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Green v. American Modern Home Insurance Co.

United States District Court, W.D. Arkansas, Texarkana Division

February 28, 2017

PAMELA GREEN and GARY EDWARDS, individually and on behalf of all others similarly situated PLAINTIFFS
v.
AMERICAN MODERN HOME INSURANCE COMPANY, et al. DEFENDANTS

          ORDER

          Susan O. Hickey United States District Judge.

         Before the Court is Plaintiffs' Agreed Motion for Preliminary Approval of Class Action Settlement. (ECF No. 79). Plaintiffs and Defendants[1] have agreed-subject to Court approval- to settle this litigation pursuant to the terms and conditions stated in the Stipulation of Settlement (the “Stipulation”) filed with the Court on January 24, 2017. (ECF No. 79-1). On February 15, 2017, the Court held a hearing regarding the motion. The Court finds this matter ripe for consideration.

         IT IS HEREBY ORDERED THAT:

         1. The Stipulation is incorporated by reference in this Order, and all terms defined in the Stipulation shall have the same meanings in this Order.

         2. The Stipulation and Proposed Settlement are preliminarily approved as fair, adequate, and reasonable, and Plaintiffs' motion for preliminary approval of the Proposed Settlement is hereby GRANTED in all material respects, subject to further consideration at the Final Approval Hearing. However, the Court does find that the Stipulation must be amended in certain non-material respects, as specifically noted below. Provisions of this Order that deviate from the terms of the Stipulation will be underlined.

         3. Contingent upon final approval of the Proposed Settlement, and pursuant to Federal Rule of Civil Procedure 23, Plaintiffs' motion for preliminary class certification is hereby GRANTED. The following Settlement Class is conditionally certified for settlement purposes only:

All Persons who had a Covered Loss in the state of Arkansas that occurred during the Class Period of April 11, 2009 through April 11, 2014, where the claim was paid at less than the limit of liability (accounting for deductible), and where American Modern made an ACV payment for Structural Loss that included a deduction for Labor Depreciation, or would have made an ACV payment for Structural Loss but for the deduction of Labor Depreciation.
Excluded from the Class are: (1) Persons who received indemnification payment(s) for full replacement cost; (2) claims that were open and still being actively adjusted as of April 11, 2014; (3) claims for which American Modern received an executed release during the Class Period; (4) American Modern and its officers and directors; (5) Members of the judiciary and their staff to whom this action is assigned; and (6) Class Counsel.
“Class Period” means the period of April 11, 2009, through April 11, 2014, inclusive of those dates.

         4. Plaintiffs Pamela Green and Gary Edwards are preliminarily appointed as representatives of the Settlement Class (“Representative Plaintiffs”), and the Court preliminarily finds that the following attorneys for Plaintiffs satisfy the adequacy requirement of Federal Rule of Civil Procedure 23, and appoints such as counsel for the Settlement Class (“Class Counsel”):

Matt Keil John C. Goodson KEIL & GOODSON P.A. 406 Walnut St. Texarkana, Arkansas 71854
Steven E. Vowell William B. Putman TAYLOR LAW PARTNERS 303 E. Millsap Road P.O. Box 8310 Fayetteville, Arkansas 72703
Richard Norman R. Martin Weber, Jr. CROWLEY NORMAN LLP Three Riverway, Ste. 1775 Houston, Texas 77056
A.F. “Tom” Thompson, III Casey Castleberry MURPHY, THOMPSON, ARNOLD, SKINNER & CASTLEBERRY 555 E. Main St., Suite 200 Batesville, Arkansas 72503
James M. Pratt JAMES M. PRATT, JR. P.A. 144 Washington St. N.W. Camden, Arkansas 71701
Jason E. Roselius MATTINGLY & ROSELIUS, PLLC 13182 N. MacArthur Blvd. Oklahoma City, Oklahoma 73142
Matthew L. Mustokoff Richard A. Russo, Jr. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Road Radnor, PA 19087

         If final approval of the Proposed Settlement is not granted, or if the Stipulation is disapproved or modified in whole or in part by the Court, any appellate court, or any other court or review, or if the Settlement is terminated as provided in this Order or Paragraph 84 of the Stipulation, then this Order-including the preliminary certification of the Settlement Class and the preliminary appointment of the Representative Plaintiffs and Class Counsel-shall automatically be vacated nunc pro tunc; the Stipulation and this Order shall become null and void and be of no further force and effect and will not be used in the Action, or in any other proceeding for any purpose; all communications and documents related to the Settlement will be subjected to Federal Rule of Evidence 408 and all other applicable settlement, negotiation, and mediation privileges; the addition of the New Defendants as additional defendants to the Action shall be void ab initio, and it will be as if the New Defendants were never parties to the Action; neither the Stipulation nor this Order shall be used or referred to for any purpose whatsoever; and the parties shall retain, without prejudice, any and all objections, arguments, and defenses with respect to class certification.

         5. Garden City Group, Inc. (the “Administrator”) shall serve as the third-party administrator of the Settlement in accordance with terms of the Stipulation.

         6. Pending the Court's final determination of whether the Proposed Settlement will be approved, the Court preliminarily enjoins all Class Members and their Legally Authorized Representatives, unless and until they have timely and properly excluded themselves from the Settlement Class, from (i) filing, commencing, prosecuting, intervening in, or participating as a plaintiff, claimant, or class member in any other lawsuit or administrative, regulatory, arbitration, or other proceeding in any jurisdiction based on or arising from the Released Claims; (ii) filing, commencing, or prosecuting a lawsuit or administrative, regulatory, arbitration, or other proceeding in any jurisdiction as a class action on behalf of any Class Members who have not timely excluded themselves, based on or arising from the Released Claims; and (iii) from attempting to effect an opt-out class of individuals in any lawsuit or administrative, regulatory, arbitration, or other proceeding in any jurisdiction arising from the Released Claims. This injunction is necessary to protect and effectuate the Stipulation and the Settlement contemplated thereby, this Order, and the Court's flexibility and authority to effectuate the Stipulation and to enter judgment when appropriate, and is ordered in aid of the Court's jurisdiction and to protect its judgments.

         7. The parties have prepared the Mailed Notice, Claim Form, Publication Notice, and Reminder Postcard, which have been submitted to the Court as Exhibits 2, 3, 4, and 6 to the Stipulation. (ECF No. 51-1). The Court has reviewed and approves these forms. Counsel for the Parties, along with the Administrator, are authorized to complete any missing information and to make any non-substantive revisions to those documents ...


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