Tkachyk v. Travelers Home & Marine Ins. Company et al

Filing 50

FINAL JUDGMENT. Signed by Judge Dana L. Christensen on 5/17/2017. (ASG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
SARA TKACHYK, individually and on
behalf of herself and all other similarly
situated,

CV 16-28-M-DLC

ORDER
Plaintiff,
vs.
TRAVELERS HOME & MARINE
INSURANCE COMPANY, THE
CHARTER OAK FIRE INSURANCE
COMPANY, NORTHLAND CASUALTY
COMPANY, NORTHLAND INSURANCE
COMPANY, PHOENIX INSURANCE
COMPANY, ST. PAUL FIRE & MARINE
INSURANCE COMPANY, ST. PAUL
MERCURY INSURANCE COMPANY,
THE STANDARD FIRE INSURANCE
COMPANY, TRAVELERS CASUALTY
INSURANCE COMPANY OF AMERICA,
TRAVELERS COMMERCIAL
INSURANCE COMPANY, THE
TRAVELERS INDEMNITY COMPANY,
TRAVELERS INDEMNITY COMPANY
OF AMERICA, THE TRAVELERS
INDEMNITY COMPANY OF
CONNECTICUT, TRAVELERS
PROPERTY CASUALTY COMPANY OF
AMERICA, and RODERICK MCNEIL,
Defendants.

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On May 17, 201 7, the matter of the Court's final approval of the
Stipulation of Settlement submitted on December 29, 2016 by the Motion for
Order Preliminarily Approving Settlement, Approving Notice to Class Members,
and Setting Date for Settlement Fairness Hearing, came before the Court for
consideration. Appearing on behalf of Plaintiffs and the Settlement Class was
Allan M. McGarvey, McGarvey, Heberling, Sullivan & Lacey, P.C. 345 First
Avenue East, Kalispell, MT 59901; Judah M. Gersh and Brian M. Joos, Viscomi,
Gersh, Simpson & Joos, PLLP, 121 Wisconsin Avenue, Whitefish, MT 59937;
and Alan J. Lerner, Lerner Law Firm, P.O. Box 1158, Kalispell, MT 59903-1158
("Class Counsel"). Appearing on behalf of Defendants was Marshal Mickelson,
Corette Black Carlson and Mickelson P.C., 129 W. Park Street, Suite 300, Butte,
MT 59701; and Mark L. Hanover, Dentons 233 S. Wacker Dr., Suite 5900,
Chicago, IL 60606.
WHEREAS, the Named Plaintiff, Sara Tkachyk, and Defendants
Travelers Home & Marine Insurance Company, The Charter Oak Fire Insurance
Company, Northland Casualty Company, Northland Insurance Company,
Phoenix Insurance Company, St. Paul Fire & Marine Insurance Company, St.
Paul Mercury Insurance Company, The Standard Fire Insurance Company,
Travelers Casualty Insurance Company of America, Travelers Commercial
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Insurance Company, The Travelers Indemnity Company, Travelers Indemnity
Company of America, The Travelers Indemnity Company of Connecticut, and
Travelers Property Casualty Company of America, individually and on behalf of
all affiliated entities (collectively, "Travelers," as defined in the Stipulation of
Settlement), have executed and filed a Stipulation of Settlement with the Court
on December 29, 2016. The Settlement is on behalf of the Travelers Defendants
only and does not apply to Defendant Roderick McNeil; and
WHEREAS, all capitalized terms used herein shall have the same meaning
as set forth in the Agreement and are hereby incorporated by reference; and
WHEREAS, the Court, on February 3, 2017, entered the Order Re:
Preliminary Approval of Settlement and Approval of Notice of Pendency of
Settlement of Class Action to Class Members ("Preliminary Approval Order"),
preliminarily approving the Proposed Settlement and conditionally certifying this
Action, for settlement purposes only, as a class action, and, on February 14, 2017,
entered an order correcting and amending the Stipulation of Settlement and
resetting the final hearing date; and
WHEREAS, Sara Tkachyk was approved in the Preliminary Approval
Order as the Class Representative; and

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WHEREAS, the Court, as part of its Preliminary Approval Order, directed
that a plan for disseminating notice of the Settlement ("Notice Plan") be
implemented, and scheduled a hearing to be held on May 17, 2017, to
determine whether the Proposed Settlement should be approved as fair,
reasonable and adequate; and
WHEREAS, Travelers and Class Counsel have satisfactorily demonstrated
to the Court that the Notice Plan was followed; and
WHEREAS, a final approval hearing was held on May 17, 201 7, at which
all interested persons were given an opportunity to be heard, and all objections to
the Settlement, if any, were duly considered;
NOW, THEREFORE, the Court, having read and considered all
submissions made in connection with the Proposed Settlement, and having
reviewed and considered the files and records herein, finds and concludes as
follows:
1.

The Complaint filed in this Action alleges generally that Travelers engaged

in improper subrogation in Montana by subrogating before conducting a proper
made whole analysis.
2.

As part of the Preliminary Approval Order, the Court certified the

Settlement Class, for settlement purposes only, defined as follows:
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All Persons (and their heirs, executors, administrators, successors and
assigns), as of July 26, 2016, (a) who were insured under an auto
insurance policy issued by Travelers in Montana; (b) with respect to
whom Travelers recovered subrogation on a Montana automobile
insurance claim after January 11, 2008, i.e., 8 years before the filing of the
Action.
Excluded from the Class are: all present or former officers and/or directors
of Travelers, Class Counsel and their resident relatives, the Judge in this
case and his resident relatives, and Travelers' counsel of record and their
resident relatives. Also excluded are persons who properly executed and
filed a timely request for exclusion from the Class.
3.

The Court hereby affirms this definition of the Settlement Class for

purposes of this Final Judgment.
4.

The Court certifies the Settlement Class in this Action, for settlement

purposes only, under Fed. R. Civ. P. 23(a) and (b)(3), and, in so doing, finds that,
for settlement purposes only, the requirements for maintaining a class action have
been met - in particular because: (1) the Settlement Class is so numerous that
joinder of all members is impracticable; (2) there are questions of law or fact
common to the Settlement Class; (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the Settlement Class; and (4) the
Named Plaintiff and Class Counsel will fairly and adequately protect the interests
of the Settlement Class.
5.

The Named Plaintiff and Travelers have entered into the Agreement which

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has been filed with the Court. The Agreement provides for the Settlement of this
Action with Travelers on behalf of the Named Plaintiff and the Settlement Class
Members, subject to approval by the Court of its terms. The Court scheduled a
hearing to consider the approval of the Settlement, and directed that the Class
Notice be disseminated in accordance with the terms of the Preliminary Approval
Order.
6.

In accordance with the terms of the Settlement and the Preliminary

Approval Order, the parties implemented the Notice Plan approved by the Court.
Travelers' counsel and Class Counsel have confirmed to the Court that the
Parties complied with the Notice Plan.
7.

The Court hereby finds that the Notice Plan and the Class Notice constituted

the best notice practicable under the circumstances, and constituted valid, due and
sufficient notice to members of the Settlement Class.
8.

The Named Plaintiff and Travelers have applied to the Court for final

approval of the terms of the Proposed Settlement and for the entry of this Final
Judgment. Pursuant to the Class Notice, a hearing was held before this Court, on
May 17, 201 7, to determine whether the Proposed Settlement of the Action should
be finally approved as fair, reasonable, and adequate, and whether the Final
Judgment approving the Settlement and dismissing all claims in the Action on the
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merits, with prejudice and without leave to amend should be entered.
9.

The Court hereby finds that approval of the Agreement and the Settlement

embodied therein will result in substantial savings of time and money to the Court
and the litigants and will further the interests ofjustice.
10.

The Court hereby finds that the Proposed Settlement is the result of good

faith arm's length negotiations by the Parties thereto, and is fair, reasonable, and
adequate.
NOW, THEREFORE, FINDING GOOD CAUSE APPEARING, IT IS
ORDERED, ADJUDGED AND DECREED THAT:
11.

The Court possesses jurisdiction over the subject matter of this Action, the

Named Plaintiff, the Settlement Class Members, Travelers, and the Released
Persons.
12.

No Settlement Class Members have filed requests for exclusion. All

Settlement Class Members are therefore bound by this Final Judgment and by the
Agreement and the Settlement embodied therein, including the Releases.
13.

All provisions and terms of the Settlement, as amended pursuant to this

Court's February 14, 2017 Order, are hereby found to be fair, reasonable and
adequate as to the Settlement Class Members and the Named Plaintiff, and all
provisions and terms of the Settlement so amended are hereby finally approved in
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all respects.
14.

The Parties are hereby directed to consummate the Settlement, as amended,

in accordance with its terms.
15.

The Claim Form sets forth six categories of damages for which class

members may be eligible to recover under the terms of the Agreement. The Court
orders that recovery under these categories is for settlement purposes only, and
nothing in the Agreement or the Claim Form imposes any obligation on Travelers
to compensate past or future claimants for these categories of damage outside of
the Agreement, or is otherwise an admission by Travelers that these categories are
either compensable under Travelers insurance policies or properly part of any
made whole analysis.
16.

The Court directs that any unclaimed amounts of the Net Settlement Fund

remaining after a period of 6 months following the completion of the procedures
for distribution, resulting from returned checks, uncashed checks, or otherwise,
will be disbursed to the non-profit named "Disability Rights, Montana."
17.

The Class Claims in this Action are dismissed in their entirety, on the

merits, with prejudice and without leave to amend, and all members of the
Settlement Class and their respective heirs, executors, administrators, partners,
agents, and the successors and assigns of each of them, shall be forever barred and
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permanently enjoined from asserting, either directly or indirectly, individually, or
in a representative capacity or on behalf of or as part of a class, and whether under
State or Federal statutory or common law, any Released Claim against any
Released Person. This dismissal shall not affect Class Representative Sara
Tkachyk's individual claims for underinsured motorist coverage only. Sara
Tkachyk's individual claims for underinsured motorist coverage have not yet been
filed in any court and shall not be barred or affected in any fashion by this Final
Judgment and Order of Dismissal.
18.

As of the Effective Date, by operation of the entry of the Final Judgment,

each Settlement Class Member shall be deemed to have fully released, waived,
relinquished and discharged, to the fullest extent permitted by law, all Released
Claims and Unknown Claims that the Settlement Class Members may have against
all the Released Persons.
19.

"Released Claims" means and includes any and all known and Unknown

Claims, rights, demands, actions, claims, causes of action, allegations, or suits of
whatever kind or nature, whether in contract, tort or in equity, debts, liens,
liabilities, agreements, interest, costs, expenses, attorneys' fees, losses or damages
(whether actual, consequential, treble, statutory and/or punitive or exemplary or
other) arising from or related to allegations regarding any purported improper
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subrogation activity whatsoever by Travelers, including, but not limited to:
negligence; contractual insurance coverage of any kind; statutory insurance bad
faith; breach of contract; breach of the implied covenant of good faith;
constructive fraud; conversion; civil conspiracy; aiding and abetting; unfair claim
settlement practices, unfair trade practices; unfair insurance practices; conversion;
premium overcharges; fraud; misrepresentation; deception; consumer fraud;
interference with contract or business expectations; injunctive relief, declaratory
judgment; unfair competition; unjust enrichment; deceptive practices; unfair
business practices; breach of fiduciary duty; mental or emotional distress and/or
common law bad faith, relating in any way whatsoever to Travelers' subrogation
practices in Montana, and/or which were brought or could have been brought in
the Action.
20.

"Released Persons" means Travelers, as defined in the Agreement, and any

of its past, present or future officers, stockholders, attorneys, insurers, reinsurers,
excess insurers, directors, agents, employees and/or independent contractors,
and/or any other successors, assigns, divisions, or legal representatives thereof.
21.

"Unknown Claims" means any claims arising out of facts found hereafter to

be other than or different from the facts now believed to be true, relating to any
matter covered by the Agreement, as to any of the Released Claims, as specifically
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defined above, so that each Settlement Class Member shall be deemed to have
expressly waived any and all Unknown Claims relating to any matter covered by
the Agreement to the full extent permitted by law, and to the full extent of claim
preclusion and res judicata protections.
22.

It is hereby determined that the Notice Plan and the Class Notice constituted

the best notice practicable under the circumstances to all members of the
Settlement Class, and is therefore finally approved as reasonable. Due and
adequate notice of the pendency of this Action and of the Settlement has been
provided to all the Settlement Class Members, and this Court hereby finds that the
Class Notice complied fully with the requirements of due process, the Federal
Rules of Civil Procedure and all other applicable
23.

Within 90 days after the Effective Date, Class Counsel and/or other

attorneys for the Named Plaintiff in this Action, or any Settlement Class Member
or their counsel, shall destroy all Proprietary Information provided by Travelers to
Class Counsel or anyone they employed or retained in this Action, either in
discovery or in connection with the Agreement. Class Counsel shall deliver a
letter to Travelers' counsel certifying their compliance with this Paragraph.
Further, neither Class Counsel, nor anyone employed with, retained by, or
otherwise associated with Class Counsel, nor any other attorney or Person who
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shall have access to this information, shall use any of this Proprietary Information
in any other litigation or proceeding, current or future, or for any other purpose
whatsoever.
24.

Also in furtherance of this confidentiality provision, Class Counsel and the

Named Plaintiff, and any Settlement Class Member or their counsel, shall not
make any statements to the media, orally or in writing, about the Action, or the
Settlement, other than statements which are fully consistent with the Agreement
and the Class Notice, except in a bona fide court proceeding relating to the subject
matter of the Action.
25.

The Agreement, the Settlement and this Final Judgment are not to be

deemed admissions of liability or fault by Travelers, or a finding of the validity of
any claims in the Action or of any wrongdoing or violation of law by Travelers.
The Agreement and Settlement are not a concession by the Parties and, to the
extent permitted by law, neither this Final Judgment nor the Settlement, nor any of
its terms or provisions, nor any of the negotiations or proceedings connected with
it, shall be utilized or offered as evidence or received in evidence in any pending
or future civil, criminal, or administrative action or proceeding, for any purpose
including to establish any liability or admission by any of the Released Persons,

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except in any proceedings brought to enforce the Agreement or otherwise with the
written consent of Travelers at its sole discretion; however, Travelers may use the
Agreement or the exhibits thereto, and the Settlement, and/or any related
document, in any action that may be brought against it in order to support a
defense or counterclaim based on principles of res judicata, collateral estoppel,
release, good faith settlement, judgment bar or reduction, or any other theory of
claim preclusion or issue preclusion.
26.

The Court has considered the request for a Class Representative award, and

hereby approves and awards Plaintiff/Class Representative Sara Tkachyk the
amount of $2,500 to be paid out of the Settlement Fund amount by Class Counsel.
27.

The Court has considered Class Counsel's request for an Attorneys' Fees

award of for the prosecution of this action, and hereby makes an Attorneys' Fees
award in the amount of$315,119.00, representing 25% of the $1,260,476
Settlement Fund and, additionally, an award for costs of litigation in the amount of
$ 375.04, which is in addition to counsel's reimbursement of all advances of the
class administration and adjustment costs, all of which fees and costs are to be
paid out of the Settlement Fund. This award is made upon the following findings
and conclusions:

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(a)

an award of fees and costs is authorized under the common fund
doctrine for the relief obtained for the class members;

(b)

the fee and cost award reflects the market value for contingent
payment of legal services, and corresponds to the
judicially-recognized benchmark for fee recovery in class actions of
this size;

(c)

the fee award takes into account the fees recovered by the class in the
settlement of its attorney fee claim;

(d)

the fee award is reasonable and fair both to class counsel and to the
class members in view of the result achieved for the class; and

(e)

the cost award is for reasonable and actual costs incurred in pursuing
the class claims.

28.

This Final Judgment is a final order in the Action within the meaning and

for the purposes of Rules 23(e), 41, and 54 of the Federal Rules of Civil Procedure
as to all claims among Travelers on the one hand, and the Named Plaintiff, Class
Representative and all Settlement Class Members, on the other, and there is no just
reason to delay enforcement or appeal. Without in any way affecting the finality
of this Final Judgment, this Court shall retain continuing jurisdiction over this
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Action for purposes of:
(a)

Enforcing this Final Judgment, the Agreement and the Settlement;

(b)

Hearing and determining any application by any Party to the

Settlement for a settlement bar order; and
(c)

Any other matters related or ancillary to any of the foregoing.

IT IS SO ORDERED.
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DATED this l1- day of May, 2017

Dana L. Christensen, Chief Judge
United States District Court

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