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Larey v. Allstate Property and Casualty Insurance Co.

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

February 9, 2018

MICHAEL H. LAREY, individually and on behalf of all others similarly situated PLAINTIFF
v.
ALLSTATE PROPERTY AND CASUALTY INSURANCE COMPANY DEFENDANT

          FINAL ORDER AND JUDGMENT

          Susan O. Hickey, United States District Judge.

         Before the Court is Plaintiff's Agreed Motion for Final Approval of Class Action Settlement, Class Certification for Settlement Purposes, Appointment of Class Representatives and Appointment of Class Counsel (“Motion for Final Approval”). (ECF No. 73). Also before the Court is Class Counsel's Motion for Attorneys' Fees and Costs Related to the Stipulation of Settlement and Request for Fee Award to Class Representatives (“Class Counsel's Application for Fees”). (ECF No. 75). Plaintiff and Defendant have agreed-subject to Court approval-to settle this litigation pursuant to the terms and conditions stated in the Amended Stipulation of Settlement filed with the Court on October 2, 2017. (ECF No. 71-1). On February 1, 2018, the Court held a final approval hearing on the motions. The Court finds the matter ripe for consideration.

         I. FINDINGS OF FACT

         1. Michael H. Larey, the sole remaining named Plaintiff, filed the operative complaint, the Second Amended Class Action Complaint (the “Complaint”), alleging that Allstate Property and Casualty Insurance Company (“Allstate”) violated applicable law and breached its contracts with insureds by depreciating labor when calculating actual cash value payments for structural claims. Allstate has denied, and still denies, any liability, wrongdoing, and damages with respect to the matters alleged in the Complaint.

         2. After litigation between the Parties and arms-length negotiations between Class Counsel and Allstate's counsel, the Parties reached a settlement that provides substantial benefits to the Class, in return for a release and dismissal of claims against Allstate. The Settlement was reached after the Parties had engaged in extensive and lengthy negotiations and mediation before United States Magistrate Judge Barry A. Bryant. Class Counsel was therefore well positioned to evaluate the benefits of the Settlement, taking into account the expense, risk, and uncertainty of protracted litigation with respect to numerous difficult questions of law and fact.

         3. Plaintiff and Allstate executed the Stipulation of Settlement and exhibits thereto on May 31, 2017. Plaintiff and Allstate executed a Revised Stipulation of Settlement and exhibits thereto (collectively, the “Stipulation”) on October 2, 2017.

         4. The Stipulation is hereby incorporated by reference in this Final Order and Judgment, and the definitions and terms set forth in the Stipulation are hereby adopted and incorporated into and will have the same meanings in this Final Order and Judgment.

         5. On June 2, 2017, the Parties filed with the Court the original Stipulation of Settlement, along with a Motion for Preliminary Approval of the Proposed Settlement.

         6. On August 28, 2017, the Court held a hearing to consider the preliminary approval of the Proposed Settlement.

         7. On September 25, 2017, the Court entered its Order Preliminary Approving Class Settlement (“Preliminary Approval Order”), preliminarily approving the Stipulation, preliminarily certifying the Class as a class action for settlement purposes only, and scheduling a hearing for February 1, 2018, at 9:00 a.m. to consider final approval of the Proposed Settlement and other actions described in the Preliminary Approval Order and the Stipulation (“Final Approval Hearing”).

         8. As part of its Preliminary Approval Order, the Court conditionally certified for settlement purposes only a class (“Settlement Class”) defined as follows:

All Persons in Arkansas who had a Covered Loss, where estimated labor depreciation was initially deducted from the claim payment, and where the claim was paid at less than the limit of liability (accounting for deductible) as set forth on the declarations page of the applicable Policy.

         Excluded from the Class are:

(1) Persons who received indemnification payment(s) for full replacement cost with no initial deduction of any estimated labor depreciation;
(2) Persons who received indemnification payment(s) in the full amount of limit of liability shown on the declarations page of their Policy;
(3) Allstate and its affiliates, officers, and directors;
(4) Members of the judiciary and their staff to whom this action is assigned; and
(5) Class Counsel.
“Covered Loss” means a first party insurance claim for physical damage, with a date of loss from December 7, 2010 to November 22, 2013 on an Arkansas homeowners insurance policy issued by Allstate Insurance Company, Allstate Indemnity Company, Allstate Property & Casualty Insurance Company, Allstate Vehicle and Property Insurance Company, or North Light Specialty Insurance Company that resulted in an indemnity payment by any of those companies under Coverages A or B.

         9. On January 26, 2018, Plaintiff moved the Court for Final Approval of the terms of the Proposed Settlement and for the entry of this Final Order and Judgment. In support, Plaintiff submitted, inter alia, evidence showing: the dissemination and adequacy of the Class Notice and Claim Form; the publication of the Publication Notice; the establishment of an automated toll-free telephone number and settlement website; the names of potential Class Members who, per the terms of the Stipulation, submitted a timely and proper request for exclusion from the Class; the negotiation of the Stipulation; the fairness, reasonableness, and adequacy of the Stipulation; and the fairness, reasonableness, and adequacy of Class Counsel's Application for Fees. In support of the Motion for Final Approval, Plaintiff submitted a Brief in Support, setting forth extensive argument and authority along with various exhibits attached thereto. Class Counsel's Application for Fees also contained both extensive argument and authority.

         10. Plaintiff offered at the Final Approval Hearing the following evidence in support of the Motion for Final Approval and Class Counsel's Application for Fees:

Exhibit No.

Description

1

DECLARATION OF MATT KEIL

2

DECLARATION OF MICHAEL H. LAREY

3

DECLARATION OF CAMERON R. AZARI

         The Court admitted Plaintiff's Exhibits 1-3 into evidence for all purposes.

         11. Plaintiff and the Administrator have satisfactorily demonstrated that the Class Notice and Claim Form was mailed, that the Publication Notice was published, and that an automated toll-free telephone number and settlement website were established in accordance with the Stipulation and Preliminary Approval Order.

         12. The Court further finds that all notices concerning the Settlement required by the Class Action Fairness Act of 2005, 28 U.S.C. §§ 1715 et seq., have been sent and that Allstate has fully complied with the notice requirements under that Act.

         13. The Settlement provides substantial monetary benefits to Class Members who timely submit completed Claim Forms. In addition, Allstate has agreed to fund the costs of notice and settlement administration. The claims procedure established under the Stipulation is uniform and fair, and provides Class Members with an extended and ample opportunity to receive settlement payments as described in the Stipulation.

         14. All potential Class Members were provided an opportunity to request exclusion as provided in the Stipulation. The Court finds that the individual interests of those Class Members who timely sought exclusion from the Class are preserved and that no Class Member was precluded from being excluded from the Class if he or she so desired. Those Class Members who timely and properly excluded themselves from the Class are identified in the attached Exhibit 1.

         15. Class Members who did not timely file and serve an objection in writing to the Stipulation, to the entry of this Final Judgment, or to Class Counsel's Application for Fees, in accordance with the procedure set forth in the Stipulation and mandated in the Preliminary Approval Order, are deemed to have waived any such objection through any appeal, collateral attack, or otherwise.

         16. At the Final Approval Hearing, the Court considered, among other matters described herein, (a) whether certification of the Settlement Class for settlement purposes only was appropriate under Rule 23 of the Federal Rules of Civil Procedure; (b) the fairness, reasonableness, and the adequacy of the Stipulation; and (c) the fairness and reasonableness of Class Counsel's Application for Fees under applicable law. The Court independently evaluated not only the pleadings, evidence, and arguments of Class Counsel and Allstate's counsel, but also rigorously and independently evaluated the Stipulation and Class Counsel's Application for Fees on behalf of Class Members, and as such, the Court considered arguments that could reasonably be made against approval of the Stipulation and Class Counsel's Application for Attorneys' Fees, even though such arguments were not actually presented to the Court by pleading or oral argument.

         17. On the basis of the matters presented in this Lawsuit and the provisions of the Stipulation, the Court is of the opinion that the Proposed Settlement is a fair, reasonable, and adequate compromise of the claims against Allstate, pursuant to Rule 23 of the Federal Rules of Civil Procedure. In considering a number of factors, the Court finds that:

a. The liability issues in this Lawsuit and the suitability of this Lawsuit for certification of a litigation class have been vigorously contested, particularly with respect to litigation manageability requirements;
b. This Proposed Settlement has the benefit of providing substantial benefits to Class Members now, without further litigation, under circumstances where the liability issues are still vigorously contested among the Parties;
c. The Proposed Settlement is clearly a byproduct of adversary litigation between the Parties, and not a result of any collusion on the part of Class Counsel or Allstate; and
d. Class Counsel's request for an award of reasonable fees and reimbursement of expenses is reasonable, fair, and in all respects consistent with the terms of the Stipulation.

         Therefore, on the basis of the foregoing findings of fact and the oral findings of fact articulated at the Final Approval Hearing referenced herein, the Court hereby makes the following:

         II. CONCLUSIONS OF LAW

         1. The Court has personal jurisdiction over the Plaintiff, Allstate, and Class Members; venue is proper; and the Court has subject matter jurisdiction, including without limitation, jurisdiction to approve the Stipulation, to grant final certification of the Class, to settle and release all claims arising out of the Lawsuit, and to ...


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