Marsh v. USAgencies Cas. Ins. Co.

957 So. 2d 901, 2007 La. App. LEXIS 1022, 2007 WL 1428583
CourtLouisiana Court of Appeal
DecidedMay 16, 2007
Docket42,176-CA
StatusPublished
Cited by12 cases

This text of 957 So. 2d 901 (Marsh v. USAgencies Cas. Ins. Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marsh v. USAgencies Cas. Ins. Co., 957 So. 2d 901, 2007 La. App. LEXIS 1022, 2007 WL 1428583 (La. Ct. App. 2007).

Opinion

957 So.2d 901 (2007)

Nickey L. MARSH, Plaintiff-Appellee
v.
USAGENCIES CASUALTY INSURANCE COMPANY, Defendant-Appellant.

No. 42,176-CA.

Court of Appeal of Louisiana, Second Circuit.

May 16, 2007.

*904 Stone, Pigman, Walther, Wittmann, by Wayne J. Lee, Lesli D. Harris, New Orleans, Hudson, Potts & Bernstein, by Mark J. Neal, Monroe, for Appellant.

Neblett, Beard & Arsenault by Richard J. Arsenault, John R. Whaley, Alexandria, Travis M. Holley & Associates, by Travis M. Holley, Bastrop, for Appellee.

Before STEWART, DREW and LOLLEY, JJ.

LOLLEY, J.

USAgencies Casualty Insurance Company ("USAgencies") appeals a judgment from the Fourth Judicial District Court, Parish of Morehouse, State of Louisiana, which granted the motion for class certification filed by Nicky L. Marsh ("Marsh"). For the following reasons we affirm the trial court's judgment.

FACTS

This lawsuit originated as an individual claim for property damage and personal injuries by Marsh following an automobile accident involving his 2001 Mazda Tribute. Marsh's vehicle was insured by USAgencies. Marsh had purchased his vehicle eight months before the accident, and it cost him approximately $22,000.00.

Following the accident, a USAgencies appraiser inspected Marsh's vehicle and declared it a total loss. Using the National Automobile Dealers Association Guidebook, the appraiser determined the vehicle's base average value. Then, after inspecting and photographing the vehicle, the appraiser made several value adjustments based on the vehicle's condition— Marsh's vehicle had high mileage (20,000 miles) and was "very dirty inside." Based on all of these criteria, the vehicle's pre-accident actual cash value ("ACV") was determined to be $16,875.00. Marsh was contacted by an adjuster and given this figure, and although he initially agreed to the ACV, he later refused to settle the claim for the amount offered. In reaching the ACV, USAgencies downwardly adjusted Marsh's total $75.00 for "detail/prep." According to Marsh, this amount, sometimes taken by USAgencies in the adjustment process, represented the cost to clean a totaled car to get it ready to sell on a used car lot; however, Marsh argues that his vehicle was never detailed because it was totaled and never made it to the used car lot. USAgencies maintains that this deduction is made because the condition of a vehicle impacts the ultimate final value of that vehicle. Marsh filed suit against USAgencies seeking compensatory and punitive damages. He later amended his petition, adding the class action claims. After a two-day class certification hearing, the trial court entered its judgment for class certification, designating Marsh as class representative and certifying the class to be:

All insureds of USAgencies whose claims are contained within that "pool of claims" previously identified in this proceeding (approximately 9,000 more or less) from which the "random sample" was drawn, as well as any additional first-party total loss property damage claims occurring since that time until the present, in which a detail or prep work fee, charge, assessment or factor was used, assessed or in any way operated in *905 or was applied to the process of adjustment of such claim by or on behalf of USAgencies with that insured to reduce the insured's recovery.

USAgencies' appeal of the judgment ensued.

DISCUSSION

Louisiana law requires that in order to meet class certification requirements, a plaintiff must meet all of the requirements of La. C.C.P. art. 591(A) and fall within one of the subsections of art. 591(B). Howard v. Willis-Knighton Medical Center, 40,634 (La.App.2d Cir.03/08/06), 924 So.2d 1245, writs denied, XXXX-XXXX (La.06/14/06), 929 So.2d 1268 and XXXX-XXXX (La.06/14/06), 929 So.2d 1271; Edmonds v. City of Shreveport, 39,893 (La. App.2d Cir.08/31/05), 910 So.2d 1005; Defraites v. State Farm Mut. Auto. Ins. Co., XXXX-XXXX (La.App. 5th Cir.01/27/04), 864 So.2d 254, writ denied, XXXX-XXXX (La.03/12/04), 869 So.2d 832. Louisiana C.C.P. art. 591 states:

A. One or more members of a class may sue or be sued as representative parties on behalf of all, only if:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of law or fact common to the class.
(3) The claims or defenses of the representative parties are typical of the claims or defenses of the class.
(4) The representative parties will fairly and adequately protect the interests of the class.
(5) The class is or may be defined objectively in terms of ascertainable criteria, such that the court may determine the constituency of the class for purposes of the conclusiveness of any judgment that may be rendered in the case.
B. An action may be maintained as a class action only if all of the prerequisites of Paragraph A of this Article are satisfied, and in addition:
(1) The prosecution of separate actions by or against individual members of the class would create a risk of:
(a) Inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class; or
(b) Adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or
(2) 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 declaratory relief with respect to the class as a whole; or
(3) The court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to these findings include:
(a) The interest of the members of the class in individually controlling the prosecution or defense of separate actions;
(b) The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(c) The desirability or undesirability of concentrating the litigation in the particular forum;
(d) The difficulties likely to be encountered in the management of a class action;
*906 (e) The practical ability of individual class members to pursue their claims without class certification;
(f) The extent to which the relief plausibly demanded on behalf of or against the class, including the vindication of such public policies or legal rights as may be implicated, justifies the costs and burdens of class litigation; or
(4) The parties to a settlement request certification under Subparagraph B(3) for purposes of settlement, even though the requirements of Subparagraph B(3) might not otherwise be met.
C. Certification shall not be for the purpose of adjudicating claims or defenses dependent for their resolution on proof individual to a member of the class.

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Bluebook (online)
957 So. 2d 901, 2007 La. App. LEXIS 1022, 2007 WL 1428583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marsh-v-usagencies-cas-ins-co-lactapp-2007.