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Insurance Class Action on Polybutylene (PB) Piping: Magistrate Judge Recommends Denial of Motion to Decertify Class

By Wystan Ackerman & Wystan Ackerman on March 21, 2014
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I’ve written before (see my February 1, 2012 blog post) on a class action pending in the District of Arizona involving repair or replacement of polybutylene (PB) piping on property insurance claims.  The policy language at issue provides that “If loss to covered property is caused by water or steam not otherwise excluded, we will cover the cost of tearing out and replacing any part of the building necessary to repair the system or appliance.”  The plaintiff has an expert who opines essentially that, whenever a PB piping system is damaged, all of the PB plumbing in the home or building must be replaced.  The District of Arizona has previously granted partial summary judgment in favor of the plaintiff on coverage, and certified a class.  The magistrate judge has denied a Daubert motion to exclude the plaintiff’s expert (which is pending before the district court for review). 

The magistrate judge’s most recent ruling, Guadiana v. State Farm Fire & Cas. Co., 2014 U.S. Dist. LEXIS 33460 (Mar. 13, 2014), recommends denial of the insurer’s motion to decertify the class.  The court discusses at some length the Supreme Court’s decisions in Wal-Mart Stores, Inc. v. Dukes and Comcast Corp. v. Behrend, both of which were decided after the class was initially certified.  With respect to Wal-Mart’s requirement of a common question that will generate a common answer, the magistrate judge concluded that commonality was satisfied because:  “At trial, the trier of fact will be asked to resolve the following question:  If a PB plumbing system leaks, must it always be replaced in its entirety?  This is a question that is common to all members of the class and one that can be answered once and for all for all class members.”  Id. at *11.  The magistrate judge further concluded that, although State Farm cited various factual differences in possible failures of PB piping, on the plaintiff’s theory “[i]t does not matter what avenue of failure caused the leak, all PB systems must be replaced in their entirety.”  Id. at *16. 

But what about coverage?  Not every claim for a plumbing leak is covered.  Some are excluded because they were caused by faulty workmanship or wear and tear, or failure to maintain heat in a building, etc.  It appears the plaintiff tried to take coverage out of this case by limiting the class to people who sustained what the insurer “acknowledged” was a covered loss.  But how do you determine that without an intensive file review, and how is the insurer barred from contesting coverage when sued simply because coverage might have been “acknowledged” in some unspecified fashion at some earlier point?  What about other defenses the insurer would have to individual claims, such as where the insured failed to preserve the piping for examination by the insurer, or failed to make a timely claim?

With respect to Comcast, the magistrate judge seemed to sidestep that decision, stating simply that the fact “[t]hat the tear-out cost could and would vary from house to house is something the court considered when the class was originally certified.”  Id. at *19.  The court did not really grapple with the application of Comcast to the prior analysis.  Deciding how much it would cost to replace piping in numerous structures would seem to be quite an undertaking for the court.  The court appeared to acknowledge that the law would not allow damages to be determined by extrapolation from a sample of claims.

It is relatively rare these days that a federal court certifies a class action in an insurance claims-related case.  This is a case worth watching as it continues.  Stay tuned.

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, Insurance
  • Blog:
    Class Actions Insider
  • Organization:
    Robinson & Cole LLP
  • Article: View Original Source

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