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Braden v. Foremost Insurance Co. Grand Rapids, Michigan

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

October 9, 2018

DAVID BRADEN and DALE BROWN, individually and on behalf of all others similarly situated PLAINTIFFS
v.
FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN DEFENDANT

          FINAL ORDER AND JUDGMENT

          Susan O. Hickey United States District Judge

         Before the Court is Plaintiffs' Motion for Final Approval of Class Action Settlement, Class Certification for Settlement Purposes, Appointment of Class Representatives and Appointment of Class Counsel and Entry of Final Order and Judgment (“Motion for Final Approval”). (ECF No. 115). 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. 117). Plaintiffs 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 April 30, 2018. (ECF No. 108-1). On October 5, 2018, the Court held a final approval hearing on the motions. The Court finds the matter ripe for consideration.

         I. FINDINGS OF FACT

         1. Plaintiffs David Braden and Dale Brown filed the instant case on December 10, 2015, styled David Braden and Dale Brown v. Foremost Insurance Company Grand Rapids, Michigan and assigned No. 4:15-cv-04114-SOH (the “Complaint”), alleging that Defendant Foremost Insurance Company Grand Rapids, Michigan (“Foremost”) improperly deducted depreciation attributable to costs of labor from actual cash value payments when adjusting claims for structural losses under homeowners insurance policies.

         2. Foremost denies all material allegations in the Action, as to which Foremost asserts numerous defenses, and as to which Foremost maintains that the requirements of a litigation class action have not been met.

         3. Substantial discovery has been undertaken by the Parties. The Parties have briefed Plaintiffs' motion to certify a class and are awaiting a decision by the Court.

         4. After litigation between the Parties and arms-length negotiations between Class Counsel and Foremost's counsel, the Parties reached a settlement that provides substantial benefits to the Class Members, in return for a release and dismissal of claims against Foremost. The Settlement was reached after the Parties had engaged in extensive and lengthy negotiations, including mediation before John Greer and further negotiations following the mediation. 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.

         5. Plaintiffs and Foremost executed the Stipulation of Settlement and exhibits thereto (collectively, the “Stipulation”) on April 27, 2018.

         6. 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.

         7. On April 30, 2018, Plaintiffs filed with the Court the Stipulation along with a Motion for Preliminary Approval of the Proposed Settlement.

         8. On May 16, 2018, the Court held a hearing to consider preliminary approval of the Proposed Settlement.

         9. On May 16, 2018, the Court entered its Order Preliminarily 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 October 5, 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”).

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

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.

         11. On September 28, 2018, Plaintiffs applied to the Court for Final Approval of the terms of the Proposed Settlement and for the entry of this Final Order and Judgment. In support, Plaintiffs 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, Plaintiffs 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, with various exhibits attached thereto.

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

EX. #

DESCRIPTION

1

MOTION FOR SETTLEMENT (ECF NO. 108) AND EXHIBIT 1 THERETO (STIPULATION OF SETTLEMENT)

2

MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR SETTLEMENT (ECF NO. 109)

3

BRADEN DECLARATION (ECF NO. 109-1)

4

BROWN DECLARATION (ECF NO. 109-2)

5

WEBER DECLARATION (ECF NO. 109-3)

6

ORDER GRANTING PRELIMINARY APPROVAL (ECF NO. 113)

7

WEBER DECLARATION IN SUPPORT OF MOTION FOR FINAL APPROVAL (ECF NO. 115-1)

8

SCHMIDT DECLARATION IN SUPPORT OF MOTION FOR FINAL APPROVAL (ECF NO. 115-2)

         13. The Court admitted Plaintiffs' Exhibits 1 - 8 into evidence for all purposes.

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

         15. 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 Foremost has fully complied with the notice requirements under that Act.

         16. The Settlement provides substantial monetary benefits to Class Members who timely submit completed Claim Forms. In addition, Foremost 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.

         17. 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.

         18. No objections to the Settlement were filed.

         19. Class Members who did not timely file and serve a written objection to the Stipulation, to the entry of this Final Order and 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 ...


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