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Certification of Class of Consumers Was Proper, WBM Tells Sixth Circuit

Plaintiffs represented by WBM  seeking to recover insurance premium taxes allegedly not owed to various insurance companies in Kentucky, including State Farm and Nationwide, told the Sixth Circuit today that their motion for class certification was properly granted by the lower court, and was well within its discretion. 

Arguing on behalf of all the insurance carriers, Drew Campbell of Bricker & Eclker, Columbus, OH, claimed that District Court Judge Bunning (Eastern District of Kentucky) abused his discretion by failing to make findings of fact on issues related to class certification. As chief judge of the panel,  Judge Jane Stranch seemed more interested, in the appellants' argument that the class definition was improper as a “failsafe” class. 

In response to questions from Judge Stranch, Campbell argued unconvincingly that even though class membership could be determined by reviewing objective facts available in the insurers’ existing databases, those facts might be disputed, thereby rendering the class definition impermissible. 

In rebuttal, counsel for the class plaintiffs pointed out that the definition allowed class members to readily identify themselves using purely objective data – data Judge Bunning had determined may even be beyond dispute and subject to judicial notice.  Moreover, class counsel could assist in the process through the use of geocoding software. 

"Judge Bunning wrote a 40 page opinion which carefully examined the evidence, plaintiffs’ causes of action, the elements of the causes of actions and the defenses," attorney Gary E. Mason of Whitfield Bryson & Mason told the Sixth Circuit panel Wednesday.   "He performed a rigorous analysis and did not abuse his discretion." 

The plaintiffs filed suit in two separate Kentucky state courts in June, 2006, naming numerous defendant insurers.  After removal and consolidation, the plaintiffs moved for class certification. Class certification was granted in January 10, 2010, and the Sixth Circuit granted defendants' petition for a rule 23(f) appeal on January 5, 2011.  

While the appeal was pending, two additional defendant insurers agreed to refund the over-charged local insurance premium taxes.  In doing so, they became the latest of more than 15 companies that have agreed to settle plaintiffs’ claims on a class-wide basis since 2008. 

Judges Jane B. Stranch, Bernice B. Donald and Richard F. Suhrheinrich sat on the panel for the Sixth Circuit. 

The plaintiffs are represented by Gary E. Mason, John C. Whitfield and Jason S. Rathod of Whitfield, Bryson & Mason, LLP; Alexander F. Edmondson and Jason V. Reed of Edmondson & Associates and Christopher S. Nordloh of Nordloh Law Office, P.C. 

The cases are: Jason Young, et al. v. Nationwide Mutual Insurance Co., No. 11-5015; Matthew Sanning, et al. v. Kentucky Farm Bureau Mutual Ins. Co., No. 11-5016; Robert Dyas, et al. v. State Farm Fire and Casualty Insurance Co., et al, No. 11-5018; Martha Yunker v. Standard Fire Insurance Co., No. 11-5019; Martha Yunker v. Travelers Property Casualty Ins. Co., No 11-5020, all pending in the U.S. Court of Appeals for the Sixth Circuit.