United States District Court, W.D. Washington, Tacoma
MARK D. KLEINSASSER, Plaintiff,
PROGRESSIVE DIRECT INSURANCE COMPANY, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO REMAND AND
MOTION TO STRIKE
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Mark
Kleinsasser's (“Plaintiff”) motion to remand
(Dkt. 14) and motion to strike declaration of Michael Silver
(Dkt. 74). The Court has considered the pleadings filed in
support of and in opposition to the motions and the remainder
of the file and hereby denies the motions for the reasons
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 (“UIMPD”
or “UMPD”) provision of his insurance contract
with Progressive. Id. Plaintiff alleged that the
total amount of compensatory damages would be
“approximately $3, 010, 903.” Id.
28, 2017, Progressive removed the matter to this Court. Dkt.
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. On October 10, 2017, the Court set the matter for an
evidentiary hearing and requested additional responses. Dkt.
34. On October 17, 2017, Plaintiff filed a motion for
reconsideration. Dkt. 36. On October 19, 2017, the Court
denied the motion for reconsideration. Dkt. 37. On October
30, 2017, the Court set the matter for hearing on January 9,
2018. Dkt. 40. On November 10, 2018, Plaintiff filed a motion
for reconsideration. Dkt. 41. On November 13, 2017, the Court
denied the motion for reconsideration. Dkt. 42. On December
14, 2017, the Court granted the parties' stipulated
motion to reset the hearing to February 6, 2018. Dkt. 48.
January 12, 2018, the parties filed supplemental briefs.
Dkts. 50, 58. On January 26, 2018, the parties filed
supplemental replies. Dkts. 61, 63.
January 24, 2018, the Court denied the plaintiffs' motion
for class certification in Jenkins v. State Farm Mut.
Auto. Ins. Co., C15-5508 BHS, 2018 WL 526993 (W.D. Wash.
Jan. 24, 2018). Relevant to the instant matter, the Court
concluded the expert report of Dr. Bernard Siskin
(“Siskin”) was outdated and an improper fit to
the facts of the case. Id. at *4.
February 6 and 7, 2018, the Court held an evidentiary
hearing. Dkts. 66, 67. Progressive called Christopher
Andreoli (“Andreoli”), Michael Silver
(“Silver”), Dr. Michael Salve
(“Salve”), and Jonathan Berg
(“Berg”), and Plaintiff called Siskin and Darrell
Harber (“Harber”). Id.
March 6, 2018, the parties submitted supplemental briefs and
proposed findings of fact and conclusions of law. Dkts. 69,
March 8, 2018, Plaintiff moved to strike the supplemental
declaration of Silver. Dkt. 74. On March 14, 2018,
Progressive responded. Dkt. 78. On March 16, 2018, Plaintiff
replied. Dkt. 81.
March 16, 2018, the parties filed supplemental replies. Dkts.
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.
On an individual basis, 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.
the class claim, Plaintiff alleges 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
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 average damages recoverable.”
Id. ¶ 2.5. In the request for relief section of
the complaint, Plaintiff alleges that the class is entitled
to “[p]ayment of the difference between the insured
vehicles' pre loss fair market values and their projected
fair market values as repaired vehicles immediately after the
accident.” Id., ¶ 7.1(a).
28, 2017, Progressive removed the matter to federal court
asserting that the Court has jurisdiction under the Class
Action Fairness Act of 2005 (“CAFA”), 28 U.S.C.
§ 1332(d). Dkt. 1. Progressive conducted an independent
search of its database and concluded that the total amount of
damages exceeds $5, 000, 000, which is the jurisdictional
minimum under CAFA jurisdiction. Id. ¶¶
19-31. Progressive submitted two declarations in support of
this calculation. Frist, Silver, a master data analyst for
Progressive, conducted a review of Progressive's records.
Dkt. 2, Declaration of Michael Silver (“Silver
Decl.”), ¶¶ 1, 3. Silver constructed search
criteria that matched his understanding of Plaintiff's
class definition and “identified 3, 814 claims that fit
the search criteria.” Id. ¶ 8. Silver,
however, “was unable to eliminate claims involving
leased vehicles from the proposed class through electronic
searches because Progressive does not regularly record this
information as part of its claims data.” Id.
Kevin Rehmke (“Rehmke”), a claims supervisor for
Progressive, conducted a manual inspection of
Progressive's claim files in order to determine the
proportion of leased vehicles within the claims identified by
Silver. Dkt. 3, Declaration of Kevin Rehmke, ¶¶ 1,
4. Rehmke declares that he did not review a sample of claims
within the proposed class because “insureds do not
always inform Progressive when they purchase a vehicle they
had previously been leasing.” Id. ¶ 4.
Instead, Rehmke reviewed a sample of claims wherein the
vehicle was a total loss. Id. ¶ 5. In
total-loss claims, he “could identify whether the
vehicle was leased or owned by identifying total loss
payments to lienholders and then reviewing the claims
notes.” Id. ¶ 7. Upon review of 172
total-loss claims, he found that ten claims involved leased
vehicles, or 5.8%. Id. ¶ 10. Rehmke concluded
that it is reasonable to assume that 5.8% of the claims
identified by Silver should be excluded from the class list.
Id. ¶ 11.
28, 2017, Plaintiff moved to remand, challenging
Progressive's assertion that CAFA jurisdiction existed
and submitted evidence in support of his position.
Plaintiff's expert, Siskin, reviewed Silver and
Rehmke's declarations and claims that they made two
specific errors as follows:
a. [They failed to remove] all vehicles that have only
non-Class related damage (such as to lights, chrome bumpers,
etc., i.e., damage that is not to frame/structure and/or
b. [They failed to accurately] determine the percentage of
leased vehicles because they have used as a starting point a
biased and improper sample which dramatically understates the
percentage of leased vehicles.
Dkt. 14-1 at 7-14, Declaration of Bernard Siskin
(“Siskin Decl.”), ¶¶ 4-5. After
explaining why Rehmke's assumptions and analysis were
flawed, Siskin concludes as follows:
If I apply the expected percentage (9.5%) based upon lease
rates in Washington, the Class Size would be 3, 452 claims
[3, 814 claims x 90.5%] which would be $4, ...