277 F.R.D. 625
W.D. Wash.2011Background
- Fosmire sues Progressive Max and related Progressive entities for breach of contract and declaratory relief over UIM coverage including diminished value claims.
- She contends Progressive’s policies require payment for diminished value beyond repair costs, which Progressive allegedly does not properly pay or inform insureds about.
- The court previously dismissed some defendants but allowed re-addition; class discovery occurs across seven states with additional 17 policy forms later added via amendment.
- Ms. Fosmire moved to certify a nationwide class; Progressive moved to exclude an expert (Polissar) whose damages methodology was to be used for class-wide damages.
- The court granted Progressive’s motion to exclude the expert and denied Fosmire’s motion for class certification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Polissar report for certification | Polissar's method is plausible to calculate class damages using Siskin data. | Polissar relies on data without independent verification; data destroyed; not representative. | Polissar report excluded. |
| Rule 23(b)(3) predominance for a multi-state class | Common questions predominate; uniform UIM language and don’t-ask policy support common damages. | States’ laws, contract forms, and due process issues prevent predominance. | Certification denied under Rule 23(b)(3). |
| Rule 23(b)(2) cohesiveness and damages carve-out | Injunctive relief appropriate for class; damages may be separable under 23(b)(2). | Dukes prohibits certification where monetary damages are central and not incidental. | Certification denied under Rule 23(b)(2). |
| Typicality and adequacy of Fosmire as class representative | Claims are typical of class; misrepresentation/timeframe issues are not material to all states. | Potential misrepresentation and credibility concerns threaten class-wide representation. | Fosmire not typical or adequate; certification denied. |
Key Cases Cited
- Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010) (multistate class certification requires rigorous analysis; predominance concerns)
- American Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010) (Daubert considerations at class certification may apply)
- Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (Supreme Court 1985) (forum state law may apply to out-of-state class plaintiffs in class actions)
- Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982) (certification standards require rigorous analysis of Rule 23(a))
- In re Zurn Pex Plumbing Prods. Liab. Litig., 644 F.3d 604 (8th Cir. 2011) (balanced approach to Daubert at class certification stage)
- Mabry, State Farm Mut. Auto. Ins. Co. v. Mabry, 274 Ga. 498 (Ga. 2001) (diminished value damages; state law considerations under UIM)
- Moeller v. Farmers Ins. Co., 229 P.3d 857 (Wash. Ct. App. 2010) (diminished value concepts under Washington law; stigma damages not recoverable)