Full Opinion (html_with_citations)

Case: 22-30351     Document: 00516923842        Page: 1    Date Filed: 10/06/2023




           United States Court of Appeals
                for the Fifth Circuit                          United States Court of Appeals
                                                                        Fifth Circuit

                               ____________                           FILED
                                                                 October 6, 2023
                                 No. 22-30351                    Lyle W. Cayce
                               ____________                           Clerk

   Arthur Sampson, Jr.; Lovely M. Feagins,

                                                          Plaintiffs—Appellees,

                                      versus

   United Services Automobile Association; USAA General
   Indemnity Company,

                                          Defendants—Appellants.
                  ______________________________

                  Appeal from the United States District Court
                     for the Western District of Louisiana
                            USDC No. 6:19-CV-896
                  ______________________________

   Before Barksdale, Southwick, and Higginson, Circuit Judges.
   Stephen A. Higginson, Circuit Judge:
         Defendants-appellants United Services Automobile Association and
   USAA General Indemnity Company (“USAA”) contract with insureds to
   pay “Actual Cash Value” (“ACV”) for totaled vehicles. USAA calculates
   ACV using the CCC One Market Valuation Report (“CCC”) rather than,
   e.g., the National Automobile Dealers Association guidebook (“NADA”) or
   Kelley Blue Book (“KBB”). Plaintiffs-appellees are USAA-insureds whose
   vehicles were totaled and who received ACV as determined by CCC. Plain-
   tiffs allege that CCC violates Louisiana statutory law, that they would have
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                                    No. 22-30351


   been paid more if USAA used NADA, and that they are owed the difference.
   Plaintiffs sought certification below for a class of USAA-insureds who were
   paid less under CCC than they would have been paid under NADA, and the
   district court granted it, pursuant to Rule 23(b)(3). USAA timely appeals
   class certification under Federal Rule of Civil Procedure 23(f). On appeal, the
   parties dispute, among other things, whether common questions across the
   class involving damages and liability predominate over individual differences
   between class members, as required for class certification under Rule
   23(b)(3).
          We hold that plaintiffs fail to show injury, and therefore fail to estab-
   lish USAA’s liability on a class-wide basis, because they fail to demonstrate
   entitlement to the NADA values for their totaled vehicles. Therefore, we
   VACATE and REMAND.
                                          I
          USAA contracts with insureds to pay a vehicle’s ACV in the event of
   a total loss. Under Louisiana Revised Statutes § 22:1892B(5)(a)-(c), ACV
   “shall be derived by using” a method that falls into one of three broadly
   defined categories, one of which is use of “a generally recognized motor
   vehicle industry source.” § 22:1892B(5)(b). USAA uses CCC, but plaintiffs
   argue that CCC is not a legal method because it is “not a generally recognized
   used motor vehicle source” and does not fall into the other broadly defined
   categories. CCC also violates Section 22:1892B(5)(b) in a second way,
   plaintiffs claim, by negatively adjusting vehicles’ ACV based on such things
   as damage to the vehicle. CCC is therefore doubly violative of Section
   22:1892B, and moreover, it calculates ACV at a lower value than “generally
   recognized used motor vehicle industry sources such as NADA or KBB a
   majority of the time.”




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                                          No. 22-30351


           Plaintiffs filed suit in federal court claiming breach of contract, and
   violations of insurers’ duty of good faith under Louisiana Revised Statutes §
   22:1973 (formerly § 22:1220). Plaintiffs then moved for class certification
   pursuant to Rule 23(b)(3) on behalf of the following class:
           All persons insured by USAA and USAA General Indemnity
           Company who have made a claim for first party total loss,
           which claim USAA and USAA General Indemnity Company
           evaluated using CCC, or a predecessor product from August
           15, 2010 to the present date and whose CCC Base Value was
           less than the NADA Fully Adjusted Value (“Clean Retail”).1
   Plaintiffs also moved to appoint Arthur Sampson, Jr., and Lovely M. Feagins
   as class representatives. Sampson’s CCC value was $5,999 but his NADA
   value was $6,725. Feagins’s CCC value was $12,651 but her NADA value
   was $13,775.

           The district court certified the class on May 3, 2022. USAA timely
   moved for permission to appeal under Federal Rule of Civil Procedure 23(f),
   which this court granted on June 10, 2022. The district court had jurisdiction
   over this case because the amount in controversy exceeds $5 million and at
   least one class member is a citizen of a state different from a defendant.
28 U.S.C. § 1332
(d)(2). This court has jurisdiction under
28 U.S.C. § 1292
(e)



           _____________________
           1
              Plaintiffs state that the difference between NADA Clean Retail Value and NADA
   Adjusted Clean Retail Value is that only the latter has been adjusted for mileage and
   options. CCC Base Vehicle Value “is the value derived from a straight line average of the
   comparable vehicles CCC locates after applying options, its comparable vehicle condition
   adjustment algorithm and its mileage adjustment algorithm.” CCC Adjusted Vehicle Value
   is “the value reached after CCC applies a second loss vehicle condition ‘adjustment’ if
   required, and/or any unrelated prior damage adjustments. This is the final value before tax,
   title and license fees are applied. It is the value that USAA refers to as ACV.”




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   and Rule 23(f). The only issue before this panel is the propriety of class
   certification under Rule 23.
                                           II
          “The class action is ‘an exception to the usual rule that litigation is
   conducted by and on behalf of the individual named parties only.’” Comcast
   Corp. v. Behrend,
569 U.S. 27, 33
 (2013) (quoting Califano v. Yamasaki,
442 U.S. 682, 700-01
 (1979)). Class certification requires that plaintiffs’ claims
   “can be proved on a classwide basis,” Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338, 356
 (2011), and it is the party seeking to maintain a class action who
   “must affirmatively demonstrate his compliance with Rule 23,” Comcast,
569 U.S. at 33
 (quotations and citation omitted). This is not “a mere pleading
   standard”; the plaintiff must “be prepared to prove” that the requirements
   of Rule 23 are met “in fact.”
Id.
 (citation omitted).
          This court has emphasized that district courts must “rigorously”
   consider Rule 23’s prerequisites and that “[t]his ‘rigorous analysis’ mandate
   is not some pointless exercise . . . . It matters.” Chavez v. Plan Benefit Servs.,
   Inc.,
957 F.3d 542, 547
 (5th Cir. 2020). “[C]reative uses” of the class action
   form “are perilous” because improper certification “can coerce a defendant
   into settling on highly disadvantageous terms regardless of the merits of the
   suit. And the existence of a class fundamentally alters the rights of present
   and absent class members.”
Id.
 (quotations and citations omitted).
   Therefore, “[n]o less than due process is implicated.”
Id.
          Certification requires plaintiffs to satisfy all requirements of Rule
   23(a)—numerosity, commonality, typicality, and adequacy—and at least one
   of the three requirements listed in Rule 23(b). Wal-Mart,
564 U.S. at 345-46
.
   Here, the district court certified the class pursuant to Rule 23(b)(3), and the
   primary issue on appeal is Rule 23(b)(3)’s predominance requirement.




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          Rule 23(b)(3) requires that “questions of law or fact common to class
   members predominate over any questions affecting only individual
   members.” “The predominance inquiry asks whether the common,
   aggregation-enabling, issues in the case are more prevalent or important than
   the non-common, aggregation-defeating, individual issues.” Tyson Foods Inc.
   v. Bouaphakeo,
577 U.S. 442, 453
 (2016) (quotations and citation omitted).
          When one or more of the central issues in the action are
          common to the class and can be said to predominate, the action
          may be considered proper under Rule 23(b)(3) even though
          other important matters will have to be tried separately, such
          as damages or some affirmative defenses peculiar to some
          individual class members.
Id.
 (quotations and citation omitted).
          “We review a district court’s class certification ‘for abuse of
   discretion in recognition of the essentially factual basis of the certification
   inquiry and of the district court’s inherent power to manage and control
   pending litigation.’” Ahmad v. Old Republic Nat’l Title Ins. Co.,
690 F.3d 698, 701-02
 (5th Cir. 2012) (quoting Regents of the Univ. of Cal. v. Credit Suisse
   First Bos.,
482 F.3d 372, 380
 (5th Cir. 2007)). “[W]e owe considerable
   deference to district courts in reviewing certification decisions.” Unger v.
   Amedisys Inc.,
401 F.3d 316, 325
 (5th Cir. 2005). “An abuse of discretion
   occurs only when all reasonable persons would reject the view of the district
   court.” Cleven v. Mid-Am. Apartment Cmtys., Inc.,
20 F.4th 171
, 176 (5th Cir.
   2021) (citation omitted).
          “However, whether the district court applied the correct legal
   standard in reaching its decision on class certification is a legal question that
   we review de novo. If the ‘district court premises its legal analysis on an
   erroneous understanding of governing law, it has abused its discretion.’”




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                                           No. 22-30351


   Ahmad,
690 F.3d at 702
 (quoting Regents,
482 F.3d at 380
); accord Cleven, 20
   F.4th at 176.
                                                 III
           We first evaluate the district court’s choice of NADA values in the
   context of determining damages, then evaluate the district court’s choice of
   NADA values in the context of determining liability.
   A. NADA Values in the Damages Context
           The district court’s opinion explains that plaintiffs put forward a
   damages model on which “damages as to each class member who was paid
   less than what the statute mandates would be the difference paid to [the]
   insured by CCC and what a system, like NADA, that complies with [§
   22:1892], would pay.” But plaintiffs’ proposed damages model and their
   proposed class definition, which the district court accepted, did not pick out
   a system like NADA. They picked out NADA and NADA alone. And they
   did so even though the district court and the plaintiffs have treated other
   valuation methods, including KBB and others, as equally legal and legitimate
   alternatives.2



           _____________________
           2
              Plaintiffs’ briefing describes KBB as a “generally recognized used motor vehicle
   industry source.” The district court listed, as “statutorily permissible value[s],” the
   valuations in “other guidebooks such as KBB, Edmonds, Blackbook, Manheim Market
   Reports, etc.” And in the closely related case Shields v. State Farm, the district court further
   confirmed this understanding. See No. 6:19-CV-01359,
2022 WL 37347
, at *8 (W.D. La.
   Jan. 3, 2022) (“As for the damages model and common evidence, the court agrees that
   NADA is not required for a determination of ACV under Louisiana law. However, it is one
   lawful method of determining ACV under Louisiana Revised Statute 22:1892(B)(5). The
   difference between a lawful measure, such as NADA, and the [illegally] derived ACV
   provides an appropriate measure for determining who might have suffered economic harm
   . . . .”).




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           USAA argues that the “correct measure of damages is . . . the
   shortfall, if any, between the amount USAA paid an insured and what they
   were entitled to under their policy,” but plaintiffs’ damages model does not
   measure this amount for any class member. Instead, USAA contends, their
   model arbitrarily uses NADA values even though those values do not account
   for a vehicle’s unique condition—e.g., damage to the vehicle—which is
   relevant to its actual cash value. By ignoring the obvious fact that a vehicle’s
   ACV depends on such things as how damaged it is, which is something NADA
   does not account for, the district court failed to hold plaintiffs to their high
   standard to establish that the Rule 23 requirements had been met in fact.3
           Plaintiffs respond that they are not required to demonstrate that
   NADA equals cash value in fact, because “as a matter of law, NADA values,
   are proof of actual cash value.” This follows from the fact that NADA
   satisfies the requirements of § 22:1892(B)(5). But see Gautreaux v. La. Farm
   Bureau Cas. Ins. Co.,
362 So. 3d 896
, 899 (La. App. 3 Cir. Dec. 29, 2022)
   (“La. R.S. 22:1892(B)(5) does not require the use of NADA clean retail
   values.”), writ denied,
360 So. 3d 837
 (La. 5/16/23); see also Curtis v.
   Progressive N. Ins. Co., No. CIV-17-1076-PRW,
2020 WL 2461482
, at *3
   (W.D. Okla. May 12, 2020) (“Oklahoma law does not require Progressive to
   pay the NADA value on total loss claims; as a result, Plaintiff’s contention
   that damages can easily be determined as to each putative class member by
   subtracting WCTL[4] payments from NADA values is wrong.”).


           _____________________
           3
             NADA’s Director of Strategic Innovation testified that “individual vehicles
   almost certainly will have an actual value that is higher or lower than the estimated values
   published in the [NADA] Guidebook.”
           4
               This is short for “WorkCenter Total Loss,” see Slade v. Progressive Sec. Ins. Co.,
856 F.3d 408, 411
 (5th Cir. 2017), a valuation product similar to CCC and subject to similar
   litigation.




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           USAA replies that even if NADA values could be treated as proof of
   ACV on the ground that NADA is a legally permissible method of
   determining ACV under § 22:1892, it would follow that KBB values (and
   Edmunds, etc.) can also be treated as proof of ACV. This creates an explosion
   of predominance issues because USAA has the due process right to argue,
   for each individual plaintiff, that damages should be determined by a different
   legally permissible method that would produce lower damages than NADA
   (or no damages at all). For example, USAA argued in its reply brief that it
   “submitted unrebutted evidence showing that 9.2% of claims from a claim file
   sample were (1) valued less than NADA (meaning that they are included in
   the class), but (2) still greater than KBB (meaning that the insured was paid
   more than actual cash value as a matter of law under Plaintiff’s theory).”
   These insureds “are unharmed” as a matter of law under plaintiffs’ theory.
           Plaintiffs offer several responses.5 First, they claim that their damages
   model is precisely the model considered and accepted in Slade v. Progressive
   Sec. Ins. Co.,
856 F.3d 408
 (5th Cir. 2017). Indeed, Slade did bless a damages
   model much like this one. See
id.
 (“Plaintiffs contend that damages can be
   calculated by replacing Defendant’s allegedly unlawful WCTL base value
   with a lawful base value, derived from either NADA or KBB . . . . This

           _____________________
           5
              One response made by plaintiffs in their brief, which we find unconvincing, is that
   “[i]nherent in this argument is the ludicrous assertion than an insurer can pick and choose
   different valuation methods for different insureds, depending on which generates the
   lowest value. Such a practice would be the epitome of arbitrary and capricious claims
   practice.” But plaintiffs fail to cite any authority for this argument, let alone authority that
   explains the legal relevance of plaintiffs’ hyperbolic claims. Plaintiffs’ use of the term
   “arbitrary and capricious” likely refers to La. R.S. 22:1973B(5), which says an insurer is
   liable for breaching a duty of good faith when it fails “to pay the amount of any claim due
   any person insured by the contract within sixty days after receipt of satisfactory proof of
   loss from the claimant when such failure is arbitrary, capricious, or without probable
   cause.” But plaintiffs do not cite to this statute, let alone explain why USAA would fail to
   pay the amount “due” an insured if it pays them the lowest ACV estimate allowed by law.




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   damages methodology fits with Plaintiffs’ liability scheme because it isolates
   the effect of the allegedly unlawful base value. . . . Plaintiffs’ damages
   methodology is sound.”). But we have scoured the record in Slade and find
   no indication that that court ever considered whether it was appropriate to
   determine damages by arbitrarily choosing NADA (or arbitrarily choosing
   KBB) over objections like the ones USAA raises here. In Slade, Progressive
   simply did not raise this set of objections. Our court in Slade did not resolve
   an issue that was not raised before it and that it did not consider. See Ochoa-
   Salgado v. Garland,
5 F.4th 615, 620
 (5th Cir. 2021).
          Second, plaintiffs and the district court say that whether NADA is an
   appropriate measure of ACV is “a merits question[] not necessary to the
   class certification question. What matters for class certification is not
   whether Plaintiffs’ damages model is correct, but whether Plaintiffs’
   damages model can be applied in a uniform manner across the class. But Rule
   23 is not a context where courts must assiduously separate certification from
   merits issues; they will often be deeply intertwined, and here, if plaintiffs
   have failed to put forward evidence or a theory that coherently indicates
   NADA is the measure of ACV, this is a serious concern that cannot be
   ignored by simply describing it as a “merits” issue. See Comcast,
569 U.S. at 33-34
 (Rule 23 analysis “will frequently entail overlap with the merits of the
   plaintiff’s underlying claim. That is so because the class determination
   generally involves considerations that are enmeshed in the factual and legal
   issues comprising the plaintiff’s cause of action.” (cleaned up)).
          And indeed, USAA is right to complain that plaintiffs’ own theory
   undermines the possibility that NADA is somehow the correct measure of
   ACV. As USAA states, “The crux of Plaintiffs’ theory is that any ‘generally
   recognized used motor vehicle industry source’ . . . provides conclusive
   evidence of a vehicle’s actual cash value, ‘as a matter of law.’” Therefore,
   “[i]f NADA values are conclusive proof of actual cash value because they



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                                       No. 22-30351


   come from a ‘generally recognized used motor vehicle industry source,’ then
   any other values from such sources are, too.” Whether the district court can
   certify this class and put off USAA’s arguments for consideration at the
   merits stage is the question; it is not itself an answer to USAA’s arguments.
          Third, plaintiffs suggest that it is within the district court’s broad
   discretion to choose NADA as the measure of damages for class certification
   purposes even if the choice is, in some sense, arbitrary. After all, plaintiffs
   “have asserted that NADA, not KBB, is the correct measure of damages.”
   And “[w]henever damages are proven through a model, it is almost inevitable
   that there will be class members who would do better [or worse] under a
   different model.”
          Plaintiffs are correct about the wide discretion afforded to district
   courts in choosing among imperfect damages models. “[C]ourts have
   consistently held” that “estimative techniques” for measuring damages
   “need not be exact at the class certification stage. Rather, models that
   reasonably account for the defendant’s liability are acceptable even if there
   are measures of uncertainty due to the difficulty of ascertaining damages.” 4
   Newberg and Rubenstein on Class Actions § 12:4 (6th ed.) (quotations and
   citations omitted). Therefore, given the wide discretion afforded to district
   courts in choosing among estimative damages models at the class
   certification stage, and because we detect a more fundamental problem for
   the certification of this class, discussed presently, we grant arguendo that the
   district court did not reversibly err by choosing an imperfect damages model
   at the class certification stage.
   B. NADA Values in the Liability Context
          But USAA also argues that under Louisiana law, an essential element
   of a breach of contract claim is damages or injury. See Sanga v. Perdomo,
167 So. 3d 818, 822
 (La. App. 5 Cir. 2014) (“[P]roof of damages is an essential




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                                     No. 22-30351


   element to a breach of contract claim.”); accord Mautner v. Ware,
296 So. 3d 1209
, 1213-14 (La. App. 5 Cir. 2020); A Caring Home Care Servs., LLC v. de
   la Houssaye,
224 So. 3d 422, 424
 (La. App. 3 Cir. 2017). And even granting
   that the district court had wide discretion to choose among damages models
   at the class certification stage, USAA is correct to argue that its discretion is
   more limited in the context of determining liability.
          Indeed, whereas ample authority suggests courts have great discretion
   in choosing among damages models, especially estimative damages models at
   the certification stage, those authorities do not say that courts have similar
   discretion in choosing among models of injury and liability. See, e.g.,
   Terrebonne Fuel & Lube, Inc. v. Placid Refin. Co.,
681 So. 2d 1292, 1300
 (La.
   App. 4 Cir. 1996) (There must be “proof that there has been some damage,”
   i.e., “that damage has actually occurred, before there is discretion to assess
   the amount of damages.”).
          Second, it is well established that common questions may
   predominate under Rule 23(b)(3) “even though other important matters will
   have to be tried separately, such as damages.” Tyson Foods,
577 U.S. at 453
   (emphasis added). But while damages are specifically described among these
   “other important matters,” liability and injury are not. Accord 2 Newberg and
   Rubenstein on Class Actions § 4:53 (6th ed.) (“A series of issues recur in the
   predominance      analysis.   Several        of   these—[including]   individual
   damage[s] . . .—rarely defeat a finding of predominance.”).
          We find particularly instructive the Ninth Circuit’s opinion in Lara v.
   First Nat’l Ins. Co. of Am.,
25 F.4th 1134
 (9th Cir. 2022). In that case, after
   finding that under Washington law plaintiffs must show injury to show
   liability for breach of contract, the Ninth Circuit upheld a denial of class
   certification in an almost identical context to the case at bar, finding that
   predominance was not satisfied where plaintiff class members could show




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   that an insurer’s use of CCC was unlawful but could not prove an actual
   underpayment by class-wide proof. See
id. at 1139
 (“Plaintiffs respond that
   these individualized issues of harm are ‘damages issues’ that can be tried
   separately. But that's not right either: if there’s no injury, then the breach of
   contract and unfair trade practices claims must fail. That's not a damages
   issue; that’s a merits issue.”).
           We are persuaded by Lara. In response to that case, plaintiffs appear
   to argue for the first time on appeal that damages are not an element of a bad
   faith claim. Plaintiffs did not make this argument below, so the district court
   did not consider it, and USAA mentions bad faith only once in its opening
   brief.6 We conclude that this argument is not properly before out court on
   appeal. And once we put that argument aside, we do not see that plaintiffs
   even try to distinguish Lara.
           We hold that, with respect to plaintiffs’ breach of contract claim, the
   district court’s choice of NADA is not simply an arbitrary choice among
   imperfect damages models. It is an arbitrary choice of a liability model, and a
   district court’s wide discretion to choose an imperfect estimative-damages
   model at the certification stage does not carry over from the context of
   damages to the context of liability. We further conclude that plaintiffs have
   not demonstrated that NADA equates to ACV in fact, see Comcast,
569 U.S. _____________________
           6
              USAA has been arguing from the start of this litigation that bad faith under La.
   Rev. Stat. § 22:1973 requires an underlying breach of contract, which requires proof of
   damages. For the first time in their response brief on appeal, plaintiffs raise Sultana Corp.
   v. Jewelers Mut. Ins. Co.,
860 So. 2d 1112, 1118-19
 (La. 2003), wherein, plaintiffs claim, the
   Louisiana Supreme Court “unequivocally held” that claims for violations of the duty of
   good faith under La. Rev. Stat. § 22:1973 do not require proof of damages as an element.
   “[A]rguments not raised before the district court are waived and cannot be raised for the
   first time on appeal.” LeMarie v. La. Dept. Trans. & Dev.,
480 F.3d 383, 387
 (5th Cir. 2007).
   Thus, while the district court is free to consider plaintiffs’ Sultana argument on remand,
   we do not consider it for the first time on appeal.




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   at 33, nor put forward a coherent theory on which NADA, but not KBB or
   Edmunds, etc., can serve as a determinant of injury and liability as a matter of
   law.
          Therefore, because “[n]o less than due process is implicated” in class
   certifications, Chavez,
957 F.3d at 547
, we VACATE the district court’s
   grant of class certification and REMAND.




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