(Class Claims Under New York General Business Law §349)   (Plaintiff Individually-Breach of Contract))   (Plaintiff Individually- Bad Faith Claims)   10.  Prior to September 2011, Plaintiff purchased an automobile liability  insurance policy No. 012852471C71017 (the “Policy”) from USAA in New York,  which in pertinent part, provided underinsured motorist insurance to Plaintiff.   11.  Underinsured motorist bodily injury insurance covers the insured for  bodily/personal injuries, damages, or death caused by an at-fault driver with  insufficient insurance (is underinsured).  Underinsurance pays the difference  between what’s covered by the other driver's insurance coverages, which can’t meet  the amount of your damages, and the bodily injury limits listed on the insured’s  policy.   12.  On September 26, 2011 Plaintiff was involved in a vehicular accident in  which the auto she was operating was violently struck in the rear by the WHYTE  vehicle.  As a result of the rear impact collision, of which Plaintiff was free of any  negligence or fault contributing thereto, Plaintiff sustained severe and permanent  injuries.   13.  In or about December 2011, Plaintiff settled her bodily claims with WHYTE’s  carrier, Nationwide Insurance Company of America, for $25,000.00, which  represented the full policy limits of $25,000 per person/$50,000 per occurrence.    14.  By sworn affidavit, WHYTE certified that he did not have an umbrella policy  or any excess insurance policy in effect or applicable to the vehicular accident of  September 26, 2011.   15.  On or about February 28, 2012, Plaintiff demanded an underinsured (UIM)  policy limit payment from USAA.   16.  More than two (2) years and two (2) months have elapsed and USAA has  failed and refused to make any payment to Plaintiff, as was required under the  UIM Insurance Policy.   17.  USAA’s refusal to make payment to Plaintiff was made without a reasonable  basis in fact or law.    18.  USAA’s refusal to make adequate payment to Plaintiff was made in bad faith  and for the purpose of denying the benefits of contract for underinsured motorist  coverage to Plaintiff.   19.  USAA’s refusal to make adequate payment to Plaintiff was an unlawful  attempt to force Plaintiff to accept less money than the amount due under the  Policy.   20.  USAA possessed the duty to honor the UIM insurance contract for the entire  policy duration.   21.  USAA possessed the duty to conduct a prompt, reasonable and diligent  investigation of the facts of the case to determine the validity of the claims made by  Plaintiff against the third party driver.   22.  USAA possessed the duty to evaluate the Plaintiff’s claims fairly.   23.  USAA possessed the duty to attempt in good faith to effectuate a prompt, fair  and equitable settlement of a claim where liability is reasonable clear.   24.  USAA possessed the duty to act promptly and reasonably in settling the  claim.   25.  USAA possessed the duty not to put its insureds through unnecessary  litigation.   26.  USAA possessed the duty to not to put its insureds’ assets at risk.   27.  USAA possessed the duty to refrain from actions that would injure the  Plaintiff’s insured ability to obtain the benefits of the insurance contract.   28.  USAA possessed the duty of good faith and fair dealing.   29.  As a proximate result of USAA’s foregoing wrongful acts and conduct,  Plaintiff has sustained economic and non-economic injury, damages and loss.  30.  Plaintiff repeats and realleges all preceding paragraphs, as if fully set forth  herein.   31.  Plaintiff brings this action in her representative capacity on behalf of all  similarly situated Class members, who were affected by the actions, policies and  business practices of USAA, as described herein.   32.  In addition, and in the alternative, Plaintiffs brings this action in her  individual capacity, separate and apart from the Class claims set forth herein.   33.  Class certification is appropriate under Rule 23 because all of the  requirements thereof are satisfied.   34.  The Class is defined as follows:  All consumers, within the statutory period, who made underinsured (UIM)  policy claims against USAA, under issued New York auto liability insurance policies  and were not paid any benefit by USAA within 60 days of the making of such claim.   Excluded from the Class are officers directors and members of USAA;  members of the immediate families of the officers, directors and members of USAA  and their legal representatives, heirs, successors or assigns and any entity in which  they have or have had a controlling interest.   35.  Plaintiff is a member of the Class she seeks to represent.   36.   This action has been brought and may properly be maintained as a class  action against USAA pursuant to Rule 23 of the Federal Rules of Civil Procedure  because there is a well-defined community of interest in the litigation and the  proposed Class is easily ascertainable.   37.   Numerosity is satisfied. Plaintiff does not know the exact size of the Class,  but, it is estimated that the Class is composed of at least one thousand persons and  entities. While the exact number and identities of Class members are unknown at  this time, this information can be readily ascertained through appropriate discovery  of the records maintained by USAA.    38.  The persons in the Class are so numerous that the joinder of all such persons  is impracticable and the disposition of their claims in a class action rather than in  individual actions will benefit the parties and the courts.   39.  Common questions of law and fact exist as to all members of the Class, and  those common issues predominate over any issues that may affect only individual  class members.   40.  Among the questions of law and fact common to the Classes are:   (a)  Whether USAA’s insurance claim settlement practices, as alleged in the  Complaint, constituted deceptive business practices that violated §349 of the New  York General Business Law.   (b)  Whether Plaintiff and members of the Class have sustained actual injury as a  result of USAA’s violation of §349 of the New York General Business Law.   41.  Plaintiffs' claims are typical of those of the Class members.  Plaintiff’s' claims  encompass the challenged practices and course of conduct of USAA.  Furthermore,  Plaintiff’s' legal claims are based on the same legal theories as the claims of the  putative Class members.  The legal issues as to which New York State laws were  violated by such conduct apply equally to Plaintiffs and to the Class   42.  Plaintiff is an adequate representative of the Class because her interests do  not conflict with the interests of the Class she seeks to represent.She has retained  counsel competent and highly experienced in complex class action litigation; and  she intends to prosecute this action vigorously.  The interests of the Class will be  fairly and adequately protected by Plaintiff and her counsel.   43.  A class action is superior to other available means of fair and efficient  adjudication of the claims of Plaintiff and members of the Class. The injury suffered  by each individual Class member is relatively small in comparison to the burden  and expense of individual prosecution of the complex and extensive litigation  necessitated by USAA'S conduct. USAA has acted and/or refused to act on grounds  generally applicable to the Class, thereby making appropriate final injunctive and  other equitable relief in favor of Plaintiff and the Class.    44.  The prosecution of separate actions by individual Class members presents a  potential for inconsistent and contradictory judgments that may establish  incompatible standards of conduct for USAA. Individualized litigation increases the  delay and expense to all parties and to the court system, as a result of the complex  legal and factual issues of the case.   45.  The class action device presents far fewer management difficulties, and  provides the benefits of single adjudication, economy of scale, and comprehensive  supervision by a single court.   46.  Difficulties, if any, that may exist in the management of this class action will  be greatly outweighed by the salutary benefits of the class action procedure,  including but not limited to providing Class members with a method for redress of  claims that may not otherwise warrant individual litigation.  47.  Plaintiff reiterates, realleges and incorporates each and every allegation of  the Complaint previously set forth.   48.  USAA issued automobile liability insurance policy No. 012852471C71017 k,  which in pertinent part, provided underinsured motorist coverage to Plaintiff.   49.  USAA issued this insurance policy for valuable consideration in the form of  policy premiums, which have been paid by Plaintiff.   50.  Plaintiff has complied with all terms, conditions and prerequisites to coverage  set forth in the insurance agreement and remains ready to perform all of her  obligations under the agreement.   51.  At all relevant times, there has been a valid and existing insurance  agreement between Plaintiff and USAA.   52.  In or about February 2012, Plaintiff duly notified USAA of her UIM claim  pursuant to the terms of the insurance agreement.   53.  The losses suffered by Plaintiff clearly fall within the ambit of the UIM  coverage provided in the subject policy of insurance.   54.  USAA breached the insurance agreement by failing and refusing to pay  Plaintiff for her damages under the UIM coverage.   55.  As a result of USAA'S breach of the insurance agreement, Plaintiff has  sustained economic injury and pecuniary loss.   56.  Plaintiff has sustained damages in excess of the UIM policy limits, as a result  of USAA’S breach of the insurance agreement.   57.  Plaintiff has been required to retain the services of an attorney to commence  this action and is entitled to attorney’s fees and costs.  58.  Plaintiff reiterates, realleges and incorporates each and every allegation of  the Complaint previously set forth.   59.  There is implied in every contract a covenant of good faith and fair dealing.   60.  USAA breached its common law duty of good faith and fair dealing in connection  with its contract of automobile liability insurance with Plaintiff.   61.  USAA breached its duty owed to Plaintiff to act in good faith and to deal fairly in  the payment of UIM benefits pursuant to the terms and conditions of the subject contract  of insurance.   62.  There was an absence of a reasonable basis for USAA'S denial of benefits to  Plaintiff under the subject contract of insurance.   63.  USAA undertook a conscious campaign calculated to delay and avoid payment on  UIM claims, while having determined at the outset that it would deny coverage or offer a  "lowball" settlement.   64.  USAA engaged in a systematic and ongoing pattern of avoiding UIM claims by  making multiple and serial requests for documents, authorizations, medical records and  additional information, upon receipt of which the Plaintiff's claims file would be  transferred to a new examiner, who in turn would make more requests.   65.  USAA waited approximately 2 years to request or schedule an independent medical  examination of the Plaintiff.    66.  USAA exhibited a reckless disregard and indifference to facts or proofs submitted  by Plaintiff in support of her claim for UIM payment of benefits under the subject contract  of insurance.   67.  USAA was guilty of bad faith in refusing to pay Plaintiff's UIM claim without  a reasonable basis.   68.  USAA was guilty of bad faith in failing to pay Plaintiff's UIM claim, with  knowledge of the lack of a reasonable basis for withholding such payment.   69.  USAA was guilty of bad faith in not attempting in good faith to effectuate  prompt, fair and equitable settlement of Plaintiff’s claim in which liability was  reasonably clear.   70.  USAA was guilty of bad faith in failing to properly investigate and process  the claim in a timely manner.   71.  USAA was guilty of bad faith by engaging in deceptive practices and making  deliberate misrepresentations to avoid paying the claim.   72.  USAA was guilty of bad faith in making arbitrary and unreasonable demands  for proof of damages.   73.  USAA was guilty of bad faith in violating its own internal policies,  procedures, practices and guidelines for the handling of underinsured motorist  claims.   74.  USAA was guilty of bad faith in compelling Plaintiff to hire attorneys and  institute litigation to recover amounts due under UIM.   75.  As a result of USAA'S breach of its duty owed to Plaintiff to act in good faith  and to deal fairly in the payment of UIM benefits, Plaintiff has sustained economic  injury and pecuniary loss.   76.  As a result of USAA'S breach of its duty owed to Plaintiff to act in good faith  and to deal fairly in the payment of UIM benefits, Plaintiff has sustained  foreseeable damages beyond the policy limits.   77.  USAA is liable to Plaintiff for consequential damages, including emotional distress,  proximately resulting from its breach of its duties as alleged herein.   78.  Plaintiff has sustained damages in excess of the UIM policy limits, as a result  of USAA’S breach of its duty owed to Plaintiff to act in good faith and to deal fairly  in the payment of UIM benefits.   79.  Plaintiff has been required to retain the services of an attorney to commence  this action and is entitled to attorney’s fees and costs.  8.  The United Services Automobile Association is a Texas-based Fortune 500  diversified financial services group of companies including a Texas Department of  Insurance regulated reciprocal inter-insurance exchange and subsidiaries offering  banking, investing, and insurance. At the end of 2013, there were 10.1 million  members.   80.  Plaintiff reiterates, realleges and incorporates each and every allegation of  the Complaint previously set forth.   81.  USSA’S breach of its duty to act in good faith and to deal fairly in the  payment of UIM benefits has had a broad impact on Plaintiff, members of the Class  and consumers at large.   82.  The New York Legislature has determined and declared in  § 401 of the  Insurance Law that the business of insurance directly and indirectly affects all  sectors of the public, business and government and involves many transactions  which have the potential for abuse and illegal activities.   83.  USAA”s conscious campaign calculated to delay and avoid payment on UIM  claims, while having determined at the outset that it would deny coverage or offer a  "lowball" settlement,	
  was likely to mislead a reasonable consumer acting reasonably  under the circumstances.   84.  USAA’S practice of inordinately delaying and then denying a claim without  reference to its viability goes beyond  a private contract dispute as to policy  coverage, and affects the public interest.   85.  USSA’S claim settlement practices constitutes a deceptive or misleading  practice.   86.  USAA exclusively possessed the information related to its claim settlement  practices, which information a reasonable consumer would want to know, but could  not discover until after the purchase of a policy of insurance from USAA and a claim  made thereunder. USAA’S failure to disclose constitutes a material deception and  fraudulent practice in violation of New York General Business Law, §349.   87.  USAA’S' material deceptions by omission were likely to mislead Plaintiff and  members of the Class as reasonable consumers acting reasonably in the  circumstances.   88.  By reason of USAA’S deceptive and fraudulent business practices, Plaintiff  and members of the Class paid more for the UIM coverage than it was worth.   89.  Neither the Plaintiff nor class members would have purchased auto liability  policies containing UIM coverage from USAA, if they had known of USAA’S    deceptive business practices alleged herein.    9.  USAA CASUALTY INSURANCE COMPANY, (“USAA”) is a wholly owned  subsidiary of The United Services Automobile Association, and is licensed to sell  insurance in all states, including New York.   90.  By reason of all of the foregoing, USAA is liable to Plaintiff and members of  the class for violations of New York General Business Law, §349.   91.  Plaintiff and members of the Class have suffered actual injury, and  consequential damages because the UIM coverage and benefits actually received,  from USAA failed to measure up to reasonable expectations associated with the  product, which Plaintiff and members of the Class were led to believe they had  purchased.   92.  Plaintiff and members of the Class have been injured by reason of the USSA’s  violation of this statute and may bring an action to enjoin such unlawful acts.   93.  By reason of USAA’S violation of this statute, Plaintiff and members of the  Class are entitled to recover actual damages. Punitive damages are waived.   94.  By reason of USAA’S’ violation of this statute, Plaintiff and members of the  Class are entitled to an award of reasonable attorney’s fees to be paid by USAA. 