Michelle PUOPOLO, on Behalf of Herself and All Others Similarly Situated
The COMMERCE INSURANCE COMPANY
MEMORANDUM AND ORDER ALLOWING PLAINTIFFâS MOTION FOR
Kenneth W. Salinger, Justice
Michelle Puopolo claims that The Commerce Insurance Company
has an unlawful practice of paying unreasonably high storage
charges to facilities that are repairing damaged vehicles
owned by its insureds and then subtracting those charges from
any payment it makes on the insuredsâ claims, all without
notifying the insureds or obtaining their consent. Puopolo
claims that this practice violates the terms of the standard
automobile insurance policy and constitutes an unfair or
deceptive act or practice that violates G.L.c. 93A.
has now moved to certify a class of plaintiffs with respect
to all of her claims. Specifically, Puopolo has moved to
certify a class consisting of:
persons who made a claim or claims under the Limited
Collision, Collision or Comprehensive provisions of their
automobile policy with Commerce and whose claim payments were
reduced by any amount Commerce contends it paid to the
storage facility in relation to the claim.
Court will ALLOW this motion.
Standards for Class Certification
obtain certification of a class with respect to the for
misrepresentation, fraud, and unjust enrichment, Puopolo must
demonstrate that "(1) the class is so numerous that
joinder of all members is impracticable" [numerosity],
"(2) there are questions of law or fact common to the
class" [commonality], "(3) the claims or defenses
of the representative parties are typical of the claims or
defenses of the class" [typicality], and "(4) the
representative parties will fairly and adequately protect the
interests of the class" [adequacy of representation].
See Mass.R.Civ.P. 23(a). If these requirements are met,
Puopolo must also show "that the questions of law or
fact common to the members of the class predominate over any
questions affecting only individual members,"
[predominance] and "that a class action is superior to
other available members for the fair and efficient
adjudication of the controversy" [superiority]. See
of a class action with respect to claims under G.L.c. 93A may
be appropriate if the named plaintiff can "show that the
putative class members suffered âsimilar, â although not
necessarily identical, injuries as a result of the
defendantâs unfair or deceptive conduct." Bellermann
v. Fitchburg Gas & Elec. Light Co., 470 Mass. 43, 53
(2014), quoting G.L.c. 93A, Â§ Â§ 9(2), 11. Furthermore,
"Section 9(2) requires satisfaction of the same elements
of numerosity, commonality, typicality, and adequacy of
representation as are required by Mass.R.Civ.P. 23(a)."
Moelis v. Berkshire Life Ins. Co., 451 Mass. 483,
489 (2008). "Unlike rule 23, however, Â§ 9(2) does not
require that common issues predominate over individual ones,
or that a class action be superior to other methods of
litigation." Id. at 489-90. A court nonetheless
"has discretion to consider issues of predominance and
superiority" in deciding whether to certify a class
claim under c. 93A. Id. at 490.
the judge is deciding a [class] certification request under Â§
9(2) [of G.L.c. 93A], the judge must bear in mind [that there
is] â "a pressing need for an effective private
remedy" for consumers, and that "traditional
technicalities are not to be read into the statute in such a
way as to impede the accomplishment of substantial
justice." â" Aspinall v. Philip Morris Cos.,
Inc., 442 Mass. 381, 391-92 (2004), quoting Fletcher
v. Cape Cod Gas Co., 394 Mass. 595, 605 (1985).
"The right to a class action in a consumer protection
case is of particular importance where, as here, aggregation
of small claims is likely the only realistic option for
pursuing a claim." Feeney v. Dell, Inc., 454
Mass. 192, 202 (2009).
party moving for class certification need only provide
âinformation sufficient to enable the motion judge to form a
reasonable judgmentâ that certification requirements are
met." Aspinall, 442 Mass. at 391-92, quoting
Weld v. Glaxo Wellcome, Inc., 434 Mass. 81, 87
(2001). "[N]either the possibility that a plaintiff will
be unable to prove his allegations, nor the possibility that
the later course of the suit might unforeseeably prove the
original decision to certify the class wrong, is a basis for
declining to certify a class which apparently satisfies the
Rule." Salvas v. Wal-Mart Stores, Inc., 452
Mass. 337, 363 (2008), quoting Weld, supra, at 87.
has broad discretion to grant or deny a motion to certify a
class, both under Rule 23 and under c. 93A, Â§ 9(2). See
Weld, 434 Mass. at 84-85 (Rule 23); Moelis,
451 Mass. at 489 (c. 93A).
Court concludes that all of these criteria are satisfied here
and that it is therefore appropriate to certify the proposed
requirement of numerosity is satisfied here. It appears that
the proposed class has well over 10, 000 members. The Court
concludes that joining all class members as individual
plaintiffs would add significant expense and complexity to
this lawsuit without any offsetting advantage, and that such
joinder is therefore impracticable. Joinder of all class
members as individual plaintiffs is "impracticable"
within the meaning of Rule 23 if doing so would be
"impractical, unwise or imprudent"; plaintiffs need
not show that joinder ...