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Braden v. Foremost Insurance Co. Grand Rapids, Michigan

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

May 21, 2018

DAVID BRADEN and DALE BROWN, individually and on behalf of all others similarly situated PLAINTIFFS


          Susan O. Hickey United States District Judge

         Before the Court is Plaintiffs David Braden and Dale Brown's (“Plaintiffs”) Agreed Motion for Preliminary Approval of Class Settlement, Class Certification for Settlement Purposes, Appointment of Class Representatives, and Appointment of Class Counsel. (ECF No. 108). Plaintiffs, on behalf of themselves and as Representative Plaintiffs on behalf of a proposed Settlement Class, and Defendant Foremost Insurance Company Grand Rapids, Michigan (“Foremost”), all acting by and through their respective counsel, have agreed, subject to Court approval, to settle this litigation upon the terms and conditions stated in the Stipulation of Settlement filed with the Court (the “Stipulation”). (ECF No. 108-1). On May 16, 2018, the Court held a hearing regarding the motion. The Court finds the matter ripe for consideration.

         Pursuant to Federal Rule of Civil Procedure 23(e), the Court must approve this class action settlement before it becomes effective. Review of a proposed class action settlement typically proceeds in two stages. “At the first stage, the parties submit the proposed settlement to the Court, which must make ‘a preliminary fairness evaluation.'” Martin v. Cargill, Inc., 295 F.R.D. 380, 383 (D. Minn. 2013) (quoting Fed. Judicial Ctr., Manual for Complex Litigation, Fourth (“MCL”), § 21.632). “If the proposed settlement is preliminarily acceptable, the Court then directs that notice be provided to absent class members, in order to afford them an opportunity to be heard on, object to, and opt out of the settlement.” Id. (citing Fed.R.Civ.P. 23(c)(3), (e)(1), (e)(5)).

         When making a preliminary fairness evaluation, the “fair, reasonable, and adequate” standard imposed by Rule 23(e)(2) is lowered, and the Court's focus is on whether the settlement is “within the range of possible approval due to an absence of any glaring substantive or procedural deficiencies.” Schoenbaum v. E.I. Dupont De Nemours and Co., No. 4:05-cv-1108-ERW, 2009 WL 4782082, at *3 (E.D. Mo. 2009). Although proposed settlements are presumptively reasonable at the preliminary-approval stage, the Court must nonetheless “consider issues such as whether the settlement carries the hallmarks of collusive negotiation or uninformed decision-making, is unduly favorable to class representatives or certain class members, or excessively compensates attorneys.” Id. “Because there is typically no client with the motivation, knowledge, and resources to protect its own interests, the judge must adopt the role of a skeptical client and critically examine the class certification elements, the proposed settlement terms, and procedures for implementation.” MCL at § 21.61.


         1. The Stipulation is incorporated by reference in this Order and all terms defined in the Stipulation will 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, subject to further consideration at the Final Approval Hearing.

         3. Contingent upon final approval of the Proposed Settlement and Plaintiffs complying with their obligations under the Stipulation, 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:

Persons who had a Covered Loss and who, during the Class Period, received a Qualifying ACV Payment.
Excluded from the Class are: (1) Persons that received payment in the full amount of insurance shown on the declarations page of the Homeowners Insurance Policy; (2) Foremost and its affiliates, officers, and directors; (3) members of the judiciary and their staff to whom this Action is assigned; (4) Persons who have a pending bankruptcy or whose claims were discharged in a bankruptcy proceeding; (5) Persons who executed a release of the claims set forth herein; and (6) Plaintiffs' counsel.
“Covered Loss” means: (a) physical loss or damage to a dwelling or other structure located in the State of Arkansas, (b) for which a claim was made under a Homeowners Insurance Policy, (c) which claim was determined by Foremost to be covered under the terms and provisions of the Homeowners Insurance Policy, and (d) which resulted in one or more payment(s) by or on behalf of Foremost within the Class Period for said physical loss or damage.
“Class Period” means the period of time commencing on November 21, 2008 and ending upon and including December 31, 2013.
“Qualifying ACV Payment” means an actual cash value payment made by or on behalf of Foremost in connection with a Covered Loss where the estimated cost of labor necessary to repair or replace any physical loss or damage was depreciated and withheld from said payment, as same can be determined using the methodologies described in Paragraphs 50(a-d) of the Stipulation, which methodologies have been agreed upon following negotiation by the Parties and are for purposes of this Settlement only.

         4. David Braden and Dale Brown 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 counsel as counsel for the Settlement Class (“Class Counsel”):

D. Matt Keil John C. Goodson Keil & Goodson P.A. 406 Walnut St. Texarkana, AR 71854
A.F. “Tom” Thompson, III Kenneth P. “Casey” Castleberry Murphy, Thompson, Arnold, Skinner & Castleberry 555 E. Main St., Suite 200 Batesville, AR 72501
R. Martin Weber, Jr. Richard E. Norman Crowley Norman LLP Three Riverway, Suite ...

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