On August 5th, Farmers Insurance announced a settlement of a nationwide class action in the District Court of Canadian County, Oklahoma, involving med-pay and PIP (personal injury protection) benefits under auto insurance policies.  It was reported in a number of media sources, including the Insurance Journal.  A class had been certified and the certification affirmed by the Oklahoma Court of Civil Appeals (see In re Farmers Med-Pay Litigation, 229 P.3d 551 (Okla. Civ. App. 2009)), with certiorari denied by the state supreme court.

This case involves a system whereby med-pay and PIP claims would be reviewed by Zurich Services Corporation (an affiliate of Farmers) for reasonableness.  A computer database of charges for medical services was used, and a bill would be flagged as potentially unreasonable if it exceeded the 80th percentile for charges in the relevant geographic area.  (This type of issue is fairly common in recent auto insurance class actions, see my prior blog posts on the Strawn v. Farmers decision by the Oregon Supreme Court, a new class action filing against Nationwide, and the Bemis v. Safeco decision by the Illinois Appellate Court.)  While Farmers asserted that the database was used only as a guide and individual determinations would be made as to the reasonableness of the charges, the trial court had found evidence that individual determinations were not being made.  The court of appeals found that the issue of what Farmers’ actual practices were was a “merits” issue not appropriate for decision at the class certification stage under Oklahoma law.

The key terms of the stipulation of settlement are:  Class members (which include both insureds and medical providers) will be required to submit a notarized, detailed claim form asserting, among other things, that their claim was adjusted based on a recommended reduction from Zurich Services Corporation (I’m not sure how a typical insured would know that unless they received something explaining that).  They will have 30 days from the final settlement hearing to submit the form.  Class members who submit a valid form will receive essentially 60% of what they are claiming they are entitled to.  The only notice of this settlement (other than to the named plaintiffs) is proposed to be by publication notice, on the grounds that Farmers does not have a list of people who were paid less on their claims because of a recommendation by Zurich Services Corporation, and the only type of list it could generate would be very overbroad in some respects and underinclusive in others.  Attorneys’ fees are proposed at $6.5 million, without any explanation of how this compares to what the class is expected to receive.

I’m not going to try to assess the reasonableness of this proposal with the limited information I have, but the summary above should be helpful to readers of this blog who may want to gauge what plaintiffs’ attorneys in this kind of case will agree to in a settlement, after a class is certified and appellate courts have upheld certification.  Some of the plaintiffs’ lawyers in this case have brought other prominent class actions against insurers.

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Photo of Wystan Ackerman Wystan Ackerman

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you…

I am a partner at the law firm of Robinson+Cole in Hartford, Connecticut, USA.  My contact information is on the contact page of my blog.  I really enjoy receiving questions, comments, suggestions and even criticism from readers.  So please e-mail me if you have something to say.  For those looking for my detailed law firm bio, click here.  If you want a more light-hearted and hopefully more interesting summary, read on:

People often ask about my unusual first name, Wystan.  It’s pronounced WISS-ten.  It’s not Winston.  There is no “n” in the middle.  It comes from my father’s favorite poet, W.H. (Wystan Hugh) Auden.  I’ve grown to like the fact that because my name is unusual people tend to remember it better, even if they don’t pronounce it right (and there is no need for anyone to use my last name because I’m always the only Wystan).

I grew up in Deep River, Connecticut, a small town on the west side of the Connecticut River in the south central part of the state.  I’ve always had strong interests in history, politics and baseball.  My heroes growing up were Abraham Lincoln and Wade Boggs (at that time the third baseman for the Boston Red Sox).  I think it was my early fascination with Lincoln that drove me to practice law.  I went to high school at The Williams School in New London, Connecticut, where I edited the school newspaper, played baseball, and was primarily responsible for the installation of a flag pole near the school entrance (it seemed like every other school had one but until my class raised the money and bought one at my urging, Williams had no flag pole).  As a high school senior, my interest in history and politics led me to score high enough on a test of those subjects to be chosen as one of Connecticut’s two delegates to the U.S. Senate Youth Program, which further solidified my interest in law and government.  One of my mentors at Williams was of the view that there were far too many lawyers and I should find something more useful to do, but if I really had to be a lawyer there was always room for one more.  I eventually decided to be that “one more.”  I went on to Bowdoin College, where I wrote for the Bowdoin Orient and majored in government, but took a lot of math classes because I found college math interesting and challenging.  I then went to Columbia Law School, where I was lucky enough to be selected as one of the minions who spent their time fastidiously cite-checking and Blue booking hundred-plus-page articles in the Columbia Law Review.  I also interned in the chambers of then-Judge Sonia Sotomayor when she was a relatively new judge on the Second Circuit, my only connection to someone who now has one-ninth of the last word on what constitutes the law of our land.  I graduated from Columbia in 2001, then worked at Skadden Arps in Boston before returning to Connecticut and joining Robinson+Cole, one of the largest Connecticut-based law firms.  At the end of 2008, I was elected a partner at Robinson+Cole.

I’ve worked on class actions since the start of my career at Skadden.  Being in the insurance capital of Hartford, we have a national insurance litigation practice and I was fortunate to have the opportunity to work on some prominent class actions arising from the 2004 hurricanes in Florida and later Hurricane Katrina, including cases involving the applicability of the flood exclusion, statutes known as valued policy laws, and various other issues.  My interest and experience in class actions gradually led me to focus on that area.

In Connecticut courts I’ve defended various kinds of class actions that go beyond insurance, including cases involving products liability, securities, financial services and consumer contracts.

My insurance class action practice usually takes me outside of Connecticut.  I’ve had the pleasure of working on cases in various federal and state courts and collaborating with great lawyers across the country.  While class actions are an increasingly large part of my practice, I don’t do exclusively class action work.  The rest of my practice involves litigating insurance coverage cases, often at the appellate level.  That also frequently takes me outside of Connecticut.  A highlight of my career thus far was working on Standard Fire Ins. Co. v. Knowles, the U.S. Supreme Court’s first Class Action Fairness Act case.  I was Counsel of Record for Standard Fire on the cert petition, and had the pleasure of working with Ted Boutrous on the merits briefing and oral argument.

I started this blog because writing is one of my favorite things to do and I enjoy following developments in class action law, writing about them and engaging in discussion with others who have an in interest in this area.  It’s a welcome break from day-to-day practice, keeps me current, broadens my network and results in some new business.

When I’m not at my desk or flying around the country trying to save insurance companies from the plaintiffs’ bar, or attending a conference on class actions or insurance litigation (for more on those, see the Seminars/Programs page of this blog), I often can be found playing or reading with my young daughter, helping my wife with her real estate and mortgage businesses, reading a book about history or politics, or watching the Boston Red Sox (I managed to find bleacher seats for Game 2 of the 2004 World Series when Curt Schilling pitched with the bloody sock).  When the weather is good I also love to take the ferry to Block Island, Rhode Island and ride a bike or walk the trails there. If you go, I highly recommend the Clay Head Trail.