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Puopolo v. Commerce Insurance Co.

Superior Court of Massachusetts, Suffolk

June 10, 2019

Michelle PUOPOLO, on Behalf of Herself and All Others Similarly Situated


          Kenneth W. Salinger, Justice

         Plaintiff 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 insureds’ 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.

         Puopolo 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:

         All 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.

         The Court will ALLOW this motion.

         1. Standards for Class Certification

         To 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 Mass.R.Civ.P. 23(b).

         Certification 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 ‘similar, ’ although not necessarily identical, injuries as a result of the defendant’s unfair or deceptive conduct." Bellermann v. Fitchburg Gas & Elec. Light Co., 470 Mass. 43, 53 (2014), quoting G.L.c. 93A, § § 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, § 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.

         "[W]hen the judge is deciding a [class] certification request under § 9(2) [of G.L.c. 93A], the judge must bear in mind [that there is] ‘ "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." ’" 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).

         "[A] party moving for class certification need only provide ‘information sufficient to enable the motion judge to form a reasonable judgment’ 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.

         A judge has broad discretion to grant or deny a motion to certify a class, both under Rule 23 and under c. 93A, § 9(2). See Weld, 434 Mass. at 84-85 (Rule 23); Moelis, 451 Mass. at 489 (c. 93A).

         2. Analysis

         The Court concludes that all of these criteria are satisfied here and that it is therefore appropriate to certify the proposed class.

         The 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 ...

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