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Tkachyk v. Travelers Home & Marine Insurance Co.

United States District Court, D. Montana, Missoula Division

May 17, 2017

SARA TKACHYK, individually and on behalf of herself and all other similarly situated, Plaintiff,
v.
TRAVELERS HOME & MARINE INSURANCE COMPANY, THE CHARTER OAK FIRE INSURANCE COMPANY, NORTHLAND CASUALTY COMPANY, NORTHLAND INSURANCE COMPANY, PHOENIX INSURANCE COMPANY, ST. PAUL FIRE & MARINE INSURANCE COMPANY, ST. PAUL MERCURY INSURANCE COMPANY, THE STANDARD FIRE INSURANCE COMPANY, TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA, TRAVELERS COMMERCIAL INSURANCE COMPANY, THE TRAVELERS INDEMNITY COMPANY, TRAVELERS INDEMNITY COMPANY OF AMERICA, THE TRAVELERS INDEMNITY COMPANY OF CONNECTICUT, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, and RODERICK MCNEIL, Defendants.

          ORDER

          Dana L. Christensen, Chief Judge.

         On May 17, 2017, the matter of the Court's final approval of the Stipulation of Settlement submitted on December 29, 2016 by the Motion for Order Preliminarily Approving Settlement, Approving Notice to Class Members, and Setting Date for Settlement Fairness Hearing, came before the Court for consideration. Appearing on behalf of Plaintiffs and the Settlement Class was Allan M. McGarvey, McGarvey, Heberling, Sullivan & Lacey, P.C. 345 First Avenue East, Kalispell, MT 59901; Judah M. Gersh and Brian M. Joos, Viscomi, Gersh, Simpson & Joos, PLLP, 121 Wisconsin Avenue, Whitefish, MT 59937; and Alan J. Lerner, Lerner Law Firm, P.O. Box 1158, Kalispell, MT 59903-1158 ("Class Counsel"). Appearing on behalf of Defendants was Marshal Mickelson, Corette Black Carlson and Mickelson P.C, 129 W. Park Street, Suite 300, Butte, MT 59701; and Mark L. Hanover, Dentons 233 S. Wacker Dr., Suite 5900, Chicago, IL 60606.

         WHEREAS, the Named Plaintiff, Sara Tkachyk, and Defendants Travelers Home & Marine Insurance Company, The Charter Oak Fire Insurance Company, Northland Casualty Company, Northland Insurance Company, Phoenix Insurance Company, St. Paul Fire & Marine Insurance Company, St. Paul Mercury Insurance Company, The Standard Fire Insurance Company, Travelers Casualty Insurance Company of America, Travelers Commercial Insurance Company, The Travelers Indemnity Company, Travelers Indemnity Company of America, The Travelers Indemnity Company of Connecticut, and Travelers Property Casualty Company of America, individually and on behalf of all affiliated entities (collectively, "Travelers, " as defined in the Stipulation of Settlement), have executed and filed a Stipulation of Settlement with the Court on December 29, 2016. The Settlement is on behalf of the Travelers Defendants only and does not apply to Defendant Roderick McNeil; and

         WHEREAS, all capitalized terms used herein shall have the same meaning as set forth in the Agreement and are hereby incorporated by reference; and

         WHEREAS, the Court, on February 3, 2017, entered the Order Re: Preliminary Approval of Settlement and Approval of Notice of Pendency of Settlement of Class Action to Class Members ("Preliminary Approval Order"), preliminarily approving the Proposed Settlement and conditionally certifying this Action, for settlement purposes only, as a class action, and, on February 14, 2017, entered an order correcting and amending the Stipulation of Settlement and resetting the final hearing date; and

         WHEREAS, Sara Tkachyk was approved in the Preliminary Approval Order as the Class Representative; and

         WHEREAS, the Court, as part of its Preliminary Approval Order, directed that a plan for disseminating notice of the Settlement ("Notice Plan") be implemented, and scheduled a hearing to be held on May 17, 2017, to determine whether the Proposed Settlement should be approved as fair, reasonable and adequate; and

         WHEREAS, Travelers and Class Counsel have satisfactorily demonstrated to the Court that the Notice Plan was followed; and

         WHEREAS, a final approval hearing was held on May 17, 2017, at which all interested persons were given an opportunity to be heard, and all objections to the Settlement, if any, were duly considered;

         NOW, THEREFORE, the Court, having read and considered all submissions made in connection with the Proposed Settlement, and having reviewed and considered the files and records herein, finds and concludes as follows:

         1. The Complaint filed in this Action alleges generally that Travelers engaged in improper subrogation in Montana by subrogating before conducting a proper made whole analysis.

         2. As part of the Preliminary Approval Order, the Court certified the Settlement Class, for settlement purposes only, defined as follows:

All Persons (and their heirs, executors, administrators, successors and assigns), as of July 26, 2016, (a) who were insured under an auto insurance policy issued by Travelers in Montana; (b) with respect to whom Travelers recovered subrogation on a Montana automobile insurance claim after January 11, 2008, i.e., 8 years before the filing of the Action.
Excluded from the Class are: all present or former officers and/or directors of Travelers, Class Counsel and their resident relatives, the Judge in this case and his resident relatives, and Travelers' counsel of record and their resident relatives. Also excluded are persons who properly ...

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