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Stone v. Government Employees Insurance Co.

United States District Court, W.D. Washington, Tacoma

September 19, 2017

MEGAN STONE and CHRISTINE CAROSI, Plaintiffs,
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant.

          ORDER DENYING PLAINTIFFS' MOTION TO REMAND

          BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Plaintiffs Megan Stone (“Stone”) and Christine Carosi's (“Carosi”) (collectively “Plaintiffs”) motion to remand (Dkt. 112). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby denies the motion for the reasons stated herein.

         I. PROCEDURAL AND FACTUAL BACKGROUND

         Stone was involved in a hit and run car accident on May 22, 2014. Dkt. 3-2 ¶ 1.3. Stone had an automobile insurance policy with Defendant Government Employees Insurance Company (“GEICO”). Id. ¶ 2.1; Dkt. 12-1. Stone was unable to use her car for about 105 days while GEICO investigated her claim and while her car was being repaired. Dkt. 3-2 ¶ 1.5.

         On June 17, 2015, Stone filed a class action complaint against GEICO in Pierce County Superior Court. Id. Stone claims GEICO failed to pay her for “loss of use” damages. Id. ¶¶ 1.6-1.7. Stone sought to certify the following class:

All GEICO insureds with Washington policies issued in Washington State, where GEICO determined the loss to be covered under the Underinsured Motorist (UIM) coverage, and their vehicle suffered a loss requiring repair, or the vehicle was totaled, during which time they were without the use of their vehicle, for a day or more.
Excluded from the Class are the assigned judge, the judge's staff and family, GEICO employees, those who received payment for substitute transportation from GEICO during the entire period they were without the use of their vehicle . . . .

Id. ¶¶ 5.3. Stone claimed there would be about 5, 000 class members and the average damages would be about $140 per class member. Id. ¶¶ 3.2-3.3. Based on these numbers, Stone alleged the amount in controversy would be at most $700, 000. Id. ¶ 3.3. Stone asserted a single breach of contract claim, and sought compensatory damages, injunctive and equitable relief, and attorney's fees. Id. ¶¶ 6.1-6.5, 7.1.

         On February 18, 2016, Stone deposed GEICO's Rule 30(b)(6) designee, David Antonacci (“Antonacci”). Dkt. 9-3, Deposition of David Antonacci (“Antonacci Dep.”). Antonacci testified that about 18, 000 GEICO insureds had filed UIM claims during the class period in Washington. Id. at 13:2-21. Antonacci further testified that GEICO possessed information regarding the average price it paid for rental cars during the class period. Id. at 22:9-14, 39:24-40:21. These numbers were produced in a supplemental response to a discovery request showing that the average daily rate is approximately $35/day. Dkt. 18-1 at 8.

         On May 10, 2016, Stone filed an amended complaint, which added Carosi as a named plaintiff. Dkt. 1-2 (“Comp.”). Carosi was involved in a rear-end collision while insured by GEICO. Id. ¶ 1.6. Carosi was unable to use her car for about 35 days while GEICO investigated her claim and while her car was being repaired. Id. ¶¶ 1.6, 1.8, 3.2. Plaintiffs' amended complaint contains the same proposed class definition, class allegations, breach of contract claim, and requests for relief. Compare Dkt. 3-2, with Comp.

         On May 16, 2016, Plaintiffs moved for class certification. Dkt. 3-50. Plaintiffs sought to certify the same class pled in their original complaint. Id. To support their motion, Plaintiffs provided a declaration from their statistician, Dr. Bernard Siskin, who explained how the number of class members and the average damages per class member could be determined. Dkt. 17-6, Declaration of Bernard Siskin ¶¶ 4-5.

         On May 20, 2016, GEICO removed the action to this Court under the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d). Dkt. 2-1. GEICO alleges the proposed class may include as many as 22, 929 members and the average damages may be $321.30 per class member. Id. at 4. Based on these numbers, GEICO asserts there is potentially $7, 367, 087.70 in controversy. Id.

         On June 14, 2016, Plaintiffs moved to remand. Dkt. 16. On July 28, 2016, the Court granted Plaintiffs' motion to remand. Dkt. 35. On August 11, 2016, GEICO filed a motion for reconsideration. Dkt. 41. On October 12, 2016, the Court granted GEICO's motion, vacated its previous order, and issued an amended order denying Plaintiffs' motion to remand. Dkts. 50, 51.

         After the Court denied remand, the parties engaged in discovery regarding the Court's subject matter jurisdiction. On August 8, 2017, the Court granted GEICO's motion to compel in part and denied it in part. Dkt. 115. In relevant part, the Court concluded that Plaintiffs asserted a coverage dispute and may be entitled to ...


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