United States District Court, W.D. Washington, Tacoma
STEVE E. BARRON, et al., Plaintiffs,
AMERICAN FAMILY MUTUAL INSURANCE COMPANY, Defendant.
ORDER GRANTING PLAINTIFFS' MOTION FOR PERMISSION
TO APPEAL, CERTIFYING ORDER FOR APPEAL, AND TEMPORARILY
BENJAMIN H. SETTLE United States District Judge.
matter comes before the Court on Plaintiffs Steve Barron,
Christine Hillestad, Marc Hillestad, Raymond Owens, Tammy
Owens, and Frank Schoen's (“Plaintiffs”)
motion for permission to appeal (Dkt. 62). The Court has
considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby grants the motion for the reasons stated herein.
28, 2016, Plaintiffs filed a class action complaint against
Defendant American Family Mutual Insurance Company
(“American Family”) asserting numerous causes of
action. Dkt. 1. All of the causes of action are based on the
theory that American Family failed to pay the actual cash
value for damaged items because American Family improperly
depreciated the value of these items based solely on the age
of each item. Id. ¶¶ 29, 30.
February 15, 2017, American Family filed a motion for summary
judgment. Dkt. 44. On March 9, 2017, Plaintiffs filed a
cross-motion for summary judgment. Dkt. 55. On April 27,
2017, the Court granted American Family's motion in part
and denied it in part and denied Plantiffs' cross-motion.
Dkt. 61. In relevant part, the Court concluded that the
parties' contract did not preclude American Family from
considering the age of an item when determining the
depreciated value of the item. Id. at 5. This
conclusion directly conflicts with the holding in Lains
v. Am. Family Mut. Ins. Co., C14-1982-JCC, 2016 WL
4533075, at *2 (W.D. Wash. Feb. 9, 2016) (“Defendant
improperly took age into consideration when determining
15, 2017, Plaintiffs filed the instant motion requesting
permission to appeal the conflicting ruling of law. Dkt. 62.
On May 30, 2017, American Family responded. Dkt. 63. On June
2, 2017, Plaintiffs replied. Dkt. 66.
1292(b) provides a mechanism by which litigants can bring an
immediate appeal of a non-final order upon the consent of
both the district court and the court of appeals.”
In re Cement Antitrust Litig., 673 F.2d 1020,
1025-26 (9th Cir. 1981). The “certification
requirements are (1) that there be a controlling question of
law, (2) that there be substantial grounds for difference of
opinion, and (3) that an immediate appeal may materially
advance the ultimate termination of the litigation.”
Id. at 1026. “[T]he legislative history of
1292(b) indicates that this section was to be used only in
exceptional situations in which allowing an interlocutory
appeal would avoid protracted and expensive
case, Plaintiffs have met their burden on all three
requirements. First, “Congress did not specifically
define what it meant by ‘controlling'” as
used in section 1292(b). See id. Likewise,
“[t]he Ninth Circuit's guidance as to what
constitutes a controlling question of law is minimal.”
Sierra Foothills Public Utility District v. Clarendon
America Insurance Company, 2006 WL 2085244, at *2
(E.D.Cal. July 25, 2006). It is well settled, however, that
“[t]he issue need not be ‘dispositive of the
lawsuit in order to be regarded as controlling[.]'”
Id. at *2 (quoting United States v.
Woodbury, 263 F.2d 784, 787-88 (9th Cir.1959)). In this
Circuit, “all that must be shown in order for a
question to be ‘controlling' is that resolution of
the issue on appeal could materially affect the outcome of
litigation in the district court.” Kight v. Eskanos
& Adler, P.C., 2007 WL 173825, at *2 (S.D. Cal. Jan.
8, 2007) (quoting In re Cement, 673 F.2d at 1026).
Court concludes that resolution of the interpretation of the
policy language is a controlling question of law. While it is
true that the issue is not dispositive of the lawsuit,
resolution could be dispositive of class certification. Under
the Court's interpretation, whether American Family
properly determined an item's depreciation is likely a
claim-by-claim, item-by-item task. It is highly unlikely that
a class could be certified on such a fact-specific inquiry.
On the other hand, under Lains, considering age at
all is a breach of contract which would apply to all members
of the proposed class. Once liability is determined, only the
administrative task of determining damages would remain.
Therefore, resolution of the contrary interpretations of the
relevant contract language could materially affect the
outcome of this matter.
substantial grounds for disagreement exist in the competing
conclusions of law.
an immediate appeal would advance this litigation because it
would not only resolve the question of law but also would
essentially determine whether the matter may proceed as a
class. If the Court is affirmed on appeal, then the matter
would most likely proceed on an individual basis foregoing
the complicated aspects of a class action and preserving both
the parties' and the Court's resources.
it is hereby ORDERED that Plaintiffs' motion for
permission to appeal (Dkt. 62) is GRANTED. The Court's
order on summary judgment (Dkt. 61) is hereby CERTIFIED to
the U.S. Court ...