United States District Court, W.D. Washington, Tacoma
MARK D. KLEINSASSER, Plaintiff,
PROGRESSIVE DIRECT INSURANCE COMPANY and PROGRESSIVE MAX INSURANCE COMPANY, Defendants.
ORDER DENYING PLAINTIFF'S MOTION TO CERTIFY CLASS
AND DEFENDANTS' MOTIONS TO EXCLUDE EXPERT
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
10, 2019, Plaintiff filed a notice of supplemental authority.
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.
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
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 ...