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Soseeah v. Sentry Ins., ___ F.3d ___, 2015 WL 9244890 (10th Cir. December 18, 2015) is an appeal from a District Judge's Order certifying a class of unhappy UM/UIM policyholders in New Mexico. The class was certified by the District Court after a long hearing and much briefing and the District Court's review included a review of all of the Rule 23 class action certification factors under the Federal Rules of Civil Procedure.
However, on appeal the Tenth Circuit found a flaw in the District Court's analysis, and reversed and remanded 'for further consideration'.
The Tenth Circuit appellate panel held that the class certified by the District Court did not suffer a "common injury." The injury alleged by the putative class representatives was that their cases involved UM rejections and that, despite their claims for reformation of their policies to reflect stacking, their carrier did not tell them about two recent New Mexico decisions which effectively invalidated UM rejections here and required stacking just as the plaintiffs originally claimed when they presented their UM/UIM claims. The plaintiffs alleged several coverage claims and a first-party bad faith claim under New Mexico law accordingly.
It appears that the real claim here might have been alleged bad faith failure to apply the correct New Mexico UM/UIM law, but that claim, if it was raised, does not seem to be addressed in the appellate panel's opinion.
Therein lies the rub, so to speak. The District Court certified a class of all UM/UIM policyholders. The Tenth Circuit panel held on appeal that the only people with a required "common injury" would be UM/UIM claimants and not merely policyholders. And the panel could not see many claimants, it gratuitously added. So, the panel reversed and remanded, as noted, 'for further consideration.'
In the last sentence of its opinion, the Federal Tenth Circuit Court of Appeals gave an early Christmas gift to the carrier by granting the carrier's unopposed request to present material for the Court's review which no-one else can review, because they sealed it from public view:
Sentry's unopposed motion for leave to file exhibit under seal is GRANTED.
Soseeah v. Sentry Ins., ___ F.3d ___, 2015 WL 9244890, at *10 (10th Cir. December 18, 2015).
What exactly was this "exhibit" which was sealed? We do not know and we may never know.
What attention did the Federal Tenth Circuit Court of Appeals pay to this secret "exhibit"? Who knows? Why should we presume what we do not know, that the secret document(s) did, or did not, help to determine the outcome of this appeal?
Was the secret "exhibit" made available to the District Judge before entering the Order which was appealed to the Tenth Circuit in this case? We do not know. Not even the District Judge probably knows.
The list of questions raised by secret evidence admitted into of all things Federal Court proceedings in the United States is long and limited only by our experience with closed judicial proceedings in America. So, one last question in the interests of space and time limitations today:
WHY was the "exhibit" so special that it became sealed from everyone's view except perhaps the parties and the Federal Tenth Circuit Court of Appeals panel in this peculiar case?
Please Read The Disclaimer. ©2015 by Dennis J. Wall, author of Litigation and Prevention of Insurer Bad Faith (3d ed. Thomson Reuters West in 2 Volumes, with 2015 Supplements). Secrecy in UM/UIM Court proceedings is discussed in the context of settlements in UM/UIM Bad Faith cases in particular in 2 id., § 9:28, "Settlement of first party bad faith claims: Confidentiality (protected) or concealment (void)." All rights reserved.
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