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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 CAMERON LUNDQUIST and CASE NO. C18-5301RJB 11 LEEANA LARA, ORDER ON MOTION FOR CLASS 12 Plaintiffs, CERTIFICATION AND OTHER v. MATTERS 13 FIRST NATIONAL INSURANCE 14 COMPANY OF AMERICA, LM GENERAL INSURANCE COMPANY, 15 and CCC INFORMATION SERVICES INCORPORATED, 16 Defendants. 17 18
This matter comes before the Court on the above referenced motion (Dkts. 144 and 146) 19 and on other pending and related matters. The Court is familiar with the records and files herein, 20 all documents filed in support of, and in opposition to, the motion and heard oral argument on 21 the motion on October 14, 2020. The Court is fully advised. 22 23 24 1 The parties are fully aware of the standards for certification of a class as found in Federal 2 Rule of Civil Procedure 23. Those standards are often referred to as numerosity, commonality, 3 typicality, adequacy (FRCP 23(a)), predominance and superiority (FRCP 23(b)). 4 While Plaintiffs successfully argue the issues of numerosity, typicality and adequacy,
5 their argument founders on the shoals of commonality, predominance and superiority. 6 All of Plaintiffs’ claims are centered on alleged violations of the Washington 7 Administrative Code (“WAC”) – particularly the following provisions: 8 WAC 284-30-320 Definitions. 9 . . . . (3) “Comparable motor vehicle” means a vehicle that is the same make and model 10 of the same or newer model year, similar body style, with similar options and mileage as to the loss vehicle and in similar overall condition, as established by current data. To 11 achieve comparability, deductions or additions for options, mileage or condition may be made if they are itemized and appropriate in dollar amount. 12 WAC 284-30-391 13 Methods and standards of practice for settlement of total loss vehicle claims. . . . . The insurer must take reasonable steps to ensure that the agreed value is 14 accurate and representative of the actual cash value of a comparable motor vehicle in the principally garaged area. 15 . . . . [4. ](b) Base all offers on itemized and verifiable dollar amounts for vehicles that 16 are currently available, or were available within ninety days of the date of loss, using appropriate deductions or additions for options, mileage or condition when determining 17 comparability. . . . . 18 (d) Provide a true and accurate copy of any “valuation report” as described in WAC 284-30-392, if requested. 19 [5. ](d) Any additions or deductions from the actual cash value must be explained to the claimant and must be itemized showing specific dollar amounts. 20 WAC 284-30-392 21 Information that must be included in the insurer’s total loss vehicle valuation report. 22 . . . . (2) All information the insurer used to determine the actual cash value of the loss 23 vehicle;
24 1 By definition, in all cases, what constitutes a comparable vehicle includes those with 2 condition adjustments that are itemized and appropriate in dollar amount. In other words, to 3 prove that the WACs were violated by using comparable vehicles in the adjustment of a claim 4 that was reduced by a condition adjustment, the Plaintiffs must show that the comparable
5 vehicles used were not comparable vehicles at all because any condition adjustment was (1) not 6 itemized and (2) inappropriate in dollar amount. 7 Plaintiffs, therefore, have a dual burden of proof – to establish liability, based on the 8 WACS, they must prove that the value of the comparable vehicles used in the adjustment of the 9 class’s insurance claims were reduced by condition adjustments that were not itemized and were 10 inappropriate in dollar amounts. 11 Proving failure to itemize condition adjustments lends itself to resolution on a class-wide 12 basis, but proof of inappropriate dollar amounts in those condition adjustments does not. 13 Plaintiffs would have to prove that each class member’s condition adjustment was for an 14 inappropriate dollar amount, and Defendants, in their responsive case, would have the right to
15 present evidence that each individual class member received an appropriate determination of 16 actual cash value. 17 Another way to approach this certification issue is to consider what any class would 18 really consist of: 19 All individuals insured by First National Insurance Company of America or LM General Insurance Company in the State of Washington under a private passenger vehicle 20 policy who, from April 2012 to the present, settled or received a final offer to settle, a first party total loss claim where the actual cash value of at least one “comparable” 21 vehicle used in the adjustment of the claim was reduced by an unitemized condition adjustment that was not appropriate in dollar amount. 22 Consideration of class certification, after filling out the omissions in Plaintiffs’ proposed class, 23 points out the difficulties in treating this case as a class action. 24 1 Still another way to approach this issue is to simply accept the concept that the law (of 2 determining the actual cash value of comparable vehicles with condition adjustments) includes in 3 the definition of comparable vehicles, the old basketball phrase, “no harm, no foul.” 4 It further appears to the court that any class should not include insured parties whose
5 claims were settled by a completed appraisal process pursuant to an insurance policy provision. 6 Those claims are based on an entirely different theory of damages than the other putative class 7 members and to include them destroys commonality. 8 There are some questions of law and fact that are common to the proposed class, but 9 issues of whether allegedly comparable vehicles used in determining condition adjustments are 10 appropriate in dollar amount is not a common question among the proposed class and is an 11 individual issue for each totaled vehicle claim in the proposed class. 12 The amount of damages awardable to class members is an individual question that does 13 not necessarily defeat class action treatment. Leyva v Medline Indus. Ins., 716 F.3d 510, 514 (9th 14 Cir. 2013). Plaintiffs, however, must provide a damages model that demonstrates that “damages
15 are susceptible of measurement across the entire class.” Comcast v Behrend, 569 U.S. 27, 35 16 (2013). Here, liability and damages are inextricably bound together. There is no liability unless 17 Plaintiffs prove that the dollar amount of a “comparable vehicle” was inappropriate. The same 18 issue sets up the inquiry into damages: Was the adjustment inappropriate and how did that affect 19 the final actual cash value paid to claimant class member? Resulting damages are not 20 measurable across the entire class, as Comcast requires. This is not a situation, like most class 21 actions, where a court can determine liability, class-wide, and then determine damages on a 22 common theory. A court cannot determine liability here without finding individual inappropriate 23 adjustments in dollar amounts.
24 1 Individual issues here predominate over all other issues, and clearly indicate that a class 2 action is not superior to other available methods for fairly and efficiently adjudicating the 3 controversy – individual trials for those members of the proposed class who believe that they did 4 not receive an appropriate dollar amount in the insurance settlements.
5 The requirements of commonality, predominance and superiority are not met. Therefore, 6 the Motion for Class Certification (Dkts.
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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 CAMERON LUNDQUIST and CASE NO. C18-5301RJB 11 LEEANA LARA, ORDER ON MOTION FOR CLASS 12 Plaintiffs, CERTIFICATION AND OTHER v. MATTERS 13 FIRST NATIONAL INSURANCE 14 COMPANY OF AMERICA, LM GENERAL INSURANCE COMPANY, 15 and CCC INFORMATION SERVICES INCORPORATED, 16 Defendants. 17 18
This matter comes before the Court on the above referenced motion (Dkts. 144 and 146) 19 and on other pending and related matters. The Court is familiar with the records and files herein, 20 all documents filed in support of, and in opposition to, the motion and heard oral argument on 21 the motion on October 14, 2020. The Court is fully advised. 22 23 24 1 The parties are fully aware of the standards for certification of a class as found in Federal 2 Rule of Civil Procedure 23. Those standards are often referred to as numerosity, commonality, 3 typicality, adequacy (FRCP 23(a)), predominance and superiority (FRCP 23(b)). 4 While Plaintiffs successfully argue the issues of numerosity, typicality and adequacy,
5 their argument founders on the shoals of commonality, predominance and superiority. 6 All of Plaintiffs’ claims are centered on alleged violations of the Washington 7 Administrative Code (“WAC”) – particularly the following provisions: 8 WAC 284-30-320 Definitions. 9 . . . . (3) “Comparable motor vehicle” means a vehicle that is the same make and model 10 of the same or newer model year, similar body style, with similar options and mileage as to the loss vehicle and in similar overall condition, as established by current data. To 11 achieve comparability, deductions or additions for options, mileage or condition may be made if they are itemized and appropriate in dollar amount. 12 WAC 284-30-391 13 Methods and standards of practice for settlement of total loss vehicle claims. . . . . The insurer must take reasonable steps to ensure that the agreed value is 14 accurate and representative of the actual cash value of a comparable motor vehicle in the principally garaged area. 15 . . . . [4. ](b) Base all offers on itemized and verifiable dollar amounts for vehicles that 16 are currently available, or were available within ninety days of the date of loss, using appropriate deductions or additions for options, mileage or condition when determining 17 comparability. . . . . 18 (d) Provide a true and accurate copy of any “valuation report” as described in WAC 284-30-392, if requested. 19 [5. ](d) Any additions or deductions from the actual cash value must be explained to the claimant and must be itemized showing specific dollar amounts. 20 WAC 284-30-392 21 Information that must be included in the insurer’s total loss vehicle valuation report. 22 . . . . (2) All information the insurer used to determine the actual cash value of the loss 23 vehicle;
24 1 By definition, in all cases, what constitutes a comparable vehicle includes those with 2 condition adjustments that are itemized and appropriate in dollar amount. In other words, to 3 prove that the WACs were violated by using comparable vehicles in the adjustment of a claim 4 that was reduced by a condition adjustment, the Plaintiffs must show that the comparable
5 vehicles used were not comparable vehicles at all because any condition adjustment was (1) not 6 itemized and (2) inappropriate in dollar amount. 7 Plaintiffs, therefore, have a dual burden of proof – to establish liability, based on the 8 WACS, they must prove that the value of the comparable vehicles used in the adjustment of the 9 class’s insurance claims were reduced by condition adjustments that were not itemized and were 10 inappropriate in dollar amounts. 11 Proving failure to itemize condition adjustments lends itself to resolution on a class-wide 12 basis, but proof of inappropriate dollar amounts in those condition adjustments does not. 13 Plaintiffs would have to prove that each class member’s condition adjustment was for an 14 inappropriate dollar amount, and Defendants, in their responsive case, would have the right to
15 present evidence that each individual class member received an appropriate determination of 16 actual cash value. 17 Another way to approach this certification issue is to consider what any class would 18 really consist of: 19 All individuals insured by First National Insurance Company of America or LM General Insurance Company in the State of Washington under a private passenger vehicle 20 policy who, from April 2012 to the present, settled or received a final offer to settle, a first party total loss claim where the actual cash value of at least one “comparable” 21 vehicle used in the adjustment of the claim was reduced by an unitemized condition adjustment that was not appropriate in dollar amount. 22 Consideration of class certification, after filling out the omissions in Plaintiffs’ proposed class, 23 points out the difficulties in treating this case as a class action. 24 1 Still another way to approach this issue is to simply accept the concept that the law (of 2 determining the actual cash value of comparable vehicles with condition adjustments) includes in 3 the definition of comparable vehicles, the old basketball phrase, “no harm, no foul.” 4 It further appears to the court that any class should not include insured parties whose
5 claims were settled by a completed appraisal process pursuant to an insurance policy provision. 6 Those claims are based on an entirely different theory of damages than the other putative class 7 members and to include them destroys commonality. 8 There are some questions of law and fact that are common to the proposed class, but 9 issues of whether allegedly comparable vehicles used in determining condition adjustments are 10 appropriate in dollar amount is not a common question among the proposed class and is an 11 individual issue for each totaled vehicle claim in the proposed class. 12 The amount of damages awardable to class members is an individual question that does 13 not necessarily defeat class action treatment. Leyva v Medline Indus. Ins., 716 F.3d 510, 514 (9th 14 Cir. 2013). Plaintiffs, however, must provide a damages model that demonstrates that “damages
15 are susceptible of measurement across the entire class.” Comcast v Behrend, 569 U.S. 27, 35 16 (2013). Here, liability and damages are inextricably bound together. There is no liability unless 17 Plaintiffs prove that the dollar amount of a “comparable vehicle” was inappropriate. The same 18 issue sets up the inquiry into damages: Was the adjustment inappropriate and how did that affect 19 the final actual cash value paid to claimant class member? Resulting damages are not 20 measurable across the entire class, as Comcast requires. This is not a situation, like most class 21 actions, where a court can determine liability, class-wide, and then determine damages on a 22 common theory. A court cannot determine liability here without finding individual inappropriate 23 adjustments in dollar amounts.
24 1 Individual issues here predominate over all other issues, and clearly indicate that a class 2 action is not superior to other available methods for fairly and efficiently adjudicating the 3 controversy – individual trials for those members of the proposed class who believe that they did 4 not receive an appropriate dollar amount in the insurance settlements.
5 The requirements of commonality, predominance and superiority are not met. Therefore, 6 the Motion for Class Certification (Dkts. 144 and 146) should be denied.1 7 Defendants’ Motions for Evidentiary Hearing on Class Certification (Dkt. 242, 243, 244) 8 are now moot and should be denied. 9 The case will proceed to trial on the claims of Cameron Lundquist and Leanna Lara, as 10 individuals, on the existing case schedule. 11 IT IS SO ORDERED. 12 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 13 to any party appearing pro se at said party’s last known address. 14 Dated this 21st day of October, 2020. A 15
16 ROBERT J. BRYAN United States District Judge 17
18 19 20 21 22 23 1 This result appears consistent with the cases listed on pages 10 and 11 of Liberty’s Response in Opposition to 24 Plaintiffs’ Motion for Class Certification (Dkt. 179).