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Bastian v. United Services Automobile Association

United States District Court, M.D. Florida, Jacksonville Division

November 1, 2017

CHANTAL BASTIAN, on behalf of herself and all others similarly situated, WILLIAM LAKER, and OLIVER SUTTON, Plaintiffs,
v.
UNITED SERVICES AUTOMOBILE ASSOCIATION, USAA CASUALTY INSURANCE COMPANY, GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, and USAA GENERAL INDEMNITY COMPANY, Defendants.

         FINAL ORDER AND JUDGMENT CERTIFYING CLASS FOR SETTLEMENT PURPOSES, APPROVING CLASS ACTION SETTLEMENT, AWARDING CLASS COUNSEL ATTORNEYS' FEES, AWARDING CLASS REPRESENTATIVE SERVICE FEES, AND DISMISSING ACTION WITH PREJUDICE

          TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE

         The Court has considered the Joint Motion for Final Approval of Class Action Settlement (“Joint Motion for Final Approval”), Class Counsel's Motion for Approval of Attorneys' Fees and Named Plaintiff Service Awards (“Class Counsel's Motion for Fees and Service Awards”), and Plaintiffs' Declarations in Support of Joint Motion for Final Approval and Class Counsel's Application for Fees and Service Awards, and the other submissions relating to final approval of the settlement.

         The Joint Motion for Final Approval requests (a) certification of the Settlement Class for settlement purposes only; (b) final approval of the Proposed Settlement that was the subject of the Court's prior Order Preliminarily Approving Class Settlement; and (c) dismissal with prejudice of Plaintiffs' claims against Defendants in accordance with the terms of the settlement. Class Counsel's Motion for Fees and Service Awards requests that this Court award attorneys' fees and reimbursement of expenses to Class Counsel and class representative incentive awards to the Class Representatives in connection with this Action. In connection with the Joint Motion for Final Approval and Class Counsel's Motion for Fees and Service Awards, the Court considered all documents filed with the Court pertaining to the Proposed Settlement, all objections filed with the Court or submitted to the Settlement Administrator, any documents which were admitted into evidence at the Fairness Hearing, the parties' submissions in support of Joint Motion for Final Approval, the Court's record in this matter, and arguments of counsel.

         WHEREAS Plaintiffs and Defendants have executed and filed a Class Action Settlement Agreement (the “Agreement”) with the Court on April 25, 2017; and

         WHEREAS Plaintiffs and Defendants filed a Notice of filing amended exhibits 1-3 to the Settlement Agreement with the Court on May 22, 2017; and

         WHEREAS the Agreement is hereby incorporated by reference in this Order and all terms defined in the Agreement will have the same meanings in this Order; and

         WHEREAS the Court, on June 5, 2017, entered an Order Preliminarily Approving Class Settlement (“Preliminary Approval Order”), requiring modifications to exhibit 2 of the Settlement Agreement (Long Form Notice) and preliminarily certifying, for settlement purposes only, this Action as a class action, and scheduling a hearing for October 24, 2017 at 2:00 p.m. the (“Fairness Hearing”) (a) to determine whether the Proposed Settlement of the Action on the terms and conditions provided for in the Agreement is fair, reasonable, and adequate and should be finally approved by the Court; (b) to determine whether a final judgment should be entered herein; and (c) to consider Class Counsel's Motion for Fees and Service Awards; and

         WHEREAS, the Court ordered that the Mailed Notice and Claim Form and Emailed Notice with link to the settlement website containing the Electronic Claim Form, in the forms attached to the Agreement as Exhibits 2, 3, 4 and 5, be mailed and emailed (as applicable) by the Settlement Administrator, Dahl Administration, LLC, by first-class mail, postage prepaid, on or before June 30, 2017 (the “Mailed Notice Date”) and the Emailed Notice also sent to all potential Settlement Class Members whose names were ascertained by Defendants through a reasonable search of their electronic records, with the notices to be sent to their last-known email address and last-known physical mailing address, with physical mailing address updating and verification where reasonably available, and that the Internet website and toll-free number be implemented on or before the Notice Mailing Date; and

         WHEREAS, the Parties have satisfactorily demonstrated that such Mailed and Emailed Notice was given in accordance with the terms of the Preliminary Approval Order; and

         WHEREAS, in accordance with the Mailed and Emailed Notice, the Fairness Hearing was duly held before this Court on October 24, 2017; and

         WHEREAS, at the Fairness Hearing, the Court considered (a) whether certification for settlement purposes only was appropriate under Fed.R.Civ.P. 23; (b) the fairness, reasonableness, and the adequacy of the Agreement; and (c) the fairness and reasonableness of Class Counsel's motion for attorneys' fees and class representative incentive awards under applicable law; and

         WHEREAS, the Court has fulfilled its duty to independently evaluate the fairness, reasonableness, and adequacy of the Agreement and Class Counsel's Motion for Attorneys' Fees and Service Awards by considering not only the filings and arguments of Plaintiffs, Class Counsel, and Defendants, but also by independently evaluating the Agreement and Class Counsel's Motion for Fees and Service Awards; and

         WHEREAS, by performing this independent analysis of the Joint Motion for Final Approval and Class Counsel's Motion for Fees and Service Awards, and carefully considering any objections made, the Court has considered and protected the interests of all absent Settlement Class Members under Fed.R.Civ.P. 23; and

         WHEREAS, the Mailed Notice and Emailed Notice advised Settlement Class Members of the method by which a Settlement Class Member could request exclusion from the Proposed Settlement and pursue an independent legal remedy against Defendants; and

         WHEREAS, all Settlement Class Members had the absolute right to opt out and pursue an individual lawsuit against Defendants; and

         WHEREAS, any Settlement Class Member who failed to request exclusion under the terms of the Mailed Notice and Emailed Notice voluntarily waived the right to pursue an independent remedy against Defendants; and

         WHEREAS, the Mailed Notice and Emailed Notice advised Settlement Class Members of the method by which a Settlement Class Member could properly file objections and request to be heard at the Fairness Hearing; and

         NOW, THEREFORE, the Court, having read and considered all submissions made in connection with the Joint Motion for Final Approval and Class Counsel's Motion for Fees and Service Awards, and having reviewed and considered the files and records herein, and all other evidence submitted, finds and concludes as follows:

         1. The definitions and terms set forth in the Agreement are hereby adopted and incorporated into this Order.

         2. The Second Amended Complaint filed in this Action alleges that Defendants breached their Florida Automobile Insurance Policies in resolving claims of some policyholders for Total Losses, by improperly failing to include what Plaintiffs contend is the correct amount of sales tax required to be paid under the terms of the insurance policies and applicable Florida law. Defendants have maintained throughout this Litigation that they have properly paid for sales tax on such claims consistent with their position regarding the terms of the applicable insurance policies and Florida law, and have denied that they have engaged in any wrongful or unlawful conduct. In its order on the parties' cross-motions for summary judgment, the Court disagreed with Defendants' position. The Court, however, subsequently certified that order for an interlocutory appeal, concluding that there was a substantial ground for difference of opinion. If this Litigation were to continue, Defendants would have the right to appeal the Court's order on the cross-motions for summary judgment, and the outcome of that appeal would be uncertain.

         3. On or about September 19, 2017, Plaintiffs and Defendants moved the Court for final approval of the terms of the Proposed Settlement and for the entry of this Final Order and Judgment. In support of that motion, the parties submitted, among other things, evidence concerning the dissemination and adequacy of the notice, evidence regarding the names of potential Settlement Class Members who have submitted requests for exclusion from the Settlement Class, evidence regarding the negotiation of the Agreement, evidence regarding the fairness, reasonableness, and adequacy of the substantive terms of the Agreement, and Class Counsel submitted evidence regarding the fairness, reasonableness, and adequacy of Class Counsel's Motion for Fees and Service Awards. The parties submitted a Joint Motion for Final Approval, setting forth extensive argument and authority along with various exhibits attached thereto. Class Counsel's Motion for Fees and Service Awards contained both extensive argument and authority and various exhibits attached thereto.

         4. As part of its Preliminary Approval Order, the Court certified for settlement purposes only a Settlement Class defined as follows:

         Each and every Person who:

(a) was insured by a Defendant under a Florida Automobile Insurance Policy;
(b) during the Class Period suffered a Covered Total Loss; and
(c) received from a Defendant an Actual Cash Value Payment for the Covered Total Loss.
(d) excluding:
(i) claims that were the subject of any individual (non-class action) lawsuit filed during the Class Period alleging causes of action related to any Released Claims, except for the Named Plaintiffs' claims;
(ii) claims for which Defendants received an executed release during the Class Period; and
(iii) Defendants, all present or former officers and/or directors of Defendants, the Neutral Evaluator, Class Counsel, a Judge of this Court, and Defendants' counsel of record.

5. The Court hereby reaffirms this definition of the Settlement Class for purposes of this Final Order and Judgment and certifies this Action, for settlement purposes only, as a Class Action. In so doing, the Court finds, for settlement purposes only, that the Action meets all the requirements of Rule 23 of the Federal Rules of Civil Procedure and due process requirements, and can ...


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