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Declaratory Judgment Action Against Liability Insurer Held Removable Under Class Action Fairness Act (CAFA)

By Wystan Ackerman & Wystan Ackerman on October 17, 2013
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The Seventh Circuit recently held that a declaratory judgment action involving liability insurance coverage for an underlying class action, in which the insured’s rights under the policy had been assigned to a certified class, was removable to federal court under the Class Action Fairness Act (CAFA).  This is a significant decision for insurers faced with other similar suits.

In Addison Automatics, Inc. v. Hartford Casualty Insurance Company, No. 13-2729, 2013 U.S. App. LEXIS 20109 (7th Cir. Oct. 2, 2013), the plaintiff brought a putative class action against Domino Plastics Company, which Domino’s liability insurers declined to defend.  Domino then entered into a settlement, under which a class was certified, a “nominal judgment” for $18 million was entered against Domino, Domino’s claims against its insurers were assigned to the class, and the plaintiff agreed that the judgment would not be collected from Domino itself.  Id. at *2-3.  The settlement was approved by the state court.  The plaintiff then filed a new lawsuit in state court against Hartford Casualty Insurance Company (“Hartford”), which (after an initial voluntary dismissal and re-filing of the suit) purported to be only an individual action and not a class action.  The suit sought to hold Hartford liable for the judgment against Domino, pursuant to the assignment of rights.  Id. at *3-4.  When Hartford removed the case to federal court, the district court remanded the case on the grounds that it was brought as an individual suit and not a class action.  The Seventh Circuit then granted appellate review under CAFA, and reversed and remanded.

The Seventh Circuit held that the case was removable because it was “in substance a class action” despite the plaintiff’s “artificial attempt to disguise the true nature of the suit.”  Id. at *5.  The court first reasoned that the terms of the settlement specifically assigned Domino’s rights “to the Class (as represented by Plaintiff and its attorneys),” and thus “only [plaintiff] has standing to pursue [the requested] relief on behalf of the class certified by the state court.”  Id. at *6.  The Seventh Circuit then focused on the plaintiff’s fiduciary duty to the class members:

If we were to treat Addison as anything other than a class representative here, the interests of the class would be in danger.  If a class representative could seek such relief on its own, relieved of its fiduciary duties, it could be induced to sell out the interests of other class members in a lucrative settlement.

Id. at *8.  Citing the Supreme Court’s recent decision in Standard Fire Ins. Co. v. Knowles (blog post), the court further explained that “[t]o hold otherwise would, for CAFA jurisdictional purposes, . . . exalt form over substance, and run directly counter to CAFA’s primary objective of expanding federal jurisdiction over national class actions.”  Id. at *10.

This decision is particularly helpful to insurers because it holds that this type of declaratory judgment action, which is fairly common in the context of liability insurance, belongs in federal court under CAFA notwithstanding gamesmanship by plaintiffs attempting to keep it in state court.

Photo of Wystan Ackerman Wystan Ackerman

Wystan Ackerman is a partner in Robinson+Cole’s Insurance + Reinsurance Group and handles a diverse range of property insurance litigation, including large business interruption cases, class actions, other complex litigation, and appeals. He also has substantial experience representing insurance companies in putative class…

Wystan Ackerman is a partner in Robinson+Cole’s Insurance + Reinsurance Group and handles a diverse range of property insurance litigation, including large business interruption cases, class actions, other complex litigation, and appeals. He also has substantial experience representing insurance companies in putative class actions involving homeowners’ insurance coverage and market conduct/claim-handling practices. He has been prominently involved in high-profile property insurance litigation concerning the September 11th catastrophe and Hurricane Katrina, and Chinese-made drywall. Based in the insurance capital of Hartford, Connecticut, Wystan writes the blog Insurance Class Actions Insider, which was selected by Lexis Nexis as a top insurance blog for 2011.

Wystan grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state. He always had strong interests in history, politics and baseball and his heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox). Wystan says it was his early fascination with Lincoln that drove him to practice law. As a high school senior, he was one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified his interest in law and government. He went on to Bowdoin College, where he wrote for the Bowdoin Orient and majored in government. After Bowdoin, he went on to Columbia Law School. He also interned in the chambers of then-Judge Sonia Sotomayor on the Second Circuit. Wystan graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole.

When Wystan’s not at his desk, flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation he often can be found watching “Dora the Explorer” or reading or playing whiffleball with his young daughter, helping his wife with her business, Option Realty, reading a book about history or politics, or watching the Boston Red Sox.

Read Wystan’s rc.com bio.

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and most of the class actions I’ve defended have been brought against insurance companies. I’ve also handled some involving products liability, managed care, health care, utilities, financial services, higher education and environmental issues.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at work, you might find me running lines or watching a musical with my teenage daughter who hopes to be a Broadway star (or taking her to voice or dance lessons) or reading a good book.

Read more about Wystan AckermanEmail
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  • Posted in:
    Class Action & Mass Torts
  • Blog:
    Class Actions Insider
  • Organization:
    Robinson & Cole LLP
  • Article: View Original Source

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