After Wal-Mart v. Dukes, plaintiffs’ lawyers tend to file more narrowly-tailored, single state class actions, often focusing on insurers’ compliance with state statutes or regulations.  Recent filings against GEICO and Progressive, two of the country’s largest auto insurers, are good examples of this trend: 

  • Davis v GEICO Casualty Company.pdf, Case No. 2012CA005024 (Florida Circuit Court, 15th Judicial Circuit in and for Palm Beach County, filed Mar. 22, 2012):  This case focuses on a Florida statute requiring insurers to make disclosures regarding UM/UIM coverage, and obtain a signed written consent if an insured chooses not to buy UM/UIM coverage or chooses limits lower than the bodily injury coverage limits.  See Fla. Stat. § 627.727.  After a few entertaining paragraphs about the cavemen, the gecko and “15 minutes can save 15%,” the complaint alleges that GEICO fails to comply with this Florida statute by failing to provide Florida consumers who buy their policies by phone or over the Internet in 15 minutes with the required disclosures, and failing to obtain their signatures. The complaint vaguely pleads that GEICO’s electronic signature process for Internet sales fails to comply with Florida law with respect to electronic signatures.  The complaint seeks, among other relief, reformation of the policies of putative class members such that they provide UM/UIM limits equal to the bodily injury coverage limits.  This is not unique to Florida – some other states have similar requirements for declining UM/UIM coverage or buying lower limits for such coverage. 
  • Beavers v Progressive Casualty Company.pdf, No. CV 12 779206 (Ohio Court of Common Pleas, Cuyahoga County, filed Mar. 28, 2012):  This case focuses on Ohio regulations requiring that, when an insurer pays a claim for a total loss of a vehicle, it must provide notice to the claimant that sales tax will be reimbursed if a replacement vehicle is purchased within 30 days, and the insurer must provide such reimbursement if a claim for sales tax is timely submitted.  See Ohio Admin. Code § 3901-1-54(H)(7).  The complaint alleges that Progressive provides a notice that states only that “we will include applicable sales taxes and fees when required by law.”  (Complaint, ¶ 10.)  The plaintiff claims that this notice is insufficient “because it fails to provide the claimant with any information regarding when taxes and fees are ‘required by law.’”  (Id., ¶ 11.) This seems to go against the basic legal principle that people are presumed to know the law, although in reality few average citizens take the time to explore the intricacies of insurance department regulations.

Other insurers may want to pay attention to these filings because it’s common for plaintiffs’ lawyers to file class actions first against the insurers with the largest market shares and then, if they have some success, follow with suits against carriers with smaller market shares.  (Although sometimes this happens the other way around, perhaps because plaintiffs’ lawyers think the smaller insurers will have less familiarity with class actions and hire less qualified defense counsel, and will try to obtain favorable rulings they can then use against the larger carriers.)  

Insurers seeking to avoid class action exposure in the post-Wal-Mart era would be well-served to devote resources to beefing up their compliance department.  Careful compliance with state statutes and regulations should help avoid being sued in some of these types of lawsuits.

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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.