12   13   22  ACT  23   3   4.1.  Plaintiff brinbs this action on behalf of herself and all other similarly situated  Class members pursuant to CR 23 of the Washington Civil Rules.   4.2.  Plaintiff asserts and seeks certification of the following class (the putative  "Class"):)   A11 persons and entities within the State of Washington that have made first-party  property damage claims under contracts of automobile insurance with American  Farrtily that provided for payment of the actual cash value of the policyholder's  vehicle (less any applicable deductible) in the event of total loss, and (1) where  policyholders experienced a total loss of their insured vehicle covered under such  policy, (2) where such claims for total loss were evaluated by American Family  using the Autosource valuation system, and (3) where such claims were paid by  American Family to the policyholder or a lienholder without the parties agreeing  to use, and using, an alternative appraisal process described in the policyholder's  policy.   4.3.  Numerosity. The members of the putative Class are so numerous that individual  joinder of all members is impracticable. The identity and precise number of putative Class  tnembers, thotiah unknown to Plaintiff, is reasonably ascertainable from American Family's  records. Because American Family controls a sizeable market share ofthe local automobile  insurance industry, and the large number of claims that it settles with respect to total loss  vehicles, the putative Class is estimated to comprise many thousands of people.   4.4.  Commonality and Predominance. This action involves common questions of law  and fact as to the claims of Plaintiff and the other members of the putative Class, which  predominate over any questions affecting individual putative Class members. These common  legal and factual questions include, but are not limited to, the following:  ' Plaintiff maintains the right to create additional subclasses or classes, if necessary, and to revise these definitions  to maintain a cohesive class which does not require individual inquiry to determine liability.  5.1.  American Family advertises and sells automobile policies in the State of  Washington that include first-party physical damage coverages including Comprehensive,  Collision and Underinsured Property Damage.   5.2.  American Family's policies give American Family the choice to settle a loss  claim under its property damage coverages in one of two ways:  a) By paying the cost to repair the covered vehicle, minus any applicable deductible;  or  b) By paying the "actual cash value" of the covered vehicle (prior to being  damaged), minus any applicable deductible.   5.3.  American Family deems vehicles to be a total loss when the cost to repair the  vehicle exceeds the veliicle's "actual cash value."   5.4.  "Actual cash value" is not a defined term in American Family's auto policies.   5.5.  The settlement of total loss claims in the State of Washington is regulated by  6   6.1  Plaintiff incorporates by reference all preceding paragraphs as if fiilly set forth  4 I I herein.  5   6.15 American Family's conduct is egregious and pervasive, and without regard to the  9  transportation needs of its insureds.  10   6.17 As a result, Plaintiff and the Class are entitled to recover damages including  13  attorney's fees, prejudgment interest and exemplary damages.  14  6.12 The Autosource system used by American Family violates WAC 284-30-391  19  because it uses a statistically invalid methodology. Specifically, the practices of deducting 6  20  percent from the advertised price of comparable vehicles to account for "typical negotiation."  21  The Autosource system violates specific provisions of WAC 284-30-391 by reducing total loss  22  payments tln•ough deductions that are not verifiable and not based on local, current data.  23 '   6.14 Through its use of this invalid methodology, American Family is elevating its  7  own financial interests over that of its first party insureds.  8   6.16 American Family's conduct violates the common law duty of an insurer to act in  11  good faith.  12   6.19 Plaintiff and the Class have been damaged as a result of American Family's  18  wrongful use of an invalid methodology to value policyholders' total loss claims.  19   6.11  WAC 284-30-391 sets forth the standards of practice for settlement of total loss  14  vehicle claims. It requires insurer to, among other things, pay the fair market value of the  15  policyholder's vehicle immediately pi-ior to the incident in which it was damaged. If a  16  computerized source is used to make this determination, the system must use statistically valid  17  criteria.  18   6.13  Due to this and other wrongful conduct, Plaintiff and the Class are entitled to  24  recover their actual damages, including damages sufficient to make them whole for American  25  6.18 American Family has breached the implied covenant ofgood faith and fair  16  dealing owed to Plaintiff and the Class.  17   6.29 The Court should enjoin American Family fi-om engaging in further deceptive  23  acts and practices pursuant to RCW 19.86.090.  24  25  6.2  American Family entered into policies of automobile insurance with Plaintiff and  6  other members of the putative Class. These policies govern the relationship between American  7  Family, Plaintiff, and other Class Members, and they likewise govern the handling of total loss  8  claims.  9   6.21  The business of insurance affects the public interest.  24  25  6.27 American Family used an invalid methodology to wrongfully reduce the amounts  15  paid to its insureds with total loss claims.  16   6.28 An actual and justiciable controversy has arisen and now exists between the Class  17  and American Family concerning American Family's system form detennining Actual Cash  18  Value. The Class is entitled to a judicial declaration from this Court of the rights of the Class  19  and obligations ofAmerican Faniily under the policies. The Class is entitled to a judicial  20  declaration that American Family has acted in violation of Washington insurance regulations and  in bad faith by using an invalid methodology to underpay total loss claims. This action is timely  21  and appropi-iate under applicable law.  22   6.20 Plaintiff and the Class ai-e entitled to recover actual and consequential damages  20  including attorney's fees and prejudgment interest..  21  6.26 Plaintiff and the Class are entitled to be paid the Actual Case Value of vehicles  13  determined to be total losses.  14   6.3  The insurance policies at issue were drafted by American Family or its agents.  10   6.4  The insurance policy at issue with Plaintiff is essentially identical in all material  11  respects with the policies entered into with other Class Members.  12   6.5  Plaintiff and other Class Members perfonned their material duties as provided in  13  their policies;  14   6.6  The policies of insurance American Family issued to Plaintiff and other members  15  of the putative Class provide that in the event of a total loss, American Family will pay the  16  "actual cash value" (ACV) of the loss.  17   6.7  In proposing and makinQ ACV payments under the policies with Plaintiff and  18  members ofthe putative Class, American Family b•eached its contractual duties to Plaintiffand  19  the putative Class, including the implied covenant of good faith and fair dealing, by:  20  a.  deducting an arbiti-ary, fixed percentage of the "appraised" value of the  insured vehicle as determined by an automated and systematically  21  determined Audatex valuation, ostensibly based upon "negotiation"  22  fi-om listed pi-ices published by auto dealers;  23  24  25  7  MUNA NOOR on behalf of herself and all  8  other similarly situated,  me  9  Plaintiffs,  10  0  FAIR DEALING  15  