(BREACH OF CONTRACT)   (DECLARATORY JUDGMENT AND RELIEF)   10.  This lawsuit only concerns property insurance coverage for buildings, and not  personal contents, such as clothes and furniture.   12.  On or about November 4, 2016, Rivers’ dwelling, storage building, and shed  located on the Insured Premises suffered direct physical loss caused by covered peril(s) (the  “Loss”).    13.  The Rivers Policy was in effect at the time of the Loss, and the Loss is  compensable under the terms of the Policy.  As it relates to the Loss, there is no applicable  exclusion.   14.  Rivers promptly notified Allstate of the Loss and made a claim against the Rivers  Policy.   15.  After its inspection, Allstate determined that the Loss was covered by the terms of  the Rivers Policy.     16.  Allstate calculated its actual cash value (“ACV”) payment obligation to Rivers by  first estimating the cost to repair or replace the damage with new materials (replacement cost  value, or “RCV”), then subtracted depreciation.     17.  The Rivers Policy, and the other property forms at issue in this pleading, do not  permit the withholding or deduction of labor as depreciation as described below.     18.  The Rivers Policy does not define ACV.  B. Allstate’s Calculation of Rivers’ ACV Payment   19.  In adjusting Rivers’ claim, Allstate affirmatively and unilaterally chose to use a  “replacement cost less depreciation” methodology to calculate the loss and make its ACV  payment.     21.  On or about November 9, 2016, Allstate calculated the RCV of Rivers’ damaged  structures at $18,545.76.    22.  Allstate then used the same software to calculate the depreciation for Rivers’  damaged structures at $1,853.28.    23.  Rivers was underpaid on his ACV claim as more fully described below.  C. Allstate’s Practice Of Withholding Labor As Depreciation   24.  When it calculated Rivers’ ACV benefits owed under the Rivers Policy, Allstate  withheld costs for both materials and the labor required to repair or replace Rivers’ home as  depreciation, even though labor does not depreciate in value over time.  Allstate withheld labor  costs throughout its ACV calculations as depreciation.  Allstate also withheld labor costs as  depreciation for other work necessary to repair and replace Rivers’ property.   25.  Like all property insurance claims estimating software, the specific commercial  claims estimating software used by Allstate allows for the depreciation of materials only or the  depreciation of both material and labor in its depreciation setting preferences.   26.  In this pleading, whenever reference is made to withholding “labor” as  depreciation, “labor” means intangible non-materials, specifically including both the labor costs  and the laborers’ equipment costs and laborers’ overhead and profit necessary to restore   property to its condition immediately prior to the loss, as well as removal costs to remove  damaged property, under commercial claims estimating software.    28.  Plaintiff cannot determine the precise amount of labor that has been withheld  based only upon the written estimate provided.  To determine the precise amount of labor  withheld, it is necessary to have access to the commercial property insurance program at issue, as  well as the electronic file associated with his estimate.   29.  While an insurer may lawfully depreciate material costs when calculating the  amount of an ACV payment owed to an insured, it may not lawfully withhold repair labor as  depreciation under Allstate’s policy forms at issue in North Carolina.  Allstate’s failure to pay  the full cost of the labor necessary to return Rivers back to his pre-loss condition left Rivers  under-indemnified and underpaid for his loss.    30.  Allstate materially breached its duty to indemnify Rivers by withholding labor  costs associated with repairing or replacing Rivers’ property in its ACV payment as depreciation,  thereby paying Rivers less than he was entitled to receive under the terms of the Rivers Policy.  32.  Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiff brings this  lawsuit as a class action on behalf of himself and on behalf of all others similarly situated. This  action satisfies the requirements of numerosity, commonality, typicality, and adequacy of  representation.  Only to the extent it is a requirement under applicable law, the proposed class  herein is ascertainable.   34.  Plaintiff reserves the right to amend the definition of the proposed class through  discovery. The following persons are expressly excluded from the class: (1) Defendant and its  subsidiaries and affiliates; (2) all persons who make a timely election to be excluded from the  proposed Class; and (3) the Court to which this case is assigned and its staff.   35.  Plaintiff and members of the putative class as defined all have Article III standing  as all such persons and entities, at least initially, received lower claim payments than permitted  under the policy.  Certain amounts initially withheld as labor may be later repaid to some  policyholders with replacement cost provisions in their policy, if any.  However, policyholders  who have been subsequently repaid for initially withheld labor still have incurred damages, at the  least, in the form of the lost “time value” of money during the period of withholding, i.e.,  prejudgment interest on the amounts improperly withheld, for the time period of withholding.   37.  The relatively small amounts of damage suffered by most members of the  proposed class make filing separate lawsuits by individual members economically impracticable.   38.  Allstate has acted on grounds generally applicable to the proposed class in that  Allstate has routinely withheld labor costs as described herein in its adjustment of property  damage claims under its policies of insurance.  It is reasonable to expect that Allstate will  continue to withhold labor to reduce the amount it pays to its insureds under these policies absent  this lawsuit.    39.  Common questions of law and fact exist as to all members of the proposed class  and predominate over any questions affecting only individual members. The questions of law  and fact common to the proposed class include, but are not limited to:  a. Whether Allstate’s policy language allows it to withhold labor costs in its  calculation of ACV payments;  b. Whether Allstate’s policy language is ambiguous;  c. Whether Allstate’s withholding of labor costs in its calculation of ACV payments  breaches the insurance policies;  d. Whether Allstate has a custom and practice of withholding labor costs in its  calculation of ACV payments;   e. Whether Plaintiff and members of the proposed class have been damaged as a  result of Allstate’s withholding of labor costs in its calculation of ACV payments;  and  f. Whether Plaintiff and members of the proposed class are entitled to a declaration,  as well as potential supplemental relief, under the Declaratory Judgment Act.   41.  Plaintiff and his counsel will fairly and adequately protect the interests of the  members of the proposed class. Plaintiff’s interest does not conflict with the interests of the  proposed class he seeks to represent. Plaintiff has retained lawyers who are competent and  experienced in class action and insurance litigation.  Plaintiff and Plaintiff’s counsel have the  necessary financial resources to adequately and vigorously litigate this class action, and Plaintiff  and counsel are aware of their fiduciary responsibilities to the members of the proposed class and  will diligently discharge those duties by vigorously seeking the maximum possible recovery for  the proposed class while recognizing the risks associated with litigation.   43.  In contrast, a class action will minimize case management difficulties and provide  multiple benefits to the litigating parties, including efficiency, economy of scale, unitary  adjudication with consistent results and equal protection of the rights of Plaintiff and members of  the proposed class. These benefits would result from the comprehensive and efficient supervision  of the litigation by a single court.   44.  Questions of law or fact common to Plaintiff and members of the proposed class,  including those identified above, predominate over questions affecting only individual members  (if any), and a class action is superior to other available methods for the fair and efficient  adjudication of the controversy.  Class action treatment will allow a large number of similarly  situated consumers to prosecute their common claims in a single forum, simultaneously,  efficiently, and without the necessary duplication of effort and expense that numerous  individuals would require. Further, the monetary amounts due to many individual members of  the proposed class is likely to be relatively small, and the burden and expense of individual  litigation would make it difficult or impossible for individual members of the proposed class to  seek and obtain relief.  On the other hand, a class action will serve important public interests by  permitting consumers harmed by Allstate’s unlawful practices to effectively pursue recovery of  the sums owed to them, and by deterring further unlawful conduct.  The public interest in  protecting the rights of consumers favors disposition of the controversy in the class action form.   45.  Class certification is further warranted because Allstate has acted or refused to act  on grounds that apply generally to the class, so final injunctive relief or corresponding  declaratory relief is appropriate with respect to the class as a whole.   47.  Rule 23(c)(4) provides that an action may be brought or maintained as a class  action with respect to particular issues when doing so would materially advance the litigation as  a whole.  48.  Plaintiff restates and incorporates by reference all preceding allegations.   49.  Allstate entered into policies of insurance with Plaintiff Rivers and members of  the proposed class. These insurance policies govern the relationship between Allstate and Rivers,  and members of the proposed class, as well as the manner in which claims for covered losses are  handled.   50.  The policies of insurance between Allstate, Rivers and the other members of the  proposed class are binding contracts under North Carolina law, supported by valid consideration  in the form of premium payments in exchange for insurance coverage.   51.  Allstate drafted the insurance policies at issue, which are essentially identical in  all respects material to this litigation concerning the withholding of labor as depreciation.   52.  In order to receive ACV claim payments, Rivers and the putative class members  complied with all material provisions and performed all of their respective duties with regard to  their insurance policy.   53.  Allstate breached its contractual duty to pay Rivers, and members of the proposed  class the ACV of their claims by unlawfully withholding labor costs as described herein.   55.  Allstate’s actions in breaching its contractual obligations, as described herein, are  the direct and proximate cause of damages to Plaintiff and members of the proposed class.   56.  In light of the foregoing, Plaintiff and members of the proposed class are entitled  to recover damages sufficient to make them whole for all amounts Allstate unlawfully withheld  from their ACV payments, including prejudgment interest as may be allowed by law.  57.  Plaintiff restates and incorporates by reference all preceding allegations.   58.  This Court is empowered by the Declaratory Judgment Act as codified at 28  U.S.C. § 2201 and Fed. R. Civ. P. 57 to declare the rights and legal relations of parties regardless  of whether further relief is or could be claimed.   59.  A party may seek to have insurance contracts, before or after a breach, construed  to obtain a declaration of rights, status, and other legal relations thereunder adjudicated.   6.  Allstate is an insurance company that provides property coverage for homes,  commercial buildings, and other structures.  Allstate is one of the nation’s largest insurers.     60.  Rivers and members of the proposed class have all complied with all relevant  conditions precedent in their contracts.   61.  Plaintiff seeks, individually and on behalf of the proposed class, a declaration that  Allstate’s property insurance contracts prohibit the withholding of labor costs as described herein  when adjusting losses under the methodology employed herein.   62.  Plaintiff further seeks, individually and on behalf of the proposed class, any and  all other relief available under the law arising out of a favorable declaration.   63.  Plaintiff and members of the proposed class have suffered injuries.    7.  Allstate sells its property insurance policies in, inter alia, the state of North  Carolina.     8.  Rivers was insured pursuant to an insurance contract whereby Allstate agreed to  insure, inter alia, Rivers’ property located on the Insured Premises against property damage,  bearing Policy No. 90955728 (the “Rivers Policy”).   9.  The Rivers Policy provided insurance coverage for direct physical loss to the  residence and structures located on the Insured Premises, except as specifically excluded or  limited by the Rivers Policy.   A. The Property Insurance Policy and Casualty Loss  