Delbert SOSEEAH, for himself and others similarly situated; Maxine Soseeah, for herself and others similarly situated; John Borrego, for himself and other similarly situated, Plaintiffs-Appellees, v. SENTRY INSURANCE, a Mutual Company, and any other related business entities including parent companies, consolidated tax filers and subsidiaries including, Dairyland Insurance Company; Peak Property and Casualty Insurance Corporation; and Viking Insurance Company of Wisconsin, Defendants-Appellants.
No. 14-2199.
United States Court of Appeals, Tenth Circuit.
Dec. 18, 2015.
801 F.3d 1201
IV. CONCLUSION
For those reasons set out above, the order of the bankruptcy court partially lifting the automatic stay to allow the state divorce court to declare whether or not the Lavenhars’ divorce decree was obtained through fraud on the court is hereby AFFIRMED.
John C. Bienvenu, of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu LLP, Santa Fe, NM (Kristina Martinez of Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu LLP, Santa Fe, NM; Linda G. Hemphill of The Hemphill Firm P.C., Santa Fe, NM; and John Howard, Attorney at Law, Santa Fe, NM, with him on the brief), for Plaintiffs-Appellees.
Before BRISCOE, McKAY and McHUGH, Circuit Judges.
BRISCOE, Circuit Judge.
Plaintiffs Delbert Soseeah, Maxine Soseeah and John Borrego filed this action against defendants Sentry Insurance, Dairyland Insurance Company, Peak Property and Casualty Insurance Company, and Viking Insurance Company of Wisconsin (collectively Sentry) claiming, in part, that Sentry failed to timely and properly notify them and other Sentry automobile insurance policyholders of the impact of two New Mexico Supreme Court decisions regarding the availability of uninsured and underinsured motorist coverage under their respective policies. The district court granted plaintiffs’ motion for class certification. Sentry subsequently sought and was granted permission to appeal the district court‘s class certification ruling. Exercising jurisdiction pursuant to
I
The Weed Warrior and Jordan decisions
On October 18, 2010, the Supreme Court of New Mexico issued two related decisions addressing the provision of uninsured/underinsured motorist (UM/UIM) coverage by insurers to New Mexico residents. In the first decision, Progressive Northwestern Insurance Co. v. Weed Warrior Services, 149 N.M. 157, 245 P.3d 1209 (2010), the New Mexico Supreme Court “consider[ed] the duty imposed on insurers to offer uninsured/underinsured motorist (UM/UIM) coverage under
conclude[d] that Section 66-5-301 requires an insurer to offer UM/UIM coverage in an amount equal to the liability limits of the policy and that the choice of the insured to purchase any lower amount functions as a rejection of that maximum amount of coverage statutorily possible.
Id. at 1214. Consequently, the New Mexico Supreme Court held that “the insurer may not exclude the maximum possible level of UM/UIM coverage in an auto liability policy unless it has offered it to the insured and the insured has exercised the right to reject the coverage through some positive act.” Id. at 1213 (internal quotation marks omitted).
The second case, Jordan v. Allstate Insurance Co., 149 N.M. 162, 245 P.3d 1214 (2010), was intended by the New Mexico Supreme Court as a companion to Weed Warrior in order to provide guidance on the technical requirements for val
Id. at 1217. The court also held that its decision applied retroactively and was not limited to prospective application. Id. at 1222-23. And the court emphasized that the cost of reforming existing policies would be borne solely by insurers. Id. at 1223 (“On balance, we deem it more equitable to let the financial detriments be borne by insurers, who were in a better position to ensure meaningful compliance with the law, than to let the burdens fall on non-expert insureds, who are the Legislature‘s intended beneficiaries.“).
The filing of this action
On September 18, 2012, plaintiffs Delbert and Maxine Soseeah filed a purported class action complaint against Sentry in New Mexico state district court. The complaint alleged that Delbert Soseeah, after being injured in a motor vehicle accident, made a claim for UM/UIM benefits under two policies of automobile insurance issued by Sentry to Mrs. Soseeah. According to the complaint, Mrs. Soseeah “never executed a valid waiver of UM/UIM coverage under the” two policies and, consequently, Mr. Soseeah “demanded that ... Sentry reform” the two policies “to provide stacked uninsured/underinsured motorist coverage limits equal to the limits of the liability coverage on each of the vehicles covered by the” policies “in accordance with the decisions in Jordan and Weed Warrior.” Dist. Ct. Docket No. 1, Exh. A at 4. Sentry purportedly refused to reform the policies and rejected Mr. Soseeah‘s claim for UM/UIM benefits. Id. The complaint alleged that Sentry, by doing so, violated New Mexico‘s Unfair Practices Act (UPA),
Notably, the complaint alleged that the Soseeahs’ claims were representative of “all Sentry-insured New Mexico residents entitled to the benefits of UM/UIM coverage who failed to receive notification from ... Sentry that UM/UIM coverage limits were, as a matter of law, reformed [by Weed Warrior and Jordan] to provide coverage equal to liability limits.” Id. at 6-7. The complaint in turn alleged that the “action should proceed as a class action” under New Mexico state law. Id. at 8. Lastly, the complaint alleged that the named plaintiffs and the class should “recover treble damages” and “attorney‘s fees and costs” in connection with their UPA claim, id. at 11, damages in connection with their TPFA claim, id. at 13, reformation of their policies to provide “UM/UIM coverage with limits in an amount equal to the limits of the liability coverage of the policies at issue,” id. at 13, actual and punitive damages in connection with their claim for breach of the implied covenant of good faith and fair dealing, id. at 14, actual
Removal to federal court and amendment of the complaint
On October 22, 2012, Sentry removed the action to the United States District Court for the District of New Mexico pursuant to
The Fourth Amended Complaint
The fourth amended complaint continued to list Delbert and Maxine Soseeah as the lead plaintiffs and included many of the same factual allegations that were included in the original complaint. The fourth amended complaint, however, expanded substantially upon the original complaint by discussing the impact Weed Warrior and Jordan had upon the Soseeahs’ policies and Sentry‘s response or lack thereof to Weed Warrior and Jordan. To begin with, the complaint alleged that the Soseeahs’ purported rejection of UM/UIM coverage on their Sentry policies was, for several reasons, “legally insufficient” under Weed Warrior and Jordan. Dist. Ct. Docket No. 131 at 5. The complaint further alleged that in early 2011, Sentry “sent to every policyholder with a policy then in force that had rejected UM/UIM coverage, including Plaintiff Maxine Soseeah, a form letter [ (referred to in this litigation as the “IMPORTANT NOTICE“)] and follow-up form letter [ (referred to in this litigation as the “FINAL NOTICE“)].” Id. at 6. Both letters stated that “[i]n ... 2010, the New Mexico Supreme Court issued a ruling requiring new information to be provided with Uninsured Motorist ... coverage selection forms,” id., Att. 1, Exh. A at 1, and in turn advised policyholders “that they had to sign a new waiver or Your Premium Will Go Up,” id. at 6. The complaint also alleged that “[i]n January 2012, Defendants sent another form letter to certain policyholders [ (referred to in this litigation as the “IMPORTANT NOTICE OF POTENTIAL COVERAGE“)], including [Mrs.] Soseeah, advising them that they may have UM/UIM coverage.” Id. All of these letters, the complaint alleged, were “misleading and inaccurate” in light of Weed Warrior and Jordan. Id. at 6-7. The complaint further alleged that Sentry‘s “obligation of good faith and fair dealing to its insureds required it to reform coverage and provide a clear simple notice of reformed coverage and a right to make a claim in a timely fashion after the [two] decision[s].” Id. at 7. With respect to the Soseeahs individually, the fourth amended complaint alleged that “Sentry never notified the[m] ... that their initial signed purported waiver of UM/UIM coverage was invalid” or that they “in fact under New Mexico law had UM/UIM coverage from the policies’ inception through and including the date of their demand.” Id. at 8.
The fourth amended complaint included a third plaintiff named John Borrego and added factual allegations relating to Borrego. According to the fourth amended complaint, Borrego purchased a policy of insurance from Sentry that provided coverage for two personal vehicles. The complaint alleged that after Weed Warrior and
The “Class Action Allegations” section of the fourth amended complaint alleged that “all insurance policies issued by Defendant Sentry to New Mexico policyholders [we]re uniform in all respects material to [the] claims” asserted by the named plaintiffs, id., and that “all forms used by Defendant Sentry for putative rejection of UM/UIM insurance coverage [we]re [also] uniform in all respects material to [the] claims brought” by plaintiffs, id. at 13. The section in turn defined the proposed class as “[a]ll insureds under policies issued in New Mexico by Sentry and its related entities ... from January 1, 1995 to April 1, 2011 in which UM/UIM coverage was purportedly rejected.” Id. The section alleged that “[b]ecause no such rejections were in conformance with New Mexico law as set forth in Jordan and Weed Warrior, all such insureds [we]re entitled to reformation and proper and adequate notice.” Id. The section further alleged that certification of the proposed class was “desirable and proper because there [we]re questions of law and fact ... common to all members of the Class,” including whether Sentry‘s “acts and practices” amounted to “a breach of its contractual obligations with respect to its New Mexico policyholders,” “breached the implied covenant of good faith and fair dealing with respect to the policies issued to New Mexicans,” and “constitute[d] unfair or deceptive trade practices or unconscionable trade practices.” Id. at 14-15.
The specific claims alleged in the fourth amended complaint, and the forms of relief sought in connection with those claims, were essentially identical to those alleged in the original complaint.
Dismissal of the TPFA claim
On July 10, 2014, the district court, acting pursuant to Sentry‘s motion, dismissed without prejudice plaintiffs’ TPFA claim. In doing so, the district court concluded that “[t]he plain language of the statute clearly limits recovery to actual damages and only gives the [New Mexico] Superintendent of Insurance the power to seek injunctions.” Dist. Ct. Docket No. 134 at 12-13. The district court emphasized that “[p]laintiffs [we]re free to pursue their claims for injunctive and declaratory relief under another cause of action.” Id. at 13.
Although Sentry also moved to dismiss the remainder of plaintiffs’ claims on the grounds that there was no allegation of irreparable harm, the district court disagreed and denied Sentry‘s motion.
Class certification
Plaintiffs moved for certification of the class identified in the fourth amended complaint. On September 26, 2014, the district court issued a memorandum opinion and order granting plaintiffs’ motion as to the following class:
All insureds under policies issued in New Mexico by Sentry and its related entities ... from May 20, 2004 to April
1, 2011 in which UM/UIM coverage was purportedly rejected.... Included as subclasses are: (1) insured[s] who received the “IMPORTANT NOTICE” and “FINAL NOTICE” ...; and (2) insured[s] who received the “IMPORTANT NOTICE OF POTENTIAL COVERAGE.”
Dist. Ct. Docket No. 136 at 3.1
In doing so, the district court determined that all four of the prerequisites outlined in
- that “the numerosity requirement [wa]s satisfied” because “Defendant Sentry conceded in discovery that at least 36,000 potential claimants signed rejections and may be entitled to reformation of their policies,” and “Sentry d[id] not contest that joinder of so many individuals would be impracticable,” id. at 5;
- that plaintiffs “met the commonality requirement” because “the potential class members ... experienced the same injury,” i.e., “the lack of proper notice of the coverage available to the policy holders after Jordan and Weed Warrior,” “in spite of the factual differences between them,” id. at 7;
- that plaintiffs “satisfied the typicality requirement,” id. at 9, because “the proposed class consist[ed] of policyholders who received inadequate notice from Defendant Sentry,” id. at 8, and thus “the claims ... ar[o]se from the same course of events and all proposed class members were subjected to the same harmful practices,” id. at 8-9; and
- that the named plaintiffs were “adequate representatives of the class,” id. at 11, and that “[p]laintiffs’ attorneys [we]re adequate to represent the class,” id. at 13.
The district court in turn concluded that plaintiffs “met the requirements of Rule 23(b)(2) for certification of the proposed class.” Id. at 15. In reaching this conclusion, the district court noted that
[p]laintiffs requested the following remedies: (1) an injunction that prohibits Defendant Sentry from continuing to engage in practices that violate its duties and contractual and legal obligations owed to Plaintiffs and the proposed class; and (2) an injunction requiring Defendant Sentry to give notice to all class members that the Jordan and Weed Warrior decisions mandate that they are entitled to UM/UIM coverage equal to liability coverage, and of their right to make a UM/UIM claims notwithstanding the fact that they had previously rejected UM/UIM coverage, because the rejection was invalid.
Id. at 14-15. In other words, the district court concluded that this requested injunction was “sufficiently specific ... to meet the requirements of
In sum, the district court concluded that plaintiffs “established the requirements for certification of the proposed class pursuant to Federal Rule of Civil Procedure 23(b)(2)” and that “[a] class action [wa]s the fairest and most efficient manner of litigating the injunctive claims at issue in the ... case.” Id.
Sentry‘s appeal
Sentry sought and was granted permission by this court pursuant to
II
Standards of review
“We review the district court‘s decision to certify the class for an abuse of discretion.” Tennille v. W. Union Co., 785 F.3d 422, 430 (10th Cir.2015). “The district court abuses its discretion when it misapplies the Rule 23 factors—either through a clearly erroneous finding of fact or an erroneous conclusion of law—in deciding whether class certification is appropriate.” CGC Holding Co. v. Broad & Cassel, 773 F.3d 1076, 1085-86 (10th Cir. 2014). “Our review is only de novo to the extent we must determine whether the district court applied the correct standard.” Id. at 1086. “In the end, as long as the district court applies the proper Rule 23 standard, we will defer to its class certification ruling provided that decision falls within the bounds of rationally available choices given the facts and law involved in the matter at hand.” Id. (internal quotation marks and brackets omitted).
Class certification standards
“Class certification is governed by Federal Rule of Civil Procedure 23.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S.Ct. 2541, 2548, 180 L.Ed.2d 374 (2011).
One or more members of a class may sue or be sued as representatives on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.
The district court‘s commonality determination
Sentry‘s arguments on appeal focus on the district court‘s commonality determination. As discussed in greater detail below, we agree with Sentry that the district court abused its discretion in concluding that the general class it certified satisfied Rule 23(a)(2)‘s commonality requirement.
a) The meaning of Rule 23(a)(2)‘s commonality requirement
In Wal-Mart, the Supreme Court expounded on the meaning of Rule 23(a)(2)‘s commonality requirement:
Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury.” [Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)]. This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that
result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate-impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. * * * Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We recognized in Falcon that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” 457 U.S. at 160, 102 S.Ct. 2364, and that certification is proper only if “the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,” id., at 161, 102 S.Ct. 2364; see id., at 160, 102 S.Ct. 2364 (“[A]ctual, not presumed, conformance with Rule 23(a) remains ... indispensable“). Frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiff‘s underlying claim. That cannot be helped. “[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff‘s cause of action.” Falcon, supra, at 160, 102 S.Ct. 2364 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); some internal quotation marks omitted). Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation. See Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 676-677 (C.A.7 2001) (Easterbrook, J.).
131 S.Ct. at 2551-52 (footnote omitted).
b) Did the district court err in finding any class-wide injury?
Sentry argues that the district court‘s “most glaring error was finding a common injury where the vast majority of class members suffered no legally cognizable injury at all.” Aplt. Br. at 37 (emphasis in original). More specifically, Sentry asserts that “Plaintiffs have no right in contract, tort or any other law to a purely inchoate ‘notice’ from the insurance company—without ever tendering a claim for benefits—that their automobile insurance policies were being reformed retroactively to provide UM coverage where it had been rejected without the required Jordan disclosures.” Id. at 39. “And,” Sentry argues, “Plaintiffs neither claim, nor is it so, that the New Mexico Department of Insurance has required any such notice.” Id. In short, Sentry argues that “[p]urported lack of notice of the change in UM law after Jordan and Weed Warrior ... is not a common injury or, indeed, any injury at all.” Id. at 42 (emphasis in original).
To determine whether the certified class of plaintiffs suffered a common and legally cognizable injury, we focus our attention on whether the plaintiffs have alleged the violation of any recognized legal duty on the part of Sentry. As the Sev
The UPA prohibits certain types of acts that occur “in connection with the sale, lease, rental or loan of goods or services or in the extension of credit or in the collection of debts by a person in the regular course of the person‘s trade or commerce.”
Plaintiffs also allege in the fourth amended complaint that Sentry breached the terms of the various policies of insurance that are encompassed by the certified class. But plaintiffs have not identified a single contractual provision in any of the policies at issue, let alone one that is contained in all of the policies at issue, that would have imposed a duty on Sentry to inform the certified class of the impact of Weed Warrior and Jordan.3 Consequently, we conclude that the plaintiffs’ breach
That leaves only plaintiffs’ bad faith tort claim. Under New Mexico law, each insurance contract includes “an implied covenant of good faith and fair dealing that the insurer will not injure its policyholder‘s right to receive the full benefits of the contract.”4 Dairyland Ins. Co. v. Herman, 124 N.M. 624, 954 P.2d 56, 60 (1997). “[T]his means that an insurer cannot be partial to its own interests, but must give its interests and the interests of its insured equal consideration.” Id. at 61 (internal quotation marks omitted). “[T]he implied covenant of good faith and fair dealing protects against only bad faith or wrongful and intentional conduct that injures the other party‘s rights under the contract ...” Azar v. Prudential Ins. Co. of Am., 133 N.M. 669, 68 P.3d 909, 927 (Ct.App.2003).
Even if we were to assume that Sentry acted in bad faith with respect to all of the policyholders identified in the general certified class by failing to inform them of the impact of Weed Warrior and Jordan on their respective policies, we are not persuaded that plaintiffs have alleged, let alone made any attempt to establish, that such conduct injured every policyholder‘s rights under their respective policies. Indeed, we fail to see how the purported lack of notice and information could have injured a policyholder in the absence of a viable claim against Sentry for UM/UIM benefits. And there appears to be little dispute that many, if not most, of the certified class members do not have any such claim at all. As a result, there is simply no common injury among the general certified class that would satisfy the requirements of
To be sure, plaintiffs suggest that the New Mexico Supreme Court‘s decision in Salas v. Mountain States Mut. Cas. Co., 145 N.M. 542, 202 P.3d 801 (2009), supports their bad faith claim and indicates that an insurer‘s failure to disclose necessarily gives rise to a valid bad faith claim under New Mexico state law. In other words, plaintiffs suggest that, under Salas, an insurer injures an insured merely by failing to disclose to the insured relevant information about the policy at issue. We disagree.
Salas dealt primarily with a breach of contract claim brought by an injured class-
In our view, there are at least two reasons why Salas fails to support the bad faith theory urged by the plaintiffs in this case. First, nothing in Salas states that an insurer‘s failure to disclose, standing alone, gives rise to a bad faith claim. Indeed, although the plaintiff in Salas asserted a bad faith claim in addition to her breach of contract claim, the New Mexico Supreme Court did not address the bad faith claim at all (because the New Mexico Court of Appeals failed to address that claim in the first instance). Thus, the holding in Salas must necessarily be read as limited to breach of contract claims brought by an insured against an insurer.
Second, to the extent that the New Mexico Supreme Court in Salas touched upon an insurer‘s duty of good faith to its insured (and, again, it did so only in the context of addressing the plaintiff‘s breach of contract claim), it simply repeated the principles that we have already recognized, i.e., that the implied covenant of good faith and fair dealing requires “that the insurer will not injure its [insured]‘s right to receive the full benefits of the contract.” 202 P.3d. at 805 (quoting Dairyland Ins. Co. v. Herman, 124 N.M. 624, 954 P.2d 56, 60 (1997)). Nothing in this language supports the plaintiffs’ theory that an insurer‘s failure to give notice, without any resulting infringement upon an insured‘s rights under the contract, can give rise to a valid bad faith claim.
Because plaintiffs have failed to establish that all members of the general certified class suffered the common injury required by
The subclasses identified by the district court
The district court, in addition to certifying the general class, identified the following two subclasses: “(1) insured[s] who received the ‘IMPORTANT NOTICE’ and ‘FINAL NOTICE’ ...; and (2) insured[s] who received the ‘IMPORTANT NOTICE OF POTENTIAL COVERAGE.‘” Dist. Ct. Docket No. 136 at 3.
The members of the first subclass were Sentry policyholders who, in early 2011, received from Sentry the form letters entitled “IMPORTANT NOTICE” and “FINAL NOTICE.” Neither of these letters informed the recipient policyholders that their policies had been automatically reformed, without any additional premium, to include UM/UIM coverage equal to the liability limits of the policies. Instead, the letters stated that (a) the policyholders had to return the enclosed UM Coverage Selection Form, (b) Sentry could keep the UM/UIM limits below the liability limits of the policies if the policyholders so chose, and (c) Sentry could charge the policyholders an additional premium for UM/UIM coverage in an amount equal to liability coverage.
Notably,
Because the district court‘s certification ruling did not expressly address the Rule 23 factors as they applied to each of the identified subclasses, we do not have enough information to determine whether the district court abused its discretion in certifying the two subclasses. Consequently, we direct the district court on remand to address these issues.
III
The district court‘s order is REVERSED and the case is REMANDED to the district court for further consideration of plaintiffs’ motion for class certification. Sentry‘s unopposed motion for leave to file exhibit under seal is GRANTED.