Snyder v. Acord Corporation

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 6, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DALE SNYDER; MARILYN SNYDER;
MARY ANN GELDREICH; MARY
HARROW; KENNETH DALE YODER,
a/k/a KEN YODER; CATHERINE
TAYLOR, a/k/a KATE TAYLOR;
MARTHA LEMERT; GARY LEMERT;
JEFFREY RAY, a/k/a JEFF RAY;
JENNIFER RAY; LOUISE CREAGER;
JANET KOCH; IAN SIEMPLENSKI;
TOMMY MEYER; NICOLE
WRIGHT-MEYER; SUEHAM KAY
HOFFMAN, individually and as
representative for the Estate of Dorothy
Wood Hammer; LAILA SAEDA URBAN,
individually and as representative for the
Estate of Dorothy Wood Hammer;
ESTATE OF DOROTHY WOOD
HAMMER, individually and on behalf of
all others similarly situated,
Plaintiffs - Appellants, Nos. 16-1111 and 16-1215
(D.C. No. 1:14-CV-01736-JLK)
v. (D. Colo.)
ACORD CORPORATION, a Delaware
non-profit corporation; ACUITY, A
MUTUAL INSURANCE COMPANY, a
Wisconsin corporation; ADDISON
INSURANCE COMPANY, an Iowa
corporation; ALL AMERICA
INSURANCE COMPANY, an Ohio
corporation d/b/a The Central Insurance
Companies; ALLIANZ GLOBAL RISKS
US INSURANCE COMPANY, a
California corporation; ALLIANZ LIFE
INSURANCE CO. OF NORTH
AMERICA, a Minnesota corporation;
ALLIANZ OF AMERICA, INC., a
Delaware corporation; ALLSTATE
INSURANCE COMPANY, an Illinois
corporation; AMERICAN ASSOCIATION
OF INSURANCE SERVICES, INC., a
Delaware non-profit corporation;
AMERICAN AUTOMOBILE
INSURANCE COMPANY, a Missouri
corporation a/k/a Fireman's Fund Insurance
Company of Missouri; AMERICAN
BANKERS INSURANCE COMPANY OF
FLORIDA, a Florida corporation;
AMERICAN FAMILY HOME
INSURANCE COMPANY, a Florida
corporation; AMERICAN FAMILY
MUTUTAL INSURANCE COMPANY, a
Wisconsin corporation; AMERICAN
INDEMNITY FINANCIAL
CORPORATION, a Delaware corporation;
AMERICAN INTERNATIONAL
GROUP, INC., a Delaware corporation;
AMERICAN MODERN INSURANCE
GROUP, INC., an Ohio corporation;
AMERICAN MODERN HOME
INSURANCE COMPANY, an Ohio
corporation; AMERICAN MODERN
SELECT INSURANCE COMPANY, an
Ohio corporation; AMERICAN
RELIABLE INSURANCE COMPANY, an
Arizona corporation; AMERICAN
STRATEGIC INSURANCE CORP., a
Florida corporation; ASSOCIATED
INDEMNITY CORPORATION, a
California corporation; AUTOMOBILE
INSURANCE COMPANY OF
HARTFORD CONNECTICUT, a
Connecticut corporation; AUTO-
OWNERS INSURANCE COMPANY, a
Michigan corporation d/b/a Auto-Owners
Insurance; CASUALTY ACTUARIAL
SOCIETY, an Illinois not for profit
corporation; CENTRAL MUTUAL
INSURANCE COMPANY, an Ohio
corporation d/b/a The Central Insurance
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Companies; THE CHUBB
CORPORATION, a New Jersey
corporation; CHUBB NATIONAL
INSURANCE COMPNAY, an Indiana
corporation; CHUBB SERVICES
CORPORATION, an Illinois corporation;
CINCINNATI INSURANCE COMPANY,
an Ohio corporation; COLORADO FARM
BUREAU MUTUAL INSURANCE CO., a
Colorado corporation; COUNTRY
MUTUAL INSURANCE COMPANY, an
Illinois corporation; ELECTRIC
INSURANCE COMPANY, a
Massachusetts corporation; EMPLOYERS
MUTUAL CASUALTY COMPANY, an
Iowa corporation d/b/a EMC Insurance
Companies; ENCOMPASS INDEMNITY
COMPANY, an Illinois corporation;
ENCOMPASS INSURANCE COMPANY
OF AMERICA, an Illinois corporation
d/b/a Encompass Insurance; FARMERS
ALLIANCE MUTUAL INSURANCE
COMPANY, a Kansas corporation;
FARMERS INSURANCE COMPANY, an
Iowa corporation a/k/a Farmers Casualty
Insurance Company d/b/a Farmers
Insurance Exchange; FEDERAL
INSURANCE COMPANY, an Indiana
corporation; FIDELITY AND DEPOSIT
COMPANY OF MARYLAND, a
Maryland corporation; FIREMAN'S FUND
INSURANCE COMPANY, a California
corporation; FIRST AMERICAN
PROPERTY & CASUALTY
INSURANCE COMPANY, a California
corporation d/b/a First American Property
& Casualty Group; FIRST AMERICAN
FINANCIAL CORPORATION, a
Delaware corporation; GRANGE
INSURANCE ASSOCIATION, a
Washington corporation; GREAT
NORTHERN INSURANCE COMPANY,
an Indiana corporation; GUIDEONE
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MUTUAL INSURANCE COMPANY, an
Iowa corporation d/b/a Guideone
Insurance; HARTFORD ACCIDENT AND
INDEMNITY COMPANY, a Connecticut
corporation; HARTFORD FIRE
INSURANCE COMPANY, a Connecticut
corporation; INSURANCE SERVICES
OFFICE, INC., a Delaware corporation;
INTERNATION INSURANCE SOCIETY,
INC., a Delaware non-profit corporation;
KEMPER CORPORATE SERVICES,
INC., an Illinois corporation; KEMPER
CORPORATION, a Delaware corporation;
LAFAYETTE INSURANCE COMPANY,
a/k/a United Life Insurance Company, Inc.;
LIBERTY INSURANCE
CORPORATION, an Illinois corporation;
LIBERTY MUTUAL INSURANCE, a
Massachusetts corporation; LIBERTY
MUTUAL INSURANCE COMPANY, a
Massachusetts corporation; LM
INSURANCE CORPORATION, an
Illinois corporation; MARKEL
AMERICAN INSURANCE COMPANY, a
Virginia corporation; MARKEL
INSURANCE COMPANY, an Illinois
corporation; MCKINSEY & COMPANY,
INC., a Delaware corporation a/k/a
McKinsey & Company, Inc. Washington
D.C.; MCKINSEY & COMPANY, INC. a
New York corporation; METLIFE AUTO
& HOME INSURANCE AGENCY, INC.,
a Rhode Island corporation;
METROPOLITAN DIRECT PROPERTY
& CASUALTY INSURANCE
COMPANY, a Rhode Island corporation;
METROPOLITAN LIFE INSURANCE
COMPANY, a Rhode Island corporation;
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY, a
Rhode Island corporation; MILBANK
INSURANCE COMPANY, an Iowa
corporation; MUNICH-AMERICAN
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HOLDING CORPORATION, a Delaware
corporation; NATIONAL CASUALTY
COMPANY, a Wisconsin corporation;
NATIONAL FARMERS UNION
PROPERTY AND CASUALTY
COMPANY, a Wisconsin corporation;
NATIONAL SURETY CORPORATION,
an Illinois corporation; NATIONWIDE
AFFINITY INSURANCE COMPANY OF
AMERICA, an Ohio corporation;
NATIONWIDE INSURANCE
COMPANY OF AMERICA, a Wisconsin
corporation; NATIONWIDE MUTUAL
INSURANCE COMPANY, an Ohio
corporation d/b/a Nationwide Insurance;
OWNERS INSURANCE COMPANY, an
Ohio corporation d/b/a Auto-Owners
Insurance d/b/a Home-Owners Insurance;
PACIFIC INDEMNITY COMPANY, a
Wisconsin corporation; PHARMACISTS
MUTUAL INSURANCE COMPANY, an
Iowa corporation; PRAETORIAN
INSURANCE COMPANY, a
Pennsylvania corporation; PROPERTY
CASUALTY INSURERS ASSOCIATION
OF AMERICA, a Colordo non-profit
corporation; QBE HOLDINGS, INC., a
Delaware corporation; QBE INSURANCE
COMPANY, a Pennsylvania corporation
a/k/a QBE Insurance Corporation; QBE
INSURANCE GROUP, LIMITED, a
Sydney, Australia corporation; SAFECO
INSURANCE COMPANY OF
AMERICA, a New Hampshire corporation;
SENTRY INSURANCE, A MUTUAL
COMPANY, a Wisconsin corporation;
SHELTER MUTUAL INSURANCE
COMPANY, a Missouri corporation;
STANDARD FIRE INSURANCE
COMPANY, a Connecticut corporation;
STATE AUTOMOBILE INSURANCE
COMPANY, an Ohio corporation; STATE
FARM FIRE AND CASUALTY
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COMPANY, an Illinois corporation;
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY, an Illinois corporation;
STILLWATER PROPERTY AND
CAUALTY INSURANCE COMPANY, a
New York corporation a/k/a Fidelity
National Property and Casualty Insurance
Company d/b/a Stillwater Insurance Group;
TEXAS GENERAL INDEMNITY
COMPANY, a Colorado corporation; THE
BUCKEYE STATE MUTUTAL
INSURANCE COMPANY, an Ohio
corporation d/b/a Buckeye Insurance
Group; THE CALIFORNIA CASUALTY
INDEMNITY EXCHANGE, a California
corporation; THE HARTFORD
FINANCIAL SERVICES GROUP, a
Delaware corporation; THE TRAVELERS
COMPANIES INC., a Minnesota
corporation; THE TRAVELERS
INSURANCE COMPANY, a Connecticut
corporation; THE TRAVELERS
INSURANCE GROUP HOLDINGS, INC.,
a Connecticut corporation; TRAVELERS
HOME AND MARINE INSURANCE
COMPANY, a Connecticut corporation;
TRAVELERS INDEMNITY COMPANY
OF AMERICA, a Connecticut corporation;
TRAVELERS COMMERCIAL
INSURANCE COMPANY; UNITED
FIRE GROUP, INC., an Iowa corporation
d/b/a United Fire Group; UNITED FIRE &
CASUALTY COMPANY, an Iowa
corporation d/b/a United Fire Group;
UNITED FIRE INSURANCE
COMPANY, an Illinois corporation d/b/a
United Fire Group; UNITED FIRE AND
INDEMNITY COMPANY, a Texas
corporation; UNITED FIRE LLOYDS, a
Texas corporation; UNITED LIFE
INSURANCE COMPANY, an Iowa
corporation; UNITED SERVICES
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AUTOMOBILE ASSOCIATION, a Texas
corporation; UNITRIN AUTO AND
HOME INSURANCE COMPANY, A New
York corporation; UNITRIN DIRECT
PROPERTY & CASUALTY COMPANY,
an Illinois corporation; USAA
CASUALTY INSURANCE COMPANY, a
Texas corporation; VERISK ANALYTICS
INC., a Delaware corporation; VIGILANT
INSURANCE COMPANY, a New York
corporation; ZURICH AMERICAN
INSURANCE COMPANY, a New York
corporation; ZURICH INSURANCE
GROUP LTD/FI, a Switzerland
corporation; SECURA INSURANCE
HOLDINGS, INC., a Wisconsin
corporation; UNITED FIRE AND
INDEMNITY COMPANY; ABC
INSURANCE COMPANY, an entity
whose true name is unknown d/b/a Untied
Fire Group; ABC ORGANIZATION, an
entity or group of entities, whose true
names are unknown,
Defendants - Appellees.
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UNITED POLICYHOLDERS,
Movant.
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ORDER AND JUDGMENT*
_________________________________
Before KELLY, BALDOCK, and HARTZ, Circuit Judges.
_________________________________
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiffs-Appellants appeal from the district court’s dismissal with prejudice
of their 260-page, 1,363 paragraph, third amended complaint (TAC) and subsequent
denial of their motion for relief from final judgment. Fed. R. Civ. P. 12(b)(6),
60(b)(1)-(3), 59(e). Snyder v. ACORD Corp., No. 1:14-CV-01736-JLK, 2016 WL
192270 (D. Colo. Jan. 15, 2016); XIX Aplt. App. 3712. The parties are familiar with
the facts, and we need not restate them here other than to say that 17 named Plaintiffs
attempted to bring a class action against their insurers as well as numerous other
insurers, holding companies, trade associations and consulting firms. Their theory is
that the Defendants are involved in a massive conspiracy to underinsure and
underpay homeowners’ claims in no small part because of insurance industry
standards developed by Defendant ACORD and others. As relevant to this appeal,
Plaintiffs brought federal claims under civil RICO and the Sherman Act, § 1, as well
as state-law civil conspiracy and contract claims.
We have considered the points made on appeal and of those points preserved,
we find no reversible error. See Aplt. Br. at 2-5. Suffice it to say that the district
court did not abuse its discretion in dismissing the TAC for want of a simple, concise
statement of the claims, one that would provide fair notice of the claims asserted
against each defendant, rather than leave it to the court or each defendant to construct
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cognizable claims. Fed. R. Civ. P. 8(a)(2), (d)(1); Mann v. Boatright, 477 F.3d 1140,
1148 (10th Cir. 2007). Likewise, on de novo review, we conclude that the district
court correctly applied the plausibility standard in dismissing the TAC with prejudice
for failure to state a claim. Fed. R. Civ. P. 12(b)(6); Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009). Although
Plaintiffs contend that the district court should have conducted a sanctions analysis
and permitted the filing of an amended complaint, the complaint was not dismissed as
a sanction and we find no abuse of discretion in denying leave to amend. Likewise,
the district court’s denial of Plaintiffs’ motion for relief from final judgment (after
insisting upon a concise presentation of the grounds) was not an abuse of discretion.
See Walters v. Wal–Mart Stores, Inc., 703 F.3d 1167, 1172 (10th Cir. 2013) (denial
of relief under Rules 59(e) & 60(b) reviewed for an abuse of discretion). Finding no
legal error or abuse of discretion, we have no reason to consider the cumulative error
claim. We affirm for substantially the reasons set forth in the district court’s orders.
AFFIRMED. We GRANT Appellees’ Motion to Strike Appendix 1 to the
Appellants’ Notice of Appeal (Doc. 500), DENY United Policyholders’ Motion for
Leave to File a Brief of Amicus Curiae in Support of Appellants, DENY Appellants’
Motion for Sanctions, Pursuant to 10th Cir. R. 46.5(D), and GRANT Appellees’
(American Bankers Insurance Company of Florida and American Reliable Insurance
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Company) Motion for Withdrawal of Attorney (Robert D. Hefland).
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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