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Class Action Against State Auto Concerning Homeowners’ Policy Limits Is One Worth Watching

By Wystan Ackerman & Wystan Ackerman on September 26, 2014
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Insurers typically adjust (or propose to adjust) the policy limits on a homeowners’ policy every year to take into account changes in the cost of construction. This is intended to help insureds make sure that sufficient coverage is available if there is a total loss. At the same time, this can result in an increase in the policy limit, and an increase in premium, when construction costs go up with inflation. But some insureds sometimes believe that their insurer has gone too far, and has proposed or required a policy limit that significantly exceeds the actual cost of rebuilding their house from the ground up.  This issue is the subject of a class action in Ohio against State Auto, in which an Ohio federal court recently denied (in large part) a motion to dismiss. This is an issue and a case that I think the insurance industry at large will want to watch closely as it moves forward.

In Schumacher v. State Auto. Mut. Ins. Co., No. 1:13-cv-00232, 2014 U.S. Dist. LEXIS 130952 (S.D. Ohio Sept. 18, 2014), the plaintiffs allege that they bought their home for $234,000 in 2001. They have not made improvements to it and its market value, they allege, has remained about the same. They have been insured with State Auto for years, and they allege that State Auto has increased the policy limit substantially, to over $500,000 on the dwelling as of 2013, which they claim far exceeds what it would cost to rebuild or replace their home. Id. at *5-7. (One interesting aside here is that there are two different costs that a policyholder might want to take into account – the cost of rebuilding from the ground up on the same lot, and the cost of simply buying a similar, older replacement home nearby. Those costs may be quite different in some markets, and some people will want enough insurance to rebuild on the same lot, while others might prefer to buy enough insurance to buy a similar home elsewhere, although the land is not insured and not included in any loss payment.)

The court largely denied State Auto’s motion to dismiss.  It dismissed the breach of contract claim because all of the allegedly-improper conduct by State Auto occurred before each new policy was issued, and “[a]n act or omission that occurs before a contract is formed cannot later be evidence of a[n] alleged breach.” Id. at *15.  The tort and statutory claims, however, were not dismissed. The court found Ohio law applicable to those claims, regardless of where the plaintiffs resided, because the alleged misconduct occurred at State Auto’s headquarters in Ohio. Id. at *17. (This is contrary to some other decisions and has significant potential implications for class certification, if the choice of law determination remains in place.) The court found that the plaintiffs had plausibly stated a claim for breach of the implied covenant of good faith and fair dealing by alleging that State Auto had “conconcted a plot . . . to sizably increase their premium revenue by selling an overpriced and superfluous product to their insureds . . . .” Id. at *18. Based on similar allegations of a purported plan by State Auto to raise rates by raising policy limits, the court also denied the motion to dismiss with respect to the claims for fraud, negligent misrepresentation and violation of the Ohio Deceptive Trade Practices Act.

This case is definitely one worth watching.  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.

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

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