Woods et al vs. Standard Insurance Company et al

Filing 103

ORDER by Chief Magistrate Judge Karen B. Molzen granting 101 Motion to Approve Settlement. The Court hereby retains and reserves jurisdiction over: (a) enforcement of the Settlement Agreement, (b) implementation of the Settlement and any distr ibution under the terms and conditions of the Settlement Agreement, and pursuant to further orders of this Court; (c) disposition of the Settlement Amount under the terms and conditions of the Settlement Agreement and Additional Notice; (d) the se ttled claims until the date upon which this Order Granting Final Approval of Settlement is no longer subject to further appeal or review; (e) entry of final judgment in this case; and (f) any award of attorneys fees, costs, and disbursements. (KBM)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

BRETT F. WOODS AND KATHLEEN
VALDES, FOR THEMSELVES AND ALL
OTHERS SIMILARLY SITUATED,
Plaintiffs,
vs.

Case No. 1:12-cv-01327-KBM/KRS

STANDARD INSURANCE COMPANY, AN
OREGON INSURANCE COMPANY, MARTHA
QUINTANA, A NEW MEXICO RESIDENT,
AND THE STATE OF NEW MEXICO
GENERAL SERVICES DEPARTMENT RISK
MANAGEMENT DIVISION,
Defendants.
ORDER GRANTING PLAINTIFFS’ MOTION AND MEMORANDUM IN SUPPORT OF
FINAL APPROVAL OF SETTLEMENT AND APPLICATION FOR APPROVAL OF
ATTORNEYS’ FEES AND EXPENSES AND
CLASS REPRESENTATIVE INCENTIVE FEES
THIS MATTER having come before the Court on the Plaintiffs’/Class Representatives’
Motion and Memorandum in Support of Final Approval of Settlement and Application for
Approval of Attorneys’ Fees and Expenses and Class Representative Incentive Fees, the Court
having entered its Order of Preliminary Approval, and having conducted a Final Fairness
Hearing to determine whether the proposed settlement should be approved as fair, adequate, and
reasonable on September 14, 2017, the Court concludes that the Settlement is fair, reasonable
and adequate, and that it should be approved.
It is, therefore, ORDERED as follows:

1.

The Court has jurisdiction over the subject matter of this suit and all parties to this

lawsuit. The Court approves the Settlement Agreement and its terms and conditions, which are
incorporated herein as part of this Order.
2.

The terms used in this Order shall have the same meaning as defined in the

Settlement Agreement.
3.

The Court finds that the proposed Class is adequately represented by the named

Plaintiffs, Brett F. Woods and Kathleen Valdes, and by experienced class action attorneys
Charles Peifer, Robert Hanson, and Matthew Jackson, Peifer, Hanson & Mullins, P.A. and
William H. Carpenter, Carpenter Law Office Ltd. (collectively “Class Counsel”).
4.

The Court finds that the form and method of notice given to the Class, including

the individualized emailed and mailed notice to persons based on information provided by
Defendant State of New Mexico, General Service Department, Risk Management Division (“the
State”), was practical and complied with the requirements of Federal Rule of Civil Procedure
23(e), satisfied the requirements of due process, was the best notice practicable under the
circumstances, and constituted due and sufficient notice of the Settlement Agreement and its
terms, the Final Fairness Hearing, and other matters referred to in the Notice. The notice given
to the Class was reasonably calculated under the circumstances to inform them of the pendency
of the claims involved in this case, of all material elements of the proposed Settlement, and of
their opportunity to exclude themselves from, object to, or comment on the Settlement and to
appear at the Final Fairness Hearing.
5.

The lengthy settlement negotiations, informal discovery, and independent

investigation by the attorneys in this matter to date, and the factual record compiled, suffices to

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have enabled the Settling Parties to make an informed decision as to the fairness and adequacy of
the proposed Settlement.
6.

The Court finds that those potential Class Members who have timely opted out of

the Settlement Class as of August 25, 2017 as listed in the filings with the Court (specifically the
Joint Notice of Opt-Outs, [Doc. No. 99, filed 9/8/17]) are hereby excluded from the Class.
7.

Those Class Members who have filed timely and valid requests to be excluded

from the Class (“Opt-Out Claimants”) are not bound by this Order. They shall not receive any
benefits under the Settlement Agreement. This Order shall not bar any Opt-Out Claimant from
prosecuting any individual claims that he or she may have in a separate lawsuit.
8.

The Court held a Final Fairness Hearing on September 14, 2017, to consider the

fairness, reasonableness, and adequacy of the proposed Settlement. Class Members were given
full opportunity to participate at the Final Fairness Hearing. The Court was advised of any
objections to the Settlement, has given fair consideration to any such objections and to the
adequacy of the notice given to the Class. Specifically, the Court considered, inter alia: (1)
whether the proposed Settlement was fairly and honestly negotiated; (2) whether the value of an
immediate recovery outweighs the mere possibility of future relief after protracted and expensive
litigation; (3) the judgment of the Parties and their respective counsel that the Settlement is fair
and reasonable; (4) the plan of distribution as set forth in the Settlement; and (5) the remaining
submissions and arguments of the Parties and any objectors. The Court finds that all
requirements for final approval of the settlement under Federal Rule of Civil Procedure 23(e)
have been satisfied.
9.

After this consideration, the Court concludes that arm’s length negotiations have

taken place in good faith between Class Counsel and counsel for Defendants and, after extensive

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factual investigation, including informal discovery, these negotiations have resulted in the
Settlement Agreement, which is proper and in the best interests of the Class given the benefits
and certainty of Settlement; the risks, complexity, expense, and probable lengthy duration of
further litigation; and the absence of any opposition to the Settlement.
10.

The Settlement is hereby approved in all respects.

11.

The Court has considered the letter submitted to counsel by Emily Murray as an

objection. That letter was not filed with the Court as required by the Order Granting Plaintiffs’
Unopposed Motion for Preliminary Approval of Settlement, Certifying a Settlement Class,
Appointing Class Counsel, Directing the Issuance of Class Notice, and Scheduling Final Fairness
Hearing (Doc. 97). Moreover, Ms. Murray’s letter appears to address a claim for benefits
relating to a death that occurred prior to issuance of the Policy, and that would have been
reserved and not released had the death occurred under the Policy. Ms. Murray’s objection does
not set forth an objection to any term of the settlement. Ms. Murray’s objection is thus
overruled.
12.

The Court has considered the application of Class Counsel for reasonable

attorneys’ fees and reimbursement of litigation expenses. This Court has considered and finds
that Class Counsel have satisfied all applicable standards of reasonableness. Class Counsel are
awarded 30% of the Settlement Amount of $2,400,000, plus applicable New Mexico gross
receipts taxes thereon, as reasonable attorneys’ fees for the services performed and to be
performed by Class Counsel in connection with the settled claims. Gross receipts taxes shall be
calculated as applicable based upon the location of the attorney receiving the fee. Class Counsel
are awarded in addition $9,177.29 as reimbursement for litigation expenses and taxes incurred
thereon in prosecuting the settled claims. The Court finds that the fee award is within the

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ordinary range of percentages awarded in settlements of this type and that Class Counsel secured
an excellent outcome at great risk with compensation wholly contingent on the result achieved.
13.

The application of the Class Representatives for a fee is hereby granted. Brett F.

Woods and Kathleen Valdes are each hereby awarded $10,000 as a Class Representative Fee
from the Settlement Amount.
14.

Class Counsel requested that the Settlement Administrator, Dahl Administration,

LLC (“Dahl”) be reimbursed for the costs incurred to administer the settlement. Per the
Settlement Agreement, half of these costs are to be paid by Defendant Standard Insurance Co.
(“Standard”). Based on Dahl’s incurred costs of $87,342.55 and its estimated future costs of
$77,695 for a total of $165,037.55, Class Counsel requested and the Court approves $82,518.78
to be paid from the Settlement Amount for the Class’s portion of Dahl’s incurred and future costs
of administration.
15.

Class Counsel requested additional reserved funds from the Settlement Amount to

cover future anticipated costs of administration in the amount of $5,000. The Court approves
that request. Any reserved funds remaining after the payment of the future anticipated costs of
administration will be distributed pursuant to the Settlement Agreement.
16.

The attorneys’ fees, reimbursement of litigation expenses, and Class

Representative Fee shall be paid from the Settlement Amount, as set forth and described in the
Settlement Agreement upon entry of this Order. Standard and Martha Quintana shall not be
liable for any taxes, including New Mexico’s gross receipts tax, in connection with the awards of
this Paragraph.
17.

Pursuant to the Settlement Agreement, as soon as practicable after Final

Approval, the net Settlement Amount shall be distributed among all Class Members by Dahl, in

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accordance with Paragraph 2.1(d) of the Settlement, after deduction of any court-approved
expenses of administration and any taxes, administrative, and related fees. Standard and Martha
Quintana shall not be liable for any taxes, including New Mexico’s gross receipts tax, in
connection with the distributions of this Paragraph.
18.

In allocating settlement proceeds to Eligible Class Members as provided in the

Settlement Agreement, Dahl is authorized to rely upon the data provided by the State.
19.

All Released Claims in this Action (but not the Reserved Claims) are dismissed

against all Defendants with prejudice as to all Class Members, their heirs, beneficiaries,
executors, administrators, successors, and assigns and any other persons or entities they represent
as set forth in the Settlement Agreement. Such dismissal is final, binding and with prejudice
against all Class Members and the Parties. Each party is to bear his, her or its own fees and
costs, except as otherwise provided in this order.
20.

Class Members are deemed to have released and forever discharged Defendants

with respect to the Released Claims as set forth in the Settlement Agreement. The release does
not include a release of claims for insurance benefits by a member or dependent of a member
who died or suffered a covered Accidental Death and Dismemberment loss prior to the date of
the entry of this Order or persons excluded from the Class, as set forth in the Settlement
Agreement.
21.

Class Members, which term excludes Opt-Out Claimants, are hereby permanently

barred and enjoined from instituting or prosecuting, either directly, representatively, derivatively
or in any other capacity, any other action against Defendants asserting any of the Released
Claims as set forth in the Settlement Agreement.

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22.

The Class and Defendants, their agents, employees, counsel, and the Settlement

Administrator shall not be liable for anything done or omitted in connection with these
proceedings, the entry of this Order, or the administration of any payments made to Class
Members as provided in the Settlement Agreement, except for their own willful misconduct.
23.

The Court, without affecting the finality of this Order, hereby retains and reserves

jurisdiction over: (a) enforcement of the Settlement Agreement, (b) implementation of the
Settlement and any distribution under the terms and conditions of the Settlement Agreement, and
pursuant to further orders of this Court; (c) disposition of the Settlement Amount under the terms
and conditions of the Settlement Agreement and Additional Notice; (d) the settled claims until
the date upon which this Order Granting Final Approval of Settlement is no longer subject to
further appeal or review; (e) entry of final judgment in this case; and (f) any award of attorneys’
fees, costs, and disbursements.

_____________________________________
THE HONORABLE KAREN B. MOLZEN
UNITED STATES CHIEF MAGISTRATE JUDGE
Presiding by Consent

Submitted by:
PEIFER, HANSON & MULLLINS, P.A.

By:

/s/ Matthew E. Jackson
Robert E. Hanson
Matthew E. Jackson
P.O. Box 25245
Albuquerque, New Mexico 87125-5245
Tel: [phone]
Attorneys for Plaintiffs and the Class
-and7

CARPENTER LAW OFFICE LTD
William H. Carpenter
201 Broadway Blvd., SE
Albuquerque, NM 87102
Tel: [phone]
Email: [e-mail]
Approved by:
By:

via electronic approval on September 15, 2017
Timothy A. Daniels
Ryan K. McComber
Figari & Davenport, LLP
901 Main St, Ste 3400
Dallas, TX 75202
Tel: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Defendants Standard Insurance
Company and Martha Quintana
-andBy:

via electronic approval on September 15, 2017
Lisa E. Pullen
Civerolo, Gralow & Hill P.A.
P.O. Drawer 887
Albuquerque, NM 87103-0887
Tel: [phone]
Email: [e-mail]
Attorney for State of New Mexico General
Services Department Risk Management
Division

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