Jarron Elter, V. USAA Casualty Insurance

CourtCourt of Appeals of Washington
DecidedMay 25, 2021
Docket53196-8
StatusPublished

This text of Jarron Elter, V. USAA Casualty Insurance (Jarron Elter, V. USAA Casualty Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jarron Elter, V. USAA Casualty Insurance, (Wash. Ct. App. 2021).

Opinion

Filed Washington State Court of Appeals Division Two

May 25, 2021

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II JARRON ELTER, individually, and as the No. 53196-8-II representative of ALL PERSONS similarly situated,

Respondent(s),

v. PUBLISHED OPINION UNITED SERVICES AUTOMOBILE ASSOCIATION, USAA CASUALTY INSURANCE COMPANY, USAA GENERAL INDEMNITY COMPANY, and GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY,

Petitioners.

SUTTON, J. — This case involves the measure of loss of use benefits payable for property

damage to insured vehicles under the uninsured/underinsured motorist coverage of auto insurance

policies issued by United Services Automobile Association, USAA Casualty Insurance Company,

USAA General Indemnity Company, and Garrison Property and Casualty Insurance Company

(collectively USAA).

David and Marissa Turk filed a class action lawsuit against USAA, claiming that USAA

had breached its insurance policies regarding the payment of loss of use benefits, and the trial court

certified the class. After this court reversed1 the class certification because the Turks were not

1 Turk v. United Serv. Auto. Ass’n, noted at 6 Wn. App. 2d 1033, 2018 WL 6523324 (Dec. 11, 2018). No. 53196-8-II

proper class representatives, the trial court entered an order substituting Jarron Elter as class

representative and left the original certification order intact. USAA appeals, claiming that the

substitution was improper and that the class was improperly certified under CR 23.

We hold that the trial court did not err by substituting Elter as the class representative and

that the class was properly certified under CR 23. We also clarify the proper standard for the

measurement of loss of use damages. Thus, we remand for further proceedings consistent with

this opinion. Nothing in this decision prevents the trial court from revisiting various CR 23

requirements in the future, including typicality or other requirements of Elter as a class

representative, if further factual developments warrant reconsideration.

FACTS

In November 2013, Marissa Turk was rear-ended by an uninsured driver, causing her to

rear-end the vehicle in front of her. Turk, 6 Wn. App. 2d 1033at *1. At the time of the accident,

Marissa had automobile insurance through USAA, which included uninsured/underinsured

motorist (UIM) coverage. Turk, 6 Wn. App. 2d 1033 at *1. USAA’s policy provided coverage

for property damage caused by a UIM driver and for loss of use during the period of repair. Turk,

6 Wn. App. 2d 1033 at *1.

Marissa was without the use of her vehicle while her vehicle was being repaired. Turk, 6

Wn. App. 2d 1033 at *1. In 2014, the Turks filed a class action lawsuit against USAA for breach

of contract based on USAA’s failure to pay loss of use damages under its UIM coverage.

2 No. 53196-8-II

I. 2016 CLASS CERTIFICATION

In May 2016, the Turks moved for certification of a class to include:

All USAA insureds with Washington policies issued in Washington State, where USAA determined the loss to be covered under the [UIM] coverage, and their vehicle suffered a loss requiring repair, or the vehicle was totaled, during which time they were without the use of their vehicle, for a day or more.

CP at 401-02. After extensive and supplemental briefing, review of the pleadings and evidence

presented by USAA including a spreadsheet of potential class members, and arguments over four

days, the trial court determined that the Turks had met their burden, granted the motion for class

certification, and entered findings of fact.

The court’s findings addressed the CR 23(a) requirements of numerosity, commonality,

typicality, adequacy of representation, and the CR 23(b)(3) requirements of predominance,

superiority, and manageability:

Plaintiffs allege that USAA sold automobile insurance policies providing first party UIM PD coverage to [them] (and members of the proposed class) that had an identical insuring agreement in Part C of the [UIM policy][.] USAA admits that it has an obligation to pay for loss of use under this common policy language. Plaintiffs admit that at times USAA will provide a rental vehicle for “loss of use.” They note that when this is done, this is recorded in USAA’s electronic claims data and the claims files and [is] coded as such. However, they contend that USAA routinely failed to compensate its insureds for loss of use and loss of use damages, even though USAA admits that it is part of the coverage. USAA, in turn, asserts that it routinely discloses and pays the loss. The data provided by USAA in its Turk 500 Claim File Review Master Spreadsheet, suggests that there is no evidence, for a large part of the [p]roposed [c]lass, that the insureds received either disclosure of coverage for loss of use, (and, as such, did not know they could make a claim), or that the loss was every [sic] paid. .... The parties also strongly dispute the legal standard that applies to the loss. USAA contends . . . that only the value of “actual inconvenience” is recoverable,

3 No. 53196-8-II

and argues that the value of a rental car is not a permissible way of valuing the loss under the policy.

Clerk’s Papers (CP) at 910-11 (footnote omitted).

At that time, the plaintiffs requested certification based on the test for loss of use damages

stated in Straka Trucking, Inc. v. Estate of Peterson, 98 Wn. App. 209, 211, 989 P.2d 1181 (1999),

not the inconvenience test in Holmes v. Raffo, 60 Wn.2d 421, 431, 374 P.2d 536 (1962). The trial

court adopted the Straka loss of use standard, under which loss of use may be measured by (1) lost

profits, (2) the cost of renting a substitute vehicle, (3) the rental value of the plaintiff’s car, or (4)

interest. The court ruled that evidence of the value of a rental car is one method of measuring loss

of use.

As to the CR 23(a) requirements, the trial court found that the numerosity requirement was

easily met as the proposed class was as few as 6,000 people and as many as 11,000 people. The

court also found that the commonality requirement was met because a common fact pattern existed

based on common policy language, and common questions for each proposed class member as to

whether the policy holders were advised about loss of use and what happened for those who were

advised. The court noted that these same issues justified certification in Moeller v. Farmers Ins.

Co. of Washington, 155 Wn. App. 133, 149, 229 P.3d 857, (2010), affirmed, 173 Wn.2d 264, 267

P.3d 998 (2011).

The trial court found that the typicality requirement was met because the claims of the

representative parties were typical of the potential claims of the class members as a whole. The

same alleged unlawful conduct affected the named plaintiffs and the class members and “varying

fact patterns in the individual claims will not defeat the typicality requirement.” CP at 915 (citing

4 No. 53196-8-II

Smith v. Behr Process Corp., 113 Wn. App. 306, 320, 54 P.3d 665 (2002)). The court noted that

the method to determine the period for which loss of use was owed may vary based upon whether

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