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Kleinsasser v. Progressive Direct Insurance Co.

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

October 10, 2017

MARK D. KLEINSASSER, Plaintiff,
v.
PROGRESSIVE DIRECT INSURANCE COMPANY, et al., Defendants.

          ORDER REQUIRING AN EVIDENTIARY HEARING AND REQUESTING ADDITIONAL RESPONSES

          BENJAMIN H. SETTLE, United States District Judge

         This matter comes before the Court on Plaintiff Mark Kleinsasser's (“Plaintiff”) motion to remand (Dkt. 14). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby rules as follows:

         I. PROCEDURAL HISTORY

         On April 1, 2016, Plaintiff filed a class action complaint against Defendants Progressive Direct Insurance Company and Progressive Max Insurance Company (collectively, “Progressive”) in Pierce County Superior Court for the State of Washington. Dkt. 1-2 (“Comp.”). Plaintiff seeks to recover diminished value on a class-wide basis and individual loss of use damages under the Underinsured Motorists Property Damage (“UIM”) provision of his insurance contract with Progressive. Id. Plaintiff alleged that the total amount of compensatory damages would be “approximately $3, 010, 903.” Id.

         On June 28, 2017, Progressive removed the matter to this Court. Dkt. 1.

         On July 28, 2017, Plaintiff filed a motion to remand challenging both the timing of the removal and Progressive's calculation of damages. Dkt. 14. On August 28, 2017, Progressive responded. Dkt. 24. On September 1, 2017, Plaintiff replied. Dkt. 29.

         II. FACTUAL BACKGROUND

         On September 18, 2015, an uninsured driver hit Plaintiff's vehicle causing significant damage. Comp., ¶ 1.8. The vehicle was towed to a repair shop, and Plaintiff submitted a claim to Progressive. Id. ¶ 6.7. Plaintiff was without the use of his vehicle until November 24, 2015, and, on two separate occasions, he returned the vehicle to the repair shop for additional repairs. Id. ¶ 1.9. Plaintiff alleges that Progressive failed to provide him with a rental car or otherwise reimburse him for the loss of use of his vehicle. Id. ¶¶ 6.7, 6.11. Plaintiff also alleges that Progressive failed to compensate him for the diminished value of his vehicle. Id. ¶¶ 6.2-6.5.

         Plaintiff claims that Progressive's failure to compensate its insured for diminished value has been “systematic and continuous” and has affected a large number of insureds over time. Id. ¶ 5.1. As such, Plaintiff seeks certification of a class as follows:

All PROGRESSIVE insureds with Washington policies issued in Washington State, where the insured's vehicle damages were covered under Underinsured Motorist coverage, and
1. the repair estimates on the vehicle (including any supplements) totaled at least $1, 000; and
2. the vehicle was no more than six years old (model year plus five years) and had less than 90, 000 miles on it at the time of the accident; and
3. the vehicle suffered structural (frame) damage and/or deformed sheet metal and/or required body or paint work.
Excluded from the Class are (a) claims involving leased vehicles or total losses, and (b) the assigned Judge, the Judge's staff and family.

Id., ¶ 5.3. Plaintiff alleged that “the total amount sought in compensatory damages in this action will be approximately $3, 010, 903, ” based on “approximately 2107 claims” and “$1429 per claim on average as the ...


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