Lafollette et al v. Liberty Mutual Fire Insurance Company

Filing 255

ORDER granting parties' joint motion to appoint special master, Doc. 254 . Signed on 5/8/2017 by District Judge Nanette K. Laughrey. (Specker, Suzanne)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
ERIC LAFOLLETTE, CAMILLE
LAFOLLETTE, individually and
on behalf of others similarly situated,

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Plaintiffs,
v.
LIBERTY MUTUAL FIRE INSURANCE
COMPANY,
Defendant.

No. 2:14-CV-04147-NKL

ORDER APPOINTING SPECIAL MASTER
Before the Court is the Parties’ Joint Motion to Appoint Special Master. Doc. 254. For
good cause shown, and pursuant to Fed. R. Civ. P. 53(a)(1)(A), the Court grants the Parties’ Joint
Motion, and appoints William Turley to serve as special master in this action and assist the Court
by proposing factual findings concerning the identities of the class members, the deductibles
associated with the class members, prejudgment interest (simple) on the deductibles associated
with the class members, and related issues.

Mr. Turley has both litigation and insurance

expertise, has access to technical support, and has previously served as a Special Master
concerning discovery issues in this case, making Mr. Turley an appropriate special master.
Mr. Turley is ordered to proceed with all reasonable diligence to gather and review
evidence, and make proposed factual findings to the Court, concerning the identities of the class
members, the deductibles associated with the class members, prejudgment interest on the
deductibles associated with the class members (calculated as simple interest, as agreed by the

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Parties), and related issues.1 At a minimum, and as agreed by the Parties, Mr. Turley shall
undertake the following tasks:


Review electronic claims files for putative class members, identify which
electronic claims files lack the information needed to make the findings
outlined in this Order, request and review hard copy files as necessary, and
engage with the Parties on questions as needed;



Receive oral and/or written evidence from the Parties on the findings
outlined in this Order, with such evidence to be submitted and received
either formally (such as via an expert report) or informally (such as via a
spreadsheet), at the request of Mr. Turley or at the request of either Party;



Engage Matt Schwartz to assist as needed in the gathering and review of
claims information;



Make proposed findings of fact to be presented to the Court for approval,
concerning:
o The number and identity of the class members as defined by the
Court;
o The amount of the deductibles for the class members as defined by
the Court;
o The prejudgment interest, calculated on a simple basis, on the
deductibles for the class members as defined by the Court;
o Of the class members as defined by the Court,


(1) Which claims contain evidence the insured’s property
was repaired or replaced, and the deductibles and
prejudgment interest (simple) associated with those claims;



(2) Which claims contain evidence the insured sought
recoverable depreciation that was denied because the ACV
payment was sufficient to complete repairs, and the
deductibles and prejudgment interest (simple) associated
with those claims;

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The parties do not agree that prejudgment interest should be awarded, and Defendant contends that prejudgment
interest should not be awarded, even if the Court awards damages, but the parties do agree that if prejudgment
interest is awarded it should be calculated on a simple basis.

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

(3) Which claims contain no evidence concerning whether
repairs were made, and the deductibles and prejudgment
interest (simple) associated with those claims;



(4) Which claims did not include the Homeprotector Plus
endorsement in the policy, and the deductibles and
prejudgment interest (simple) associated with those claims;



(5) Which claims were settled under an endorsement or
form other than the Homeprotector Plus endorsement, and
the deductibles and prejudgment interest (simple)
associated with those claims;



(6) Which claims had the same exact set of endorsements
as the proposed intervenor, and the deductibles and
prejudgment interest (simple) associated with those claims;
and

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(7) Which claims had the same exact set of endorsements
as the proposed intervenor and the same cause of loss as the
proposed intervenor, and the deductibles and prejudgment
interest (simple) associated with those claims;



(8) Stipulations to which the Parties agree in lieu of the
above (1)-(7) specific factual findings;

o Additional findings as requested by either of the Parties concerning
the attributes of the class and associated deductibles and
prejudgment interest (simple), such findings to be requested within
two weeks of the approval of this Order; and
o Any stipulations to which the Parties agree concerning the class,
deductibles, and/or prejudgment interest.
The Parties have stipulated that, if prejudgment interest is awarded as part of a final
judgment, it should accrue at simple interest and not compound interest. Defendant disputes that
prejudgment interest should be awarded even if the Court enters final judgment in favor of
Plaintiffs on damages.
Mr. Turley shall have 150 days from the date of this Order to complete the foregoing
tasks and to present proposed findings to the Court. Mr. Turley shall have 120 days from the

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date of this Order to present his proposed findings to the Parties, and shall at that time provide
the parties a final opportunity to present evidence and argument concerning the proposed
findings. Such final opportunity shall, at the request of either party, be an evidentiary hearing.
Evidence submitted to Mr. Turley shall be preserved as and deemed a part of the Court’s record
in this case without the need for filing such evidence. Such evidence may be referred to in, and
attached to, any pleading, as either Party deems necessary.
The parties must file any objections to Mr. Turley’s proposed findings, or motions to
adopt or modify the master’s recommendations, by no later than 7 days after Mr. Turley’s
proposed findings are filed on ECF.

Following this deadline, the Court will hold a joint

teleconference with Mr. Turley and the parties to discuss Mr. Turley’s proposed findings and any
motions or objections filed by the parties. The Court will subsequently rule on the issues raised
by the parties, and may adopt or affirm, modify, wholly or partly reject or reverse, or resubmit
the matter to the master with further instructions. The parties have not stipulated that Mr.
Turley’s proposed factual findings shall be reviewed only for clear error or that such findings are
final.
Mr. Turley shall remain bound by any confidentiality agreements previously executed in
connection with his prior appointment as special master in this case.
The Parties agree that Mr. Turley may conduct ex parte communications with each side,
but that he may make no proposed factual findings without providing each side an opportunity to
present evidence and argument on each such finding.
As of the date of this Order, Mr. Turley is prohibited from engaging in ex parte
communications with the Court until he submits his proposed factual findings on ECF, subject to

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reconsideration at the request of Mr. Turley, and subject to Mr. Turley advising the Parties of his
intent to request a waiver of this prohibition and the reasons for such request.
Mr. Turley is to be compensated at a rate of $250 per hour, with reimbursement for
reasonable expenses. Mr. Turley may retain Matt Schwartz to assist him. Mr. Schwartz’s time
will be compensated at $200 per hour. The Parties will share the costs of the special master
equally, as agreed by the Parties.
/s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: May 8, 2017
Jefferson City, Missouri

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