STATE OF
_____________________________________________________________________________
George Reller and Patricia Reller, on Case
No. 62-C3-04-012202
behalf of themselves and all others
similarly situated, Judge:
The Hon. David C. Higgs
Plaintiffs,
vs.
Union Security Life Insurance Company,
Defendant,
vs.
Jay S. Marion and Sandra Marion, on
behalf of themselves and all others
similarly situated,
Intervenors.
______________________________________________________________________________
FINDINGS AND ORDER MODIFYING
CERTIFICATION OF THE CLASS
FOR SETTLEMENT PURPOSES, APPOINTING LEAD
COUNSEL
FOR THE CLASS, DIRECTING THE ISSUANCE OF
CLASS
NOTICE, AND
SCHEDULING A FAIRNESS HEARING
The Motion of Plaintiffs George Reller, Patricia Reller, Jay S. Marion and Sandra Marion (hereinafter the “Plaintiffs”), in their individual and representative capacities, for preliminary approval of their settlement with Defendant Union Security Life Insurance Company doing business in its own name and as Standard Guaranty Life Insurance Company (hereinafter “Defendant”), came before the Court on August 16, 2007. Having considered Plaintiffs’ Motion, the Stipulation of Settlement dated August 3, 2007, including the Exhibits attached thereto (together, the “Stipulation of Settlement” or the “Settlement Agreement”), Defendant's Response, and all other matters submitted concerning Plaintiffs’ Motion for preliminary approval of the settlement, the Court hereby preliminarily finds as follows:
1. This
Action is a class action involving credit insurance sold to auto borrowers and
lessees in 46 states to protect them against the risk of default in the event they
die or are disabled and unable to keep up with their loan or lease
payments. The credit insurance at issue
is single-premium insurance that typically covers the scheduled duration of the
related motor vehicle loan or lease.
Plaintiffs allege that Defendant has breached its credit life and
disability insurance contracts with some insureds because an unknown subset of
them paid off their loans or leases prior to the scheduled payoff or
termination date, and Defendant has not refunded their unearned premium. George and Patricia Reller commenced this
Action in December 2004, and Jay and Sandra Marion later intervened. The Complaint initially alleged causes of
action on behalf of the Plaintiffs, and a nationwide class of “similarly
situated” persons, for breach of contract (Count I), money had and received
(Count II), and violation of the unfair trade practices laws of
2. Defendant issued approximately 580,000 certificates to insureds in auto programs nationwide during the Class Period (as defined below), and approximately 200,000 have paid off their auto loans or leases early and received refunds. Plaintiffs allege that some unknown fraction of the remaining Defendant's insureds have likewise paid off their auto loans or leases but may have not received premium refunds. Plaintiffs interpret their and all Class members’ insurance contracts to say that a refund is owed automatically when an individual pays off the related loan or lease regardless of notice to Defendant. Defendant disputes that interpretation of the insurance contracts and maintains that notice is required. Defendant expressly denies any wrongdoing alleged in the Amended Complaint and other pleadings in this Action, and does not admit or concede any actual or potential fault, wrongdoing, or liability in connection with any facts or claims which have been or could have been alleged against them in this Action.
3. Plaintiffs moved for class certification, summary judgment on the breach of contract claim, and appointment of a special master to supervise the identification of class members. On February 28, 2007, this Court issued orders granting class certification, denying summary judgment, and granting appointment of a special master.
4. Plaintiffs and Defendant have negotiated a potential settlement of the Action to avoid the expense, uncertainties, and burden of protracted litigation, and to put to rest any and all claims or causes of action which have been or could be asserted by Plaintiffs and/or other members of the putative Class in the Action against Defendant, and all of its respective past and present divisions, subsidiaries, parent companies, and affiliated companies (which shall include any person or entity which controls, is controlled by, or is under common control with any such party), including but not limited to any direct or indirect subsidiary or affiliate of Assurant, Inc.
5. The settlement proposed in the Settlement Agreement has been negotiated at arms-length and is preliminarily determined to be fair, reasonable, adequate, and in the best interests of the Class (as defined below) for settlement purposes. The proposed settlement was concluded only after counsel for Plaintiffs had conducted broad due diligence inquiries and discovery (including the review of thousands of pages of documents, hundreds of interrogatories and requests for admissions, and depositions of Defendant's representatives) and consulted with experts concerning the discovery conducted in this matter, the merits of Plaintiffs’ claims, and the defenses raised by Defendant.
6. On February 28, 2007 this Court certified a nationwide class in this Action. The Court reaffirms and continues the Order Granting Motion for Class Certification and Memorandum, for all of the reasons set forth in the Memorandum, but modifies the definition of the Class for settlement purposes as provided below.
7. The proposed Settlement described in the Settlement Agreement is sufficient to warrant (a) notice thereof to the members of the Class and (b) a full hearing on the Settlement.
8. The Mail Notice and Summary Publication Notice (as defined in the Stipulation of Settlement) set forth in Paragraph 14 below, comply fully with the requirements of Rule 23.05(a)(2) Minnesota Rules of Civil Procedure and due process, constitute the best notice practicable under the circumstances, and are due and sufficient notices to all persons entitled to notice of the settlement of this lawsuit. The Court finds that the respective first class mailing and publication of Notices to the Class constitute the best notice practicable under the circumstances, and comply fully with Rule 23.05(a)(2). The Court notes further that the Mail Notice and Summary Publication Notice are written in simple language and readily understandable by Class Members. In sum, the Court finds that such notice methodology is reasonable, that it constitutes due, adequate and sufficient notice to all persons entitled to be provided with notice, and that it meets the requirements of due process and the Rules of this Court.
IT IS THEREFORE ORDERED THAT:
9. Preliminary Approval of Settlement. The settlement is preliminarily approved as in the best interest of the Class.
10. Modification of Class Definition. The definition of the nationwide Class certified by this Court on February 28, 2007 is modified as follows: all persons in the United States to whom Union Security Life Insurance Company, in its own name or as Standard Guaranty Life Insurance Company, issued a single-premium credit life or credit disability insurance policy in connection with the financing or leasing of a motor vehicle, where such policy either remains in force, or continued in force through its expiration to a date on or after December 20, 1998 and before August 16, 2007 (the "Class Period"), and who paid off their loan or lease in connection with the financing or leasing of that motor vehicle prior to the scheduled maturity date, but did not receive a full refund of unearned premium. Excluded from the Class are (i) all individuals who received any payment of any claim under the policy at issue, (ii) individuals who are or were during the Class Period officers, directors or employees of Union Security Life Insurance Company, (iii) individuals whose motor vehicle loans or leases were discharged in bankruptcy, (iv) individuals whose coverage was terminated because the loan collateral or leased vehicle was repossessed, (v) individuals whose insurance contracts include an arbitration provision, (vi) any justice, judge or magistrate judge of the United States or any State, their spouses, and persons within the third degree of relationship to either of them, or the spouses of such persons, or (vii) any person who has timely excluded himself or herself from the Class pursuant to Paragraph 17 of this Order (the “Class”).
11. Designation of Class Representatives. George Reller, Patricia Reller, Jay S. Marion and Sandra Marion are designated as representatives of the Class for the sole purpose of seeking a settlement of the Action.
12. Designation
of Class Counsel. The law firms of
CROWDER BEDOR & PAULSON, LLP,
13. Fairness Hearing. A hearing (the “Fairness Hearing”) will be held on February 4, 2008, at 9:00 a.m., in Courtroom 1160 at the Ramsey County, Minnesota Courthouse, 11th Floor, 15 West Kellogg Boulevard, St. Paul, MN 55102, before the Honorable David C. Higgs, to determine: (i) whether the settlement of the Action should be approved as fair, reasonable, and adequate; (ii) whether the Action should be dismissed with prejudice pursuant to the terms of the Settlement and Stipulation of Settlement; (iii) whether Class Members should be bound by the Release set forth in the proposed Settlement; (iv) whether Class Members should be subject to a permanent injunction which, among other things, bars Class Members from filing, commencing, prosecuting, intervening in, or participating in (as class members or otherwise), any lawsuit in any jurisdiction based on or relating to the claims and causes of action, or the facts and circumstances related thereto, in this Action and/or the Released Transactions (as defined in the Stipulation of Settlement); and (v) whether the application of Lead Plaintiff’s Counsel for an award of Attorneys’ Fees and expenses should be approved.
14. Notices.
a) Not less than sixty (60) days before the date set by the Court for a Fairness Hearing regarding settlement in this Action, Defendant shall post with the United States Postal Service the Mail Notice (as defined in the Stipulation of Settlement) to all Defendant's insureds who (i) purchased single premium credit life or disability insurance in connection with the financing or lease of a motor vehicle where such policy or lease either remains in force, or continued in force through its expiration to a date during the Class Period, (ii) for whom the business records of Defendant do not reflect any pay off or other termination of the loan or lease prior to the scheduled maturity or termination date, and (iii) for whom (1) Defendant's electronically maintained business records reflect a last known address, or (2) Defendant's electronically maintained business records reflect a Social Security number, and utilizing such Social Security number Defendant is able to obtain an address from a commercial vendor. Before posting of the Mail Notice by Defendant with the United States Postal Service, Defendant shall utilize the National Change of Address database (the “NCOA”) to research current Class Members' addresses that appear in the Defendant's databases, and for those Class Member addresses where the NCOA analysis reflects a "no match" (as defined in the Stipulation of Settlement), Defendant shall utilize Lexis-Nexis', or one of their affiliated entities', locate and research tools, or another mutually agreed upon locate and research vendor, in an attempt to obtain better addresses for such NCOA "no match" Class Member addresses currently appearing in the Defendant's databases (as defined in the Stipulation of Settlement). Defendant will use commercially reasonable efforts utilizing a commercial vendor to obtain addresses for those Class Members for whom Defendant's business records reflect a Social Security number but no address. The Mail Notice shall detail how those Class Members so desiring may opt out or object to the settlement, and shall also include Instructions and the Class Action Claim Form. The form of the Notice (including the Class Action Claim form) shall be in the form attached as Exhibit A to the Stipulation of Settlement (provided that the font size, folding, and other printing elements or presentation may be adjusted to accommodate a booklet or other format and for efficient envelope and postage considerations).
b) After posting of the Mail Notice by Defendant with the United States Postal Service, for any Class Notices returned as undeliverable, Defendant shall utilize Lexis-Nexis, or one of their affiliated entities', locate and research tools, or another mutually agreed upon locate and research vendor, in an attempt to obtain better addresses for such returned Notices; provided however, if such Class member(s) address(es) had before the posting of the Mail Notice been the subject of a Lexis-Nexis (or affiliate) NCOA "no match" search (as defined in the Stipulation of Settlement), or following the search through Lexis-Nexis (or affiliate) locate and research tools, a determination is made in good faith by Defendant that it is not possible to further update any particular Class member’s address in sufficient time to repost the Class Notice(s) at least twenty (20) days before the scheduled Fairness Hearing, then in either case Defendant need make no further efforts to provide further Notice to such Class Member(s).
d) A similar but abbreviated Summary Publication Notice shall be published not less than forty-five (45) days before the date set by the Court for Fairness Hearing regarding the Settlement, which abbreviated Summary Publication Notice shall not be less than 1/4 page in size, and shall be published twice within one week in USA Today (on dates falling on Monday through Thursday). The abbreviated Summary Publication Notice shall detail how those Class members so desiring may opt out or object to the settlement, and how Class members may access an Internet address where they may download a Claim Form necessary to make a claim for settlement relief. The form of the Summary Publication Notice is attached as Exhibit B to the Stipulation of Settlement (provided that the font size, layout, and other presentation elements may be adjusted to accommodate publication considerations).
e) No later than the date of publication of the abbreviated Summary Publication Notice, Defendant shall establish an Internet site which shall contain copies of the Stipulation of Settlement and Exhibits, the Mail Notice, and a Frequently Asked Questions (FAQ) page. The Internet site shall also contain a Class Action Claim Form and Instructions which may be downloaded or printed from the Internet site. The Internet site shall have a Uniform Resource Locator which identifies it as the “www.RellerCreditLifeDisabilityInsurancePremiumRefundSettlement.com” site. The Internet site shall remain open and accessible through the last day for Class Members to claim payments.
f) At or before the Fairness Hearing, Defendant or the Settlement Administrator shall file with the Court a proof of mailing of the Mail Notice, publication of the Summary Publication Notice and establishment of the Internet site.
15. Communications. Defendant, including its representatives, agents, managers, and other support or retained personnel, are authorized to communicate with and respond to inquiries from policyholders and Class Members orally and/or in writing, and to engage in any other communications within the normal course of Defendant's business. Any inquiries from Class Members concerning this Settlement shall be referred to Lead Counsel.
16. Administrators. The Court authorizes Defendant to retain one or more Administrators to help implement the terms of the proposed settlement, and authorizes such Administrators to assist Defendant in (i) mailing the Mail Notice, (ii) publishing the Summary Publication Notice, (iii) establishing the Internet site, (iv) receiving and processing settlement claims, and (v) carrying out such other responsibilities as are provided for in the Settlement Agreement or may be agreed to by the Parties in the Action.
17. Exclusion. Any Class Member who wishes to be excluded from the Class must send a written request for exclusion to the Clerk of the Court, by first-class mail, postage prepaid, to the address provided in the Mail Notice and Summary Publication Notice. Any such exclusion request must be postmarked no later than fifteen (15) days before the Fairness Hearing. If the proposed settlement is approved, any Class Member who has not submitted a timely, written request for exclusion from the Class shall be bound by all subsequent proceedings, orders, and judgments in this Action, even if he or she has pending, or subsequently initiates, litigation against Defendant relating to the claims released in the Stipulation of Settlement.
18. Objections and Appearances.
a) Written Objections. Any Class Member who has not filed a timely written request for exclusion and who complies with the requirements of this paragraph may object to any aspect of the proposed settlement either on his or her own or through an attorney hired at his or her expense. Any Class Member who wishes to object to the proposed settlement must file with the Court and serve on Lead Counsel and Defendant's Counsel a written statement of objection no later than fifteen (15) days before the Fairness Hearing. Such statement shall include the specific reason(s) for each objection, including any legal support, evidence, papers or briefs that the Class Member wishes the Court to consider, shall include a reference to the case number, and shall be provided to each of the following:
Clerk of the Court
Reller Unearned Premium Refund Settlement
Ramsey County, Minnesota District Court
P.O. Box 2086
Birmingham, AL 35201-2086
William H. Crowder
Crowder
Bedor & Paulson, LLP
555 West 7th Street, Suite 201
St. Paul, MN 55102
Phone: (651) 225-6068
Fax: (651) 225-8242
E-Mail: crowder@crowderbedor.com
Lead Counsel for Plaintiffs and the Class
Frank Burt, Esq.
JORDEN BURT LLP
Suite 400 East
1025 Thomas Jefferson Street, NW
Washington, DC 20007-0805
Telephone: 202-965-8140
Facsimile: 202-965-8104
email: fgb@jordenusa.com
Counsel for Defendant
Any Class Member who does not timely file and serve a written objection pursuant to the terms of this Paragraph 18(a) shall be deemed to have waived, and shall be foreclosed from raising, any objection to the settlement, and any objection that is not timely made shall be barred.
b) Appearance at Settlement Hearing. Any Class Member who files and serves a timely written objection pursuant to the terms of Paragraph 18(a) of this Order and complies with the requirements of this Paragraph may also appear at the Fairness Hearing either in person or through counsel retained at the Class Member’s expense. Class Members or their attorneys intending to appear at the Fairness Hearing must serve on Lead Counsel and Defendant's Counsel, and file with the Court, at the addresses specified in Paragraph 18(a) of this Order, no later than fifteen (15) days before the Fairness Hearing, a notice of intention to appear, setting forth the case number, and the name, address, and telephone number of the Class Member (and, if applicable, the name, address, and telephone number of the Class Member’s attorney). Any Class Member who does not timely file and serve a notice of intention to appear pursuant to the terms of this Paragraph 18(b) shall not be permitted to appear, except for good cause shown.
19. Post Office Box. Defendant, the Settlement Administrator or their designated agents, are directed to rent one or more post office boxes in the name of the Clerk of the Court to be used for receiving requests for exclusion, objections, and any other Class Member communications. In addition to the Court and the Clerk of the Court, only Defendant's Counsel, Lead Counsel, the Settlement Administrator, and their designated agents shall have access to the post office box.
20. Access to Discovery Materials. Lead Counsel shall make available for inspection by any Class Member during regular business hours, at the Class Member’s expense, the documents produced through discovery to Lead Counsel by Defendant in this Action. These documents shall be made available for inspection at the offices of Lead Counsel CROWDER BEDOR & PAULSON, LLP, at 555 West 7th Street, Suite 201, St. Paul, MN 55102. Any Class Member wishing to obtain access to these materials must first enter into a Stipulation of Confidentiality, the form of which, incorporated into this Order by reference, is attached as Exhibit C to the Stipulation of Settlement. Any breach of such a Stipulation of Confidentiality shall constitute a violation of this Order and may, upon application to this Court by any party aggrieved by the violation, result in an order of contempt of court or other sanctions. If a Class Member hires an attorney to represent him or her in connection with the review of such documents, the attorney must (i) file a notice of appearance with the Clerk of the Court at the address specified in Paragraph 18(a) of this Order no later than the earlier of the day before the documents are reviewed or fifteen (15) days before the Fairness Hearing; and (ii) serve on Lead Counsel and Defendant's Counsel at the addresses specified in Paragraph 18(a) of this Order a copy of the notice of appearance no later than the earlier of the day before the documents are reviewed or fifteen (15) days before the Fairness Hearing.
21. Preliminary Injunction. All Class Members who have not timely excluded themselves from the Class are hereby enjoined from (i) filing, commencing, prosecuting, intervening in, or participating in (as class members or otherwise), any lawsuit in any jurisdiction based on or relating to the claims and causes of action, or the facts and circumstances relating thereto, in this Action and/or the Released Transactions (as that term is defined in the Stipulation of Settlement); or (ii) organizing Class Members into a separate class for purposes of pursuing as a purported class action any lawsuit (including by seeking to amend a pending complaint to include class allegations, or seeking class certification in a pending action) based on or relating to the claims and causes of action, or the facts and circumstances relating thereto, in this Action and/or the Released Transactions.
22. Service of Papers. Defendant's Counsel and Lead Counsel shall serve on each other and on all other parties who have filed notices of appearance, at or before the Fairness Hearing, any further documents in support of the proposed Settlement, including responses to any papers filed by Class Members. Defendant's Counsel and Lead Counsel shall promptly furnish to each other any and all objections or written requests for exclusion that may come into their possession and shall file such objections or requests for exclusion with the Court on or before the date of the Fairness Hearing.
23. Termination of Settlement. This Order shall become null and void, and shall be without prejudice to the rights of the Parties, all of whom shall be restored to their respective positions existing immediately before this Court entered this Order, if (i) the proposed Settlement is not finally approved by the Court, or does not become final, pursuant to the terms of the Stipulation of Settlement; or (ii) the proposed Settlement is terminated in accordance with the Stipulation of Settlement or does not become effective as required by the terms of the Stipulation of Settlement for any other reason. In such event, and except as provided therein, the proposed Settlement and Stipulation of Settlement shall become null and void and be of no further force and effect, and neither the Stipulation of Settlement nor the Court’s orders, including this Order, shall be used or referred to for any purpose whatsoever.
24. Use of Order. This Order shall be of no force and effect if the Settlement does not become final and shall not be construed or used as an admission, concession, or declaration by or against Defendant of any fault, wrongdoing, breach of liability, or by or against Plaintiffs or the Class Members that their claims lack merit or that the relief requested in the Class Complaint is inappropriate, improper, or unavailable, or as a waiver by any party of any defenses they may have.
25. Continuance of Hearing. The Court reserves the right to continue the Fairness Hearing without further written or other notice.
IT IS SO ORDERED.
DAVID C. HIGGS
DISTRICT COURT JUDGE
Dated: August 16, 2007
186142v1DC