1.  What is the nature and extent of those damages; and   2.  What relief should be awarded to Plaintiff and other proposed class  members.   34.  Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiff brings this  action on his own behalf and on behalf and all others similarly situated.  This action satisfies the  Rule 23 requirements of commonality, numerosity, superiority, typicality, and adequacy of  representation.   35.   The proposed class which Plaintiff seeks to represent is defined as follows:  7  All AAA policyholders who made: (1) a structural damage claim for  property located in the State of Ohio; and (2) which resulted in an actual cash value  payment during the class period from which “non-material depreciation” was  withheld from the policyholder; or which should have resulted in an actual cash  value payment but for the withholding of “non-material depreciation” causing the  loss to drop below the applicable deductible.  In this definition, “non-material depreciation” means application of either the  “depreciate removal,” “depreciate non-material” and/or “depreciate O&P” option  settings within Xactimate software.  The class period for the proposed class is the maximum time period as allowed by  applicable law.   The class excludes all claims arising under policy forms expressly permitting the  “depreciation” of “labor” within the text of the policy form and any claims in which  the initial actual cash value payment exhausted the applicable limits of insurance.   36.  Plaintiff reserves his right to amend the definition of the proposed classes through  discovery. The following persons are expressly excluded from the classes: (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.   37.  The members of the proposed class are so numerous that joinder of all members is  impractical.  Plaintiff reasonably believes that hundreds if not thousands of people geographically  dispersed across Ohio have been damaged by Defendant’s actions.  The names and addresses of  the members of the proposed class are identifiable through records maintained by Defendant, and  proposed class members may be notified of the pendency of this action by mailed, published and/or  electronic notice.     38.  Common questions of law and fact exist as to all proposed class members and  predominate over any questions affecting only individual proposed class members.  The questions  of law and fact common to the proposed class include, but are not limited to:  A.   Whether Defendant’s insurance policies allow Defendant to depreciate  labor in calculating ACV payments for covered losses;  8  B.   Whether Defendant’s insurance policies are ambiguous concerning the  depreciation of labor costs in calculating ACV payments, and if so, how  Defendant’s insurance policies should be interpreted;  C.   Whether Defendant’s depreciation of labor costs in making ACV payments  for covered losses is a breach of the insurance contracts issued by Defendant  to Plaintiff and other proposed class members.  D.   Whether Plaintiff and other proposed class members have been damaged by  Defendant’s breaches, as alleged herein, and if so:   39.  Plaintiff’s claims are typical of the claims of all the proposed class members, as  they are all similarly affected by Defendant’s custom and practice of unlawful and unjust conduct  and their claims are based on such conduct.  Further, Plaintiff’s claims are typical of the claims of  all proposed class members because their claims arise from the same or similar underlying facts  and are based on the same factual and legal theories.  Plaintiff is no different in any material respect  from any other member of the proposed class – all members of the proposed class had labor  unlawfully depreciated by Defendant.   40.  Plaintiff and his counsel will fairly and adequately protect the interests of the  members of the proposed class.  Plaintiff’s interests do not conflict with the interests of the class  he seeks to represent.  Plaintiff has retained counsel who are competent and experienced in class  action litigation and complex insurance-related cases and will fairly and adequately represent the  interests of the proposed class.  Plaintiff and his counsel will prosecute this action vigorously.     41.  A class action is superior to all available methods for the fair and efficient  adjudication of this controversy.  Joining all proposed class in one action is impracticable, and  prosecuting individual actions is not feasible.  The size of the individual claims is likely not large  9  enough to justify filing a separate action for each claim.  For many, if not most class members, a  class action is the only procedural mechanism that will afford them an opportunity for legal redress  and justice.  Even if proposed class members had the resources to pursue individual litigation, that  method would be unduly burdensome to the courts in which such cases would proceed.  Individual  litigation exacerbates the delay and increases the expense for all parties, as well as the court system.   Moreover individual litigation could result in inconsistent adjudications of common issues of law  and fact.   42.  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 proposed  class members.  These benefits would result from the comprehensive and efficient supervision of  the litigation by a single court.     43.  No unusual difficulties are anticipated in the management of this case as a class  action.   44.  Class certification is further warranted because Defendant has acted or refused to  act on grounds that apply generally to the proposed class, so that final injunctive relief or  corresponding declaratory relief is appropriate respecting the proposed class as a whole.    45.  Plaintiff may seek, in the alternative, certification of issues classes.   46.  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.  47.  Plaintiff hereby incorporates by reference all preceding paragraphs as if fully set  forth herein.  10   48.  Defendant entered into policies of insurance with Plaintiff and other members of  the proposed class.  These policies govern the relationship between Defendant and Plaintiff and  other proposed class members, as well as the manner in which claims for covered losses are  handled.     49.  The insurance policies at issue were drafted by Defendant and are essentially  identical in all respects material to this litigation.    50.  Plaintiff and other proposed class members complied with all material provisions  and fulfilled their respective duties with regard to their policies.    51.  The policies of insurance Defendant issued to Plaintiff and other proposed class  members state that in the event of a loss Defendant may fulfill its initial contractual obligation to  an insured party by paying the ACV of the loss.  At all times relevant hereto, Defendant’s custom  and practice has been, and is, to make such payments based upon Defendant’s calculation of the  ACV for the loss, net of any applicable deductible.     52.  Defendant breached its contractual duty to pay Plaintiff and other proposed class  members the ACV of their claims by unlawfully depreciating labor costs.    53.  Defendant’s actions in breaching its contractual obligations to Plaintiff and other  proposed class members benefitted, and continue to benefit, Defendant.  Likewise, Defendant’s  actions damaged, and continue to damage, Plaintiff and other proposed class members.    54.  Defendant’s actions in breaching its contractual obligations, as described herein,  are the direct and proximate cause of damages to Plaintiff and other proposed class members.   55.  Accordingly, Plaintiff and other proposed class members are entitled to recover  damages sufficient to make them whole for the amounts Defendant unlawfully withheld from their  ACV payments as labor cost depreciation.    11  56.  Plaintiff restates and incorporate by reference all preceding allegations.   57.  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.   58.  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.   59.  Plaintiff and members of the proposed class have complied with all relevant  conditions precedent in their contracts.   60.  Plaintiff seeks, personally and on behalf of the proposed class, a declaration that  Defendant’s property insurance contracts prohibit the withholding of labor costs as described  herein when adjusting losses under the methodology employed here.   61.  Plaintiff further seeks, personally and on behalf of the proposed class, any and all  equitable relief available under the law that the Court deems necessary and proper to the  administration of justice, including, but not limited to, identifying and locating policyholders, and  notifying the same of the circumstances complained of and the restoration of their rights and  remediation of their losses, and preclusion by Defendant in engaging in the conduct described  herein, as may be permitted by law.   62.  Plaintiff and members of the proposed class have suffered injuries.    BREACH OF CONTRACT   DECLARATORY JUDGMENT AND RELIEF   