Drange v. Mountain W. Farm Bureau Mut. Ins. Co.

• Decision Date: 01 September 2022
• Docket Number: CV 20-30-BLG-SPW
• Parties: JODIE and ANDY DRANGE, each individually and on behalf of other persons similarly situated, Plaintiffs, v. MOUNTAIN WEST FARM BUREAU MUTUAL INSURANCE COMPANY and DOES 1-100, Defendants.
• Court: U.S. District Court — District of Montana

JODIE and ANDY DRANGE, each individually and on behalf of other persons similarly situated, Plaintiffs,
v.
MOUNTAIN WEST FARM BUREAU MUTUAL INSURANCE COMPANY and DOES 1-100, Defendants.

No. CV 20-30-BLG-SPW

United States District Court, D. Montana, Billings Division

September 1, 2022

ORDER RE MOTIONS FOR/AGAINST CLASS CERTIFICATION

SUSAN P. WATTERS, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Mountain West Farm Bureau Mutual Insurance Company's (“Defendant or Mountain West”) Motion to Deny Certification of the Class Pursuant to Rule 23. (Doc. 77). Plaintiffs Jodie and Andy Drange (“Plaintiffs or the Dranges”) then filed a cross-motion for Class Certification and opposed Mountain West's motion. (Doc. 81). Both motions are deemed ripe and ready for adjudication. For the following reasons, the Court grants Mountain West's motion and denies Plaintiffs' motion.

I. RELEVANT BACKGROUND

The facts of this case are well known to the Court and were extensively reviewed in the Court's previous order denying both parties' motions for summary

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judgment. (Doc. 73 at 2-5). The Court fully incorporates those facts relevant to its determination of the present motions but, for judicial convenience, shall not repeat those facts here.

Plaintiffs seek to certify the following two classes:

ACV Class - All Mountain West Farm Bureau Mutual Insurance Company policyholders in Montana who (1) made a claim for structural damage to their real property from December 18 2011 to the present and; (2) where Mountain West Farm Bureau Mutual Insurance made an ACV payment to policyholders but did not pay GCOP. This class also includes a subclass with Unfair Trade Practices Act claims that begins with claims made on or after December 18, 2017

RCV Class - All Mountain West Farm Bureau Mutual Insurance Company policyholders in Montana who (1) made a claim for structural damage to their real property from December 18 2011 to the present; (2) where Mountain West Farm Bureau Mutual Insurance accepted coverage; (3) where the policyholder completed repairs; and (4) Mountain West refused to pay GCOP with the policyholders' RCV payment. This class also includes a subclass with Unfair Trade Practices Act claims that begins with claims made on or after December 18, 2017.

(Doc. 82 at 8-9).^[1]

IL LEGAL STANDARD

A plaintiff seeking class certification has the burden of demonstrating that the proposed classes satisfy the requirements of Fed.R.Civ.P. 23(a) and (b). For Rule 23(a), the plaintiff must establish ‘“there are questions of law or fact common to the class,' as well as demonstrate numerosity, typicality and adequacy of

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representation.” Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 2022 WL 1053459, at *4 (9th Cir. 2022) (quoting Rule 23(a)). For Rule 23(b)(3)^[2], “the district court must find that ‘questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.'” Id. at *5 (quoting Rule 23(b)(3)). The moving party must satisfy each requirement by a preponderance of the evidence. Id.

However, prior to addressing the Rule 23 analysis, the moving party must overcome the hurdle of defining the proposed classes with enough specificity to provide the best notice practicable. “[C]ourts generally accept that the definition must be ‘precise, objective, and presently ascertainable' before the class action can proceed.” Daniel F. v. Blue Shield of California, 305 F.R.D. 115, 121 (N.D. Cal. Aug. 11, 2014) (internal citation omitted).

III. DISCUSSION

A. Ascertainability

The moving party must define the class in such a manner “as to render it ‘administratively feasible to determine if a given individual is a member of the class.Sennev. Kansas City Royals Baseball Corp., 315 F.R.D. 523,563 (N.D. Cal. July 21, 2016) (citation omitted). Courts have used several criteria for determining

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ascertainability, including whether class members can be determined based on objective criteria, whether the proposed class includes any members who will be able to recover, and whether the plaintiff can demonstrate that they will be able to locate any absent class members. Lilly v. Jamba Juice Co., 308 F.R.D. 231, 237 (N.D. Cal. Sept. 18, 2014).

Mountain West argues Plaintiffs' proposed class definitions are imprecise because: (1) the classes include uninjured parties, (2) the classes do not include any evidence for a viable damages model, and (3) the UTPA claims associated with each class are completely undefined. Plaintiffs respond that the class definitions are not overbroad because GCOP is a component of ACV claims, and the definitions specifically exclude insureds who were paid GCOP. Plaintiffs further contend that the classes do not need a damages model because the damages are calculable to a sum certain and the alleged UTPA violations are straightforward to include all possible violations of the statute's subsections.

The proposed classes are defined as “[a]ll Mountain West [] policyholders in Montana ... where Mountain West [] made an ACV payment to policyholders but did not pay GCOP” for the ACV Class, and “[a] 11 Mountain West [] policy holders in Montana . . . where Mountain West [] accepted coverage . . . where the policyholder completed repairs ... [and] Mountain West refused to pay GCOP with the policyholders' RCV payment” for the RCV Class.

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Based on these definitions, the Court finds that Plaintiffs proposed class definitions are overbroad and unascertainable by necessarily including policyholders with no concrete injury. In TransUnion LLC v. Ramirez, 141 S.Ct. 2190 (2021), the Supreme Court reviewed its own Article III standing precedent to determine whether several thousand members of a putative class had standing to sue for an alleged violation of the Fair Credit Reporting Act. Id. at 2207. The Supreme Court emphasized plaintiffs burden to demonstrate standing. Id. Specifically, the Supreme Court held that “[e]very class member must have Article III standing in order to recover individual damages. ‘Article III does not give federal courts the power to order relief to any uninjured plaintiff, class action or not.'” Id. at 2208 (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 446 (2016) (Roberts, C.J., concurring)). The Supreme Court went on to determine that 6,332 of the 8,185 proposed class members did not have standing to sue because they had not suffered a concrete injury as required by Article III. Id. at 2209. The Supreme Court reversed the determination of the Ninth Circuit regarding those 6,332 potential class members and remanded for further proceedings regarding the 1,853 members who could demonstrate a concrete harm. Id. at 2214.

Plaintiffs state “[v]irtually every court to consider this question ‘has determined that an actual cash value payment includes a general contractor's overhead and profit charges in circumstances where the policyholder would be

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reasonably likely to need a general contractor in repairing or replacing the damaged property at issue.'” (Doc. 82 at 12) (quoting Mills v. Foremost Ins. Co., 511 F.3d 1300, 1306 (11th Cir. 2008) (emphasis added). Thus, to be entitled to GCOP, there has to be at least a reasonably likely chance that a general contractor will be needed for the repairs-a standard that necessarily excludes those insureds whose repairs do not warrant the services of a general contractor. Indeed, Plaintiffs acknowledge this standard throughout their brief. (Doc. 82 at 19) (“But the law is clear on this point, and Mountain West itself concedes that insureds are owed GCOP as part of their loss settlement-at least sometimes. Mountain West also concedes that GCOP is owed at the ACV stage-again, at least sometimes.” (emphasis added)). Yet, by including all Mountain West insureds in their class definitions, Plaintiffs deliberately attempt to include individuals whose repairs did not warrant the general contractor services (even on a reasonably likely basis), did not incur GCOP charges as part of their repair costs, and, therefore, did not suffer any damages when Mountain West did not include GCOP payments in either the insured's ACV or RCV payment. A class so defined is untenable and overbroad because it includes individuals who lack Article III standing. Therefore, the Court finds that Plaintiffs' proposed class definitions are neither precise nor ascertainable.^[3]

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While there is some question of whether ascertain ability as a requirement is found in Rule 23, See Ruiz Torres v. Mercer Canyons, Inc., 305 F.R.D. 646, 651 (E.D. Wash. April 8,2015) and Aorta v. Del Monte Foods, Inc, 308 F.R.D. 217,223 (N.D. Cal. July 30, 2015), many courts have found it to be a prerequisite to class certification. See Carrera v. Bayer Corp., 727 F.3d 300 (3rd Cir. 2013); Astiana v. Ben & Jerry's Homemade, Inc., 2014 WL 60097 (N.D. Cal. 2014). Given the recent Supreme...