Countryman v. Farmers Insurance Exchange et al

Filing 101

ORDER denying in part and denying as moot in part 76 Motion to Certify Class by Judge Robert E. Blackburn on 6/14/12.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-01075-REB-KMT
LAWRENCE COUNTRYMAN, on behalf of himself and all others similar situated,
Plaintiff,
v.
FARMERS INSURANCE EXCHANGE, an insurer, and owner of MID-CENTURY
INSURANCE COMPANY, a California corporation, and
MID-CENTURY INSURANCE COMPANY, a California corporation,
Defendants.

ORDER DENYING MOTION FOR CLASS CERTIFICATION
Blackburn, J.
The matter before me is plaintiff’s Motion for Class Certification [#76],1 filed
September 9, 2011. I deny the motion in part and deny it as moot in part.
The motion originally sought certification of three separate subclasses,
designated as the repricing, apportionment, and two-year limitations subclasses. The
claims of the repricing subclass were dismissed by stipulation of the parties. (See Order
[#88], filed December 6, 2011.) The present motion therefore was deemed moot in part
with respect to the claims of the repricing subclass. (Id. ¶ 2 at 2.) Subsequently, I
granted defendant’s motion to dismiss the claims of the two-year limitations subclass.
(See Order Granting Motion To Dismiss [#100], filed June 6, 2012.) The class
certification motion therefore now is moot as to those claims.
1

“[#76]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s electronic case filing and management system (CM/ECF). I use this
convention throughout this order.

The only claims that remain pending for consideration of class certification are
those of the apportionment subclass. However, plaintiff has failed to establish that the
membership of this discrete class is so numerous that joinder of all members is
impracticable. FED. R. CIV. P. 23(a). See also Trevizo v. Adams, 455 F.3d 1155,
1162 (10th Cir. 2006) (party seeking class certification “must show ‘under a strict burden
of proof that all four requirements are clearly met.”) (citation and internal quotation
marks omitted). The allegations of the complaint on which plaintiff urges me to rely to
establish the elements of class certification are insufficient to establish this essential
element of entitlement to class treatment. Plaintiff gives few specifics as to the potential
number of claimant in the apportionment subclass, suggesting instead that “the exact
number of class members can readily be determined by review of information
maintained by Defendants.” (See Rule 23 Complaint and Jury Demand ¶ 65 at 18
[#2], filed May 7, 2010.)2 Defendant’s evidence, however, demonstrates that
apportionment of med-pay claims is exceptionally rare. (See Def. Resp. App., Exh. 5 ¶
6 at 4; id., Exh. 7 ¶ 8 at 4-5.)
I therefore find and conclude that plaintiff has failed to establish at least the Rule
23(a) requirement of numerosity. Accordingly, his motion for certification as to that
class must be denied.
THEREFORE, IT IS ORDERED that plaintiff’s Motion for Class Certification
[#76], filed September 9, 2011, is DENIED IN PART and DENIED AS MOOT in part as
follows:

2

Instead, the complaint details the potential number of claimants in the repricing subclass.

2

1. That the motion is DENIED with respect to the request to certify the claims of
the apportionment subclass; and
2. That the motion is DENIED AS MOOT with respect to the request to certify
the claims of the two-year limitations subclass.
Dated June 14, 2012, at Denver, Colorado.
BY THE COURT:

3