United States District Court, W.D. Arkansas, Texarkana Division
DAVID BRADEN and DALE BROWN, individually and on behalf of all others similarly situated PLAINTIFFS
FOREMOST INSURANCE COMPANY GRAND RAPIDS, MICHIGAN DEFENDANT
FINAL ORDER AND JUDGMENT
O. Hickey United States District Judge
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
FINDINGS OF FACT
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.
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.
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.
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.
Plaintiffs and Foremost executed the Stipulation of
Settlement and exhibits thereto (collectively, the
“Stipulation”) on April 27, 2018.
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
April 30, 2018, Plaintiffs filed with the Court the
Stipulation along with a Motion for Preliminary Approval of
the Proposed Settlement.
May 16, 2018, the Court held a hearing to consider
preliminary approval of the Proposed Settlement.
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
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.
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.
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:
MOTION FOR SETTLEMENT (ECF NO. 108) AND EXHIBIT 1
THERETO (STIPULATION OF SETTLEMENT)
MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR
SETTLEMENT (ECF NO. 109)
BRADEN DECLARATION (ECF NO. 109-1)
BROWN DECLARATION (ECF NO. 109-2)
WEBER DECLARATION (ECF NO. 109-3)
ORDER GRANTING PRELIMINARY APPROVAL (ECF NO. 113)
WEBER DECLARATION IN SUPPORT OF MOTION FOR FINAL
APPROVAL (ECF NO. 115-1)
SCHMIDT DECLARATION IN SUPPORT OF MOTION FOR FINAL
APPROVAL (ECF NO. 115-2)
Court admitted Plaintiffs' Exhibits 1 - 8 into evidence
for all purposes.
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.
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.
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.
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.
objections to the Settlement were filed.
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,