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Nelson v. American Family Mutual Insurance Co.

United States District Court, D. Minnesota

June 26, 2017

Charles P. Nelson and Darlene F. Nelson, on behalf of themselves and all other similarly situated, Plaintiffs,
v.
American Family Mutual Insurance Company, Defendant.

          Bert Black and Lawrence P. Schaefer, Schaefer Halleen LLC, Elizabeth R. Odette, Rebecca A. Peterson, and Robert K. Shelquist, Lockridge Grindal Nauen PLLP, Richard J. Fuller, Law Office of Richard J. Fuller, counsel for Plaintiffs.

          Aaron D. Van Oort, Deborah A. Ellingboe, Cicely R. Miltich, and Larry E. LaTarte, Faegre Baker Daniels LLP, counsel for Defendant.

          ORDER

          SUSAN RICHARD NELSON, United States District Judge

         This matter is before the Court on Defendant's Motion for Summary Judgment on Plaintiffs' Individual Claims (“Def.'s Mot. for Summ. J.”) [Doc. No. 221], Plaintiffs' Motion to Certify the Class (“Pls.' Class Cert. Mot.”) [Doc. No. 208], and various Daubert challenges to expert witnesses made by both parties (collectively, the “Daubert Mots.”) [Doc. Nos. 203, 214, 227, 232]. For the reasons set forth below, Defendant's Motion for Summary Judgment is granted, Plaintiffs' Class Certification Motion is denied as moot, and the Daubert Motions are denied as moot.

         I. BACKGROUND

         A. Facts

         Plaintiffs Charles and Darlene Nelson (the “Nelsons”) allege that they paid excessive insurance premiums on their home in Monticello, Minnesota (the “Nelson Home”) because Defendant American Family Mutual Insurance (“American Family”) failed to accurately estimate the proper replacement cost of their home from 2007 through 2010. On behalf of a putative class, they allege breach of contract, negligent misrepresentation, and violations of Minnesota's deceptive trade practices and consumer fraud statutes.

         1. Estimated Replacement Costs and Insurance Coverage

         To assist homeowners in determining the appropriate amount of property insurance coverage required for their homes, insurers attempt to estimate the replacement cost of the property in question. (See Decl. of Elizabeth R. Odette in Supp. of Pls.' Mot. for Class Cert. (“First Odette Decl.”) [Doc. No. 215], Ex. 5 (“Olson Dep.”) at 27-28[1][Doc. No. 215-2].) The replacement cost of a property is the cost to construct a home with similar utility and function using modern materials and building standards. (Decl. of Deborah A. Ellingboe in Supp. of American Family's Mot. for Summ. J. (“First Ellingboe Decl.”) [Doc. No. 225], Ex. 6 (“Strachota Dep.”) at 133, 177; see First Ellingboe Decl., Ex. 7 (“Stockness Dep.”) at 102, 107-08 [Doc. No. 225-7].) This is a measurement that is distinct from the reproduction cost or market value of the same property. (See Strachota Dep. at 133-34, 144-47, 177-78; Stockness Dep. at 104, 109.) However, estimating replacement costs “is not an exact science” for at least two reasons: (1) it is an attempt to anticipate a future event (i.e., what it would actually cost to rebuild a similar property in the event of a loss) that involves numerous unknown and regularly changing variables, (see Olson Dep. at 126-28; Stockness Dep. at 234-35; First Odette Decl., Ex. 7 (“Tutt Dep.”) at 99-101 [Doc. No. 215-2]); and (2) it involves assessments that are inherently subjective and vary depending on the assessor.

         2. Auto Valuation Programs and the Quality Grade Input

         To generate replacement cost estimates, insurers and appraisers use auto-valuation software or other written guides or indexes. Some examples are 360Value (produced by Xactware), Marshall Swift Valuation Service (“Marshall”), and Robert Morris. (Strachota Dep. at 47-48.) American Family has at all relevant times used 360Value. (Olson Dep. at 126.) The Nelsons' experts[2] employ the Marshall program. (Strachota Dep. at 46-48, 79-80; Stockness Dep. at 19-20.) However, the Nelsons' experts express no criticism of 360Value or American Family's use of that valuation software. (Strachota Dep. at 48-52, 167-68; Stockness Dep. at 29-31, 111.) In fact, they were unfamiliar with 360Value until their involvement in this litigation, but they generally agree that an insurer's responsible use of this software is reasonable. (See Strachota Dep. at 48-50, 247-48, 289; Stockness Dep. at 30-31, 219-20.)

         To produce an estimated replacement cost, an insurer/appraiser gathers information about the property[3]-by talking to the property owner, inspecting the property, and/or researching public databases (e.g., tax records, Google images, building permits, etc.)-and enters it into the valuation software. (Decl. of Daniel R. Olson in Opp. to Pls.' Mot. for Class Cert. (“Olson Decl.”) at ¶ 4 [Doc. No. 251-6]; Olson Dep. at 30, 38; see Strachota Dep. at 135-36, 154 (describing a similar system for the Marshall program); Stockness Dep. at 222-23 (same).) The software, with these property-specific inputs as well as stored data (e.g., building cost indexes based on geographic location, labor rates, environmental factors, etc.), then generates an estimated replacement cost. (Olson Dep. at 38, 53; First Ellingboe Decl., Ex. 26 (“360Value Product Overview”) at Am. Fam. 1626-37[4] [Doc. No. 226-5]; see Strachota Dep. at 175-76, 228-29, 235 (describing a similar system for the Marshall program).)

         Although the various valuation programs share many similarities, there are differences between them. Accordingly, they can generate different replacement cost estimates for the same property. For example, 360Value and Marshall can generate different replacement cost estimates for the same property despite using approximately the same property-specific information. (See Stockness Dep. at 151-53, 186; Strachota Dep. at 211, 221; First Ellingboe Decl., Ex. 5 (“Dismeier Dep.”) at 221 [Doc. No. 225-5].) The precise reason for, and the extent of, these differences is unclear. (See Stockness Dep. at 151-53, 221.) However, there is no evidence in the record suggesting that 360Value's estimated replacement costs are unreliable or inaccurate due to some inherent defect or inaccuracy in the way that program processes the information it receives, or in its stored data. Rather, 360Value appears to be widely used and trusted within the insurance and appraisal industries. (See Strachota Dep. at 48-51, 167-68; Dismeier Dep. at 212-13.) Again, the Nelsons' experts do not dispute that 360Value is an acceptable way to generate replacement cost estimates. (See Strachota Dep. at 48-52, 167-68, 247-48, 289; Stockness Dep. at 29-31, 111, 219-20.)

         Not surprisingly, the more information about a property entered into the valuation program, the more refined and precise the estimated replacement cost. (Olson Dep. at 121, 136-37.) However, some inputs are particularly consequential because they dictate assumptions the program makes about a property. Relevant here is the “quality grade” (sometimes referred to as the “quality of construction” or “condition”) assigned to a property. (See Stockness Dep. at 197 (describing the quality grade as a “key characteristic” in estimating replacement costs).) The quality grade is meant to capture the general type and condition of various fixtures and finishes in a particular property, as compared to other homes of a similar age in that geographic area. (See 360Value Product Overview at Am. Fam. 1628; Strachota Dep. at 127-28, 171-73; Pls.' Mem in Opp. to Summ. J. (“Pls.' Mem. in Opp.”) at 10[5] [Doc. No. 240].) For instance, 360Value uses the quality grade to set default assumptions-that may be manually altered-about the type and cost of certain construction materials (e.g., kitchen counter tops, bathroom tub/shower and vanity, flooring, exterior siding, interior paint, etc.). (360Value Product Overview at Am. Fam. 1628; First Ellingboe Decl., Ex. 8 (“2006 360Value Report”) [Doc. No. 225-8] and Ex. 24 (“2010 Millennium 360Value Report”) [Doc. No. 226-4]; Dismeier Dep. at 232; see Strachota Dep. at 171-73, 186-88, 199 (describing a similar system for the Marshall program); Stockness Dep. at 129, 202-04 (same).) The higher the quality grade, the higher the estimated replacement cost. (See Strachota Dep. at 199- 200; Stockness Dep. at 90, 235-36; Pls.' Mem. in Opp. at 10.)

         “360Value sets the initial Quality Grade based on Zip/Postal Code, Year Built, and Total Finished Square Feet. The Quality Grade is then adjusted as more information is gathered about the structure.”[6] (360Value Product Overview at Am. Fam. 1628.) The Nelsons' experts do not provide a precise explanation as to how a quality grade is assigned using the Marshall system. (See Strachota Dep. at 127-32, 155-63 (generally describing how the expert arrived at the quality grade for the Nelson Home in 2015).) However, they agree that determining the quality grade for a property involves the subjective judgment of the appraiser/insurer. (Strachota Dep. at 127-30, 154-55, 164, 247-48, 264-65; Stockness Dep. at 68, 87-89, 91, 119, 236-37.) As one of the Nelsons' experts explained: “The [condition or quality grade] is our interpretation of the physical presence of that property. It doesn't relate, really, to Marshall Valuation. Marshall Valuation doesn't make a judgment as to the physical condition of the property.” (Strachota Dep. at 129; see Id. at 155 (“I'm looking at the features about the property that cause me to make a judgment of whether we are an average home or we're a little better than average and [sic] we're good and so on.”).) Appraisers, insurers, and property owners may legitimately disagree about what the “correct” quality grade is for a particular property, especially when the property contains characteristics that fall into different quality categories. (Strachota Dep. at 164; Stockness Dep. at 87-89, 198-99.) Of particular importance here, the Nelsons' experts do not offer any criticism of the 360Value quality grades assigned to the Nelson Home by American Family, nor do they offer a replacement cost estimate for the property using 360Value. (See Stockness Dep. at 51, 64-65, 116-18; Strachota Dep. at 103, 167-70, 211-12.)

         3. American Family's Gold Star Policies

         One of the insurance products offered by American Family is the Gold Star home insurance policy. (See First Ellingboe Decl., Ex. 3 (“Nelson Policy”) [Doc. No. 225-3].) In relevant part, Gold Star policies are distinct because they cover the total loss of a property up to 120% of the coverage amount. (Id. at Am. Fam. 066[7]; Olson Dep. at 20.) For instance, if an insured has $200, 000 in coverage on a home, a Gold Star policy will pay up to $240, 000 to replace the home in the event of a total loss. However, to receive the 20% coverage enhancement, the policyholder must maintain coverage on the property to a minimum of 100% of the replacement cost (known as “Coverage A”), as estimated by American Family.[8] (Nelson Policy at Am. Fam. 066.)

         Gold Star policies explain the process for estimating replacement costs as follows:

Our residential building cost guide may be used to develop an estimated replacement cost based on general information about your dwelling. It is developed from researched costs of construction materials and labor rates. This is the minimum amount for which to insure your dwelling. The actual cost to replace your dwelling may be different. We do not guarantee that this figure will represent the actual cost to replace your dwelling. You are responsible for selecting the appropriate amount of coverage. You may wish to obtain a detailed replacement cost appraisal or estimate from a contractor. You may select a coverage amount equal to that appraised value or that cost of construction, if the amount is greater than the replacement cost as estimated by our residential building cost guide, and we agree to that amount.

(Id. at Am. Fam. 067 (hereinafter, the “Replacement Estimate Clause”).) American Family uses 360Value as its “residential building cost guide” to estimate property replacement costs. (Olson Dep. at 30, 52.) This estimate serves as the minimum amount of coverage a Gold Star policyholder must maintain to receive the 20% coverage enhancement. (Nelson Policy at Am Fam. 066.)

         Each year following the initial estimate, American Family uses its “residential building cost index” (which is distinct from 360Value) to adjust the amount of coverage to account for inflation on the replacement cost estimate. (Id. at Am. Fam. 048.) However, there is nothing within the Gold Star policies requiring American Family to periodically reassess the estimated replacement cost (i.e., gather new/updated information about the property and produce a new 360Value report), or suggesting that American Family might engage in such an exercise. American Family explained that the property-specific information contained in 360Value is not automatically or annually updated. (See Olson Dep. at 31.) Instead, agents are expected to complete “annual personal insurance reviews” with customers wherein they discuss the appropriate/desired coverage amount with the insured. (Olson Dep. at 37, 145.) Insureds also must-within 90 days of starting the project-notify American Family of any remodeling/renovations to the home that will increase the replacement cost by $5, 000 or more. (Nelson Policy at Am. Fam. 048, 066.)

         An insured's premium payments may increase commensurate with any increase in coverage. (See Id. at Am. Fam. 058.) Insureds are also expressly authorized to request changes to their Gold Star policies-such as the amount of Coverage A-although the requested changes are only effective if American Family agrees. (Id. at Am. Fam. 058, 067; see Olson Decl. at ¶ 11 (explaining that Gold Star policyholders “may request a new [replacement cost] estimate based on new or more complete information about the home” in which case the agent works with the insured to generate a new 360Value report); Olson Dep. at 153-54 (describing how policyholders may challenge American Family's minimum coverage assessments).)

         4. The Millennium Surveys

         Starting in 2009, American Family employed Millennium Information Services, Inc. (“Millennium”) to conduct surveys of various Gold Star properties in an effort to assess whether the existing coverage on each was adequate.[9] (Olson Dep. at 34-35; Olson Decl. at ¶ 5.) These surveys were part of American Family's ongoing efforts to ensure that the property information it used to generate replacement cost estimates was accurate. They were also motivated by the financial losses American Family suffered in previous years because it has under-insured many properties. (See Olson Dep. at 32-34, 127-29.) Millennium would complete an exterior-only survey of a property and use the information it gathered to generate a 360Value replacement cost estimate (these Millennium-produced surveys and 360Value reports are collectively referred to as the “Millennium Reports”). (See Olson Dep. at 35-36, 123-24.) The Millennium Reports were then submitted to American Family. (Olson Decl. at ¶ 6.)

         American Family's response to the Millennium Reports varied. Every Millennium Report was provided to the property's agent who was expected to review those documents, assess whether a change in coverage was appropriate based on the additional information they had about the property (e.g., the interior characteristics of the property), and if appropriate, discuss coverage with the insured. (Olson Decl. at ¶ 6; see Olson Dep. at 37, 58, 145-47, 204-05[10].) However, there is no evidence that American Family simply accepted the Millennium Reports as the “best” or most accurate replacement cost estimates for properties, or adjusted coverage based solely on these Reports. (See Olson Dep. at 37-38 (explaining that American Family agents and underwriters assessed the Millennium Reports for accuracy and made the ultimate determinations regarding estimated replacement costs).)

         In some instances, the Millennium Reports resulted in American Family conducting an underwriting review. One reason for an underwriting review was if the current Coverage A amount differed significantly from the Millennium estimated replacement cost (indicating potential over- or under-insurance). (See Olson Dep. at 189-90; Second Decl. of Elizabeth R. Odette in Supp. of Pls.' Opp. to Summ. J. (“Second Odette Decl.”) [Doc. No. 246], Ex. 39 (“Am. Fam. Millennium Review Table”) [Doc. No. 246-2].) Specifically, if Coverage A was less than 95% of the Millennium Report's estimated replacement cost (suggesting possible under-insurance) or if Coverage A was more than 150% of the Report's estimated replacement cost (suggesting possible over-insurance) an underwriter would review the file.[11] (Am. Fam. Millennium Review Table; see Olson Dep. at 203-04.)

         During these reviews, the underwriter would collect information about the property and would use this more complete profile to generate a new 360Value replacement cost estimate. (Olson Dep. at 55, 128-29.) Notably, underwriters often consulted with agents and insureds in this process. (See Olson Decl. at ¶ 7; Olson Dep. at 63, 103-04, 128-29.) If after the underwriter concluded his/her review, Coverage A on the property was less than 95% of the new 360Value estimated replacement cost, the underwriter would recommend a coverage increase. (Am. Fam. Millennium Review Table; see Olson Dep. at 202 (explaining that even in these cases, coverage would not necessarily be increased).) If Coverage A was between 95% and 125% of the updated estimated replacement cost, the underwriter would recommend no change in coverage. (Am. Fam. Millennium Review Table.) If Coverage A were more than 125% of the updated estimated replacement cost, the underwriter would engage in varying efforts to have the coverage reviewed further by the agent and/or others within American Family, depending on the extent of the discrepancy. (Id.; see Olson Dep. at 205-06.) “Only in unusual circumstances [would] an underwriter adjust coverage without consulting with the agent and homeowner and never without providing notice of the change.” (Olson Decl. at ¶ 7; see Olson Dep. at 145-46.)

         5. The Nelsons' Experience

         In 1990, the Nelsons finished construction on their new lake home in Monticello, Minnesota. (First Ellingboe Decl., Ex. 1 (“C. Nelson Dep.”)[12] at 9 [Doc. No. 225-1].) They called their long-time American Family agent, Ron Baker (“Baker”), to obtain insurance on the property. (Id. at 11-12.) In consultation with Baker, Mr. Nelson selected a Gold Star policy, specifically because it provided the 20% coverage enhancement in the event of a loss.[13] (Id. at 37-38; see Nelson Policy at Am. Fam. 066.) However, at no time did the Nelsons review the Replacement Estimate Clause, nor did they discuss with Baker how American Family generated replacement cost estimates.[14](See C. Nelson Dep. at 115-16.)

         The Nelsons' Gold Star policy was renewed annually, at which time they received a declaration page stating the amount of Coverage A on their home (sometimes labelled as the “limit” for the “dwelling”). (See, e.g., Nelson Policy at Am. Fam. 040-42 (declaration page and accompanying letter for renewal in 2005).) As described above, Coverage A increased each year to account for inflation. The Nelsons do not challenge or dispute any of the annual increases in coverage based on inflation. The Nelsons renewed their Gold Star policy, without any relevant incident or complaint, from 1990 through 2006.

         By 2006, Coverage A on the Nelson Home was $240, 200. (First Odette Decl., Ex. 15 at 14 [Doc. No. 215-2].) In December 2006, Baker ran a 360Value report on the Nelson Home, which generated an estimated replacement cost of $379, 841.97. (2006 360Value Report; see Second Odette Decl., Ex. 37 (“Nelson Mainframe Notes”) [Doc. No. 246-2].) The Nelsons allege that the estimated replacement cost increased significantly because Baker changed the quality grade for the Nelson Home from “standard” to “above average.”[15] (See 2006 360Value Report at Am. Fam. 001[16]; Pls.' Mem. in Opp. at 7-8, 10.) There is no explanation provided as to why Baker ran the December 2006 360Value report, or why the quality grade changed.[17] Mr. Nelson does not remember requesting that Baker generate a new replacement cost estimate, or ever being shown the December 2006 360Value Report before this litigation. (C. Nelson Dep. at 59-60.) Of considerable importance here, the Nelsons allege that the change in quality grade was a “mistake” and not the result of fraud or other nefarious motives. (Pls.' Mem. in Opp. at 7-8, 10; First Ellingboe Decl., Ex. 28 at 26-27 [Doc. No. 226-7].)

         After running the December 2006 360Value report and receiving the higher estimated replacement cost, Baker sent a note to the Nelsons asking that they contact him about increasing their coverage. (First Ellingboe Decl., Ex. 17 (“Baker's Nelson Notes”) [Doc. No. 225-17].) The Nelsons do not recall talking to Baker about an increase in coverage at this time, but do not dispute that he may have contacted them. (C. Nelson Dep. at 99-100.) In early January 2007, Baker sent the Nelsons a letter and declaration page informing them that Coverage A on their home would increase to $380, 000 starting at the next renewal.[18] (First Ellingboe Decl., Ex. 18 (“2007 Letter and Decl.”) [Doc. No. 225-18].) The letter indicates that Baker requested this change in coverage. (Id. at Am. Fam. 082.[19]) Mr. Nelson agrees he received these materials, but does not recall specifically reviewing the change in coverage. (C. Nelson Dep. at 99.) The increase in coverage, and corresponding increase in premiums, took effect in February 2007. (Nelson Mainframe Notes; 2007 Letter and Decl. at Am. Fam. 084.)

         In October 2007, as part of securing a reverse mortgage on the property, the Nelsons asked that American Family send their lender the declaration page for their Gold Star policy. (C. Nelson Dep. at 100-03.) American Family complied with this request and sent a copy to Mr. Nelson as well. (Baker's Nelson Notes.) Between 2009 and 2011, the Nelsons used the funds from the reverse mortgage in part to complete a variety of renovations to their home, including interior renovations that affected the estimated replacement cost for the property. (C. Nelson Dep. at 26-28; D. Nelson Dep. at 36-37; Strachota Dep. at 209-11, 262-66; Stockness Dep. at 87, 145-46). Although required by the Gold Star policy, there is no evidence in the record as to if or when the Nelsons notified American Family of these renovations. (Nelson Policy at Am. Fam. 066.) It is also unclear whether the Nelsons renovated their home at other times in ways that impacted the estimated replacement cost.

         After 2007, Coverage A on the Nelson Home increased-accounting for inflation-to the following amounts: $427, 500 in 2008, $439, 000 in 2009, $450, 900 in 2010, and $454, 500 in 2011. (See First Ellingboe Decl., Exs. 20-23 [Doc. Nos. 225-20, 225-21, 226-1, 226-2].) Mr. Nelson assumes he received the declaration pages showing these annual increases, although he admits he did not review them closely. (C. Nelson Dep. at 96, 130-31.) The Nelsons never complained about or questioned the coverage amount on their home until early 2011, after they received the declaration page stating the new coverage amount for that year. (Id. at 62-63, 110-11, 151.)

         In September 2010, Millennium conducted an exterior-only survey of the Nelson Home. (First Odette Decl., Ex. 19 (“2010 Millennium Survey”) [Doc. No. 215-2].) The survey assigned the property an “overall quality” of “standard.” (Id. at Am. Fam. 008.[20]) The corresponding Millennium 360Value report set the quality grade as “standard” and estimated the replacement cost at $315, 023.55 (the Millennium survey and 360Value report will collectively be referred to as the “Millennium Nelson Report”). (2010 Millennium 360Value Report.) Besides 360Value's “default” setting for quality grades, described above, there is no evidence as to how these quality assessments were made. American Family reviewed the Millennium Nelson Report in December 2010 and concluded that the current coverage amount for the Nelsons' home-$450, 900-was acceptable. (Nelson Mainframe Notes.) The Millennium Nelson Report was never discussed with-or shown to-the Nelsons until this litigation commenced. (C. Nelson Dep. at 60-61.)

         In February 2011, Mr. Nelson called Baker and complained that the coverage on the property far exceeded its value. (Id. at 60-63; Nelson Mainframe Notes.) Baker agreed to discuss this issue with the Nelsons and drove out to the Nelson Home the next day. (C. Nelson Dep. at 61-62.) The Nelsons recall that this was a short meeting and that Baker did not inspect their home, nor did he mention the Millennium Nelson Report. (Id. at 60-61, 66-67, 114-15; D. Nelson Dep. at 16-18.) However, at the end of the meeting, Baker crossed out the $454, 500 Coverage A amount on the declaration page and wrote in $315, 000. (C. Nelson Dep. at 66, 114; D. Nelson Dep. at 18.) Mr. Nelson recalls asking Baker how he came up with the $315, 000 figure to which Baker replied that he “just knew” based on his years of experience. (C. Nelson Dep. at 66, 114.) Mr. Nelson also claims that Baker told him something to the effect that American Family reviewed properties that were “under-estimated, ” but that those that were “overestimated” often “slid by.” (C. Nelson Dep. at 154-56.) Days later, American Family's records indicate that Coverage A on the Nelson Home was reduced to $315, 000, citing the Millennium Nelson Report as support for the decrease. (Nelson Mainframe Notes.)

         The Nelsons asked that American Family refund the difference between the premiums they paid on the “over coverage” that began in 2007 and the premiums that they would have paid had a “more accurate” replacement cost estimate been used. (See C. Nelson Dep. at 65-66.) American Family reimbursed the Nelsons this difference for the premiums they paid in 2011, before the change in coverage, but refused to refund the difference for the premiums paid from 2007 through 2010. (See id.) The Nelsons maintained their Gold Star policy-which they hold to this day-and they do not contend that the coverage amount has been too high since the change in 2011, or that it was too high before 2007. (C. Nelson Dep. at 148-49.)

         B. Procedural History

         The Nelsons brought claims on behalf of themselves and others who allegedly over-paid on their Gold Star premiums because of inaccurate replacement cost estimates. (See Am. Compl. [Doc. No. 42.].) The Nelsons allege that American Family was contractually obligated to annually update the estimated replacement costs of Gold Star properties, but failed to do so, and that as a result, American Family induced insureds to purchase excessive coverage. (Id. at ¶¶ 1, 4-5.) They also contend that American Family changed quality grades without the insureds' knowledge or consent and without justification for doing so. (Id. at ¶¶ 18, 28.) The Nelsons also argue that American Family's practices, or lack thereof, constituted deceptive trade practices and false statements in advertising. (Id. at ¶¶ 6, 8.) Specifically, the Nelsons brought claims for breach of contract, negligent misrepresentations, and violations of Minnesota's deceptive trade practices and consumer fraud statutes. (Id. at ¶¶ 43-70.)

         American Family moved for summary judgment on the Nelsons' individual claims while Plaintiffs moved to certify various classes of plaintiffs. (See Mot. for Summ. J.; Mot. for Class Cert.) Both sides also brought Daubert challenges against the other's expert witnesses. (Daubert Mots.)

         II. DISCUSSION

         A. ...


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