Curran v. Progressive Preferred Insurance Company, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 22-cv-00878-NYW-MEH
MICHAEL CURRAN, individually and on behalf of all others similarly situated,
Plaintiff,
v.
PROGRESSIVE DIRECT INSURANCE COMPANY,
Defendant.
ORDER ON MOTION FOR CLASS CERTIFICATION
This matter comes before the Court on Plaintiff’s Motion for Class Certification
(“Motion for Class Certification” or “Motion”), [Doc. 58, filed May 26, 2023], filed by Plaintiff
Michael Curran, individually and on behalf of all others similarly situated (“Plaintiff” or “Mr.
Curran”). 	Defendant 	Progressive 	Direct 	Insurance 	Company 	(“Defendant” 	or
“Progressive Direct”) has responded in opposition, [Doc. 69], and Plaintiff has replied,
[Doc. 81].1 	The Court finds that oral argument would not materially assist in the
disposition of the Motion for Class Certification.2 Upon review of the Parties’ briefing, the
1 The Parties’ briefing on the Motion is restricted. 	See [Doc. 58; Doc. 69; Doc. 81].
However, the same documents are available elsewhere on the docket with minimal
redactions. 	See [Doc. 57; Doc. 70; Doc. 80]. 	For ease of reference, the Court cites to
the publicly accessible, redacted briefing, and to unrestricted supporting documents,
whenever possible. In doing so, the Court uses the page numbers assigned by the Case
Management/Electronic Case Filing (“CM/ECF”) system. When citing to documents from
another court’s CM/ECF docket, this Court uses the convention “ECF No. __.”
2 	Progressive 	Direct 	marks 	its 	brief 	“Evidentiary 	Hearing 	Requested,” 	and, 	after
previewing its legal concerns with class certification, states that the “Court should grant
Defendant’s request for an evidentiary hearing to discuss these concerns.” 	[Doc. 70 at
1, 5]. 	It is unclear to the Court whether Defendant in fact seeks an evidentiary hearing,
however, considering the extensive evidentiary material submitted in support of the
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entire docket, and the applicable case law, this Court respectfully GRANTS the Motion
for Class Certification.
BACKGROUND
The Court has previously discussed the factual background of this case. See [Doc.
50 at 1–4]. 	According to the Second Amended Class Action Complaint, on August 12,
2021, Mr. Curran was involved in an automobile collision that caused physical damage to
his vehicle.3 [Doc. 21 at ¶ 16]. At the time of the collision, Mr. Curran was insured through
Progressive Direct. [Id.]. Progressive Direct declared Mr. Curran’s vehicle to be a total
loss. 	[Id. at ¶¶ 17–18]. 	Pursuant to Mr. Curran’s insurance policy (the “Policy”),
Progressive Direct purported to pay Mr. Curran the actual cash value (“ACV”) of his total
loss vehicle. [Id. at ¶¶ 2, 18].
In this lawsuit, Mr. Curran challenges Progressive Direct’s process by which it
calculates the ACV of a total loss vehicle. Plaintiff alleges that when Defendant calculates
valuations and claim payments, it “systemically employs a routine ‘total loss settlement
process’” that “involves obtaining a ‘Vehicle Valuation Report’ from Mitchell [International,
Inc. (“Mitchell”)] and relying upon the valuation provided by Mitchell as the ACV amount
owed under the policy.” [Id. at ¶¶ 1, 19]. The Mitchell Vehicle Valuation Reports purport
to contain values for comparable vehicles for sale in the insured’s geographic area, which
are used to compute a valuation for the total loss vehicle. 	[Id. at ¶ 20]. 	The Valuation
Parties’ briefing and the fact that Defendant’s general request for a hearing is made in
connection with its legal arguments. 	The Court finds neither an evidentiary hearing nor
oral argument necessary at this stage.
3 This action was originally filed by Plaintiff Hersey Banks (“Plaintiff Banks”) based on an
automobile collision on or about October 1, 2018. 	[Doc. 1 at ¶ 11]. 	Mr. Curran was
substituted for Plaintiff Banks as the named plaintiff in the First Amended Class Action
Complaint filed on May 2, 2022. [Doc. 9].
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Reports then adjust the advertised sale prices of the comparable vehicles to account for
differences in equipment, mileage, and vehicle configuration. 	[Id.].4 	The Valuation
Reports also apply “Projected Sold Adjustments” (“PSAs”), which are “adjustment[s] to
reflect consumer purchasing behavior (negotiating a different price than the listed price),”
to the comparable vehicles. [Id. at ¶¶ 21–22].
Mr. Curran alleges that the Projected Sold Adjustments do not reflect market
realities and instead are contrary to customary automobile dealer practices and inventory
management. 	[Id. at ¶ 23]. 	Specifically, Plaintiff alleges that previously, dealerships
would price vehicles above market value to allow for negotiation, in the hopes of securing
higher profits from buyers who were poor negotiators. 	[Id. at ¶ 24]. 	But now, Plaintiff
alleges, the “intense competition” in the age of “Internet pricing and comparison shopping”
causes dealerships to no longer employ this practice; instead, dealers now “use
sophisticated pricing software . . . and now appraise vehicles before acquiring them to
price them to market and do not negotiate from that price.” 	[Id. at ¶¶ 23, 25]. 	For this
reason, Mr. Curran asserts that “a negotiated discount off the cash price is highly atypical
and is not proper to include in determining [the] ACV” of a total loss vehicle. [Id. at ¶ 27].
Mr. Curran alleges that the Projected Sold Adjustments are “contrary to proper appraisal
methodologies for determining ACV” because they “permit arbitrary adjustments from the
advertised price based upon undocumented and unverifiable projections.” 	[Id. at ¶ 28].
Furthermore, he asserts that Progressive Direct
thumbs the scale [against insureds] by discarding vast amounts of relevant
data that contradict any application of a Projected Sold Adjustment and by
failing to control for material variables, including whether there were
ancillary purchases or transactions that may influence what is recorded as
4 Mr. Curran does not challenge these types of adjustments. See [Doc. 21 at ¶ 28].
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the “sales price” but do not influence the ACV (e.g., whether the customer
traded in a vehicle at the time of purchase, bought an extended warranty or
service plan, or financed the purchase).
[Id. at ¶ 29]. Mr. Curran also alleges that Progressive Direct excludes certain transactions
from the calculation of Projected Sold Adjustments—such as transactions in which the
sold price was greater than the list price—and that it has done so “[w]ithout having
performed any investigation or study” into market realities. [Id. at ¶¶ 30–34]. And finally,
Plaintiff alleges that Defendant’s use of Projected Sold Adjustments is arbitrary because
Defendant does not apply these adjustments in the states of California or Washington.
[Id. at ¶ 47].
Defendant applied Projected Sold Adjustments to Plaintiff’s Valuation Report. [Id.
at ¶ 19]. 	For Mr. Curran specifically, PSAs “in the amounts of -$1,302.00, -$1,294.00,
and -$1,485.00 . . . were applied to each of the three comparable vehicles” in his
Valuation Report. [Id. at ¶ 21]. Mr. Curran alleges that “were it not for this deceptive and
improper adjustment, the payment of ACV by Defendant would have been $1,360.33
higher, before adding the related increase in payments for applicable sales taxes.” [Id. at
¶ 49].
Plaintiff asserts the following claims: 	(1) breach of contract; and (2) bad faith
breach of an insurance contract. [Id. at 14–16]; see also [Doc. 50 at 9 (construing claim
for breach of covenant of good faith and fair dealing as claim for bad faith breach of
insurance contract)].5 The Court has denied Progressive Direct’s motion to dismiss these
5 The Second Amended Class Action Complaint also contains a declaratory judgment
claim, [id. at 16–17], which the Court has dismissed for lack of jurisdiction, [Doc. 50 at
16–19].
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causes of action. 	See [Doc. 50 at 6–16]. 	Now, Plaintiff moves to certify the following
class of individuals:
All persons who made a first-party claim on a policy of insurance issued by
Progressive Direct Insurance Company to a Colorado resident where the
claim was submitted from April 12, 2019, through the date an order granting
class certification is entered, and Progressive determined that the vehicle
was a total loss and based its claim payment on an Instant Report from
Mitchell where a Projected Sold Adjustment was applied to at least one
comparable vehicle.6
[Doc. 58-5 at 32]. The Motion for Class Certification is ripe for decision.
LEGAL STANDARD
Federal Rule of Civil Procedure 23 permits district courts to certify a class action
“if the proposed class satisfies the requirements of Rule 23(a) and the requirements of
one of the types of classes in Rule 23(b).” 	DG ex rel. Stricklin v. Devaughn, 594 F.3d
1188, 1194 (10th Cir. 2010). 	“Rule 23(a) requires numerosity of class members,
commonality of at least one question of fact or law among the class, typicality of named
plaintiffs’ claims or defenses to the class’s claims or defenses, and adequacy of the
named plaintiffs and their attorneys as class representatives.” Id. A party seeking class
certification must establish that all four prerequisites of Rule 23(a) are satisfied. See City
P’ship Co. v. Jones Intercable, Inc., 213 F.R.D. 576, 578 (D. Colo. 2002).
In addition to the class action prerequisites in Rule 23(a), Plaintiff must establish
one of the three requirements in Rule 23(b). 	Fed. R. Civ. P. 23(b); CGC Holding Co.,
6 This class definition does not appear in the Motion for Class Certification. See generally
[Doc. 57]. Instead, the Motion requests “certification of the [c]lass proposed in Exhibit 7
and Exhibit 4 thereto.” 	[Id. at 5]. 	Having reviewed the sub-exhibits to Exhibit 7 to the
Motion, the Court assumes that Plaintiff means to refer the Court to Exhibit 2 to Exhibit 7,
which is the class definition, and not Exhibit 4 to Exhibit 7, which is not. See [Doc. 58-5
at 32, 37–42].
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LLC v. Broad & Cassel, 773 F.3d 1076, 1086 (10th Cir. 2014) (“If the class meets the four
criteria under Rule 23(a), then the court must consider whether the class satisfies at least
one of the three alternative class-types under Rule 23(b).”). 	Here, Mr. Curran seeks to
proceed under Rule 23(b)(3), which permits a class action if “questions of law or fact
common to class members predominate over any questions affecting only individual
members, and . . . a class action is superior to other available methods for fairly and
efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3).
The proponent of certification bears the burden of proving Rule 23’s requirements
are met. See DG, 594 F.3d at 1194. In determining whether a party carries this burden,
courts “must accept the substantive allegations of the complaint as true.” 	Shook v. El
Paso Cnty., 386 F.3d 963, 968 (10th Cir. 2004). 	The analysis should be “rigorous,”
Menocal v. GEO Grp., Inc., 882 F.3d 905, 913 (10th Cir. 2018) (quotation omitted), and
should focus on the claims at issue, see Brayman v. KeyPoint Gov’t Sols., Inc., 83 F.4th
823, 841 (10th Cir. 2023) (finding that district court abused discretion by “failing to perform
claim-specific analysis”). Ultimately, class certification is “committed to the discretion of
the trial court.” 	Anderson v. City of Albuquerque, 690 F.2d 796, 799 (10th Cir. 1982).
Courts must be mindful that “[t]he class action is ‘an exception to the usual rule that
litigation is conducted by and on behalf of the individual named parties only.’” Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S.
682, 700–01 (1979)); see also Mulford v. Altria Grp., Inc., 242 F.R.D. 615, 619 n.2 (D.N.M.
2007) (“[T]he overwhelming majority of other circuits and the Supreme Court . . . have
held that a district court is not limited to the allegations raised in the complaint, and should
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instead make whatever legal and factual inquiries are necessary to make an informed
determination of the certification issues.” (collecting cases)).
ANALYSIS
The Court notes that several parallel class actions arising out of insurance
companies’ reliance on Mitchell’s use of PSAs to value total loss vehicles have been
preliminarily certified in other jurisdictions. See Volino v. Progressive Cas. Ins. Co., No.
21-cv-06243-LGS, 2023 WL 2532836 (S.D.N.Y. Mar. 16, 2023); Brown v. Progressive
Mountain Ins. Co., No. 3:21-cv-00175-TCB, 2023 WL 7219499 (N.D. Ga. Aug. 3, 2023);
Drummond v. Progressive Specialty Ins. Co., No. 5:21-cv-04479-EGS, 2023 WL 5181596
(E.D. Pa. Aug. 11, 2023). 	As explained below, this Court agrees with much of these
courts’ analysis and will grant certification of Mr. Curran’s proposed class because he has
met his burden under Rule 23 and, as relevant to the disputed issues on the Motion for
Class 	Certification, 	Progressive 	Direct 	fails 	to 	show 	that 	common 	issues 	do 	not
predominate over individual ones.
I. 	23(a) Requirements
On Rule 23(a), Defendant’s arguments focus on the commonality requirement,
although Plaintiff’s burden extends to the other requirements—numerosity, typicality, and
adequacy of representation—as well. See Black v. Occidental Petroleum Corp., 69 F.4th
1161, 1174 (10th Cir. 2023). The Court considers each in turn.
A. 	Numerosity
Rule 23(a)’s first requirement is that a class must be “so numerous that joinder of
all members is impracticable.” 	Fed. R. Civ. P. 23(a)(1). 	In the Tenth Circuit, a district
court has “wide latitude” to assess the practicability of joinder, which is “a fact-specific
inquiry” as to which “there is no set formula” or magic number. 	Trevizo v. Adams, 455
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F.3d 1155, 1162 (10th Cir. 2006) (quotation omitted). Plaintiff suggests that joinder would
be impracticable here because, according to an expert report submitted in connection
with the Motion, the proposed class would consist of approximately 15,000 members.
See [Doc. 57 at 13]; see also [Doc. 58-5 at 13]. 	Defendant does not contest Plaintiff’s
ability to meet the numerosity requirement, see generally [Doc. 70], and the Court finds
that the contemplated class size indeed renders joinder impracticable in this litigation.
See, e.g., Colo. Cross-Disability Coal. v. Taco Bell Corp., 184 F.R.D. 354, 358 (D. Colo.
1999) (finding numerosity requirement satisfied where proposed class consisted of
several thousand Colorado residents).7
B. 	Commonality
The second requirement in Rule 23(a) is that “there are questions of law or fact
common to the class.” Fed. R. Civ. P. 23(a)(2). On this matter, the Tenth Circuit instructs
7 In its briefing on the Rule 23(b)(3) superiority requirement, Defendant contends that “a
class action would be unmanageable because the class is not ascertainable.” 	[Doc. 70
at 26]. 	According to Defendant, “Plaintiff proposes no method for identifying which
insureds are excluded from the class or lack standing due to” various factors discussed
with respect to predominance, and any individual review would be highly time-consuming.
[Id. at 27]. Plaintiff (correctly) replies that, as a matter of form, ascertainability is part of
the numerosity inquiry under Rule 23(a). See [Doc. 80 at 15]; see also Evans v. Brigham
Young Univ., No. 22-4050, 2023 WL 3262012, at *5 (10th Cir. May 5, 2023) (“In [the Tenth
Circuit], we treat ascertainability as a sub-requirement of numerosity.”). 	Substantively,
Plaintiff adds that “Progressive has a due process right to contest class membership, but
not to a cost-effective procedure for doing so.” [Doc. 80 at 16 (quotation omitted)]. While
the Tenth Circuit has not explicitly adopted the Seventh Circuit’s ascertainability standard,
which focuses on defining classes by reference to objective criteria, district courts may
“consider these tests as part of their discretion to grant or deny class certification.” Evans,
2023 WL 3262012, at *8 (citing Mullins v. Direct Digital, LLC, 795 F.3d 654, 672 (7th Cir.
2015), and Davoll v. Webb, 194 F.3d 1116, 1146 (10th Cir. 1999)). 	In light of that
authority, and the Parties’ arguments, it is evident to the Court that all members of the
proposed class are ascertainable by reference to objective criteria, as all class members
made ACV claims for total loss vehicles with Progressive Direct and had their payouts
valued by Mitchell and reduced with PSAs.
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that “[t]he district court should carefully examine what facts are required to prove” the
claims at issue and assess whether putative plaintiffs “have shown that they could
establish those facts through common evidence.” Brayman, 83 F.4th at 839.
Although some of Progressive Direct’s brief appears to dispute commonality, see
[Doc. 70 at 14–18 (arguing that Plaintiff has not shown any common question amenable
to collective resolution)], the Court finds that such arguments are better addressed with
respect to predominance. 	After all, commonality under Rule 23(a)(2) requires only a
single common question. See Wal-Mart Stores, Inc., 564 U.S. at 359; see also Sherman
v. Trinity Teen Sols., Inc., 84 F.4th 1182, 1193 (10th Cir. 2023) (reversing decertification
order where district court “scrutiniz[ed] the proposed class for noncommon issues, rather
than common ones”).
It cannot be disputed that at least some common questions exist where both of
Plaintiff’s claims turn on the legitimacy of a value estimation mechanism that has been
allegedly applied to exact the same underpayment injury on all proposed class members.
Cf. [Doc. 57 at 15 (arguing that “[c]ommonality is satisfied because whether Progressive’s
application of the PSA to comparable vehicles’ listed prices constitutes a breach of the
form Policy is subject to common evidence and, thus, its answer will apply equally”)]. As
explained in more detail in the context of the predominance analysis, the ability of the
PSA deduction to capture ACV “is capable of classwide resolution—which means that
determination of its truth or falsity will resolve an issue that is central to the validity of each
one of the claims in one stroke.” Wal-Mart Stores, Inc., 564 U.S. at 350. Proposed class
members could use the same evidence submitted in connection with the Motion in their
own individual actions to refute the accuracy of the PSA deduction. See Brown, 2023 WL
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7219499, at *7 (“The factfinder is capable of making a class-wide determination of
whether application of the PSA constituted a de facto violation of the policy. If it answers
in the affirmative, it will do so for the entire class.”). Indeed, some of Plaintiff’s evidence
is being reused by stipulation from other actions in other jurisdictions in which class
certification has been granted. 	See [Doc. 57 at 5 nn.1–2]. 	To the extent individual
questions may be implicated by other aspects of this litigation, the Court will consider
Defendant’s arguments in the context of the “more demanding” predominance inquiry.
Wal-Mart Stores, Inc., 564 U.S. at 375 (Ginsburg, J., concurring in part and dissenting in
part); see also Volino, 2023 WL 2532836, at *6 (“To the extent Progressive’s arguments
sound in commonality, they are subsumed under, or superseded by, the more demanding
predominance requirement of Rule 23(b)(3).” (quotation omitted)).
C. 	Typicality
Next, Rule 23(a) requires that “the claims or defenses of the representative parties
are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). That means
Mr. Curran’s claims must “be typical of the claims of the class [he] seek[s] to represent,”
although they “need not be identical.” 	DG, 594 F.3d at 1198; see also id. at 1198–99
(“Provided the claims of [n]amed [p]laintiffs and class members are based on the same
legal or remedial theory, differing fact situations of the class members do not defeat
typicality.”). 	Together, commonality and typicality “serve as guideposts for determining
whether . . . maintenance of a class action is economical and whether the named
plaintiff’s claim and the class claims are so interrelated that the interests of the class
members will be fairly and adequately protected in their absence.” Gen. Tele. Co. of Sw.
v. Falcon, 457 U.S. 147, 157 n.13 (1982).
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Here, Plaintiff argues that the proposed class meets the typicality requirement
because all “claims arise from the same challenged conduct and share the same essential
characteristic.” 	[Doc. 57 at 24]. 	He contends that all proposed class members’ causes
of action are based on whether applying PSAs to value their total loss vehicles “is
authorized by the plain language of the Policy” they share, which entitles them to ACV.
[Id.]. Defendant does not appear to contest typicality. See generally [Doc. 70]. The Court
agrees with Plaintiff that the proposed class members’ claims are plainly typical: they all
involve the same theory of legal harm under materially identical factual circumstances.
See DG, 594 F.3d at 1199 (“[T]ypicality exists where, as here, all class members are at
risk of being subjected to the same harmful practices, regardless of any class member’s
individual circumstances.”); see also Brown, 2023 WL 7219499, at *5 (finding typicality
requirement satisfied in similar class action because “the putative class’s claims all arise
from the same ‘course of conduct’—that is, Progressive allegedly undervaluing total-loss
claims by applying a PSA”).
D. 	Adequacy of Representation
The last threshold requirement in Rule 23(a) is that “the representative parties
[must] fairly and adequately protect the interests of the class.” 	Fed. R. Civ. P. 23(a)(4).
“Adequacy of representation will be found where the named plaintiffs have no antagonistic
or conflicting interests with those of the class and where class counsel is qualified,
experienced and able to conduct the proposed litigation.” Queen Uno Ltd. P’ship v. Coeur
D’Alene Mines Corp., 183 F.R.D. 687, 694 (D. Colo. 1998). Moreover, this requirement
“is unique in that it has a ‘constitutional dimension, since it would violate due process to
bind a class member to a ruling against inadequate class representatives.’” Id. (quoting
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In re Storage Tech. Corp. Sec. Litig., 113 F.R.D. 113, 117 (D. Colo. 1986)); see also
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 627 (1997).
In the Motion, Plaintiff contends that he “has a personal interest in the outcome of
this case, has presented no claims that would be detrimental to the [c]lass interests, and
all [c]lass members would benefit from a finding that the PSA is improper and constitutes
a breach.” 	[Doc. 57 at 25]. 	Plaintiff adds that he has “retained qualified counsel who
have experience litigating class action cases and are committed to expending the
resources necessary to prosecute this claim.” [Id.]. Defendant does not appear to contest
this prong. 	See generally [Doc. 70]. 	Considering the material submitted in connection
with the Motion, [Doc. 57-12], and Plaintiff’s litigation conduct, this Court finds that Mr.
Curran and his counsel will ably and adequately represent the proposed class members
and their interests. 	The Court also finds that Mr. Curran is “knowledgeable as to the
status and underlying legal basis of the action, that [he is] willing and able to pay
notification and other costs, that [he] will diligently pursue [his] claims, . . . that [his]
interests are not antagonistic to the interests of the class,” and that his counsel is both
“competent and experienced in the particular substantive area involved.” 	See In re
Storage Tech. Corp. Sec. Litig., 113 F.R.D. at 117. 	As discussed in the Declaration of
Hank Bates, Plaintiff’s counsel is experienced in litigating comparable class actions in
state and federal court. 	See, e.g., [Doc. 57-12 at ¶¶ 2–3]. 	The Court thus finds that
Plaintiff has satisfied Rule 23(a).
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II. 	23(b)(3) Requirements
On Rule 23(b)(3), Defendant argues that Plaintiff fails to show both predominance
and superiority, such that class certification is improper. The Court respectfully disagrees.
A. 	Predominance
To certify a damages class action under Rule 23(b)(3), the Court must first “find[]
that the questions of law or fact common to class members predominate over any
questions affecting only individual members.” 	Fed. R. Civ. P. 23(b)(3). 	“While [the
commonality requirement in] Rule 23(a)(2) requires only that the class share at least one
common question of law or fact, Rule 23(b)(3) ‘calls upon courts to give careful scrutiny
to the relation between common and individual questions in a case.’” Sherman, 84 F.4th
at 1194 (quoting Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 453 (2016)). However,
a finding “that determining damages would necessitate individualized inquiries . . . cannot
alone 	sustain 	the 	. . . 	conclusion 	that 	[a] 	proposed 	class 	fails 	Rule 	23(b)(3)’s
predominance requirement.” Id. at 1195.
In this case, the heart of Defendant’s opposition to class certification is its
predominance argument. 	Defendant makes four related points in connection with that
argument: 	(1) that whether the PSA is “contrary to industry practices and consumer
experiences” is not a common question; (2) that whether Plaintiff has provided a “common
methodology” for calculating ACV is not a common question; (3) that whether Progressive
Direct actually paid each prospective class member ACV is an individualized issue; and
(4) that determining damages is an individualized issue. 	See [Doc. 70 at 14–26].
Defendant’s primary contention is that “this type of case is inapt for class resolution”
because “[a]ssessing the value of a used car is an inherently individualized inquiry, and
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there is no way to adjudicate Plaintiff’s claims on behalf of a state-wide class without
determining the value of each class member[’s] unique vehicle.” [Id. at 3]. Defendant is
correct to focus on whether each putative class member received ACV, as opposed to
the PSA’s “methodological[] sound[ness]” in isolation. 	[Id.]. 	However, considering the
relationship between those matters posited by Plaintiff’s allegations and supported by
common evidence submitted with the Motion, the Court is respectfully unconvinced at this
stage that individual issues predominate.
Defendant contends “that whether a PSA may have been proper depends on the
particular transaction” involved, as vehicle sales involve all sorts of variables, which
undermines Plaintiff’s assertion that common issues predominate. 	See [id. at 14–18].
Relatedly, 	Defendant 	disputes 	Plaintiff’s 	characterization 	of 	the 	PSA’s 	accuracy,
grounding some of its arguments in the variety of market conditions that can affect the
difference between a used vehicle’s list price and sale price. 	See, e.g., [id. at 20].
However, Plaintiff persuasively responds that, to the extent the claims at issue are based
on Progressive Direct’s knowing failure to provide ACV, and assuming that a factfinder
agrees that applying PSAs improperly reduce otherwise legitimate loss valuations, the
same error would infect every payout premised on PSAs. See [Doc. 80 at 4–5]. In other
words, “[t]he injury is the devaluation [of ACV] resulting from the application of PSAs,
which 	allegedly 	breaches 	the 	contract 	between 	Progressive 	and 	its 	insureds.”
Drummond, 2023 WL 5181596, at *11; see also Brown, 2023 WL 7219499, at *4 (“[I]f the
application of the PSA is found to be generally violative of Progressive’s form policy, it
would necessarily be based on a finding that application of the PSA results in a payment
different from the actual cash value of the totaled vehicle.”). 	And, with respect to
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arguments about the accuracy of PSAs, the Court finds that, at best, such arguments get
at whether PSAs do or do not result in ACV, not whether this issue is susceptible to
individual or common proof. See Volino, 2023 WL 2532836, at *9 (“The fact that the jury
might not be persuaded by Plaintiffs’ common proof does not mean Plaintiffs lack
common proof.”). 	Indeed, what matters here is that “[t]he putative plaintiffs do not
challenge the price for which PSAs predict each car will sell; rather, they challenge the
application of PSAs altogether.” 	Drummond, 2023 WL 5181596, at *10. 	For these
reasons, the scale of the dispute which Plaintiff has framed for the factfinder is
predominantly collective.
This reasoning also disposes of Defendant’s suggestion that class members’
damages do not present a common question because “subtracting the PSAs from every
class member’s [Mitchell-determined ACV offer] would result in overvaluations of many
class members’ vehicles.” [Doc. 70 at 17]. In taking this position, Defendant ignores what
Plaintiff is asking the jury to find. Plaintiff’s view is that, “[i]f the factfinder accepts Plaintiffs’
evidence on the state of the market, then simply recalculating the valuation using
Progressive’s methodology without the PSA will accurately value each class member’s
vehicle.” 	Volino, 2023 WL 2532836, at *8; see also [Doc. 80 at 5]. 	In other words, the
valuation of damages presents a common question not simply because Plaintiff wants a
jury to conclude that the PSA does not represent ACV, but because Plaintiff wants a jury
to conclude that omitting the PSA from each valuation produced by Mitchell would
represent ACV. 	See [Doc. 80 at 2 (“Common proof will show Progressive thumbed the
scale against its insureds by applying PSA deductions, and the remedy is to take the
thumb off the scale and remove that lone line-item deduction.”)]. Defendant’s argument
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that “a jury would not be constrained to accept Plaintiff’s artificial construct that a loss
vehicle’s ACV is either the ACV determined by Progressive, or the ACV determined by
Progressive minus the PSAs,” [Doc. 70 at 4], thus misses the point for purposes of class
certification. What matters at this stage is that a jury finding in Plaintiff’s favor would do
so based on common issues about the PSA’s accuracy with respect to assessing ACV.
Cf. Volino, 2023 WL 2532836, at *8 (“Whether applying the PSA was a legitimate
methodology, and whether Progressive misled insureds about it, does not depend on
whether the PSA’s predictions occasionally came true.”). And, in any case, “Progressive
can hardly complain that the methodology Plaintiff[] would impose on them is the one
Progressive chose and developed.” Id. at *9.
As indicated above, Plaintiff cites several cases in which courts have certified
classes bringing essentially identical claims with similar, if not identical, factual records.
See [Doc. 80 at 3 (citing Volino, Brown, and Drummond)]. The Court finds these cases
persuasive. Defendant limits its response to these cases to stating that they are “wrongly
decided” because they “ignored the fundamental requirement that each putative class
member be able to show that they received less than ACV using common evidence.”
[Doc. 70 at 25]. But, as the Court has discussed, Plaintiff is trying to do exactly that—use
common evidence concerning valuation methods to persuade the factfinder that ACV is
generally equal to the Mitchell evaluation less any PSA deduction. For example, Plaintiff’s
evidence that the PSA does not accurately reflect the difference between list and sale
price in the used car market is aggregate evidence that could be deployed by each class
member in an individual action. See, e.g., [Doc. 58-1 at 2–4]. The same is true of expert
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opinions obtained by Plaintiff that attest to the accuracy of Mitchell’s evaluation method
absent the PSA deduction. See, e.g., [Doc. 57-8 at 7].
The cases cited by Progressive Direct, which present class-certification issues in
related valuation contexts, are nonbinding and distinguishable. 	For example, in Lara v.
First National Insurance Co. of America, the Ninth Circuit affirmed the denial of class
certification where the plaintiffs challenged an unverifiable and unitemized vehicle
condition adjustment that could affect a valuation in either direction, that did not
necessarily influence the insurer’s payout, and that could ultimately lead to a separate
appraisal process. 	See Lara, 25 F.4th 1134, 1137 (9th Cir. 2022). 	On those facts, the
court reasoned that “figuring out whether each individual putative class member was
harmed would involve an inquiry specific to that person” and would entail “looking into the
actual pre-accident value of the car and then comparing that with what each person was
offered, to see if the offer was less than the actual value.” Id. at 1139. Here, in contrast,
Plaintiff’s theory is susceptible to common proof because (1) the PSA can only bring a
valuation downward and (2) Plaintiff’s theory is that every policyholder whose valuation
was impacted by a PSA was necessarily deprived of an otherwise accurate ACV. 	The
former point—isolating an allegedly flawed, value-diminishing facet of a valuation all class
members received—distinguishes these claims from another case Defendant cites in
which the plaintiff’s theory pitted different valuation methods against one another, and the
class representative’s desired method could actually lower certain other class members’
valuations.8 	See Curtis v. Progressive N. Ins. Co., No. 5:17-cv-01076-PRW, 2020 WL
8 This point likewise distinguishes this case from Sampson v. United Services Automobile
Association, 83 F.4th 414 (5th Cir. 2023), a decision cited in Defendant’s Notice of
Supplemental Authority. See [Doc. 82]. In Sampson, the Fifth Circuit reversed a grant of
class certification where the prospective class “ha[d] not demonstrated that [its estimate
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2461482, at *2 (W.D. Okla. May 12, 2020). And the latter point—that, in Plaintiff’s view,
a valuation with a PSA deduction can never result in ACV—distinguishes these claims
from another case Defendant relies on, in which the Eighth Circuit suggested that a
challenged property valuation tool would only result in errant valuations “some” of the
time. See In re State Farm Fire & Cas. Co., 872 F.3d 567, 577 (8th Cir. 2017).
Here, the Court respectfully concludes that the predominating inquiry in this
litigation is a common one: specifically, whether the factfinder will agree with Plaintiff that
Mitchell’s evaluation, less the PSA, accurately captures a total loss vehicle’s ACV under
the 	form 	policy 	language 	such 	that 	all 	class 	members 	whose 	payouts 	were
correspondingly reduced were injured under Colorado law by being deprived of ACV in
the amount of the PSA deduction in comparable vehicle value. 	Taking this view, it
becomes evident that “Progressive’s own valuation data, with and without the PSA,
constitutes class-wide proof of actual cash value, which can be compared with the amount
Plaintiffs were paid to determine liability and damages.” Volino, 2023 WL 2532836, at *8.
Of course, Defendant may attempt to convince the jury to the contrary by calling into
question the ability of the Mitchell evaluation to deliver ACV, or by contending that the
PSA is accurate for some or all insurance claimants. 	But, even if Defendant employs
individual evidence in either respect, it will do so in the shadow of Mitchell valuations that
every class member received, and that were subject to adjustments allegedly grounded
source, the National Automobile Dealers Association guidebook (“NADA”)] equates to
ACV in fact, nor put forward a coherent theory on which NADA, but not [alternative
valuation sources] KBB or Edmunds, etc., can serve as a determinant of injury and liability
as a matter of law.” Sampson, 83 F.4th at 423 (citation and emphasis omitted). Here, in
contrast, the Court finds that common issues predominate precisely because of the
“coherent theory” Plaintiff sets out—that Mitchell, but for the PSA deduction, results in
ACV, so any estimate with the PSA deduction falls short in that amount.
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in ratios which, according to Plaintiff, do not reflect reality. Cf. Amgen Inc. v. Conn. Ret.
Plans & Tr. Funds, 568 U.S. 455, 459 (2013) (“Rule 23(b)(3) requires a showing that
questions common to the class predominate, not that those questions will be answered,
on the merits, in favor of the class.”). 	The Court accordingly concludes, joining several
other district courts, that Plaintiff has framed this case such that the common questions
predominate. See, e.g., Volino, 2023 WL 2532836, at *8 (“To the extent Progressive has
identified individual issues that may need to be worked out at the margins, the critical
common questions identified by Plaintiffs predominate over those individual inquiries.”);
Brown, 2023 WL 7219499, at *10 (“[C]ommon questions of law and fact—specifically
whether a breach occurred, whether the ACV was paid, and the calculation of potential
damages—predominate over any individualized question.”). And even if certain matters
related to damages may require individual determinations, a finding “that determining
damages would necessitate individualized inquiries . . . cannot alone sustain the . . .
conclusion that [a] proposed class fails Rule 23(b)(3)’s predominance requirement.”
Sherman, 84 F.4th at 1195.9
9 According to Defendant’s November 21, 2023, Notice of Supplemental Authority,
another district court has recently denied class certification in a parallel class action. See
[Doc. 87]; see also Kroeger v. Progressive Univ. Ins. Co., No. 4:22-cv-00104-SHL-HCA,
ECF No. 76 (S.D. Iowa Nov. 20, 2023). 	At the outset, this Court notes that Kroeger is
nonbinding and self-distinguishing, as it differentiates itself from cases like Volino on the
basis of Eighth Circuit authority. 	See Kroeger, No. 4:22-cv-00104-SHL-HCA, ECF No.
76 at 14–15. 	On a more substantive level, the Court recognizes the Kroeger court’s
concern that ACV is theoretically capable of multiple means of calculation, so “even if the
[c]ourt used special interrogatories to try to isolate the impact of the Projected Sold
Adjustment on whether Progressive breached the contract, the jury’s answer could not
be translated in a meaningful way to the remainder of the class.” See id. at 13. However,
the Court respectfully parts ways with Kroeger because, as discussed above, Mr. Curran
has presented a collective model of liability which will succeed or fail on an aggregate
basis. 	If a jury is convinced that Progressive’s methodology is accurate as to ACV—
except for the PSAs—the difference in valuation could be carried over to all class
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B. 	Superiority
Finally, Rule 23(b)(3) advises the Court to assess whether a class action is the
superior 	form 	of 	adjudication 	by 	considering 	(1) “the 	class 	members’ 	interests 	in
individually controlling the prosecution or defense of separate actions”; (2) “the extent and
nature of any litigation concerning the controversy already begun by or against class
members”; (3) “the desirability or undesirability of concentrating the litigation of the claims
in the particular forum”; and (4) “the likely difficulties in managing a class action.” Fed. R.
Civ. P. 23(b)(3)(A)–(D). 	“[C]lass status is appropriate as long as plaintiffs can establish
an aggregation of legal and factual issues, the uniform treatment of which is superior to
ordinary one-on-one litigation.” CGC Holding Co., LLC, 773 F.3d at 1086.
Plaintiff argues that class treatment is superior in light of the minimal damages this
kind of litigation could recover on an individual basis. [Doc. 57 at 25]. He adds that he is
unaware of another action in this forum raising these claims, and suggests that “class
treatment is manageable,” in that “[l]iability will be established through common evidence
of Progressive’s uniform Policy provisions and method for valuing total loss claims.” [Id.
at 26]. 	Defendant’s response largely focuses on ascertainability concerns, [Doc. 70 at
26–27], which are subsumed within the numerosity analysis discussed above, see supra
n.7. To the extent Defendant’s arguments apply to the superiority analysis by implicating
the manageability factor, the Court agrees with the Volino court that “Progressive’s own
recordkeeping choices might increase [its] own burden in discovery, but that is no reason
to deny class certification.” Volino, 2023 WL 2532836, at *10 n.1.
members to assess damages. Of course, it remains Plaintiff’s burden to convince a jury
that the Mitchell methodology with PSAs removed in fact produces ACV.
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Plaintiff is correct that, in this case, class treatment is superior to individual actions
because separate lawsuits would likely not be feasible absent their aggregation due to
the sums involved. Cf. Amchem Prods., Inc., 521 U.S. at 617 (referencing the “policy at
the very core of the class action mechanism . . . to overcome the problem that small
recoveries do not provide the incentive for any individual to bring a solo action prosecuting
his or her rights” (quotation omitted)). Additionally, Defendant does not identify ongoing
litigation by any proposed class members. Nor is there reason to find the concentration
of these claims in this forum to be undesirable. Finally, the Court concludes that the legal
theories of liability and damages set out by Plaintiffs in briefing the Motion can be
manageably litigated in the aggregate. See Brown, 2023 WL 7219499, at *11.
CONCLUSION
For the foregoing reasons, it is ORDERED that:
(1) 	Plaintiff’s Motion for Class Certification [Doc. 58] is GRANTED;
(2) 	Plaintiff 	is 	appointed 	class 	representative, 	and 	Plaintiff’s 	counsel 	is
appointed class counsel under Rule 23(g), for the following class:
All persons who made a first-party claim on a policy of insurance issued by
Progressive Direct Insurance Company to a Colorado resident where the
claim was submitted from April 12, 2019, through December 18, 2023,
and Progressive determined that the vehicle was a total loss and based its
claim payment on an Instant Report from Mitchell where a Projected Sold
Adjustment was applied to at least one comparable vehicle;
(3) 	The Parties shall meet and confer as to the form and manner of notice under
Rule 23(c)(2)(B), and the Parties shall file a proposed form of class
notification for review and approval on or before January 8, 2024. 	In the
event the Parties cannot agree to the form and content of the notice, each
Party may submit its own proposed notice;
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(4) 	Consistent with the Honorable Michael E. Hegarty’s Order Granting the
Parties’ Joint Stipulated Motion to Amend the Scheduling Order [Doc. 64],
the dispositive motions deadline is January 17, 2024; and
(5) 	The Final Pretrial Conference set for February 20, 2024, is VACATED, and
the Court will set a combined Final Pretrial/Trial Preparation Conference
after the resolution of dispositive motions, should any be filed.
DATED: December 18, 2023 	BY THE COURT:
_______________________
Nina Y. Wang
United States District Judge
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