Contributors Class Actions Challenge Clarity of Anti-Stacking Language Nutt v. Nationwide Insurance Co. of America, No. 2:24-cv-02228 (D. Ariz.). In July 2023, the Arizona Supreme Court held that insured drivers may “stack” coverage in the case of uninsured and underinsured (UM/UIM) motor vehicle accident claims unless the insurance policy contains clear and unambiguous language prohibiting stacking. Since then, several class actions have been filed against insurers in Arizona. For example, an Arizona insured filed a proposed class action alleging that Nationwide applied a single UM/ UIM coverage limit to her claim even though, so says the plaintiff, Nationwide purportedly did not include clear and unambiguous policy language disavowing the possibility of stacking. The plaintiff brings the action on behalf of a putative class of all Arizona insureds who were allegedly deprived of their right to stack benefits by Nationwide. Eastern District of New York Denies Certification in Total Loss Underpayment Class Action Kronenberg v. Allstate Insurance Co., No. 1:18-cv06899 (E.D.N.Y. Aug. 5, 2024). The Eastern District of New York denied certification in a class action brought by insureds alleging they were paid less than the actual cash value as a result of Allstate’s practice of using a condition adjustment in its total-loss settlements. The New York federal court denied certification because the multifaceted adjustment and settlement process requires extensive individualized inquiries to determine whether each putative class member received the actual cash value of their total-loss vehicle and was therefore injured, which defeats predominance. P&C Class Actions 8 P&C Class Actions 9 Blake Simon Senior Associate Litigation & Trial Practice blake.simon@alston.com Melissa Quintana Senior Associate Litigation & Trial Practice melissa.quintana@alston.com Northern District of Georgia Undoes Expert Testimony Exclusion on Reconsideration Brown v. Progressive Mountain Insurance Co., No. 3:21-cv-00175 (N.D. Ga. Sep. 11, 2024). The Northern District of Georgia granted Progressive’s motion for reconsideration of a previous order excluding portions of the testimony of Progressive’s damages expert, an economist testifying on the plaintiffs’ alleged injuries in a total-loss underpayment class action. The court’s order clarifies the standard for excluding expert testimony in three important ways. First, the court granted Progressive’s motion as to the expert’s study that compared the challenged adjustment to the actual ratio between the list and sold prices. The court agreed it applied the wrong standard because by excluding this study, it resolved disputed facts—whether the data improperly excluded certain data points—that are questions for the jury to decide. Second, the court reconsidered excluding the expert’s reference to guidebook valuations, which the court had excluded as irrelevant and inadmissible hearsay. The expert’s use of the guidebooks as a reference point, the court reasoned, is both a reasonable use of economic evidence and relevant to the expert’s testimony assessing the plaintiffs’ alleged injuries. The propriety of using the guidebooks themselves as a measuring stick, however, is a separate question beyond the scope of whether it is appropriate for an economist to reference the guidebooks. Third, the court ultimately allowed the expert’s study comparing the base values of cars with and without the adjustment, used to underscore the individualized analysis of injury in this case. The court concluded that because injury in this case depends on whether the plaintiffs were paid less than the actual cash value of their vehicles, the expert may give testimony relating to the plaintiffs’underpayment theory of injury, even though he is not an expert in car valuations. In addition to clarifying the proper Daubert standard, the court’s order also emphasizes the inherently individualized nature of calculating damages in these total-loss class actions—dozens of which remain pending across the country. The parties in this case have since reached a class settlement agreement. n The district court also found individualized issues predominated because of Allstate’s right to offer counterproof of actual cash value for each putative class member, as due process demands. While these individualized issues alone defeat predominance, the court also remarked that the plaintiffs’ proposed damages model violates Comcast and further undermines predominance. The plaintiffs’ damages model, which like other plaintiffs’ damages models in the dozens of similar total-loss cases currently pending across the country, boils down to removing the allegedly improper adjustment. But this damages model would entitle a class member who received more than the actual cash value of their vehicle to damages and is therefore untethered from the plaintiffs’ theory of underpayment. The plaintiffs declined to file a Rule 23(f) petition. The Eastern District of New York’s denial of certification comes against the backdrop of a brewing circuit split. While the Third, Fourth, Sixth, and Seventh Circuits have granted insurers’ Rule 23(f) petitions for interlocutory appeal of district courts’ orders certifying similar totalloss underpayment class actions, the Ninth and Eleventh Circuits have denied insurers’ Rule 23(f) petitions for interlocutory appeal of orders certifying similar total-loss class actions.
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