Bailey v. State Farm Mutual Automobile Insurance Company

Filing 228

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT, DIRECTING NOTICE TO THE CLASS, SCHEDULING A FINAL APPROVAL HEARING, AND CERTIFYING SETTLEMENT CLASS: 1. This Order (the Preliminary Order) hereby incorporates by reference the definitions in t he Stipulation, and all terms used herein shall have the same meanings as set forth in Stipulation. 2. The Court has jurisdiction. 3. Venue is proper 4. Stipulation & Settlement are preliminarily approved and Settlement 224 is GRANTED pending Final Approval Hearing. 5. Court finds for settlement purposes FRCP 23(e) factors present, and certification of the proposed Settlement Class is appropriate under Rule 23. 6. Plfs Hicks and Williams are preliminarily apptd as representatives of Settlement Class and attys for plfs satisfy req of FRCP 23 and appoints such as Class Counsel. 7. If final approval of Settlement & entry of Final Judgment is not granted, this Order and other actions of this Court incident to Settlement shall be automatically vacated. 8. Pending final determination by Court, neither Representative Plfs nor any potential class member shall start, join, continue, litigate or participate in, support or accept any benefit or relief from any other lawsuit, arbitration or admi n or regulatory proceeding againt State Farm that is based on or relates to this action. 9. JND Legal Administration is apptd to serve as third-party administrator 10. Parties have prepared the Class Notice, Claim Form and Postcard Notice. 11. Within 45 days after entry of this order, Admin shall send copy of Notice & Claim Form to each potential Class Member 12. If a Class Notice & Claim Form sent to any potential Class Member is returned as undeliverable, the Admin will log as such and provide copies to Dft and Class Counsel as requested. 13. NLT 45 days before the Claim Deadline, Admin shall mail a reminder 14. In addition to Class Notice and Claim Form mailed, the Admin shall establish toll-free telephone number and website re Stipulati on 15. Court finds the procedures set forth in preceding paragraphs reasonable 16. Court preliminarily finds dissemination of the Class Notice, Claim Form and Postcard Notice constitutes best practicable notice, is reasonably calculated, meets reqs o f FRCP, Constitution and any other applicable rules or law. 17 Court finds that all notices re Settlement have been or will be sent 18. Costs of providing notice and effectuating all other settlement admin shall be borne by State Farm as provided in Stipulation. 19. Court will hold a Final Approval Hearing on Settlement April 28, 2022 at 9:00 a.m. in Ashland, KY. 20. During Final Approval Hearing, the Court will consider items listed herein 21. Class Members who wish to exclude themselves from the Settlement Class must mail written opt-out request 22. All Class Members who do not request exclusion shall be members. 23. Class Members who do not request exclusion from the Settlement Class may object to Settlement. 24. In addition, a no tice of intent to object should contain info herein 25. An Objector who does not include above info will likely be limited in speaking and presenting 26. Any Class Member who does not file and mail a timely and complete written notice of intent to ob ject waive right to be heard at hearing 27. The Admin shall provide State Farm's Counsel and Class Counsel with copies of objs 28. At or before Final Hearing, Class Counsel shall file with the Court proof from Admin of mailing 29. Class Members will be provided opportunity to submit Claim Forms 30. Any Class Member who has not submitted a timely, complete opt-out request and who has returned a timely, complete Claim Form may be eligible to receive Settlement Check 31. Not less than 7 days p rior to Final Approval Hearing, Class Counsel shall file with the Court a motion seeking Court's final approval of Settlement & Stipulation and entry of Final Judgment 32. This Order, the Stipulation, the negotiations of the Stipulation, the Set tlement procedures, any act, statement or document related in any way to the negotiation of the Stipulation or Settlement procedures, and any pleadings, or other documents or action related in any way to the Stipulation shall not be construed as an a dmission or concession by State Farm 33. Settlement is preliminarily approved 34. Upon showing of good cause, the Court may extend any of the ddls set forth in this Order without further notice to the Class. 35. Except for proceedings in furtherance of the admin and finalization of the Settlement, this Action is Stayed pending further order from this Court. Signed by Judge Henry R. Wilhoit, Jr on 11/24/2021.(KSS)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
ASHLAND DIVISION
SUSAN HICKS AND DON WILLIAMS,
individually and on behalf of all others
similarly situated,
Plaintiffs,
v.

No. 14-cv-00053

Hon. Henry R. Wilhoit, Jr.

STATE FARM FIRE AND CASUALTY
COMPANY,
Defendant.

ORDER GRANTING PRELIMINARY APPROVAL OF CLASS SETTLEMENT,
DIRECTING NOTICE TO THE CLASS, SCHEDULING A FINAL APPROVAL
HEARING, AND CERTIFYING SETTLEMENT CLASS
Plaintiffs Susan Hicks and Don Williams (“Representative Plaintiffs” or “Plaintiffs,” each
a “Plaintiff”), individually and on behalf of themselves and the Class as defined herein, and
Defendant State Farm Fire and Casualty Company (“State Farm” or “Defendant”), have agreed to
settle this litigation pursuant to the terms and conditions stated in the Stipulation of Settlement (the
“Stipulation” or the “Settlement”) filed with the Court on August 6, 2021 [Docket No. 224-3],
subject to this Court’s approval. Plaintiffs and Class Counsel have filed an Unopposed Motion for
Preliminary Approval of Class Settlement, Certification of the Settlement Class, and Scheduling a
Final Approval Hearing [Docket No. 224] (the “Motion”). By Order dated August 11, 2021
[Docket No. 226], this Court referred the Motion to Magistrate Judge Matthew A. Stinnett, who
subsequently issued a Report and Recommendation on November 8, 2021 [Docket No. 227]
recommending that the Motion be granted. No party has filed an objection to the Report and

Recommendation. This matter is now ripe for disposition. For the reasons stated herein, this Court
adopts the Report and Recommendation and issues the following Order:
In determining whether to approve a proposed settlement, the District Court must find that
the settlement is fair, adequate, and reasonable. UAW v. Gen. Motors Corp., 497 F.3d 615, 631
(6th Cir. 2007). A district court looks to seven factors in determining whether a class action
settlement is fair, reasonable, and adequate: “(1) the risk of fraud or collusion; (2) the complexity,
expense and likely duration of the litigation; (3) the amount of discovery engaged in by the parties;
(4) the likelihood of success on the merits; (5) the opinions of class counsel and class
representatives; (6) the reaction of absent class members; and (7) the public interest.” Id.
Furthermore, a court must consider the factors in Rule 23(e) which provides, among other things,
that the crux of a court’s preliminary approval evaluation is whether “giving notice [to the class]
is justified by the parties’ showing that the court will likely be able to: (i) approve the proposal
under Rule 23(e)(2); and (ii) certify the class for purposes of judgment on the proposal,” Fed. R.
Civ. P. 23(e)(1)(B), and “focus[es]” a court’s inquiry on “the primary procedural considerations
and substantive qualities that should always matter to the decision whether to approve the
proposal,” Fed. R. Civ. P. 23(e)(2) advisory committee’s note to 2018 amendment—that is,
whether:
(A) the class representatives and class counsel have adequately
represented the class; (B) the proposal was negotiated at arm’s
length; (C) the relief provided for the class is adequate, taking into
account: (i) the costs, risks, and delay of trial and appeal; (ii) the
effectiveness of any proposed method of distributing relief to the
class, including the method of processing class-member claims; (iii)
the terms of any proposed award of attorneys’ fees, including timing
of payment; and (iv) any agreement required to be identified under
Rule 23(e)(3); and (D) the proposal treats class members equitably
relative to each other.

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Upon considering the Motion and exhibits thereto, the Settlement, the record in these
proceedings, the representations and recommendations of Class Counsel, and the requirements of
law, the Court finds that: (1) this Court has jurisdiction over the subject matter and parties to these
proceedings; (2) the proposed Settlement Class (which is identical to the certified litigation class)
meets the requirements of Federal Rule of Civil Procedure 23 and should be certified for settlement
purposes only; (3) the persons and entities identified below should be appointed Class
Representatives and Class Counsel; (4) the proposed Settlement is the result of informed, goodfaith, arm’s-length negotiations between the parties and their capable and experienced counsel and
is not the result of collusion; (5) the proposed Settlement is within the range of reasonableness and
should be preliminarily approved; (6) the proposed Notice Program and proposed forms of Notice
satisfy Federal Rule of Civil Procedure 23 and constitutional due process requirements, and are
reasonably calculated under the circumstances to apprise the proposed Settlement Class of the
pendency of the Action, class certification, the terms of the proposed Settlement, Class Counsel’s
future motion for an award of attorneys’ fees and expenses and request for Service Awards for
Plaintiffs, and their rights to opt-out of the Settlement Class and object to the Settlement, Class
Counsel’s request for fees, litigation costs and/or Service Awards for Plaintiffs; (7) good cause
exists to schedule and conduct a Final Approval Hearing, pursuant to Federal Rule of Civil
Procedure 23(e), to assist the Court in determining whether to grant final approval of the Settlement
and enter Final Judgment, and whether to grant Class Counsel’s requested fees, litigation expenses
and request for Service Awards for Plaintiffs; and (8) the other related matters pertinent to the
preliminary approval of the Settlement should also be approved.
Based on the foregoing, IT IS HEREBY ORDERED AND ADJUDGED as follows:

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1.

This Order (the “Preliminary Approval Order”) hereby incorporates by reference

the definitions in the Stipulation, and all terms used herein shall have the same meanings as set
forth in the Stipulation.
2.

The Court has jurisdiction over the subject matter and parties to this proceeding

pursuant to 28 U.S.C. §§ 1332(d), 1441, 1446 and 1453.
3.

Venue is proper in this District.

4.

The Stipulation and Settlement are preliminarily approved as fair, adequate, and

reasonable, and Plaintiffs’ motion for preliminary approval of the Settlement is hereby
GRANTED in all material respects, subject to further consideration at the Final Approval Hearing.
5.

The Court finds, for settlement purposes, that the Federal Rule of Civil Procedure

23(e) factors are present, and that certification of the proposed Settlement Class is appropriate
under Rule 23. The following Settlement Class is certified for purposes of the Settlement:
Persons and entities insured under a State Farm homeowners policy
that received “actual cash value” payments, directly or indirectly,
from State Farm Fire and Casualty Company for loss or damage to
a dwelling or other structure located in the Commonwealth of
Kentucky, such payments arising from events that occurred from
February 28, 2013 through July 25, 2015, where the cost of labor
was depreciated. The certified class excludes: (1) all persons and
entities that received payment from State Farm in the full amount of
insurance shown on the declarations page; (2) State Farm and its
affiliates, officers, and directors; (3) members of the judiciary and
their staff to whom this action is assigned; and (4) Plaintiffs’
counsel.
6.

Plaintiffs Susan Hicks and Don Williams are preliminarily appointed as

representatives of the Settlement Class and the Court preliminarily finds that the following
attorneys for Plaintiffs satisfy the adequacy requirement of Federal Rule of Civil Procedure 23,
and appoints such as Class Counsel:
M. Austin Mehr
Philip G. Fairbanks

J. Morgan Smith
RICHARDSON & SMITH, PSC
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Erik D. Peterson
MEHR, FAIRBANKS & PETERSON
TRIAL LAWYERS, PLLC
201 West Short Street, Suite 800
Lexington, KY 40507
T: 859-225-3731
[e-mail]
[e-mail]
[e-mail]

7.

62 West Main Street
P.O. Box 1040
Owingsville, KY 40360
T: 606-674-8111
[e-mail]
Paula Richardson
RICHARDSON, BARBER & WILLIAMSON, PSC
86 West Main Street
P.O. Box 1169
Owingsville, KY 40360
T: 606-674-6337
[e-mail]

If final approval of the Settlement and entry of Final Judgment is not granted, this

Order, including the preliminary certification of the Settlement Class, and other actions of this
Court incident to the Settlement, shall be automatically vacated.
8.

Pending a final determination by the Court of whether the Settlement should be

approved as fair, reasonable, and adequate, neither the Representative Plaintiffs nor any potential
Class Member who has not opted out, whether directly, indirectly, representatively or in any other
capacity, shall start, join, continue, litigate or participate in, support, or accept any benefit or relief
from any other lawsuit, arbitration, or administrative or regulatory proceeding against State Farm
that is based on, relates to, or involves any of the claims, facts, circumstances, or subject matters
of this Action or the Stipulation.

Accordingly, the Court hereby preliminarily enjoins the

Representative Plaintiffs and any Class Member who has not opted out from the Settlement Class
from instituting, maintaining, prosecuting, suing, asserting, or cooperating in any action or
proceeding, whether new or existing, against any of the Released Persons for any of the Released
Claims.

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9.

JND Legal Administration (the “Administrator”) is appointed to serve as third-

party administrator for the Settlement and to perform such duties as may be ordered by this Court
pursuant to the terms of the Stipulation.
10.

The Parties have prepared the Class Notice, Claim Form, and Postcard Notice,

which have been submitted to the Court as Exhibits 2-3 and 5, respectively, to the Stipulation. As
set forth herein, the Court has reviewed and approves these forms. Counsel for the Parties, along
with the Administrator, are authorized to complete any missing information and to make any nonsubstantive revisions to these documents, as necessary to fulfill the purposes of the Settlement.
11.

Within forty-five (45) days after the entry of this Order, the Administrator shall

send a copy of the Class Notice and a Claim Form by first-class mail to the current or last known
address for each potential Class Member, according to State Farm’s business records and the
National Change of Address database. The Class Notice and Claim form shall be mailed to
potential Settlement Class members not less than seventy-five (75) days prior to the Final Approval
Hearing.
12.

If a Class Notice and Claim Form sent to any potential Class Member is returned

as undeliverable, the Administrator will promptly log such return as undeliverable and provide
copies of the log to Defendant and Class Counsel as requested. If the mailing is returned to the
Administrator with a forwarding address, the Administrator will forward the mailing to that
address. For other returned mailings, the Administrator will run the name and address one time
through a single commercial database chosen by the Administrator, and should the commercial
database show a more current address, the Administrator shall re-mail the returned Class Notice
and Claim Form to the more current address. No further efforts to locate or to find a more current
address for Class Members is required.

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13.

No later than forty-five (45) days before the Claim Deadline, the Administrator

shall mail a reminder in the form attached as Exhibit 5 (the “Postcard Notice”) with information
regarding the Claim Form Submission Deadline, the Settlement website address, and how to
request a copy of the Claim Form. The Postcard Notice will be mailed to each Class Member who
has not submitted a Claim Form and who has not timely and properly excluded themselves from
the Settlement Class.
14.

In addition to the Class Notice and Claim Form mailed in accordance with the

preceding paragraphs, the Administrator shall establish an automated toll-free telephone number
and a settlement website that will contain information on the Stipulation, including copies of the
Agreement and Exhibits, the Preliminary Approval Order, the Class Notice, a downloadable copy
of the Claim Form, and Spanish translations of the Class Notice and Claim Form.
15.

The Court finds that the procedures set forth in the preceding paragraphs constitute

reasonable and best notice practicable under the circumstances and an appropriate and sufficient
effort to locate current addresses of Class Members such that no additional efforts shall be required.
Upon reasonable request, the Administrator shall advise Class Counsel and Defendant’s Counsel
of the progress of the Class Notice program to monitor compliance with this Order.
16.

The Court preliminarily finds that the dissemination of the Class Notice, Claim

Form, and Postcard Notice under the terms and in the format provided for in this Order, together
with the establishment of an automated toll-free telephone number and settlement website, as set
forth above, (a) constitutes the best practicable notice under the circumstances; (b) is reasonably
calculated to apprise all potential Class Members who can be identified through reasonable effort
of: the pendency of the Action, the Stipulation and Settlement, and their rights in connection
therewith, and the Final Approval Hearing; and (c) meets the requirements of the Federal Rules of

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Civil Procedure, the requirements of due process under the United States Constitution, and the
requirements of any other applicable rules or law.
17.

The Court 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 [or will be sent] and that
Defendant has fully complied [or will fully comply] with the notice requirements under that Act.
18.

The costs of providing notice and effectuating all other settlement administration

shall be borne by State Farm, as provided in the Stipulation.
19.

The Court will hold a Final Approval Hearing to consider the fairness,

reasonableness, and adequacy of the Settlement at 9 a.m., on April 28, 2022, at the United States
Courthouse, Ashland, Kentucky. However, at the sole discretion of the Court, the Final Approval
Hearing may occur via telephone or video in order to allow the Final Approval Hearing to proceed
despite any limitations on in-court hearings related to the COVID-19 pandemic. In such event,
any Class Member who files a notice of intent to appear shall be provided with information
required to access the telephone or video hearing. The date of the Final Approval Hearing shall
be set forth in the Class Notice. Upon a showing of good cause, the Final Approval Hearing may
be postponed, adjourned, or rescheduled by the Court without further notice to the members of the
Class. Any rescheduled date for the Final Approval Hearing will be posted on the settlement
website.
20.

During the Final Approval Hearing, the Court will consider and determine, inter

alia:
a. Whether the Stipulation for Settlement of this Action should be approved as
fair, reasonable, and adequate;
b. Whether this Action should be certified as a class action for settlement purposes
only and whether the requirements for certification of a settlement class have
been met;
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c. Whether this Action should be dismissed with prejudice pursuant to the terms
of the Stipulation;
d. Whether members of the Settlement Class should be bound by the Release set
forth in the Stipulation;
e. Whether members of the Settlement Class, whether acting individually or
together, should be permanently enjoined from instituting, maintaining,
prosecuting, suing, asserting, or cooperating in any action or proceeding,
whether new or existing, against any of the Released Persons for any of the
Released Claims;
f. Whether and in what amount Class Counsel’s application for an award of
attorneys’ fees and expenses, and the Representative Plaintiffs’ request for
service awards should be approved; and
g. Objections, if any, made to the Settlement or any of its terms.
21.

Class Members who wish to exclude themselves from the Settlement Class must

mail a written opt-out request, pursuant to the instructions posed on the settlement website and in
the Class Notice, to the Administrator no later than thirty (30) days prior to the Final Approval
Hearing.
22.

All Class Members who do not request exclusion in the manner set forth in the

Stipulation shall be members of the Settlement Class and bound by all proceedings, orders, and
judgments in the Action, which will have preclusive effect in all pending or future lawsuits or other
proceedings.
23.

Class Members who do not request exclusion from the Settlement Class may object

to the Settlement by filing with the Court and mailing to the Administrator, a written notice of
intent to object as provided in the Stipulation no later than thirty (30) days before the Final
Approval Hearing. The right to object to the Settlement must be exercised individually by a Class
Member, not as a member or representative of a group or subclass, except in the case of a legally
authorized representative on behalf of a deceased, minor, or incapacitated Class Member. To be
considered, the written notice of intent to object to the Settlement should contain:
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a. A heading which includes the name of the case and case number;
b. The name, address, telephone number, and signature of the Class Member (the
“Objector”) filing the objection;
c. The specific reasons why the Class Member objects to the Settlement;
d. The name, address, bar number, and telephone number of the objecting Class
Member’s counsel, if represented by an attorney; and
e. Indication of whether the objecting Class Member intends to appear at the Final
Approval Hearing, either in person or through counsel.
24.

In addition, a notice of intent to object should contain the following additional

information if the Objector or his/her attorney requests permission to speak at the Final Approval
Hearing:
a. A detailed statement of the specific legal and factual basis for each and every
objection;
b. A list of any and all witnesses whom the Objector may call at the Final Approval
Hearing, with the address of each witness and a summary of his or her proposed
testimony;
c. A detailed description of any and all evidence the Objector may offer at the
Final Approval Hearing, including photocopies of any and all exhibits which
the Objector may introduce at the Final Approval Hearing; and
d. Documentary proof of membership in the Class.
25.

An Objector who does not include the above information in his/her notice of intent

to object will likely be limited in speaking and presenting evidence or testimony at the Final
Approval Hearing and may be prevented from doing so entirely.
26.

Any Class Member who does not file and mail a timely and complete written notice

of intent to object in accordance with the Stipulation, waives the right to object or to be heard at
the Final Approval Hearing and is barred from objecting to the Settlement. However, the Court
retains discretion to hear objections absent full, technical compliance with this Order upon a
showing of good cause for failure to comply.
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27.

The Administrator shall provide State Farm’s Counsel and Class Counsel with

copies of any and all objections and opt-out requests received by the Administrator.
28.

At or before the Final Approval Hearing, Class Counsel shall file with the Court

proof from the Administrator of the mailing of the Class Notice, the Claim Form, and the Postcard
Notice, confirming the timely mailing of notices concerning the Settlement required by the Class
Action Fairness Act of 2005, 28 U.S.C. §§ 1715, et seq., and identifying the number of Class
Members who have timely excluded themselves from the Class (opted out), the number of
Objectors, and identifying all such Persons.
29.

Class Members will be provided an opportunity to submit Claim Forms in the form

attached to the Stipulation as Exhibit 3, requesting Claim Settlement Payments in accordance with
the terms of the Stipulation.
30.

Any Class Member who has not submitted a timely, complete opt-out request and

who has returned a timely, complete Claim Form may be eligible to receive a Settlement Check
according to the terms of the Stipulation if the Effective Date occurs.
31.

Not less than seven (7) days prior to the Final Approval Hearing, Class Counsel

shall file with the Court a motion seeking the Court’s final approval of the Settlement and
Stipulation and entry of Final Judgment in the form and content attached to the Stipulation as
Exhibit 4. State Farm, in its sole discretion, may also file a brief in support of final approval of
the Stipulation and Settlement. Class Counsel shall simultaneously file any motion concerning
requests for attorneys’ fees, costs, expenses, and service awards.
32.

This Order, the Stipulation, the negotiations of the Stipulation, the Settlement

procedures, any act, statement, or document related in any way to the negotiation of the
Stipulation or Settlement procedures, and any pleadings, or other document or action related in

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any way to the Stipulation shall not be construed as an admission or concession by State Farm (a)
of the truth of any of the allegations in the Lawsuit; (b) of any liability, fault, or wrongdoing of
any kind on the part of State Farm; or (c) that this Action may be properly maintained as a
litigation class action. Likewise, none of the materials referenced in this paragraph shall be
offered or received in evidence in any action or proceeding in any court, administrative panel or
proceeding, or other tribunal, as proof that State Farm has admitted or conceded points (a), (b),
or (c) contained within this paragraph.
33.

The Settlement is preliminarily approved as fair, reasonable, adequate, and in the

best interest of the Class Members. The Parties and the Administrator are directed to implement
the terms of the Settlement in accordance with the Stipulation.
34.

Upon a showing of good cause, the Court may extend any of the deadlines set forth

in this Order without further notice to the Class.
35.

Except for proceedings in furtherance of the administration and finalization of the

Settlement, this Action is stayed pending further order from the Court.
IT IS SO ORDERED, this 24th day of November 2021.

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