A recent decision by the Eastern District of California addressed several significant issues in a putative class action alleging that an insurer improperly failed to cover the cost of replacing seatbelts after serious auto accidents.  In Watts v. Allstate Indemnity Company, No. CIV. S-08-1877 LKK/GGH, 2013 U.S. Dist. LEXIS 7407 (E.D. Cal. Jan. 17, 2013), the court denied the insurer’s motion to compel appraisal, but excluded the plaintiff’s expert witness and, based on the exclusion of the expert, denied class certification.

  • Appraisal:  The insurer demanded appraisal of the named plaintiff’s claim shortly after suit was filed, and moved to compel an appraisal.  In a prior decision, the court had concluded that the appraisal provision was unconscionable under California law in the class action context and therefore unenforceable.  The insurer sought reconsideration based on the Supreme Court’s decision in AT&T Mobility, LLC v. Concepcion.  The court appeared to recognize that the appraisal provision could no longer be deemed unconscionable in light of Concepcion, which held that the Federal Arbitration Act preempted California law on unconscionability.  But the court still denied the motion to compel appraisal on the grounds that the plaintiff’s theory of the case was that the insurer had a practice of never determining whether repair or replacement of seatbelts was appropriate, and pressuring repair shops not to include this in their estimates.  Id. at *10-12.  However, nearly every class action complaint drafted by skilled class counsel alleges some general, purportedly improper practice by the defendant.  Without such an allegation, there could be no colorable claim that the requirements for class certification can be satisfied.  If such an allegation can preclude the right to appraisal, doesn’t that essentially eviscerate the appraisal provision? 
  • Expert Testimony:  The insurer sought to exclude the plaintiff’s expert in support of class certification, who opined that: (1) replacement of seatbelts is necessary for all vehicles that have been in certain types of serious auto accidents; and (2) the expert could, by reviewing certain of the insurer’s electronic claims data, identify claims that involved collisions that, in her view, required replacement of seatbelts.  The court found the first opinion admissible, but excluded the second.  The court concluded that the expert had failed to adequately describe her methodology for analyzing the claim records, and there was no indication that the methodology had been or could be tested, subject to peer review or have a calculable error rate.  The court wrote that “[u]ltimately, [the expert] is asking the court to make an inferential leap from the data in Allstate’s computer systems to the alleged degree of damage to seatbelt systems based solely on her experience, without any explanation of her methods or justification for their reliability.”  Id. at *34-35.  In light of the exclusion of the expert testimony, and the fact that the expert’s opinion was critical to the motion for class certification, the court denied certification, but without prejudice.  The type of expert testimony proffered by the plaintiff here is typical of how plaintiffs try to establish class certification in an insurance case, often unsuccessfully.  This portion of the opinion illustrates how courts are applying Daubert standards more rigorously at the class certification stage, a subject on which the U.S. Supreme Court is expected to rule in the coming months in Comcast Corp. v. Behrend (for more on this case, see my November 9, 2012 blog post about the oral argument, and June 26, 2012 blog post about the grant of certiorari). 
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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.