United States District Court, W.D. Missouri, Central Division
ERIC LAFOLLETTE and CAMILLE LAFOLLETTE, individually and on behalf of others similarly situated, Plaintiffs,
LIBERTY MUTUAL FIRE INSURANCE COMPANY, Defendant.
NANETTE K. LAUGHREY United States District Judge.
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.
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.
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.
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
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'
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
(2) All parties who received an ACV payment for loss arising
under the Functional Replacement Cost Loss Settlement
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].
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 ...