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LaFollette v. Liberty Mutual Fire Insurance Co.

United States District Court, W.D. Missouri, Central Division

December 15, 2016

ERIC LAFOLLETTE and CAMILLE LAFOLLETTE, Individually and on behalf of all others similarly situated, Plaintiffs,


          NANETTE K. LAUGHREY United States District Judge

         Plaintiffs Eric and Camille LaFollette move the Court for an order accepting their unopposed proposed notice plan and proposed Notice and Opt-Out forms, as set forth in Docs. 200, 200-1, 209, and 209-1. For the following reasons, the motion is granted. Plaintiff's initial Motion for Order for Approving Notice, [Doc. 200], is denied as moot.

         I. Background

         This is a breach of contract class action arising out of Liberty Mutual's homeowner's insurance policies. The dispute in this case involves Liberty Mutual's assessment of a $1, 000 deductible on the Lafollettes' actual cash value claim, which the Lafollettes contend should not have been assessed under the terms of the policy. The Lafollettes sought certification of a class of Liberty Mutual property insurance policyholders in Missouri whose ACV payments were similarly reduced by their deductible amounts.

         On August 1, 2016, the Court certified a Rule 23(b)(3) class[1] defined as:

All persons who received an ACV payment, directly or indirectly, from Liberty Mutual Fire Insurance Company for physical loss or damage to their dwelling or other structures located in the state of Missouri arising under policy Form HO 03 (Edition 04 91) and endorsements, such payments arising from losses that occurred from April 8, 2004 to August 1, 2016, where a deductible was applied to the ACV payment for the person's dwelling or other structure (Coverage A and/or B).[2]

         On October 31, 2016, Plaintiffs moved for approval of their proposed notice plan. [Doc. 200]. Following Defendant's agreement to provide Plaintiffs with address information for all class members, Plaintiffs filed a revised proposed notice plan, [Doc. 209], incorporating by reference their previously filed motion and the Declaration of James Prutsman, [Doc. 200-1]. Defendant consents to Plaintiffs' revised proposed notice plan.

         II. Discussion

         “For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Fed. R. Civ. Pro. 23(c)(2)(B). This notice must also provide class members the right to opt out. Id. The notice must communicate Rule 23(c)(2)(B)(i-vii)'s requirements in clear, concise, plain language that is easy to understand. Id. The sufficiency of Plaintiffs' proposed notice plan is discussed below.

         A. Delivery of Notice Plan

         To assist with preparing and carrying out a notice plan and notice documents, Plaintiffs retained Heffler Claims Group LLC, a company that provides class action notice and claims administration services. Defendant has the last known address for every class member, which it has already provided to Plaintiffs. Therefore, Plaintiffs propose a direct mailing campaign as the best notice practicable under the circumstances. To address out-of-date addresses, Plaintiffs further propose running Defendant's provided address records through the National Change of Address database to obtain the most current addresses for each class member. After updating the addresses, class member notice will be mailed via First Class Mail.

         On behalf of Plaintiffs, Heffler will create a PO Box that is specific to this case and can be used for any undeliverable notices, class member correspondence, and opt-outs. Heffler will also record all notices that are returned as undeliverable and provide these records to both parties. For notices that are returned with a forwarding address, Heffler will log the updated addresses in the database and forward the notices. For those returned mailings that do not include a forwarding address, Heffler will run the name and address through a name and address database, such as Lexis/Nexis, after which it will forward these notices to the addresses listed in the database. Heffler will provide the parties with regular reporting on its notification efforts and the opt-outs it receives. Heffler will also provide a final list to the Court of all opt-outs received.

         Because the proposed plan directs individual notice to all members by First Class Mail and provides reasonable processes for delivering notice to those class members with out-of-date mailing addresses, this proposed delivery plan is sufficient. However, the delivery plan fails to fully comport with Rule 23's requirements because it does not propose a specific date by which class members must mail their opt out forms or be bound to the class.

         B. Notice Form ...

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