Free Motion to Certify Class - District Court of Colorado - Colorado

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

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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

ORDER GRANTING PLAINTIFFS' MOTION FOR CLASS CERTIFICATION ______________________________________________________________________________

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The Court has before it the Motion for Class Certification on behalf of Plaintiff Ricky Eugene Clark, and intervenor Plaintiffs Roy McIntosh, Florinda Reed, and Matthias Hobza (collectively, "Plaintiffs"). The Court has considered the motion, the supporting documents, and any opposition thereto, and pleadings and records on file in this action, and finds that the motion should be granted. Accordingly, it is hereby: ORDERED that the Plaintiffs' proposed Class is certified pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2), as follows: A. Class Definition The Class is defined as follows: All pedestrians who received No-Fault benefits under a Colorado State Farm automobile insurance policy where the governing policy documents at the time of the accident were issued prior to January 1, 1999 (the "Class"). Excluded from the Class are all State Farm executives, their legal counsel, and their immediate family members, the Court and its staff, and all employees of proposed Class Counsel. This definition adequately describes a readily ascertainable and objectively identifiable class, consistent with Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. 354, 356 (D. Colo. 1999). The Court will certify a case for class action treatment when the proponents satisfy all four prerequisites of Fed. R. Civ. P. 23(a), and at least one of the subsections of Fed. R. Civ. P. 23(b).

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B.

The Requirements of Fed. R. Civ. P. 23(a)(1)-(4) 1. Numerosity

The record suggests that the proposed Class consists of hundreds of persons. The record is sufficient in this regard, since the exact number of potential members need not be known, Colorado Cross-Disability Coalition v. Taco Bell Corp., 184 F.R.D. at 358, and the Court "may make `common senses assumptions' to support a finding that joinder would be impracticable. Id. (quoting Civic Ass'n of Deaf of New York City, Inc. v. Giuliani, 915 F. Supp. 622, 632 (S.D.N.Y. 1996)). Because the sheer size of the proposed Class makes joinder impracticable, Rule 23(a)(1) is satisfied. 2. Commonality

The Class satisfies Rule 23(a)(2), which requires "questions of law or fact common to the class." The threshold for commonality is not high. Plaintiffs need only show "a single issue common to the class," and factual differences among individual class members do not preclude certification. J.B. by Hart v. Valdez, 186 F.3d 1280, 1288 (10th Cir. 1999) (internal citations omitted). Commonality is established here with respect to the Class and its claims, as the overriding questions for all Class members are (i) does State Farm's conduct in failing to offer extended PIP coverage entitle them to reformation of the relevant policy; and (ii) to what additional benefits are they entitled, if any? 3. Typicality

Plaintiffs' claims are also typical of the claims of the Class, as required by Rule 23(a)(3). Claims do not have to be identical to meet the typicality requirement. Adamson v. Bowen, 855 F.2d 668, 676 (10th Cir. 1988). Rather, typicality is met "so long as the claims of the class

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representative and the class members are based on the same legal or remedial theory." Marcus v. Dep't of Revenue, 206 F.R.D. 509, 512 (D. Kan. 2002) (citing Adamson, 855 F.2d at 676). The typicality requirement is met here because all Class members bring identical claims for reformation and additional PIP benefits stemming from State Farm's alleged failure to offer extended PIP benefits to the purchaser of the polices which cover the Class. 4. Adequacy of Representation

Rule 23(a)(4) requires that the named Plaintiffs fairly and adequately protect the interests of the class they represent. As the Tenth Circuit has held: Resolution of two questions determines legal adequacy: (1) do the named plaintiffs and their counsel have any conflicts of interest with other class members and (2) will the named plaintiffs and their counsel prosecute the action vigorously on behalf of the class? Rutter & Wilbanks Corp. v. Shell Oil Co., 314 F.3d 1180, 1187-88 (10th Cir. 2002). This Court finds that: (i) the Plaintiffs share common interests (and have no conflicts) with the other Class members; (ii) Plaintiffs are committed to the prosecution of this action and (ii) they have obtained able and experienced counsel. Accordingly, the adequacy requirement is satisfied. C. The Requirements of Rule 23(b)(2) Because the proposed Class satisfies the prerequisites of Rule 23(a), this Court turns to the requirements of Rule 23(b). And, because the proposed Class satisfies Rule 23(b)(2), the Court will certify the Class under that subsection of the Rule without considering whether the Class satisfies the requirements of any of the other subsections of Rule 23(b).

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The Plaintiffs' claims are well-suited for Rule 23(b)(2) certification. Classes may be certified pursuant to Rule 23(b)(2) when: 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 injunctive relief with respect to the class as a whole. The requirements of this subsection of Rule 23 are satisfied where "settling the legality of the [opposing party's] behavior with respect to the class as a whole, is appropriate." Fed. R. Civ. P. 23, Advisory Committee Notes. Plaintiffs allege that State Farm 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 that arises from this failure. To remedy this conduct, the proposed Class seeks declaratory and injunctive relief: (i) declaring that State Farm did not offer the enhanced PIP benefits required by C.R.S. § 10-4-710; (ii) declaring State Farm's failure to offer the coverage a violation of C.R.S. § 10-4710; (iii) reforming every State Farm policy during the Class Period to include the enhanced PIP benefits; and (iv) declaring that all pedestrians who sustained injuries and received benefits in a covered occurrence are entitled to enhanced PIP benefits. In addition to Class-wide policy reformation, the Class seeks the benefits that flow directly from the reformation of the relevant polices: namely, the additional benefits to which they are entitled as a result of incorporation enhanced PIP into the governing policies. Where, as here, the extended benefits flow directly from declaratory and injunctive relief, the mere fact that monetary relief will result does not preclude certification under Rule 23(b)(2). See In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004); see also, e.g., Simmons v. Kansas City, 129 F.R.D. 178, 181 (D. Kan. 1989) -4001434-11 168034 V1

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("[n]or do plaintiffs' prayers for monetary, in addition to injunctive, relief make certification improper under Rule 23(b)(2)"). Accordingly, the Court hereby certifies the proposed Class pursuant to Fed. R. Civ. P. 23(b)(2). The Court further Orders that the named Plaintiffs shall serve as representatives for the Class, and, pursuant to Fed. R. Civ. P. 23(g), The Carey Law Firm, Hagens Berman Sobol Shapiro LLLP and Franklin D. Azar & Associates, P.C, shall serve as counsel for the Class.

DATED __________________, 2007 in Denver, Colorado

BY THE COURT:

__________________________________________ Lewis T. Babcock, Chief Judge

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