LEROY WEBB, et al., Individually and on Behalf of all Others Similarly Situated, Plaintiffs,
DISCOVERY PROPERTY & CASUALTY INSURANCE CO., et al., Defendants.
ROBERT D. MARIANI, District Judge.
I. Procedural History
Presently before the Court is Plaintiffs Motion for Class Certification and for Appointment of Class Counsel by which they aspire to class action status. ( See Pls.' Mot. for Class Certification and Appointment of Howard G. Silverman, Esq. and Kane & Silverman, P.C. as Class Counsel, Doc. 95.) The gravamen of the underlying action concerns the adequacy of certain waiver forms that the Defendant insurance company supplied to policyholders when those policyholders had the option to accept or reject underinsured motorist protection ("UIM"). ( See Pls.' Mem. in Supp. of Mot. for Class Certification, Doc. 95-1, at 2-3.)
Pennsylvania law requires that, to be valid, a UIM waiver must read as follows:
REJECTION OF UNDERINSURED MOTORIST PROTECTION
By signing this waiver I am rejecting underinsured motorist coverage under this policy, for myself and all relatives residing in my household. Underinsured coverage protects me and relatives living in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have enough insurance to pay for all losses and damages. I knowingly and voluntarily reject this coverage.
75 Pa. Cons. Stat. Ann. § 1731(c).
By contrast, Defendant's UIM waiver form reads as follows:
I reject Underinsured Motorists Coverage under this policy. By signing this waiver I am rejecting Underinsured Motorists Coverage under this policy, for myself and all relatives residing in my household. Underinsured Motorists protects me and all relatives residing in my household for losses and damages suffered if injury is caused by the negligence of a driver who does not have enough insurance to pay for ["all" omitted] losses and damages. I knowingly and voluntarily reject this coverage.
(Doc. 95-2 at 1 (Form No. UA 237 ED 01 00); Doc. 95-7 at 2 (Form UA 137 ED 11 04).)
Though these changes may appear minor, the Pennsylvania Superior Court ruled in the case of American International Life Insurance Co. v. Vaxmonsky, 916 A.2d 1106 (Pa.Super. Ct. 2006) that any departure from the statutory form-even the most minor-will render the waiver void. See id. at 1109-1111; see also Jones v. Unitrin Auto and Home Ins. Co., 40 A.3d 125, 131 (Pa.Super. Ct. 2012) (holding that additions to the statutory language, and not just deletions from it, "fail to specifically comply with the statute" and render the form "completely void"). In a prior decision in the instant case, then-presiding Judge Munley ruled that Vaxmonsky applied to void Defendant's waivers. (See Opinion of Aug. 12, 2011, Doc. 67, at 13.) Accordingly, for purposes of the law of this case, the invalidity of Defendant's waivers is no longer in question. Rather, the only question to resolve at this stage is whether the Plaintiffs may seek redress for their injuries through a class action, or whether they must do so through individual claims.
In this regard, Plaintiffs' most recent proposed class definition reads as follows:
All those persons injured in motor vehicle accidents as the result of the negligence of an underinsured driver as defined at 75 Pa. C.S.A. 1701 et seq. from May 8, 2000 to the present while occupants of motor vehicles registered in Pennsylvania and insured under a motor vehicle policy of insurance issued by Discover Property and Casualty Insurance Company providing coverage under, inter alia, Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S.A. 1701 et seq. where Rejection of Underinsured Motorist Protection form No. UA 237 ED 01 00 or No. UA 137 Ed 01 04 was executed before an accident with an underinsured motorist.
The class shall be limited to those individuals whose UIM claims accrued on or after August 5, 2004, provided that this limitation shall not apply to a minor or incompetent whose claim for UIM coverage would not be otherwise barred by the Pennsylvania statute of limitations
The Class does not include any insured under a policy for which the named insured signed a subsequent rejection form that is compliant with 75 Pa. C.S.A. §1731(c) prior to the insured's motor vehicle accident, or whose UIM claim has already been adjusted up to the bodily injury limits in the applicable policy.
(Doc. 110 at 4-5.)
II. Class Action Certification
a. In General
The Federal Rules of Civil Procedure require Plaintiffs to establish two sets of facts before proceeding with a class ...