Desai v. GEICO Cas. Co.

Decision Date06 December 2021
Docket NumberCase No. 1:19-cv-2327
Citation574 F.Supp.3d 507
Parties Milind DESAI, Plaintiff, v. GEICO CASUALTY COMPANY, Defendant.
CourtU.S. District Court — Northern District of Ohio

Edward S. Jerse, Drew T. Legando, Thomas Joseph Hobbs, Thomas C. Merriman, Merriman Legando Williams & Klang, Cleveland, OH, Alec H. Schultz, Hilgers Graben, Miami, FL, Carly A. Kligler, Law Office of Leon Cosgrove, Coral Gables, FL, Casim A. Neff, Pro Hac Vice, Scott R. Jeeves, Jeeves Law Group, St. Petersburg, FL, Edward H. Zebersky, Zebersky Payne Shaw Lewenz, Ft. Lauderdale, FL, Roger L. Mandel, Jeeves Mandel Law Group, Fort Worth, TX, for Plaintiff.

Dan W. Goldfine, Husch Blackwell, Phoenix, AZ, Dominique Savinelli, Husch Blackwell,Chicago, IL, Elizabeth B. N. Garcia, Jones, Skelton & Hochuli, Ian M. Fischer, Husch Blackwell, Phoenix, AZ, Michael D. Meuti, Benesch, Friedlander, Coplan & Aronoff, Cleveland, OH, for Defendant.


J. Philip Calabrese, United States District Judge

On behalf of himself and those similarly situated, Plaintiff Milind Desai alleges that Defendant Geico Casualty Company failed to pay actual cash value as defined in his auto-insurance policy after an accident rendered the vehicle a total loss. Plaintiff moves for class certification under Rules 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure. Defendant opposes and seeks to exclude the opinions of an expert on which Plaintiff relies to support his motion. For the reasons that follow, the Court DISMISSES IN PART Count III for lack of standing, GRANTS IN PART Defendant's motion to exclude (ECF No. 121; ECF No. 122), STRIKES certain opinions of Defendant's expert, and DENIES Plaintiff's motion for class certification (ECF No. 97; ECF No. 105).

A. Operative Facts Giving Rise to the Litigation

The complaint pleads the following facts, which the parties appear to accept as true, although neither points to factual support in the record for them. Given the tenor of the proceedings, the Court notes at least one matter in this dispute about which the parties appear not to disagree.

Plaintiff Milind Desai was driving his 2014 Audi A6 Premium Plus Quattro 4D sedan when he was involved in an accident with another motorist. (ECF No. 1-1, ¶ 33, PageID #26.) Dr. Desai maintained automobile insurance through Defendant Geico Casualty Company. After the accident, Geico determined that the Audi was a total loss and offered to pay Dr. Desai $29,039, the amount it determined as the value of the car. (Id. , ¶ 34.) To arrive at this figure, Geico used a program called CCC One licensed from CCC Information, Inc., to estimate the value of Dr. Desai's car by averaging the adjusted prices of comparable cars. (Id. , ¶ 35.) Plaintiff alleges that the $29,039 that Geico offered him undervalued his Audi by $161 and excluded an additional $12.88 in sales tax, "$4.50 in title fees, $15.00 in title fees (or interest on the $15.00 title fees, if GEICO delayed the payment)," and Ohio's statutorily established $250 maximum dealer fee. (Id. , ¶ 36, PageID #27.) In sum, Dr. Desai alleges he is entitled to roughly $450 more than Geico offered him.

Based on these allegations, Plaintiff filed suit seeking a declaratory judgment that Geico's use of CCC One violates Section 3901-1-54(H)(7) of the Ohio Administrative Code (Count I) and alleged that Geico breached the terms of its insurance policy by: failing to pay license fees (Count II), failing to pay title fees (Count III), failing to pay dealer fees (Count V), and using CCC One (Count IV). (Id. , ¶¶ 55–79, PageID #33–37.) Plaintiff asserts these claims individually and on behalf of a putative class of other Geico auto-insurance policyholders. (Id. , ¶¶ 41–54, PageID #28–33.)

B. Relevant Policy Language

At the heart of the parties’ dispute lies the language of the applicable insurance policy. Geico's Ohio private passenger automotive policies generally provide collision and comprehensive coverage for physical damage resulting in the total loss of an insured's car using the following relevant policy language:

1. Actual cash value is the replacement cost of the auto or property less depreciation or betterment .
7. Loss means direct and accidental loss of or damage to:
(a) the auto including its equipment; or
(b) other insured property.
1. We will pay for collision loss to the owned or non-owned auto for the amount of each loss less the applicable deductible.

The limit of our liability for loss :

1. is the actual cash value of the property at the time of the loss ;
Actual cash value of property will be determined at the time of the loss and will include an adjustment for depreciation/betterment and for the physical condition of the property.
We may at our option:
(a) pay for the loss ; or
(b) repair or replace the damaged or stolen property.

(ECF No. 12-1, PageID #247–50.) Based on that language, Plaintiff maintains that the policy's definition of "actual cash value" includes tax, title, license, and dealer fees.

C. Claims Remaining After the Pleading Stage

C.1. Motion to Dismiss

In August 2020, before re-assignment of the case, the Court granted in part and denied in part Defendant's motion to dismiss under Rule 12(b)(6). In that ruling, the Court determined that Plaintiff's breach of contract claims about Geico's alleged failure to pay title, license, and dealer fees stated a claim for relief. (ECF No. 49, PageID #644.) In so ruling, the Court determined that dismissal was inappropriate because the phrase "actual cash value" as it appears in the insurance policy was ambiguous because it did not define "replacement cost" and that Plaintiff's interpretation of the policy was reasonable. (Id. , PageID #646.)

Although the Court allowed Plaintiff's breach of contract claims in Counts II, III, and V to proceed, the Court agreed with Geico that using CCC One did not violate Section 3901-1-54(H)(7) of the Ohio Administrative Code or the policy between Geico and Dr. Desai. Therefore, the Court dismissed the declaratory judgment claim to the extent it involved that regulation (Count I). (Id. , PageID #646–51.) Further, the Court determined that Plaintiff has no private cause of action under Section 3901-1-54(H). (Id. , PageID #649–50.) Accordingly, "all of [Dr. Desai's] claims and allegations" based on Geico's "alleged violation of Ohio Admin. Code § 3901-1-54(H) must be dismissed for failure to state a claim." (Id. , PageID #650.)

The Court also dismissed Plaintiff's claim that Geico's use of CCC One breached the terms of the policy at issue by incorporating Sections 3901-1-54-(H)(2) and (H)(7) of the Ohio Administrative Code (Count IV). (Id. , PageID #650–51.) "Given the fact that the court has already determined that Geico's use of the CCC System does not violate Ohio Admin. Code § 3901-1-54(H)(7)(a), even if the provision is incorporated into the Policy such that it has independent legal force under the policy, [Dr. Desai's] claim would fail." (Id. , PageID #651.) Simply put, "[Geico's] use of the CCC System does not violate the Policy." (Id .)

C.2. Leave to Amend

Plaintiff sought leave to amend, seeking to make several changes to the complaint, some substantive, others technical. (ECF No. 50.) Specifically, Plaintiff sought to: (1) assert a claim that Geico breached its contract by failing to pay him sales tax, (2) omit the CCC One claims the Court dismissed, (3) fix an incorrect statutory reference, (4) designate an alternative damages calculation, and (5) "make certain clarifications, edits, and updates in light of the Court's Order." (Id. , PageID #652.) Because the motion came after the deadline for amendments set at the Rule 16 conference, the Court found that good cause did not support the addition of a breach of contract claim relating to the failure to pay sales tax. (ECF No. 62, PageID #794.) Geico did not oppose amendment to make the other proposed changes, and the Court granted Plaintiff's motion to do so. (Id. , PageID #795–96.)

Following that ruling, Plaintiff again attempted to amend (ECF No. 65), but Defendant objected that Plaintiff's proposed amendment did not comply with the terms of the amendment the Court permitted (ECF No. 68). Upon review of the proposed amendment, the Court agreed with Defendant, finding that "there is not good cause to permit amendment at this point," given the imminent close of discovery and Plaintiff's failure to comply with the Court's ruling on amendment. (Order, Mar. 16, 2021.)

C.3. Reconsideration / Motion for Judgment on the Pleadings

After re-assignment of this case, Defendant moved for judgment on the pleadings on all of Plaintiff's surviving claims, essentially seeking reconsideration of the prior ruling on the motion to dismiss. (ECF No. 74.) Both procedurally and on the merits, the Court denied the motion. (See generally ECF No. 84.) Therefore, at this point in the litigation, Plaintiff's remaining claims include a request for declaratory judgment (Count I) that Geico breached its insurance contract with Dr. Desai by failing to pay license fees (Count II), title fees (Count III), and dealer fees (Count V). (ECF No. 1-1, ¶¶ 55–73, 77–79, PageID #33–37; ECF No. 49, PageID #651; ECF No. 84, PageID #1550.)

D. Facts Relating to Class Certification

Plaintiff seeks certification of the following class:

All individuals who: (a) on or after September 6, 2011; (b) are or were covered by a GEICO CASUALTY COMPA[N]Y ("GEICO") Ohio personal automobile insurance policy; (c) made a claim under the Collision or Comprehensive coverages of that policy for damage or loss to a covered vehicle which GEICO accepted and treated as a total loss claim; and (d) GEICO paid the claim on a cash settlement basis. The class period will be from September 6, 2011, to the date of class certification (hereinafter the "Class Period").

(ECF No. 97, PageID #2131; ECF No. 105, PageID #2302.) On the...

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