Hurricane Katrina resulted in a slew of property insurance class actions.  While hopefully the U.S. will not see a disaster of that scale again for decades, recent years have brought a large number of smaller-scale catastrophes, most notably tornadoes, such as the ones that hit Joplin, Missouri, and Tuscaloosa, Alabama, in 2011.  Recent years have also brought a large number of wildfires, as well as Hurricane Irene.  But these events have not led to any significant number of class action filings against insurance companies.  Why is that?  Perhaps the insurance industry as a whole is doing such a fantastic job handling these claims and keeping their customers happy that plaintiffs’ lawyers have found few clients or grounds to sue.  But that seems unlikely.  I think more likely explanations are that: (1) very few of the Hurricane Katrina class actions were successful for plaintiffs; (2) Wal-Mart v. Dukes, together with the Class Action Fairness Act, have made class actions more difficult for plaintiffs to bring successfully and decreased class action filings; (3) the plaintiffs’ bar in the jurisdictions affected by the recent catastrophes might have fewer insurance lawyers and fewer class action lawyers with the right experience and interest to want to pursue these kinds of cases (in contrast to Louisiana, which was a hot bed of mass tort and class action litigation pre-Katrina); and/or (4) some plaintiffs’ lawyers tend to wait until the suit limitation period is about to expire before they sue (a number of the Katrina class actions were filed shortly before the suit limitation period was set to expire and, after the time to sue was extended, additional class actions were filed shortly before the extension expired).

The first class actions I’ve seen resulting from last year’s tornadoes were recently filed in the Circuit Court of Tuscaloosa County, Alabama:  Hallman v. Metropolitan Property and Casualty Insurance Company.pdf, Civil No. CV-2012-215-JHR and Strawbridge v. Cotton States Mutual Insurance Company.pdf, Civil No. CV-2012-214.  The complaints are largely identical and were filed by the same plaintiffs’ firms.  The complaints seek certification of Alabama statewide classes of policyholders making claims for covered property damage since January 1, 2011.  The allegations are quite broad and similar to some of the Katrina class actions.  The plaintiffs allege general low-balling of claims, failure to properly investigate and adjust claims, application of “commercially unreasonable depreciation rates,” and that the adjustment process on claims has been delayed so as to improperly inhibit insureds’ ability to complete the repairs within one year of the loss, where policy provisions require completion of repairs within that time period in order to recover the full replacement cost of the damage (as opposed to the actual cash value, which takes into account deduction for depreciation).  The complaint against Cotton States Mutual also alleges that the company is improperly informing insureds that they have one year from the date of loss to file suit, where Alabama has a six-year statute of limitations on breach of contract claims that it appears cannot be shortened by contract.  Notably, the complaints also allege that plaintiffs’ counsel is providing copies of the complaints to the Alabama Insurance Commissioner and requesting the commissioner to investigate the allegations.

These types of broad-brush class actions are rarely certified because courts have repeatedly held that, in order to determine whether property insurance claims have been properly adjusted, an intensive individual inquiry into the facts of each individual claim is required, precluding class treatment.  However, one thing to keep in mind if you are faced with defending this kind of case is that the filing of such a broad class action potentially can result in tolling of the statute of limitations or suit limitation period on the claims of the putative class members while the class action allegations remain pending.  In order to limit that potential tolling, it can be useful to try to obtain a ruling on the viability of the class allegations as soon as possible after suit is filed.  In the Katrina context, the pendency of putative class actions (which were never certified) for years, together with the Louisiana Supreme Court’s decision on class action tolling, has led to a lengthy extension of the time for policyholders to sue (for more about this, see my April 5, 2011 blog post).

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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.