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Motion to Deny Class Certification in Insurance Case Granted, in Part, By Michigan Federal Court

By Wystan Ackerman & Wystan Ackerman on May 9, 2014
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Insurers and other corporations defending against putative class actions often struggle with how to try to achieve an early resolution of a putative class action, and thereby reduce legal expense, when the case is not appropriate for resolution on a motion to dismiss, or a motion to dismiss is denied.  One approach is to move to strike the class allegations on the pleadings.  But in some cases the class certification issues are not sufficiently developed in the pleadings, or the judge is unwilling to rule on them based on allegations alone.  Another approach that can be used, and is sometimes overlooked, is filing a motion to deny class certification.  On such a motion, the defendant typically introduces evidence in support of its position that the case is not appropriate for class certification, and argues that the issues are clear enough that the court need not await completion of discovery before denying certification.

A Michigan federal court recently granted a motion to deny class certification, in part, in an insurance case.  This decision is a good example of how a motion to deny class certification can be used successfully and should be considered as a potential defense strategy. 

In Monteleone v. Auto Club Group Memberselect Insurance Co., Case No. 13-cv-12716, 2014 U.S. Dist. LEXIS 56233 (E.D. Mich. Apr. 23, 2014), the plaintiffs had water damage to their basement allegedly caused by a faulty back flow preventer in the plumbing waste line.  They claimed that their insurer improperly paid them only the $5,000 limit under a sewer backup endorsement, relying on a provision in the main policy form that insured against “accidental discharge or overflow of water or steam from within a plumbing, heating, air conditioning or automatic fire protection sprinkler system or domestic appliance.”  Id. at *2-3.  They sought to bring a class action on behalf of two proposed classes:  (1) a “property damage” class consisting of policyholders who made water-related property damage claims and received less than $10,000 in claim payments; and (2)a “premium” class consisting of everyone who purchased homeowners’ insurance during the class period.  The claim on behalf of the “premium” class was that all policyholders paid excessive premiums for coverage that the defendants never intended to provide.  Id. at *4-5.

The court found that the class allegations with respect to the proposed “property damage” class could be resolved early because “[n]o additional discovery will alter the fact that adjudication of the ‘property damage’ claims would require individual coverage determinations as to every member of the class.”  Id. at *11.  The court explained that the determination of each putative class member’s claim “would require analysis of the type of water damage, the cause of the water damage, and whether coverage for the water damage was subject to an exclusion in the policy depending on the origination of the water,” and in some cases “the source [of the water] may be unclear or in dispute.”  Id. at *12.  An individual investigation of each claim would be necessary to analyze coverage.  Regardless of whether the insurer had an improper claim handling practice, the court could not determine whether class members were entitled to relief without determining the facts of each individual claim.  Id. at *16.

With respect to the “premium” subclass, the insurer introduced evidence demonstrating that it paid some overflow claims.  The court found that this raised a factual dispute and did not demonstrate that class certification should be denied.  Id. at *19-20.  The court appeared to suggest, however, that the claims of the “premium” subclass may be subject to dismissal on other grounds, stating that “it is unclear how policyholders, who have not suffered any insured loss, can pursue claims for breach of the policy at all.”  Id. at *23.

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.

Read more about Wystan AckermanEmail
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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:
    Insurance
  • Blog:
    Class Actions Insider
  • Organization:
    Robinson & Cole LLP
  • Article: View Original Source

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