Stedman v. Progressive Insurance Co

• Court: District Court, W.D. Washington
• Decided: January 24, 2023
• Docket: 2:18-cv-01254
• Status: Unknown

Opinion

4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 JOEL STEDMAN, et al., Cause No. C18-1254RSL 8 Plaintiffs, ORDER 9 v. 10 PROGRESSIVE DIRECT INSURANCE CO., 11 Defendant. 12 13 This matter comes before the Court on the “Stipulated Motion to Distribute Certification 14 15 Notice” (Dkt. # 102) and defendant’s “Objection to Class Definition for Class Notice Purposes 16 and Plaintiffs’ Response Thereto” (Dkt. # 103). Progressive argues that the class, as certified by 17 the Court in July 2021, is an impermissible “fail-safe class” because it assumes a contested fact 18 19 and therefore prevents the entry of an adverse judgment against class members because their 20 inclusion in the class is conditioned on success on the merits. Progressive did not raise this 21 argument in opposition to plaintiffs’ motion for class certification, nor did it seek 22 23 reconsideration of the class as it was certified eighteen months ago. While the Court has broad 23 authority to revise, redefine, and even vacate class certification determinations, it declines to 25 exercise that authority on the eve of class notice. 26 27 28 1 In the alternative, the Court denies defendant’s request on the merits. Even if a “fail-safe 2 class” were prohibited in the Ninth Circuit – and it is not clear that it is1 – Progressive’s 3 argument is unpersuasive. Membership in the class depends on the reason Progressive gave for 4 5 the limitation, termination, or denial of PIP benefits. Whether the limitations, terminations, and 6 denials were the result of the insurer’s policy or practice, whether the proffered rationale 7 violated WAC 284-30-395, the Insurance Fair Conduct Act, and/or the Washington Consumer 8 9 Protection Act, and whether declaratory relief is available in the circumstances presented here 10 remain to be determined on a class-wide basis. As was the case in Melgar v. CSK Auto, Inc., 681 11 Fed. App’x 605, 607 (9th Cir. 2017), the class definition is not an impermissible fail-safe class 12 13 that presupposes its success where “the liability standard . . . required class members to prove 14 more facts to establish liability than are referenced in the class definition.” 15

16 17 For all of the foregoing reasons, the Court approves the proposed Class Notice and notice 18 program. Progressive’s objection to the class definition is overruled. 19

20 21 Dated this 24th day of January, 2023.

23 Robert S. Lasnik 23 United States District Judge 25 1 Melgar v. CSK Auto, Inc., 681 F. App'x 605, 607 (9th Cir. 2017) (stating that “our circuit’s 26 caselaw appears to disapprove of the premise that a class can be fail-safe”); Nevarez v. Forty Niners Football Co., LLC, 326 F.R.D. 562, 575 (N.D. Cal. 2018) (identifying “numerous district court 27 decisions” certifying cases with “fail-safe” definitions); see also William B. Rubenstein, 1 Newberg on 28 Class Actions § 3:6 (5th ed.) (“many courts have held that class definitions referencing the merits of the