Barron v. American Family Mutual Insurance Company
Filing
67
ORDER signed by Judge Benjamin H. Settle granting 62 Motion for Permission to Appeal. Case is temporarily stayed and motions terminated: 41 MOTION to Seal filed by Raymond Owens, et al., 32 MOTION for Protective Order filed by American Family Mutual Insurance Company, 42 MOTION to file supplemental declaration filed by Raymond Owens, et al. The Court's order on summary judgment (Dkt. 61) is hereby CERTIFIED to the U.S. Court of Appeals for the Ninth Circuit for an interlocutory appeal. (TG)
1
2
3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
4
5
STEVE E. BARRON, et al.,
6
7
8
CASE NO. C16-5576 BHS
Plaintiffs,
v.
AMERICAN FAMILY MUTUAL
INSURANCE COMPANY,
9
Defendant.
ORDER GRANTING PLAINTIFFS’
MOTION FOR PERMISSION TO
APPEAL, CERTIFYING ORDER
FOR APPEAL, AND
TEMPORARILY STAYING
MATTER
10
11
This matter comes before the Court on Plaintiffs Steve Barron, Christine Hillestad,
12
Marc Hillestad, Raymond Owens, Tammy Owens, and Frank Schoen’s (“Plaintiffs”)
13
motion for permission to appeal (Dkt. 62). The Court has considered the pleadings filed
14
in support of and in opposition to the motion and the remainder of the file and hereby
15
grants the motion for the reasons stated herein.
16
17
I.
PROCEDURAL HISTORY
On June 28, 2016, Plaintiffs filed a class action complaint against Defendant
18
American Family Mutual Insurance Company (“American Family”) asserting numerous
19
causes of action. Dkt. 1. All of the causes of action are based on the theory that
20
American Family failed to pay the actual cash value for damaged items because
21
American Family improperly depreciated the value of these items based solely on the age
22
of each item. Id. ¶¶ 29, 30.
ORDER - 1
1
On February 15, 2017, American Family filed a motion for summary judgment.
2
Dkt. 44. On March 9, 2017, Plaintiffs filed a cross-motion for summary judgment. Dkt.
3
55. On April 27, 2017, the Court granted American Family’s motion in part and denied it
4
in part and denied Plantiffs’ cross-motion. Dkt. 61. In relevant part, the Court concluded
5
that the parties’ contract did not preclude American Family from considering the age of
6
an item when determining the depreciated value of the item. Id. at 5. This conclusion
7
directly conflicts with the holding in Lains v. Am. Family Mut. Ins. Co., C14-1982-JCC,
8
2016 WL 4533075, at *2 (W.D. Wash. Feb. 9, 2016) (“Defendant improperly took age
9
into consideration when determining depreciation.”).
10
On May 15, 2017, Plaintiffs filed the instant motion requesting permission to
11
appeal the conflicting ruling of law. Dkt. 62. On May 30, 2017, American Family
12
responded. Dkt. 63. On June 2, 2017, Plaintiffs replied. Dkt. 66.
13
14
II.
DISCUSSION
“Section 1292(b) provides a mechanism by which litigants can bring an immediate
15
appeal of a non-final order upon the consent of both the district court and the court of
16
appeals.” In re Cement Antitrust Litig., 673 F.2d 1020, 1025–26 (9th Cir. 1981). The
17
“certification requirements are (1) that there be a controlling question of law, (2) that
18
there be substantial grounds for difference of opinion, and (3) that an immediate appeal
19
may materially advance the ultimate termination of the litigation.” Id. at 1026. “[T]he
20
legislative history of 1292(b) indicates that this section was to be used only in exceptional
21
situations in which allowing an interlocutory appeal would avoid protracted and
22
expensive litigation.” Id.
ORDER - 2
1
In this case, Plaintiffs have met their burden on all three requirements. First,
2
“Congress did not specifically define what it meant by ‘controlling’” as used in section
3
1292(b). See id. Likewise, “[t]he Ninth Circuit’s guidance as to what constitutes a
4
controlling question of law is minimal.” Sierra Foothills Public Utility District v.
5
Clarendon America Insurance Company, 2006 WL 2085244, at *2 (E.D.Cal. July 25,
6
2006). It is well settled, however, that “[t]he issue need not be ‘dispositive of the lawsuit
7
in order to be regarded as controlling[.]’” Id. at *2 (quoting United States v. Woodbury,
8
263 F.2d 784, 787–88 (9th Cir.1959)). In this Circuit, “all that must be shown in order
9
for a question to be ‘controlling’ is that resolution of the issue on appeal could materially
10
affect the outcome of litigation in the district court.” Kight v. Eskanos & Adler, P.C.,
11
2007 WL 173825, at *2 (S.D. Cal. Jan. 8, 2007) (quoting In re Cement, 673 F.2d at
12
1026).
13
The Court concludes that resolution of the interpretation of the policy language is
14
a controlling question of law. While it is true that the issue is not dispositive of the
15
lawsuit, resolution could be dispositive of class certification. Under the Court’s
16
interpretation, whether American Family properly determined an item’s depreciation is
17
likely a claim-by-claim, item-by-item task. It is highly unlikely that a class could be
18
certified on such a fact-specific inquiry. On the other hand, under Lains, considering age
19
at all is a breach of contract which would apply to all members of the proposed class.
20
Once liability is determined, only the administrative task of determining damages would
21
remain. Therefore, resolution of the contrary interpretations of the relevant contract
22
language could materially affect the outcome of this matter.
ORDER - 3
1
2
3
Second, substantial grounds for disagreement exist in the competing conclusions
of law.
Third, an immediate appeal would advance this litigation because it would not
4
only resolve the question of law but also would essentially determine whether the matter
5
may proceed as a class. If the Court is affirmed on appeal, then the matter would most
6
likely proceed on an individual basis foregoing the complicated aspects of a class action
7
and preserving both the parties’ and the Court’s resources.
8
9
III.
ORDER
Therefore, it is hereby ORDERED that Plaintiffs’ motion for permission to appeal
10
(Dkt. 62) is GRANTED. The Court’s order on summary judgment (Dkt. 61) is hereby
11
CERTIFIED to the U.S. Court of Appeals for the Ninth Circuit for an Interlocutory
12
Appeal.
13
The matter is temporarily stayed pending the Ninth Circuit’s resolution of
14
Plaintiffs’ petition to appeal, and the Clerk shall remove the pending motions from the
15
Court’s calendar. If the Ninth Circuit accepts the petition to appeal, the Court shall enter
16
an order staying the case for statistical purposes. Otherwise, the Court will request a joint
17
status report from the parties regarding a schedule for this matter.
18
Dated this 8th day of June, 2017.
A
19
20
BENJAMIN H. SETTLE
United States District Judge
21
22
ORDER - 4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?