provided during discovery." Id. Here, in stark contrast, the only way these persons can be located and provided with the remedy to which they are indisputably entitled is through the class action device and a court-approved Notice plan sufficient to apprise them of their rights. On the facts of this case, it cannot be said that these absent Class members could be joined as parties, and, for that reason alone, numerosity is established even if State Farm's efforts to shrink the Class prevailed in every respect. b. In Reality, There Are Over 3,000 Class Members

Based on data of undisputed reliability, Plaintiff was able to estimate that there are over 3000 Class members under the current Class definition. See Pltf. Mem. at 15-16. In order to bring down this number to 115, State Farm assumes that (i) it will prevail on its statute of limitations defense, thereby cutting off all claims that arose prior to August 24, 1997 (and, for no apparent reason, would further cut off any claims that arose between August 1, 1997 and August 24, 1997); 6 (ii) it will prevail on its merits-based claim that the Class Period should end on November 30, 1998; and (iii) only those who would benefit monetarily can be included in the Class. Plaintiff has addressed each of those contentions, see supra at 10-13, and will not repeat those arguments here. In addition, State Farm's calculations were predicated on criteria that impermissibly limit the Class and exclude those who might benefit from additional coverage. State Farm derives its numbers by including those who received wage loss or exhausted medical expense coverage Compare Def. Mem. at 22 (cutting off claims that arose prior to August 1, 1997) with id. at 15 (asserting that "[t]he statute of limitations bars all claims that accrued before August 24, 1997"). This apparent inconsistency in State Farm's cynical "voluntary compliance" program is further proof of the need for certification, the adversarial process and judicial oversight in order to ensure that all Class members receive the remedies to which they are entitled under Colorado law and the law of this case. - 15 001434-11 193265 V1 6

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($50,000). Yet in the real world of insurance claims, many people who would benefit are not included under State Farm's methodology. For example, many insureds injured in a workrelated accident do not make a claim for wage-loss benefits if they are receiving worker's compensation benefits, which pays at a lower rate than PIP, because the difference is too small for the one year that PIP would be available to make it worth applying. But if the person knew they could get years of benefits under extended PIP coverage, they would make a claim. Likewise, many people do not appreciate that they have sustained a wage loss until after the anniversary of their accident. Many try to "work through" the injury, find out they cannot, and later take a more sedentary, lower-paying position. Many do not understand that they can make a claim for wage-loss benefits for past wage losses. Many have latent injuries that arise after the first year, or have spinal or shoulder injuries that when treated conservatively with medications and physical therapy during the first year do not result in lost time from work, but when such treatment is ultimately seen to be ineffective and surgery is required, then result in many months of lost income during the post-surgical recuperation period. State Farm's "voluntary compliance" program ignores all these Class members who are plainly entitled to additional wage-loss benefits. State Farm has also ignored many claimants with valid claims for enhanced medical benefits. Many insureds with chronic injuries who did not use up all of their medical coverage would benefit from additional coverage. If an insured has a recurrent injury but is over the coverage limit, the insured submits the expense to the health carrier to pay, seeks charitable care, or simply does not pay. Also, in basic PIP there is a five-year limitation on medical expenses that would be removed under enhanced PIP; an insured with a need for long-term care who is aware of this five-year limit might refrain from seeking needed treatment (or from seeking

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payment for treatment) because medical expenses in the sixth year are not covered even though under the reformed contract the treatment would not be capped as to time. These are not uncommon scenarios, and each of these insureds could benefit from and should know about the extended benefits. However, State Farm's belated "voluntary compliance" program excludes all of these Class members. Shorn of State Farm's improper limitations, the Class comprises over 3000 persons, and numerosity is easily met. 2. Commonality Is Satisfied Here

State Farm attacks Plaintiff's showing of commonality on the sole basis that "each putative class member's claims would need to be individually adjudicated in order to determine properly the effective date of reformation." Def. Mem. at 25. State Farm is wrong. The analysis utilized in determining the appropriate date of reformation focuses almost exclusively on the conduct of State Farm, and upon the impact on State Farm of the Court's choice of date. Just as it did in setting the proper reformation date in Mr. Clark's case, in determining the appropriate reformation date with respect to the proposed Class this Court will consider: (1) the degree to which reformation from a particular effective date would upset past practices on which the parties may have relied and whether State Farm anticipated the rule in Brennan; (2) how reformation from a particular effective date would further or retard the purpose of the rule in Brennan; and (3) the degree of injustice or hardship reformation from a particular effective date would cause the parties. These factors do not necessarily have equal weight but are to be evaluated on the basis of the strength of the equitable and policy considerations underlying each. Relevant evidence might include, for example, whether State Farm anticipated the Brennan decision, compiled information of Brennan's effect on claims processing, relied on the interpretation of CAARA rejected in Brennan, or had the ability to notify or considered notification of insureds and third-party beneficiaries about the Brennan decision. - 17 001434-11 193265 V1

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Clark II, 292 F. Supp. 2d at 1260 (quoting Clark I, 319 F.3d at 1243-44 (internal citations and quotations omitted)). Tellingly, in arguing that this Court's choice of reformation date must be different for each Class member, State Farm does not even cite this Court's decision in Clark II. That is because the alleged individual circumstances which State Farm claims would compel differing results in fact played no role in this Court's choice of reformation date. In Clark I, the Tenth Circuit listed several possible effective dates of reformation, including "(1) the date the Madrid policy was issued; ... (2) the date the trial court in Brennan reformed the policy; (3) the date of the Brennan decision; and (4) the date the district court on remand reforms the contract." 319 F.3d at 1243. This Court chose the latest of these dates in Clark II. There was virtually no evidence relating to Mr. Clark, except that he did not get the extended benefits to which he is entitled; yet this is true of all Class members. Hence, at this point in the litigation, there are, at most, three possible choices of reformation date for the Court: (i) the date of the Court's order in Clark II; (ii) the date of the Tenth Circuit's affirmance of this Court's choice of reformation date in Clark III; or (iii) the date of the Class-wide reformation order. There can be little doubt that State Farm will claim that in each instance the date should be the date when the Court's order enters ­ and that State Farm will argue thus regardless of whether the Court resolves the issue in one hearing or in a series of (highly repetitive) individual hearings. In any event, the analysis can and should be conducted on a Class-wide basis. Accordingly, commonality is easily met in this case as the Class' claims can most efficiently be resolved in a single hearing. 3. Mr. Clark Is An Adequate Plaintiff And His Claim Is Typical

State Farm next opposes certification with the familiar defense tactic of attacking the named Plaintiff, asserting that he cannot adequately represent the Class and that his claim is not - 18 001434-11 193265 V1

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typical. Not surprisingly, courts view with skepticism the motives of defendants who feign concern for the well-being of class members through a challenge to the "adequacy" or "typicality" of a proposed class representative: [I]t is often the defendant, preferring not to be successfully sued by anyone, who supposedly undertakes to assist the court in determining whether a putative class should be certified. When it comes, for instance, to determining whether "the representative parties will fairly and adequately protect the interests of the class," or the plaintiffs' ability to finance the litigation, it is a bit like permitting a fox, although with a pious countenance, to take charge of the chicken house. Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 895 (7th Cir. 1981). 7 The same is certainly true here, where State Farm has taken every step in an effort to moot Mr. Clark's claim over his objection, and now seeks as the fruit of its efforts a holding that Mr. Clark is inadequate and atypical as a result. Indeed, the bulk of State Farm's challenges to Mr. Clark's adequacy and typicality are merely different iterations of its mootness argument, and should be rejected for that reason alone. By establishing that an exception to the mootness doctrine applies here because Mr. Clark's claim was resolved over his objection, Plaintiff has also defeated State Farm's mootness-based attacks on his adequacy and typicality. That is because "once the court has established that one of these exceptions applies, the constitutional concerns have been satisfied, the named plaintiff's personal stake relates back to the filing of the complaint, and the only questions left to answer are the procedural questions posed by Rule 23." Owen, 388 F. Supp. 2d at 1331; see also Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1044-45 (5th Cir. 1981) (finding that named plaintiffs were "adequate class representatives" for the purpose of "their pending motion

See also Williams Corp. v. Kaiser Sand & Gravel Corp., 1992 U.S. Dist. Lexis 16947, at *8 n.2 (N.D. Cal. Oct. 8, 1992); In re Diasonics Sec. Litig., 599 F. Supp. 447, 451 (N.D. Cal. 1984). - 19 001434-11 193265 V1

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for certification in the district court" notwithstanding the mooting of their claims, and noting that (i) the plaintiffs "vigorously and competently . . . urge class certification, and we perceive no conflict of interest between these named plaintiffs and the unnamed members of the classes they seek to represent"; and (ii) "little or no active representation is required at this point in order for the district court to hear the plaintiffs' certification motion," but leaving the initial "adequacy" determination to the district court). Indeed, a named plaintiff's loss of standing (or mooting of claims) during a litigation does not automatically render the plaintiff inadequate. Dittimus-Bey v. Taylor, 2007 U.S. Dist. Lexis 55294, at *18-20 (D.N.J. July 31, 2007): [T]here is no indication that the named plaintiffs have any conflicts amongst themselves or with unnamed members of the class that would make them unsuitable representatives. Plaintiffs' removal from CCCF does not alter the Court's conclusion. "It is established that the mere fact that the individual claim of the class representative in a class action has become moot subsequent to the filing of the action does not render the representative an improper or inadequate class representative under Rule 23 of the Federal Rules of Civil Procedure and therefore does not constitute a sufficient ground to bar the class representative from maintaining or continuing to pursue the class action." Romualdo P. Eclavea, Annotation, Mootness of class representative's claim pending litigation as precluding maintenance of class action under Rule 23 of Federal Rules of Civil Procedure, as amended in 1966, 33 A.L.R. Fed. 484 § 5; see also Sosna v. Iowa, 419 U.S. 393, 403, 95 S. Ct. 553, 42 L. Ed. 2d 532 (1975). In Sosna, the Court noted that there was no conflict between the class members because no class members had an interest in seeing the challenged Iowa statute upheld. Id. at 403 n.13. The Court held that, "where it is unlikely that segments of the class appellant represents would have interests conflicting with those she has sought to advance, and where the interests of that class have been competently urged at each level of the proceeding, we believe that the test of Rule 23(a) is met." Id. at 403. Similarly in this case, even though the class representatives are no longer incarcerated and may not personally benefit from an injunction, no plaintiff has

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an interest in maintaining the overcrowded conditions at the prison and counsel has "competently urged" the class's interests to date. Similarly, in Landers v. Leavitt, 232 F.R.D. 42, 47 (D. Conn. 2005), the court rejected the argument that class certification should be denied where the named plaintiff's claim became moot, and went on to find the plaintiff adequate and typical. With respect to adequacy, State Farm's argument does not go to the actual requirements of Rule 23(a)(4), which are that (1) Class counsel be qualified to conduct the litigation and (2) the named plaintiffs have no interests antagonistic to those of the class. Ditty v. Check Rite, 182 F.R.D. 639, 642 (D. Utah 1998). Indeed, the United States Supreme Court has repeatedly found that adequacy is easily met where these two factors are met. See, e.g., Surowitz v. Hilton Hotels Corp., 383 U.S. 363, 366 (1966) (holding that the plaintiff was an adequate class representative even though "she did not understand the complaint at all, ... could not explain the statements made in the complaint, . . . had a very small degree of knowledge as to what the lawsuit was about, ... did not know any of the defendants by name; ... did not know the nature of their alleged misconduct, and in fact ... had merely relied on what her son-in-law had explained to her about the facts in the case."); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625-26 & n.20 (1997) (looking solely to competence of counsel and structural conflicts between named plaintiffs and other class members under Rule 23(a)(4)). Because State Farm does not contend that Plaintiff fails to meet these requirements, this Court should find that Plaintiff is adequate. 8 With respect to typicality, State Farm ignores the well-established rule that "[c]laims do not have to be identical to meet the typicality requirement." Marcus v. Dep't of Revenue, 206 F.R.D. 509, 512 (D. Kan. 2002) (citing Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988)).

Once again, State Farm's authorities are all easily distinguishable on the basis that they do not involve the situation here, where the named Plaintiff's claim was resolved over his objection. - 21 001434-11 193265 V1

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Under this liberal standard, typicality is satisfied "so long as the claims of the class representative and the class members are based on the same legal or remedial theory." Marcus, 206 F.R.D. at 512. Hence, the fact that each Class member may ultimately receive a differing amount of benefits (Def. Mem. at 32-33) is simply irrelevant to the typicality analysis. Typicality is established "even if the degree of [the named plaintiffs'] harm . . . differ[s] from that of the members of the proposed class." Smith v. MCI Telecommunications Corp., 124 F.R.D. 665, 675 (D. Kan. 1989). 9 D. The Proposed Class Satisfies Rule 23(b)(2) Once again ignoring the mandate of Brennan and clear Colorado law, State Farm opposes Rule 23(b)(2) certification on the ground that Plaintiff makes a "transparent attempt to sidestep the rigorous requirements under Rule 23(b)(3), by also pleading an injunctive class under Rule 23(b)(2). . . ." However, far from being some nefarious creation crafted by Plaintiff for the purpose of this motion, the equitable remedy of reformation is in fact the time-honored remedy prescribed by Colorado insurance law. See, e.g., Brennan v. Farmers Alliance Mut. Ins. Co., 961 P.2d 550, 554 (Colo. App. Ct. 1998); Clark I, 319 F.3d at 1241. 10 Shorn of ad hominem attack, State Farm's primary argument is that the existence of monetary damages somehow renders Rule 23(b)(2) unavailable ­ yet that proposition has been roundly rejected. See, e.g., Pltf. Mem. at 23

Finally, State Farm gets no additional mileage from its repetition of its already debunked contention that the date of reformation must be adjudicated separately for each Class member. See Def. Mem. at 32-33. Plaintiff refers the Court to his earlier discussion, supra at 16-18. This fact distinguishes this case from State Farm's authority, Bolin v. Sears Roebuck & Co., 231 F.3d 970 (5th Cir. 2000). In the portion of the opinion quoted by State Farm (see Def. Mem. at 35), the Bolin court states that "[t]he mere recitation of a request for declaratory relief cannot transform damages claims into a Rule 23(B)(2) class action." 231 F.3d at 978. The Bolin court made clear, however, that was because "the declaratory relief must `as a practical matter afford[] injunctive relief or serve[] as a basis for later injunctive relief,'" and that was not the case in Bolin. Id. (quoting Rule 23(b)(2)). Here, in contrast, the Class undeniably does seek final injunctive relief in the form of reformation. - 22 001434-11 193265 V1 10

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(citing cases); see also Nelson v. Appleway Chevrolet, Inc., 160 Wn.2d 173, 157 P.3d 847 (2007). State Farm fares no better in its secondary argument that "the behavior complained of is not generally applicable to the class." Def. Mem. at 38-39. 1. The Prayer For Monetary Relief Does Not Bar Rule 23(b)(2)

In arguing that Plaintiff has pleaded a phony equitable claim as a mere "springboard for monetary relief," (Def. Mem. at 34), State Farm relies heavily on the Fifth Circuit's opinions in Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998) and Bolin v. Sears Roebuck & Co., 231 F.3d 970 (5th Cir. 2000). Significantly, State Farm simply ignores the Fifth Circuit's later opinion in In re Monumental Life Ins., 365 F.3d 408 ­ even though the facts of Monumental Life are remarkably similar to those in the case at bar and even though Plaintiff discussed Monumental Life extensively in his opening brief. See Pltf. Mem. at 21, 23-25. Clarifying its holding in Allison, the Fifth Circuit made clear in Monumental Life that the prayer for monetary damages poses no bar to Rule 23(b)(2) certification,11 and that this was true even though Monumental Life was "not a case in which class members are entitled to a one-sizefits-all refund; assuming liability is established, individual damages will depend on the idiosyncracies of the particular dual rate or dual plan policy," and would require "`thousands' of grids . . . to account for the myriad of policy variations." 365 F.3d at 419. Just as in Monumental Life, once the Court reforms the Class members' governing policies, they are each entitled to additional PIP benefits up to the P4 aggregate cap of $200,000. That assessing the exact amount of money owing to each participant will require a certain amount of mechanical calculation is no bar to Rule 23(b)(2) certification since "the monetary predominance test does not contain a sweat-of-the-brow exception." Monumental Life, 365 F.3d at 419. See also Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354, 362 (D. Colo. 1999) (fact that monetary relief is sought does not preclude Rule 23(b)(2) certification). - 23 001434-11 193265 V1 11

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Finally, State Farm relies heavily on the Colorado Court of Appeals' unpublished decision in Womack v. Safeco Ins. Co., Case No. 03CA0972 at 1 (Colo. App. Ct. Nov. 4, 2004). However, that court based its decision that the trial court did not abuse its discretion in denying Rule 23(b)(2) certification in part on the fact that the Class there sought "an award of treble damages." Id. at 4. Here, in contrast, the Class seeks only reformation plus that benefits flowing directly from reformation ­ namely, the extended PIP coverage to which they are indisputably entitled. 2. The Behavior Complained Of Is Generally Applicable To The Class

In arguing that Rule 23(b)(2) is inapplicable here because it has not "acted on grounds generally applicable to the class," State Farm merely reiterates it prior argument that the effective date of reformation will be different for every Class member. See Def. Br. at 38-3