Buffington v. The Progressive Corporation

Background

Steven Buffington brought the case individually and on behalf of others similarly situated against Progressive Advanced Insurance Company. He alleged that Progressive underpaid the actual cash value of vehicles declared total losses under New York automobile insurance policies by omitting some or all New York sales tax from the payments. His remaining claims were for breach of contract and violation of New York General Business Law § 349; he had voluntarily withdrawn his unjust-enrichment claim with prejudice.

Buffington moved to certify a class under Federal Rule of Civil Procedure 23(b)(3). The proposed class covered people who insured a vehicle for physical-damage coverage under a New York automobile policy issued by Progressive, made a physical-damage claim, had that claim adjusted as a total loss between September 10, 2014, and the date of the order, and were not paid the applicable New York sales tax owed for the claim.

Class-certification requirements

The court concluded that the proposed class satisfied Rule 23(a)’s requirements. The class was sufficiently numerous because Buffington estimated that it contained more than 4,000 members, and Progressive did not dispute that estimate. Commonality was satisfied because the class members’ claims involved interpreting the same form-policy language and determining whether Progressive was required to pay sales tax on total-loss claims.

The court also found typicality because Buffington alleged that Progressive subjected him and the proposed class members to the same failure to pay sales tax in full under the same policy language. The court rejected Progressive’s arguments concerning differences between vehicle lessees and owners, and its arguments that Buffington lacked standing because of questions about whether he had personally paid sales tax. The court stated that those arguments went to the merits and did not defeat certification at this stage.

The court found Buffington adequate to represent the class because he had no conflicts with the proposed class and had shown commitment to the case. It also found his attorneys experienced and adequate to serve as class counsel. The proposed class was ascertainable—that is, sufficiently identifiable—because it was defined by subject matter, time, and other boundaries, and potential members could be identified using information in Progressive’s management software.

Rule 23(b)(3)

The court further found that common issues predominated over individual issues and that a class action was superior to other methods of resolving the dispute. The central issue—whether Progressive’s form policy required payment of New York sales tax on total-loss claims—could be resolved with common proof. Individual differences in sales-tax rates and damages did not prevent certification because damages could be calculated using a common method: multiplying the applicable sales-tax rate by the vehicle’s actual cash value and subtracting any sales tax already paid.

The court also found the case manageable, particularly because the class could be identified from Progressive’s own records. The court did not decide whether Progressive ultimately breached its policies or violated New York law; it decided only that the requirements for proceeding as a class action were satisfied.

Ruling and next steps

Judge Philip M. Halpern granted Buffington’s motion for class certification under Rule 23(b)(3). The certified class included all persons meeting the policy, claim, total-loss-date, and unpaid-sales-tax conditions stated in the order. The court granted Buffington’s unopposed request to appoint him as class representative and appointed Edward A. Normand, Amy L. Judkins, Joseph N. Kravec, and Antonio Vozzolo as class counsel.

The parties were ordered to meet and confer about a proposed joint notice plan and jointly notify the court of the results within 14 days. If they could not agree, each party was required to submit its proposed notice plan in one joint letter within that period. The clerk was directed to terminate the pending motion sequence.