Taqueria El Primo LLC et al v. Illinois Farmers Insurance Company et al

Filing 539

MEMORANDUM OPINION AND ORDER CLARIFYING CLASS CERTIFICATION ORDER denying 523 Motion to Alter/Amend/Correct Other Orders(Written Opinion) Signed by Judge John R. Tunheim on 1/17/2023. (KKM)

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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
TAQUERIA EL PRIMO LLC, VICTOR
MANUEL DELGADO JIMENEZ, MITCHELLE
CHAVEZ SOLIS, BENJAMIN TARNOWSKI,
EL CHINELO PRODUCE, INC., and
VIRGINIA SANCHEZ-GOMEZ, individually
and on behalf of all others similarly
situated,
Plaintiffs,

Civil No. 19-3071 (JRT/ECW)

MEMORANDUM OPINION AND ORDER
CLARIFYING CLASS CERTIFICATION
ORDER

v.
ILLINOIS FARMERS INSURANCE
COMPANY, FARMERS INSURANCE
EXCHANGE, FARMERS GROUP, INC.,
TRUCK INSURANCE EXCHANGE, FARMERS
INSURANCE COMPANY, INC., and MIDCENTURY INSURANCE COMPANY,
Defendants.

Anne T. Regan and Nathan D. Prosser, HELLMUTH & JOHNSON PLLC, 8050
West Seventy-Eighth Street, Edina, MN 55439; David W. Asp, Derek C.
Waller, Jennifer Jacobs, Kristen G. Marttila, and Stephen Matthew Owen,
LOCKRIDGE GRINDAL NAUEN PLLP, 100 Washington Avenue South, Suite
2200, Minneapolis, MN 55401; Paul J. Phelps, SAWICKI & PHELPS, 5758
Blackshire Path, Inver Grove Heights, MN 55076, for plaintiffs.
Emily C. Atmore, John Katuska, and Marc A. Al, STOEL RIVES LLP, 33 South
Sixth Street, Suite 4200, Minneapolis, MN 55402; Timothy W. Snider, STOEL
RIVES LLP, 760 Southwest Ninth Avenue, Suite 3000, Portland, OR 97205,
for defendants.

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Defendants Illinois Farmers Insurance Co.; Farmers Group, Inc.; Trucker Insurance
Exchange; Farmers Insurance Company, Inc.; Farmers Insurance Exchange Company; and
Mid-Century Insurance Company (collectively “Defendants”) request that the Court
clarify its Class Certification Order in the event that the Court did not intend to certify an
ongoing Damages Class or, in the alternative, to amend the certified class to specify an
end date of December 28, 2021, for class membership. Because there is no clerical error
related to the end date for membership, and because the Damages Class is ascertainable
via objective criteria, the Court will deny Defendants’ motion.
BACKGROUND
Plaintiffs, on behalf of themselves and others similarly situated, initiated this class
action in 2019. (Compl., Dec. 11, 2019, Docket No. 2-1.)
Defendants sell automobile insurance in Minnesota. (Id. ¶¶ 18, 32.) Plaintiffs
allege that Defendants entered into confidential contracts with certain health care
providers under which the providers agreed not to bill Defendants for any treatment
provided to individuals insured by Defendants. (See id. ¶¶ 2, 29.) According to Plaintiffs,
Defendants did not disclose these agreements to Defendants’ policyholders or to the
public. (Id. ¶ 2.) Plaintiffs allege that these limitations violate Minnesota law and the
terms of the policy contracts. (See id. ¶¶ 4, 21–29, 39, 114, 118.) In addition to damages,
Plaintiffs seek a declaratory judgment that any contractual provision limiting coverage
guaranteed either by the insurance policies or Minnesota law is void, and an injunction

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prohibiting Defendants from enforcing any limitations that violate the policy terms or
Minnesota law. (Id. ¶¶ 78–81, 104.)
On March 30, 2021, Plaintiffs moved for class certification. (Mot. Class Cert. &
App’t of Class Reps. & Class Counsel (“Class Cert. Mot.”), Mar. 30, 2021, Docket No. 124.)
Plaintiffs proposed a “Damages Class” defined as:
All persons or entities who purchased an insurance policy on
or after January 17, 2013 within the State of Minnesota from
any of the Defendant Insurers that provided for medical
expense benefits under Minnesota’s No Fault Act.
(Id. at 1–2.) Plaintiffs also proposed a nearly identical “Injunctive Class” with the
additional requirement for membership that class members continue to maintain their
policy. (Id. at 2.)
On December 28, 2021, the Court certified a Damages Class and an Injunctive Class
under Plaintiffs’ Minnesota Consumer Fraud Act claim with nearly identical language to
Plaintiffs’ proposed classes. The Damages Class was defined as:
All persons or entities or [sic] purchased an insurance policy
on or after January 17, 2013 within the State of Minnesota
from any of the Defendant Insurers that provided for medical
expense benefits under Minnesota’s No Fault Act.
(Class Certification Order at 64, Dec. 28, 2021, Docket No. 318.)
Defendants sought permission from the Eighth Circuit to appeal the order
certifying the classes. See generally Pet. Permission to Appeal Pursuant to Fed. R. Civ. P.
23(f), Taqueria El Primo LLC v. Farmers Group, Inc., Docket No. 22-8002 (8th Cir. Jan. 11,

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2022). The interlocutory appeal was considered and denied. Judgement, Taqueria El
Primo LLC v. Farmers Group, Inc., Docket No. 22-8002 (8th Cir. Apr. 14, 2022).
After the Class Certification Order, the parties met and conferred and on February
28, 2022, Defendants produced the bulk of the class member information. (Decl. Timothy
W. Snider (“Snider Decl.”) ¶ 6, Oct. 12, 2022, Docket No. 525.) A few days later,
Defendants supplemented that information with additional plaintiffs on March 2, 2022.
(Id.) The parties have identified approximately 250,000 potential class members between
January 17, 2013, through December 17, 2021, which was the most recent date that
premium and policy holder data was available prior to the Class Certification Order. (Id.
¶ 7; Snider Decl., Ex. 1, at 1, Oct. 12, 2022, Docket No. 525-1.) The parties have been able
to gather email addresses for at least 55% of the class members and continue to gather
more emails by combining existing databases with information provided by Farmers.
(Decl. Richard W. Simmons, ¶¶ 19, 24–25, Docket No. 450.)
On September 23, 2022, the Court approved Class Counsel’s notice program, as
required under Rule 23. (Mem. Op. Order Grant Pls.’ Mot. Approval Class Notice Modified
at 17–21, Sept. 23, 2022, Docket No. 521.)
In the course of coordinating the class notices, a dispute arose about whether the
Court intended to certify an ongoing Damages Class. Defendants now seek to clarify
whether the class certification order had an implicit end date or, in the alternative, seek
to amend the Class Certification Order to set an end date of December 28, 2021. (Mem.

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Supp. Defs.’ Mot. Clarification at 26, Oct. 12, 2022, Docket No. 524.) Plaintiffs oppose
Defendants’ motion because they specifically proposed an ongoing Damages Class, which
they argue the Court approved by not including an end date in the Class Certification
Order. (See generally Mem. Opp. Defs.’ Mot. Clarification, Oct. 19, 2022, Docket No. 531.)
DISCUSSION
I.

CLARIFICATION
Defendants urge the Court to utilize its authority under Federal Rule Of Civil

Procedure 60(a) to clarify the Class Certification Order and correct an oversight or
omission. Rule 60(a) authorizes the Court to “correct a clerical mistake or a mistake
arising from oversight or omission whenever one is found in a judgment, order, or other
part of the record.” Fed. R. Civ. P. 60(a). However, the absence of a specific end date in
the certified Damages Class was not an oversight by the Court because the Court did not
intend to set an end date to class membership.
However, Rule 60(a) does provide the Court with the power to fix an apparent
typographical mistake in the Damages and Injunctive Classes, which does not alter the
composition of the classes. The classes will therefore read as follows:
Damages Class:
All persons or entities that purchased an insurance policy on
or after January 17, 2013, within the State of Minnesota from
any of the Defendant Insurers that provided for medical
expense benefits under Minnesota’s No Fault Act.
Injunctive Class:
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All persons or entities that purchased an insurance policy on
or after January 17, 2013, within the State of Minnesota from
any of the Defendant Insurers that provided for medical
expense benefits under Minnesota’s No Fault Act, and who
maintain that policy.
II.

AMENDMENT
In the alternative, Defendants argue that the lack of an end date makes the class

unascertainable and urge the Court to amend the certified Damages Class to add an end
date. The Court disagrees and will deny the motion.
The Eighth Circuit has not specifically addressed the issue of whether an ongoing
class action can be ascertainable, instead it adheres to a rigorous analysis of the Rule 23
requirements, which includes that a class “must be adequately defined and clearly
ascertainable.” Sandusky Wellness Center, LLC v. Medtox Scientific, Inc., 821 F.3d 992,
996 (8th Cir. 2016) (citing Ihrke v. N. States Power Co., 459 F.2d 566, 573 n.3 (8th Cir. 1972)
vacated due to mootness, 409 U.S. 815 (1972)).1 The Eighth Circuit has found a class to
be ascertainable when there are “objective indicator[s]” available to determine who
belonged to the class. Id. at 997.
The Court has already conducted the rigorous analysis required under Rule 23 to
certify the Damages Class, Defendants sought permission to appeal that decision, and the

1

In Sandusky, the Eighth Circuit reversed the district court’s decision to deny class
certification. Id. at 998. Although not the central reason for the reversal, the class at issue did
not have a set end date, and the defendants specifically argued that it was not ascertainable,
albeit for different reasons.

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Eighth Circuit denied the petition. Although the Court did not explicitly address the issue
at hand in its Class Certification Order, the members of the certified class are clearly and
objectively identifiable as required by law. In fact, more than 250,000 class members
have already been identified using readily available data from Defendants.
Given that the alleged conduct is ongoing, the fact that additional members may
be added to the Damages Class does not mean that class members cannot be objectively
identified. See e.g., Rodriguez v. Hayes, 591 F.3d 1105, 1118 (9th Cir. 2010) (“The inclusion
of future class members in a class is not itself unusual or objectionable.”); Probe v. State
Teachers’ Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986) (“The fact that the class includes
future members does not render the class definition so vague as to preclude
certification.”).
Despite Defendants’ assertion that the lack of an end date is dispositive as to
whether a class without an end date is ascertainable, that is not the case. In fact, courts
routinely approve ongoing classes when appropriate. See e.g., Jaunich v. State Farm Life
Ins. Co., 569 F. Supp. 3d 912, 919 (D. Minn. 2021) (certifying a class without an end date);
Vogt v. State Farm Life Ins., No. 2:16-cv-04170, 2018 WL 1955425, at *8 (W.D. Mo. Apr.
24, 2018) (same), aff’d 963 F.3d 753, 765–69 (8th Cir. 2020).
Additionally, Defendants’ concern that the class will become unmanageable is
unfounded. First, because the Court has also certified an Injunctive Class, membership in
the class will either be limited if the practices are found to be unlawful—and therefore

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must cease—or the practice will be upheld, and the issue of the Damages Class will be
moot. Second, the class is not unmanageable simply because there is no set end date.
Assuming that the Defendants continue to sell the policies at issue, the Court can update
the class notice as necessary. The parties have already agreed to objective criteria to
determine who is a member of the class and developed a reasonable plan to provide
notice to those members. In fact, Defendants have already supplemented the class list.
Clearly, it is possible to add class members as necessary.
Of course, potential class members must have the opportunity to opt out before
the conclusion of this litigation. Plaintiffs have proposed a plan to provide notice to
additional class members as they are identified.2 The Court directs the parties to meet
and confer so that Defendants have the opportunity to propose their own plan and to
jointly propose to the Court how additional class members should be identified.
CONCLUSION
Because the Court did not intend to set an end date for class membership, and
because the ongoing nature of the Damages Class does not make it unascertainable, the
Court will deny the Defendants’ motion.

2

(See Pls.’ Mem. Opp. Defs.’ Mot. Clarification of Class Cert. at 28 nn.9–10, Oct. 19, 2022,
Docket No. 531.)

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ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendants’ Motion for Clarification of Orders on Class
Certification and Class Notice or, in the Alternative, for Amendment of the Orders [Docket
No. 523] is DENIED.

DATED: January 17, 2023
at Minneapolis, Minnesota.

JOHN R. TUNHEIM
United States District Judge

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