v. No. D-202-CV

Transcription

1 FILED IN MY OFFICE DISTRICT COURT CLERK 6/15/2015 1:11:51 PM James A. Noel Robin Wilson STATE OF NEW MEXICO COUNTY OF BERNALILLO SECOND JUDICIAL DISTRICT COURT LEONARD CHAVEZ, and DARLENE CHAVEZ, for themselves and all others similarly situated, Plaintiffs, v. No. D-202-CV YOUNG AMERICA INSURANCE COMPANY, NATIONAL INSURANCE CENTER, RODNEY D. YOUNG INSURANCE AGENCY, INC., F. GAYLON YOUNG INSURANCE AGENCY, INC., RAUL HERNANDEZ, PATRICIA A. ADAMS, and JOHN DOE ADJUSTERS and AGENTS of YOUNG AMERICA INSURANCE COMPANY, NATIONAL INSURANCE CENTER, RODNEY D. YOUNG INSURANCE AGENCY, INC., and F. GAYLON YOUNG INSURANCE AGENCY, INC., Defendants. CONSOLIDATED WITH: STATE OF NEW MEXICO BERNALILLO COUNTY SECOND JUDICIAL DISTRICT COURT BURT WARLOCK, for himself and all others similarly situated, Plaintiff, v. D-202-CV LOYA INSURANCE COMPANY, a Texas Corporation, FRED LOYA INSURANCE AGENCY, INC., a New Mexico Corporation, OMAR ARAUJO, and JOHN DOE ADJUSTERS and AGENTS of LOYA INSURANCE COMPANY, and FRED LOYA INSURANCE AGENCY, INC., Defendants. FRED LOYA FINAL APPROVAL ORDER AND FINAL JUDGMENT

2 This Cause is before the Court, in the Fred Loya case, pursuant to the Parties motion for final approval of the proposed settlement and for entry of a final judgment arising out of the Settlement Agreement between the Parties in accordance with New Mexico Rule of Civil Procedure The Court appointed Settlement Class Counsel and preliminarily approved the Settlement Agreement 1 between Plaintiff and Defendants in its order dated December 29, In that order, the Court also approved forms of Notice, Medical/Employment Release Form, and the Claim Form, and directed implementation of the Notice Plan, including mailing Notice to Class Members, establishment of an Internet website, and establishment of a toll-free line, all in conformity with the Settlement Agreement. On May 27, 2015, the Court held a hearing to consider the final approval of the Settlement. The Court has considered all of the arguments in connection with the proposed Settlement Agreement and the record of this case. One objection, timely filed on April 20, 2015, was filed by attorney Michael Ross on behalf of eleven (11) alleged class members. However, on April 24, 2015, Mr. Ross also submitted timely exclusion requests, via U.S. Mail postmarked April 21, 2015, for each of these same eleven (11) individuals and two (2) additional alleged class members in the related Chavez v. Young America case, which has been consolidated with this case as noted in the above caption. Prior to the hearing the Court reviewed the objection and request for exclusion. At the hearing the Court heard argument from Plaintiffs and Defendants regarding both Mr. Ross s exclusions and Mr. Ross s objection. Both Plaintiff and Defendant acknowledged that as a matter of law, a class member cannot both object and seek to exclude themselves from the Settlement class. The 1 The definitions used in the Settlement Agreement are incorporated herein by reference and are adopted for use herein.

3 Court was made aware that Mr. Ross clients including members of both this case s Class and the Chavez Class. Mr. Ross was given the opportunity to respond and the opportunity to elect whether his clients wished to opt out of the settlement, thus mooting their objection, or waive their opt out requests and pursue their objection as potential Settlement class members in each case. Mr. Ross informed the Court that his thirteen (13) clients wished to opt out of the Settlement and thus abandon their objection to the Settlement. The Court considers Mr. Ross s exclusion requests to be both timely and valid, and thus the 13 individuals listed in his request for exclusion are properly excluded from this Settlement. No objection was raised to Class Counsel s request for fees and expenses. Based on the foregoing, the Court hereby finds: The Settlement Class meets the requirements for certification pursuant to New Mexico Rule of Civil Procedure Notice of the Settlement Class was constitutionally adequate, both in terms of its substance and the manner in which it was disseminated. The Notice contained the essential elements necessary to satisfy due process, including the Settlement Class definition, the identities of the Parties and of their counsel, a summary of the terms of the proposed settlement, Class Counsel s intent to apply for fees, information regarding the manner in which objections could be submitted and requests for exclusions could be filed. The Notice properly informed Class Members of the formula for the distribution of Settlement Payments under the settlement. The Court-approved Notice also informed Class Members of the date and location of a Final Fairness Hearing. Finally, the Notice also contained a clear and concise Claim Form, and described a clear deadline and procedure for filing of Claims. Notice was directly mailed to all Class Members whose current whereabouts could be identified by reasonable effort. Notice reached a large majority of the Class Members. The Court finds that such notice constitutes the best notice practicable. The Settlement Agreement proposed by the Parties is fair and reasonable, and deserves

4 final approval. It provides immediate and certain benefits to Class Members. The Court finds that the Claims Program was fair and reasonable, and that the Settlement amount bears a reasonable relationship to Class Members alleged damages, under the circumstances of this case, and given the risks inherent in this and all other complex litigation. One (1) Objection to the proposed Settlement was submitted. Only eighteen (18) Class Members requested to be excluded from the Settlement, thirteen (13) of those exclusions being Mr. Ross clients described above. The Settlement notice and claims process were designed to and had the effect of reasonably informing the Class Members of the benefits of participating in the Settlement and of how to participate. Furthermore, the agreed formulas for determining entitlement to and amount of Settlement payments are fair, adequate, and reasonable, in light of the facts and circumstances of the case. In addition, the attorneys fees and costs are reasonable in view of the facts of the case and the applicable New Mexico precedent, federal precedent, and learned commentary. The Settlement Agreement was the product of arms-length negotiation and was made in good faith. There is no evidence of collusion between the Parties. The Settlement Agreement adequately reflects the strengths and weaknesses of Plaintiff s Claims and is supported by Class Counsel. It is clear that Class Counsel is knowledgeable about Defendants practices, and were in a position to evaluate the reasonable value of the Claims. THEREFORE, IT IS HEREBY ORDERED: 1. The proposed Settlement Agreement between Class Plaintiffs and Defendants is hereby granted final approval. 2. The Settlement Agreement is hereby approved as fair, adequate, and reasonable. 3. Fred Loya Insurance Company, Inc. ( Fred Loya ) is hereby directed to implement its payment obligations under the Settlement Agreement.

5 4. This Court finds it appropriate to enter Final Judgment consistent with this Order, set forth above, approving the proposed settlement as fair, adequate, and reasonable, which Order is incorporated herein and made a part of this final judgment. The class action Settlement Agreement on file in this action is by reference incorporated into and made part of this Final Judgment. 5. The definitions contained in the Settlement Agreement are adopted for purposes of this Final Judgment. 6. The forms of Notice and Notice Plan satisfy all of the requirements of New Mexico law and due process. 7. The settlement is, in all respects, fair, reasonable, and adequate to the Settlement Class Members, was made in good faith, and has been finally approved. Judgment as set forth herein is entered thereon and the settling parties are directed to perform and carry out their respective obligations under the Settlement Agreement as approved by this Final Judgment and otherwise consistent therewith. 8. Upon the Effective Date, Defendant is released and forever discharged as set forth in the Release provisions of the Settlement Agreement. 9. All claims, except for those asserted by Settlement Class Members who have excluded themselves from the settlement, against Defendants in this action, including, without limitation, the above pending proceedings, are hereby dismissed, on the merits, and with prejudice. 10. The Settlement Class Members retain all rights not released or adjudicated by the Settlement Agreement or this final judgment. 11. Class Counsel s application for an award of attorneys fees and costs in the total amount of $450,000 is approved. That amount shall be paid by Fred Loya to Class Counsel

6 pursuant to the terms of the Settlement Agreement. 12. The Class Representative s application for an incentive award of $10,000 is approved. That amount shall be paid by Fred Loya to the Class Representative, Burt Warlock, pursuant to the Settlement Agreement. 13. This Final Judgment does not constitute an expression by the Court of any opinion, position, or determination as to the merit or lack of merit of any of the claims or defenses of Defendants or Plaintiff. Neither this Final Judgment, nor the Settlement Agreement, nor the fact of settlement, nor the settlement proceedings, nor settlement negotiations, nor any related document, shall be used as an admission of any fault or omission by Defendants, nor received into evidence as an admission, confession, presumption, or inference of any wrongdoing by Defendants in any proceeding other than such proceedings as may be necessary to enforce this final judgment. 14. Without affecting the finality of this Final Judgment in any way, the Court hereby retains continuing jurisdiction for purposes of interpreting and enforcing the Settlement Agreement and this Final Judgment. 15. The Court retains jurisdiction over the parties in this action for the purpose of ensuring compliance with the Final Judgment. 16. The Court determines, pursuant to New Mexico law, there is no just reason for delaying either enforcement or appeal of this Final Judgment, dismissing with prejudice all claims against the Defendants as set forth above. Accordingly, the Court hereby directs entry of this Final Judgment.

7 IT IS SO ORDERED AND ADJUDGED nunc pro tunc this 27th day of May, BY THE COURT: DISTRICT COURT JUDGE NAN G. NASH Form of Order Approved by: s/ Keith R. Scranton Keith R. Scranton Franklin D. Azar & Associates, P.C E. Evans Avenue Aurora, CO (303) Attorneys for Plaintiffs and the Putative Class And /s/ Gordon H. Rowe III The Rowe Law Firm, PC 1200 Pennsylvania NE Albuquerque, NM (505) F(505) Attorneys for Plaintiffs and the Putative Class

8 s/ Casie Collignon Casie Collignon 1801 California Street Suite 4400 Denver, CO (303) Attorneys for Defendants Sharon Shaheen Montgomery and Andrews, PA 325 Paseo de Peralta Santa Fe, NM 87501