Green v. American Modern Home Insurance Company
FINAL ORDER AND JUDGMENT granting #86 Motion For Final Approval of Class Action and Entry of Final Order and Judgment; granting #88 Motion for Attorney Fees. Signed by Honorable Susan O. Hickey on June 1, 2017. (Attachments: #1 Exhibit 1) (mll)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
PAMELA GREEN and GARY
EDWARDS, individually and on
behalf of all others similarly
Case No. 4:14-cv-4074
AMERICAN MODERN HOME
INSURANCE COMPANY, et al.
FINAL ORDER AND JUDGMENT
Before the Court is Plaintiffs’ Motion for Final Approval of Class Action and Entry of
Final Order and Judgment (“Motion for Final Approval”). (ECF No. 86). Also before the
Court is Class Counsel’s Motion for Attorneys’ Fees and Costs Related to the Stipulation of
Settlement and Request for Fee Award to Class Representatives (“Class Counsel’s Application
for Fees”). (ECF No. 88). Plaintiffs and Defendants have agreed—subject to Court approval—
to settle this litigation pursuant to the terms and conditions stated in the Amended Stipulation of
Settlement filed with the Court on February 28, 2017. (ECF No. 84). On May 24, 2017, the
Court held a final approval hearing on the motions.
The Court finds the matter ripe for
Plaintiffs filed an Amended Complaint in this Action alleging that American
Modern Home Insurance Company, American Family Home Insurance Company, American
Western Home Insurance Company, American Southern Home Insurance Company, American
Modern Select Insurance Company, American Modern Surplus Lines Insurance Company,
Consumers County Mutual Insurance Company, and American Modern Insurance Group, Inc.
(collectively, “American Modern”) violated applicable law and breached their contracts with
insureds by wrongfully depreciating the cost of labor when resolving structural damage claims in
the State of Arkansas. American Modern has maintained throughout this Action that they have
at all times paid claims when reasonable and appropriate to do so and have consistently acted in
accordance with the governing laws and regulations of Arkansas and each State in which they do
After litigation between the parties and arms-length negotiations between Class
Counsel and counsel for American Modern, the parties have reached a settlement that provides
substantial benefits to a Settlement Class, in return for a release and dismissal of claims against
American Modern. The Settlement was reached after the Parties engaged in extensive and
lengthy negotiations and mediation before the Honorable Barry A. Bryant, United States
Magistrate Judge for the Western District of Arkansas.
Class Counsel was therefore well
positioned to evaluate the benefits of the Settlement, taking into account the expense, risk, and
uncertainty of protracted litigation with respect to numerous difficult questions of law and fact.
Plaintiffs and American Modern executed a Stipulation of Settlement and exhibits
thereto dated January 23, 2017, which was filed with the Court along with a motion for
preliminary approval of the Proposed Settlement on January 24, 2017.
On February 15, 2017, the Court held a hearing to consider preliminary approval
of the Proposed Settlement.
Plaintiffs and American Modern executed an Amended Stipulation of Settlement
(“Stipulation” or “Stipulation of Settlement”) dated February 28, 2017, which was filed with the
Court the same day.
On February 28, 2017, the Court, entered an Order Preliminarily Approving Class
Settlement (“Preliminary Approval Order”),
preliminarily approving the Stipulation,
preliminarily certifying the Settlement Class for settlement purposes only, and scheduling a
hearing for May 24, 2017 at 9:00 a.m. to consider final approval of the Proposed Settlement and
other actions described in the Preliminary Approval Order and the Stipulation (“Final Approval
As part of its Preliminary Approval Order, the Court preliminarily certified for
settlement purposes only a Settlement Class (hereinafter, “Settlement Class”) defined as follows:
All Persons who had a Covered Loss in the state of Arkansas that occurred during
the Class Period of April 11, 2009 through April 11, 2014, where the claim was
paid at less than the limit of liability (accounting for deductible), and where
American Modern made an ACV payment for Structural Loss that included a
deduction for Labor Depreciation, or would have made an ACV payment for
Structural Loss but for the deduction of Labor Depreciation.
Excluded from the Settlement Class are:
Persons who received indemnification payment(s) for full
Claims that were open and still being actively adjusted as
of April 11, 2014;
Claims for which American Modern received an executed
release during the Class Period;
American Modern and its officers and directors;
Members of the judiciary and their staff to whom this
action is assigned; and
“Covered Loss” means a first party insurance claim for Structural Loss, as defined
below, that (a) occurred during the Class Period, (b) American Modern or a court
of competent jurisdiction determined to be a covered loss under an Arkansas
homeowners insurance policy issued by American Modern, and (c) resulted in an
indemnity payment for Structural Loss by American Modern, or would have
resulted in an indemnity payment for Structural Loss but for the deduction of
“Class Period” means the period of April 11, 2009, through April 11, 2014,
inclusive of those dates.
By doing so, the Court also preliminarily modified the litigation class previously certified by the
Court in its August 24, 2016 order, to conform with the definition of the Settlement Class.
As part of the Preliminary Approval Order, this Court approved a proposed
Mailed Notice in the form attached to the Stipulation as Exhibit “2”, which provided Class
Members with detailed notice of and information about the Proposed Settlement and Stipulation.
In accordance with the Stipulation, the Mailed Notice also explained the opportunity for Class
Members to file objections to the Proposed Settlement and the process by which Class Members
could exclude themselves from the Settlement Class. The Court also approved published notice
of the Settlement in the Arkansas Democrat-Gazette (the “Publication Notice”), in the form
attached to the Stipulation of Settlement as Exhibit “4”, which further provided Class Members
with information about the Proposed Settlement.
Also as part of the Preliminary Approval Order, this Court approved the
establishment of an automated toll-free interactive voice response phone number and a
Settlement website, to provide further notice and information to and answer questions of Class
Members concerning the Settlement.
The Court ordered that the Mailed Notice and Claim Form, in the forms attached
to the Stipulation of Settlement as Exhibits “2” and “3”, be mailed by Garden City Group, Inc.
(the “Administrator”), who was retained as the independent third-party settlement administrator
for the Proposed Settlement, by first-class mail, postage prepaid, on or before March 24, 2017
(the “Notice Mailing Date”) to all Persons reasonably believed to be potential Class Members
whose names and last known addresses were ascertained by American Modern through a
reasonable search and inquiry of its records of claims for Covered Losses during the Class
Period, with updates of those addresses by the Administrator as described in the Stipulation.
On May 12, 2017, Plaintiffs moved the Court for Final Approval of the terms of
the Proposed Settlement and for the entry of this Final Judgment, with an Amended version filed
on May 15, 2017. In support of the Motion for Final Approval, Plaintiffs submitted, among
other things, evidence concerning the dissemination and adequacy of the Mailed Notice and
Claim Form, evidence reflecting publication of the Publication Notice and establishment of an
automated toll-free interactive voice response phone number and a Settlement website, evidence
regarding the names of potential Class Members who timely submitted requests for exclusion
from the Settlement Class, evidence regarding the negotiation of the Stipulation, evidence
regarding the fairness, reasonableness, and adequacy of the terms of the Stipulation, and
evidence regarding the fairness, reasonableness and adequacy of Class Counsel’s Application for
Fees. In further support of the Motion for Final Approval, Plaintiffs submitted a Brief in Support
of Motion for Final Approval, setting forth extensive argument and authority along with various
exhibits attached thereto.
Likewise, Class Counsel’s Application for Fees contained both
extensive argument and supporting authority.
In accordance with the Preliminary Approval Order, the Court held the Final
Approval Hearing on May 24, 2017, in Texarkana, Arkansas.
At the Final Approval Hearing, Plaintiffs offered the following evidence in
support of the Motion for Final Approval and Class Counsel’s Application for Fees:
DECLARATION OF MATT KEIL
DECLARATION OF PAMELA GREEN
DECLARATION OF GARY EDWARDS
DECLARATION OF JOSE C. FRAGA
On May 19, 2017, Class Counsel filed with the Court the declaration of Jose
Fraga, the Administrator’s senior director of operations. Mr. Fraga declared that the initial
mailing of the Court-approved Mailed Notice was completed on March 24, 2017. The Mailed
Notice, along with a Claim Form, was mailed via First Class United States mail to 14,482
potential Class Members after updating addresses through the National Change of Address
database. The Administrator received a return of 1,872 Mailed Notices as undeliverable and
without forwarding addresses. These addresses were updated through a commercial database
and returned Mailed Notices and Claim Forms were re-mailed to the more current address. After
remailing with updated addresses, a total of 832 Mailed Notices remain undeliverable. The
Court finds that the percentage of Mailed Notices that were returned a second time without
forwarding addresses (approximately 5.745%) is reasonable.
As of May 17, 2017, the
Administrator had received four valid and timely Requests for Exclusion and the Court had
received zero objections to the Stipulation of Settlement. No objections were made at the Final
Plaintiffs and the Administrator have satisfactorily demonstrated that the Mailed
Notice and a Claim Form were mailed, that the Publication Notice was published, and that an
automated toll-free interactive voice response phone number and a Settlement website were
established, in accordance with the Stipulation and Preliminary Approval Order.
The Court further finds that all notices concerning the Settlement required by the
Class Action Fairness Act of 2005, 28 U.S.C. §§ 1715, et seq., have been sent and that American
Modern has fully complied with the notice requirements under that Act.
The Settlement provides substantial monetary benefits to Class Members who
timely submit completed and signed Claim Forms. The potential monetary liability of American
Modern for settlement payments to Class Members who timely submit eligible Claim Forms;
Class Counsel’s attorneys’ fees, costs, and expenses; and Court-approved incentive awards to the
Class Representatives is reasonably estimated to be $3,281,795.00.
In addition, American
Modern has agreed to fund the costs of notice and settlement administration.
procedure established under the Stipulation is uniform and fair, and provides Class Members
with an extended and ample opportunity to receive settlement payments as described in the
All Persons who wished to be excluded from the Settlement Class were provided
an opportunity to request exclusion as described in the Mailed Notice and Publication Notice.
The Court finds that the individual interests of those Class Members who timely sought
exclusion from the Settlement Class are preserved and that no Class Member was precluded from
being excluded from the Settlement Class if he or she so desired. Those Class Members who
timely and properly excluded themselves from the Settlement Class are identified in the attached
Class Members who did not timely file and serve an objection in writing to the
Stipulation, to the entry of this Final Judgment, or to Class Counsel’s Application for Fees, in
accordance with the procedure set forth in the Mailed Notice and mandated in the Preliminary
Approval Order, are deemed to have waived any such objection through any appeal, collateral
attack, or otherwise.
At the Final Approval Hearing, the Court considered, among other matters
described herein, (a) whether certification of the Settlement Class for settlement purposes only is
appropriate under Rule 23; (b) the fairness, reasonableness, and the adequacy of the Stipulation;
and (c) the fairness and reasonableness of Class Counsel’s Application for Fees under applicable
law. The Court independently evaluated not only the pleadings, evidence, and arguments of
Class Counsel and American Modern, but also rigorously and independently evaluated the
Stipulation and Class Counsel’s Application for Fees on behalf of Class Members, and as such,
the Court considered arguments that could reasonably be made against approval of the
Stipulation and Class Counsel’s Application for Fees even if such arguments were not actually
presented to the Court by pleading or oral argument.
In light of the matters presented in this Action and the provisions of the
Stipulation, the Court finds that the Proposed Settlement is a fair, reasonable, and adequate
compromise of the claims against American Modern, pursuant to Rule 23 of the Federal Rules of
Civil Procedure. In considering a number of factors, the Court finds that:
The liability issues in this Action and the suitability of this Action for
certification of a litigation class have been vigorously contested, particularly with respect
to litigation manageability requirements;
This Proposed Settlement has the benefit of providing substantial benefits
to Class Members now, without further litigation, under circumstances where the liability
issues are still vigorously contested among the Parties;
The Proposed Settlement is clearly a byproduct of adversary litigation
between the Parties, and not a result of any collusion on the part of Class Counsel and
American Modern; and
Class Counsel’s request for an award of reasonable fees and
reimbursement of expenses is reasonable, fair, and in all respects consistent with the
terms of the Stipulation.
II. CONCLUSIONS OF LAW
This Court has personal jurisdiction over the Plaintiffs, American Modern, and
members of the Settlement Class, venue is proper, and the Court has subject matter jurisdiction
to approve the Stipulation, including all exhibits thereto, and to enter this Final Judgment.
The Court concludes that, for settlement purposes only, the Settlement Class
meets all the requirements of Rule 23 of the Federal Rules of Civil Procedure, due process, and
all other applicable rules and law. Therefore, the Settlement Class as defined above is certified
as a settlement class action, for settlement purposes only. The Court’s August 24, 2016 order
(ECF No. 68), in which the Court certified a litigation class in this Action, is hereby vacated to
conform with this Final Judgment, including the definition of the Settlement Class and the terms
and conditions of the Stipulation. Class Members are ascertainable by an objective standard and
are too numerous to be joined, and questions of law and fact are common to all Settlement Class
Members, as required by Rule 23(a)(1) and (2). Moreover, the common questions of law and
fact predominate over any questions affecting only individual members, and a class action is the
superior method to fairly and efficiently adjudicate the controversy, as required by Rule 23(b)(3).
The Class Representatives’ claims are typical of those of the Settlement Class, as required by
Rule 23(a)(3). The Representative Plaintiffs and Class Counsel have fairly and adequately
represented and protected the interests of the Settlement Class for the purposes of entering into
and implementing the Proposed Settlement, as required by Rule 23(a)(4), and Class Counsel
meets the standard for appointment set forth in Rule 23(g)(1) and (4).
The Stipulation provides for the settlement of this Action with American Modern
by the Representative Plaintiffs on behalf of the members of the Settlement Class.
Stipulation provides that, in exchange for the releases described in the Stipulation and this Final
Judgment, American Modern will provide substantial consideration to the Settlement Class, as
described in the Stipulation.
Class Counsel and the Administrator have provided evidence that the Mailed
Notices were disseminated and Publication Notice published in accordance with the Preliminary
Approval Order and Stipulation, all of which informed Class Members of the terms of the
Proposed Settlement, of their opportunity to request exclusion from the Settlement Class, and of
their opportunity to object to the terms of the Stipulation.
Based on the Court’s review of the evidence admitted and arguments of counsel,
the Court finds and concludes the Mailed Notice and Claim Form were mailed to potential
members of the Settlement Class in accordance with provisions of the Preliminary Approval
Order, and together with the Publication Notice, the automated toll-free interactive voice
response phone number, and the Settlement website, such notice campaign: (i) constituted the
best notice practicable; (ii) was reasonably calculated to apprise potential members of the
Settlement Class of the pendency of the Action, their right to object or exclude themselves from
the Proposed Settlement and to appear at the Final Approval Hearing, and their right to seek
monetary relief under the Settlement; (iii) is reasonable and constitutes due, adequate, and
sufficient notice to all Persons entitled to receive notice; and (iv) meets all requirements of the
Federal Rules of Civil Procedure and the requirements of due process under the Arkansas and
United States Constitutions, and requirements of any other applicable rules or law. The Court
further finds that the notice campaign undertaken concisely and clearly states in plain, easily
the nature of the action;
the class claims, issues, or defenses;
that a Class Member may object to the settlement;
that a Class Member may enter an appearance and be heard at the Final
Approval Hearing in person or through counsel;
that the Court will exclude from the Settlement Class any member who
timely requests exclusion, stating when and how members may elect to be
the date and time of the Final Approval Hearing; and
the definition of the class certified;
the binding effect of a Final Judgment on Class Members.
Having admitted and reviewed the evidence at the Final Approval Hearing
concerning the success of the notice campaign, the Court finds that it is unnecessary to afford a
new opportunity to request exclusion to Class Members who had an earlier opportunity to
request exclusion, but did not do so.
The Court finds that the Final Approval Hearing and the evidence before the
Court clearly support a finding that the Stipulation was entered into in good faith after armslength negotiations between the Plaintiffs and American Modern.
The Court finds that approval of the Stipulation and the Proposed Settlement
embodied therein will result in substantial savings in time and resources to the Court and the
litigants, and will further the interests of justice. Further, the Court finds that the Stipulation is
fair, reasonable, and adequate as to, and in the best interests of, members of the Settlement Class,
based on discovery, due diligence, and the absence of material objections sufficient to deny
The settlement of the Action on the terms, conditions, and limitations set forth in
the Stipulation is approved and confirmed in all respects as fair, reasonable, and adequate and in
the best interests of the Settlement Class and Class Members, especially in light of the benefits
made available to the Settlement Class and the costs and risks associated with the continued
prosecution, trial, and possible further appeal of this complex litigation.
A review of the following factors supports a finding that the Settlement is fair,
reasonable, and adequate:
The strength of the case for the plaintiffs on the merits, balanced against
the amount offered in the Settlement;
The defendant’s overall financial condition and ability to pay;
The complexity, length and expense of further litigation; and
The amount of opposition to the Settlement.
Van Horn v. Trickey, 840 F.2d 604, 607 (8th Cir. 1988) (citing Grunin v. Int’l House of
Pancakes, 513 F.2d 114, 124 (8th Cir. 1975)).
Although the notice campaign was highly successful and resulted in notice being
mailed to over 13,650 potential Class Members, only four Persons excluded themselves from the
Settlement Class, and no Class Members filed objections to the Stipulation of Settlement. The
minimal number of exclusion requests and no opposition to a well-noticed Settlement Class
strongly supports the fairness, reasonableness, and adequacy of the Settlement.
The claim process as set forth in the Stipulation is fair, reasonable, and adequate
to Class Members. Any Class Member who did not timely request exclusion from the Settlement
Class in accordance with the Stipulation is forever barred from asserting a Released Claim
against a Released Person in any other action or proceeding.
Class Counsel’s requests for $820,448.66 in attorneys’ fees and expenses and
Class Representatives’ incentive award of $5,000.00 to each Class Representative, to be paid by
American Modern, are fair, reasonable, and adequate, based on a review of the following factors:
The time and labor required;
The novelty and difficulty of the questions;
The skill requisite to perform the legal service properly;
The preclusion of other employment by the attorney due to acceptance of
The customary fee for similar work in the community;
Whether the fee is fixed or contingent;
Time limitations imposed by the client or the circumstances;
The amount involved and the results obtained;
The experience, reputation, and ability of the attorneys;
The undesirability of the case;
The nature and length of the professional relationship with the client; and
Awards in similar cases.
See In re Xcel Energy, Inc., Sec., Derivative & “ERISA” Litig., 364 F. Supp. 2d 980, 993 (D.
Minn. 2005) (citing Johnson v. Ga. Highway Express, 488 F.2d 714, 719-20 (5th Cir. 1974)); see
also Chrisco v. Sun Indus., Inc., 304 Ark. 227, 229, 800 S.W.2d 717, 718-19 (1990) (utilizing a
similar multi-factor test in considering whether to award attorneys’ fees).
IT IS ORDERED, ADJUDGED, AND DECREED THAT:
Pursuant to Rule 23 of the Federal Rules of Civil Procedure, final certification of
the Settlement Class is confirmed for the purpose of the Settlement, in accordance with the
Timely Requests for Exclusion were submitted by four potential members of the
Settlement Class and those potential Class Members (identified in Exhibit “1” hereto) are
excluded from the Settlement Class. All other members of the Settlement Class are adjudged to
be members of the Settlement Class and are bound by this Final Judgment and by the Stipulation
and the Settlement embodied therein, including the releases provided for in the Stipulation and
this Final Judgment.
Plaintiffs’ Motion for Final Approval (ECF No. 86) is hereby GRANTED and all
provisions and terms of the Stipulation are hereby finally approved in all respects. The parties to
the Stipulation are hereby directed to implement and consummate the Stipulation in accordance
with its terms, as may be modified by subsequent orders of this Court.
This Final Judgment shall be immediately entered as to all claims in the Action
between Representative Plaintiffs and Class Members and American Modern, and Final
Judgment is entered approving and adopting all terms and conditions of the Settlement and the
Stipulation, fully and finally terminating all claims of the Representative Plaintiffs and the
Settlement Class in this Action against American Modern, on the merits and with prejudice
without leave to amend. The Court expressly determines that there is no just reason for delay in
entering this Final Judgment.
Pursuant to Rule 23(a) and (g), Plaintiffs Pamela Green and Gary Edwards are
appointed as the representatives of the Settlement Class, and the following Class Counsel are
appointed as counsel for the Settlement Class:
John C. Goodson
KEIL & GOODSON P.A.
406 Walnut St.
Texarkana, Arkansas 71854
Steven E. Vowell
William B. Putman
TAYLOR LAW PARTNERS
303 E. Millsap Road
P.O. Box 8310
Fayetteville, Arkansas 72703
Richard E. Norman
R. Martin Weber, Jr.
CROWLEY NORMAN LLP
Three Riverway, Ste. 1775
Houston, Texas 77056
A.F. “Tom” Thompson, III
Kenneth P. “Casey” Castleberry
MURPHY, THOMPSON, ARNOLD,
SKINNER & CASTLEBERRY
Post Office Box 2595
Batesville, Arkansas 72503
JAMES M. PRATT, JR. P.A.
144 Washington St. NW
Camden, Arkansas 71701
Jason E. Roselius
MATTINGLY & ROSELIUS, PLLC
13182 N. MacArthur Blvd.
Oklahoma City, Oklahoma 73142
Matthew L. Mustokoff
Richard A. Russo, Jr.
KESSLER TOPAZ MELTZER &
280 King of Prussia Road
Radnor, Pennsylvania 19087
Upon the entry of this Final Judgment, the Representative Plaintiffs, all Class
Members who did not timely and properly exclude themselves from the Settlement Class, and all
of their heirs, trustees, executors, administrators, principals, beneficiaries, representatives,
agents, assigns and successors, and anyone claiming through them or acting or purporting to act
for them or on their behalf, will be bound by this Final Judgment and shall be conclusively
deemed to have fully released, acquitted and forever discharged, to the fullest extent permitted
by law, any and all of the Released Persons from all of the Released Claims, all as defined herein
and in the Stipulation, and shall be conclusively bound by this Final Judgment under the
doctrines of res judicata, collateral estoppel, and claim and issue preclusion, and agree not to sue
any Released Persons with respect to any Released Claims. The Representative Plaintiffs and all
Class Members who did not timely and properly exclude themselves from the Settlement Class
shall be deemed to agree and acknowledge that the foregoing releases were bargained for and are
a material element of the Stipulation. The Stipulation shall be the exclusive remedy for all Class
Members with regards to Released Claims.
Although the definitions in the Stipulation are incorporated in and a part of this
Final Judgment, the following definitions from the Stipulation are repeated for ease of reference:
a. “Released Claims” means and includes any and all known claims and
Unknown Claims, rights, demands, actions, causes of action, allegations, or
suits of whatever kind or nature, that any of the Representative Plaintiffs or
Class Members have or may have had against any of the Released Persons,
whether ex contractu or ex delicto, debts, liens, contracts, liabilities,
agreements, attorneys’ fees, costs, penalties, interest, expenses, or losses
(including actual, consequential, statutory, extra-contractual and punitive or
exemplary damages), and whether arising under or based on contract, extracontractual or tort theories, common law or equity, or federal, state or local
law, statute, ordinance, rule or regulation, arising from or in any way related
(i) Labor Depreciation (including, but not limited to, calculation,
withholding of Labor Depreciation) in the adjustment and/or payment of any
Covered Loss; (ii) any and all claims that were or could have been brought
modification, omission, and/or withholding of Labor Depreciation in the
adjustment and/or payment of any Covered Loss, to the extent related to or
based on Labor Depreciation; (iii) the allegations and claims contained in any
complaint or amended complaint in this Action and/or in the Edwards case;
and (iv) any alleged conspiracy in connection with the matters described in
subparagraphs (i) – (iii). However, Released Claims do not include any claim
for enforcement of the Stipulation and/or this Final Judgment.
b. “Released Persons” means, individually and collectively, (i) American
Modern Home Insurance Company, American Family Home Insurance
Company, American Western Home Insurance Company, American Southern
Home Insurance Company, American Modern Select Insurance Company,
American Modern Surplus Lines Insurance Company, Consumers County
Mutual Insurance Company, and American Modern Insurance Group, Inc.,
and all third party appraisers and claim processing agents and servicers acting
for and contracting with those entities; and (ii) all of the past and present
subsidiaries, parents, affiliates, successors and predecessors in interest,
assigns, acquirers, divisions, representatives, heirs, officers, directors,
shareholders, agents, managing agents, employees, attorneys, auditors,
accountants, brokers, surplus lines brokers, underwriters, advisers, insurers,
co-insurers, re-insurers, consultants, vendors, independent contractors, and
legal representatives of the entities and persons listed in subparagraph (i).
c. “Unknown Claim” means any claim arising out of newly discovered facts
and/or facts found hereafter to be other than or different from the facts now
believed to be true, and without regard to subsequent changes in the law.
d. “Depreciation” means an estimated amount subtracted from replacement cost
value to calculate actual cash value in making an ACV Payment, reflecting the
age, condition, wear and tear and/or obsolescence of item(s) of property that
have been damaged
e. “Labor Depreciation” means Depreciation representing labor costs, and not
materials, equipment, or other non-labor items, and that is subtracted from
replacement cost value to calculate actual cash value in making an ACV
f. “ACV Payment” means an actual cash value payment made on an insurance
claim for a Structural Loss, calculated by estimating the replacement cost
value of the covered damage, and subtracting estimated Depreciation,
including Labor Depreciation, and any applicable deductible.
g. “Structural Loss” means physical loss or physical damage to a home, building,
manufactured home, condo, farm/ranch, rental dwelling, or other structure in
the State of Arkansas while covered by a homeowners insurance policy issued
by American Modern.
In order to protect the continuing jurisdiction of the Court and to protect and
effectuate this Final Judgment, the Court permanently and forever bars and enjoins
Representative Plaintiffs, all Class Members, and anyone acting or purporting to act on their
behalf, from filing, commencing, prosecuting, intervening in, maintaining, or participating in (as
parties or class members) any action in any federal or state court or before any other tribunal or
forum of any kind, asserting any Released Claims against American Modern or any of the
Released Persons, except as necessary for this Court to enforce the terms of the Stipulation. Any
person who knowingly violates this injunction will be liable for the costs and attorneys’ fees
incurred by American Modern or any of the Released Persons as a result of such violation.
This Final Judgment, the Stipulation, the negotiations of the Settlement,
Settlement procedures, any act, statement or document related in any way to the Settlement
negotiations or settlement procedures, and any pleadings, or other document or action related in
any way to the Stipulation shall not be:
(a) construed as an admission or concession by
American Modern of the truth of any of the allegations in the Action, or of any liability, fault, or
wrongdoing of any kind on the part of American Modern; (b) offered or received in evidence in
any action or proceeding in any court, administrative panel or proceeding, or other tribunal, as an
admission or concession of liability or wrongdoing of any nature on the part of American
Modern, or that this Action may properly be maintained as a litigation or arbitration class action;
(c) offered into evidence in the Action or in any other case or proceeding in support of or in
opposition to a motion to certify a contested class against American Modern; or (d) otherwise
used in any case or proceeding whatsoever in support of or in opposition to a motion to certify a
contested class against American Modern.
This Final Judgment and the Stipulation may be filed in any other action against
or by any Released Persons in order to support any argument, defense, or counterclaim,
including but not limited to those based on principles of res judicata, collateral estoppel, release,
good faith settlement, judgment bar or reduction, or any other theory of claim preclusion, issue
preclusion, or similar defense or counterclaim.
Proprietary Information of American Modern shall be protected from disclosure
and handled in accordance with the terms of the Stipulation, and Class Counsel and other
attorneys for Representative Plaintiffs in this Action shall destroy or return all Proprietary
Information in their possession, custody, or control as set forth in the Stipulation.
Class Counsel’s Application for Fees (ECF No. 88) is hereby GRANTED.
Pursuant to Rule 23(h), the Court awards Class Counsel the total sum of $820,448.66 in
attorneys’ fees and costs.
In addition, the Court awards each Representative Plaintiff an
incentive award of $5,000.00.
The Court hereby finds that these amounts are fair and
American Modern shall pay such fees to Class Counsel and awards to the
Representative Plaintiffs pursuant to the terms of the Stipulation. American Modern shall not be
responsible for and shall not be liable with respect to the allocation among Class Counsel or any
other person who may assert a claim thereto, of attorneys’ fees and expenses awarded by the
Payments to eligible Class Members who timely file Claim Forms shall be made
in the amounts, within the time periods, and in the manner described in the Stipulation.
The Court appoints B.J. Joplin of Gibson & Associates as the Neutral Evaluator to
carry out the duties and responsibilities set forth in the Stipulation. Neither Representative
Plaintiffs, Class Counsel, nor American Modern or its counsel shall be liable for any act or
omission of the Neutral Evaluator.
Without further order of the Court, the Parties may agree to reasonably necessary
extensions of time to implement any of the provisions of the Stipulation.
This Action is hereby DISMISSED WITH PREJUDICE in its entirety on the
merits, without leave to amend, and without fees or costs to any Party except as otherwise
Without in any way affecting the finality of this Final Judgment, this Court shall
retain exclusive continuing jurisdiction over this Action for purposes of:
Enforcing the Stipulation and the Settlement;
Hearing and determining any application by any party to the Stipulation
for a settlement bar order; and
Any other matters related or ancillary to any of the foregoing.
IT IS SO ORDERED, this 1st day of June, 2017.
/s/ Susan O. Hickey
Susan O. Hickey
United States District Judge
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