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Kleinsasser v. Progressive Direct Insurance Co.

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

June 21, 2019

MARK D. KLEINSASSER, Plaintiff,
v.
PROGRESSIVE DIRECT INSURANCE COMPANY and PROGRESSIVE MAX INSURANCE COMPANY, Defendants.

          ORDER DENYING PLAINTIFF'S MOTION TO CERTIFY CLASS AND DEFENDANTS' MOTIONS TO EXCLUDE EXPERT TESTIMONY

          BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff Mark Kleinsasser's (“Plaintiff”) motion to certify class, Dkt. 98, and Defendants Progressive Direct Insurance Company (“Direct”) and Progressive Max Insurance Company's (“Max”) (collectively “Progressive”) motion to exclude expert testimony of Bernard Siskin, Dkt. 107, and motion to exclude expert testimony of Angelo Toglia, Dkt. 109. 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 motions for the reasons stated herein.

         I. PROCEDURAL HISTORY

         On April 1, 2016, Plaintiff filed a class action complaint against 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 Direct. Id.

         On June 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.

         On October 1, 2019, Plaintiff filed a motion to certify class. Dkt. 98. On December 10, 2018, Progressive responded, Dkt. 105, and filed the motions to exclude, Dkts. 107, 109. On February 6, 2019, Plaintiff replied, Dkt. 120, and responded to Progressive's motions, Dkts. 123, 124. On March 11, 2019, Progressive replied. Dkts. 126, 127.

         On May 10, 2019, Plaintiff filed a notice of supplemental authority. Dkt. 129.

         II. FACTUAL BACKGROUND

         On September 18, 2015, an uninsured driver hit Plaintiff's vehicle causing significant damage. Comp., ¶ 1.8. Plaintiff had purchased insurance coverage with Direct. Dkt. 98 at 2. The vehicle was towed to a repair shop, and Plaintiff submitted a claim to Direct. Comp., ¶ 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 Direct 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.

         Regarding the class claim, Plaintiff alleges that Progressive's failure to compensate its insureds 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 insured of PROGRESSIVE DIRECT INSURANCE COMPANY and PROGRESSIVE MAX INSURANCE COMPANY with Washington policies issued in Washington State, who presented a claim for vehicle damage covered under Uninsured/Underinsured Motorist (“UIM”) coverage from April 1, 2010, through the date of the Court's certification order; 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 ...

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