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Lafollette v. Liberty Mutual Fire Insurance Co.

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

July 24, 2017

ERIC LAFOLLETTE and CAMILLE LAFOLLETTE, individually and on behalf of others similarly situated, Plaintiffs,
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant.

          ORDER

          NANETTE K. LAUGHREY United States District Judge.

         Pending before the Court is Jean Heckmann's motion to intervene individually and as class representative. [Doc. 237]. As set forth below, Ms. Heckmann's motion is granted.

         I. Background[1]

         Eric and Camille Lafollette originally filed the current case as a putative class action. On August 1, 2016, the Court certified this case as a class action and appointed the Lafollettes as class representatives. [Doc. 177]. Following class certification, the parties filed cross motions for summary judgment addressing the insurance policy interpretation issues that form the merits of the issues in this case.

         On March 16, 2017, the Court entered its Order granting in part and denying in part both parties' motions for summary judgment. [Doc. 232]. The Court granted summary judgment in favor of Plaintiffs on the Home Protector Plus Endorsement/Base Policy subclass, finding the policy “language establishes that Liberty Mutual will not apply a deductible when making ACV payments under the endorsement's Section B.3.d. or the base policy's Section I - Conditions, 3.b. (5).” [Doc. 232, p. 21]. The Court granted summary judgment in favor of Liberty Mutual on the Wind/Hail Endorsement subclass, finding that a deductible did apply to any claims made under this endorsement. Because the Lafollettes' claim arose under the Wind/Hail Endorsement, the Court found that their claim was no longer viable and that as a result, they could no longer continue to serve as class representatives.

         Rather than decertifying the class because of the Lafollettes' inadequacy as class representatives, the Court afforded Plaintiffs' counsel 30 days to submit a motion for substitution or intervention of a new named plaintiff. [Doc. 232, p. 32-33]. Pursuant to this Order and under Federal Rule of Civil Procedure 24, Jean Heckmann now seeks to intervene individually and as the named plaintiff representing the class in this matter. Pursuant to Rule 24(c), Ms. Heckmann has attached her proposed Second Amended Complaint. [Doc. 237-1]. The class Ms. Heckmann seeks to represent has already been defined by the Court 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).
Excluded from the Class are: (1) All persons who submitted a claim for and received a replacement cost payment from Liberty Mutual Fire Insurance Company under Coverage A and/or B; (2) All persons whose payment(s) plus the amount of any deductible applied was less than $2, 500; (3) All persons whose claim(s) were caused by earthquake; (4) Liberty Mutual Fire Insurance Company and its affiliates, officers, and directors; (5) Members of the judiciary and their staff to whom this action is assigned; and (6) Plaintiffs' Counsel.

         Following the Court's Order on summary judgment, the only subclasses with viable claims remaining are defined as:

(1) All parties who received an ACV payment for loss arising solely under the base policy and/or Home Protector Plus Endorsement; and
(2) All parties who received an ACV payment for loss arising under the Functional Replacement Cost Loss Settlement Endorsement.[2]

         As explained in the Court's Order granting class certification, “[s]olely” refers only to losses falling within the scope of the overall class definition; that is, ACV payments for physical loss or damage to their dwelling or other structures. The fact that a party may have received additional payment for loss of personal property or other losses falling within the scope of the policy is irrelevant to whether the class member fits the scope of subclass 1 if the class member received an ACV payment for physical loss or damage to their dwelling or other structure based on the base policy language or Home Protector Plus Endorsement without consideration of any other endorsements.” [Doc. 177, p. 26, n. 15].

         II. Discussion

         Jean Heckmann moves to intervene in this matter pursuant to Federal Rule of Civil Procedure 24. It is well settled that when a certified class exists, as is the case here, class members should be allowed to intervene to represent the class rather than allowing the class to fail. See Graves v. Walton County Bd. Of Educ., 686 F.2d 1135, 1138 (5th Cir. 1982) (citing cases) (“It is firmly established that where a class action exists, members of the class may intervene or be ...


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