ORDER DENYING MOTION FOR CLASS CERTIFICATION
SHARON L. GLEASON, District Judge.
Before the Court at Docket 64 is Plaintiff Sheryl Wheeler's Motion for Class Certification, which is opposed by Defendant United Services Automobile Association ("USAA") and USAA Casualty Insurance Company ("USAA CIC") (collectively, "USAA Defendants"). For the reasons set forth below, the motion will be denied.
FACTUAL AND PROCEDURAL BACKGROUND
After an automobile accident, Ms. Wheeler settled her claims against a driver insured by the USAA Defendants. Ms. Wheeler asserts that Alaska law required a higher payment of attorney's fees than was delivered in the settlement. Ms. Wheeler seeks to recover on her individual claims and also seeks to represent a class of individuals who entered into similar settlement agreements that involved USAA insurance coverage.
The allegations in the Second Amended Complaint ("SAC") that form the basis of Ms. Wheeler's claims are as follows:
On January 3, 2009, Ms. Wheeler was in an automobile accident with Sharon Sadlon. Ms. Wheeler and Ms. Sadlon are both Alaska residents and the accident appears to have taken place in Alaska. Ms. Sadlon had an automobile insurance policy with USAA CIC ("Policy") that included $50, 000 bodily injury coverage. Pursuant to its authority under the Policy to defend and settle claims, USAA CIC initiated settlement negotiations with Ms. Wheeler's attorney to resolve claims arising from the automobile accident. The SAC alleges that Ms. Wheeler "signed a standard USAA form release, releasing Sadlon from all liability for causing the accident" and settled for an "amount that was represented to be all of the USAA insurance proceeds available to protect Sadlon, " i.e., the policy limit.
Ms. Wheeler received the $50, 000 policy limit, with $1, 519.86 in interest, plus attorney's fees of $7, 651.99, for a total of $59, 171.85. The fee award was calculated using Alaska Rule of Civil Procedure 82, which provides that "the prevailing party in a civil case shall be awarded attorney's fees calculated under" the fee schedule set forth in the rule. The fee schedule fixes the fee award at a percentage of the money judgment obtained.
Ms. Wheeler's fee award was calculated as a percentage of the settlement amount, a method known as "limited Rule 82 fees." The SAC asserts that the fee award should have been calculated as a percentage of Ms. Wheeler's total damages, a method known as "unlimited Rule 82 fees."
The SAC states that although an insurer may lawfully limit its liability under Rule 82, it may only do so by including "an approved notice in a form promulgated by the Division of Insurance as part of the policy" and that failure to include such a notice renders the limitation ineffective. The SAC asserts that "all of" the USAA Defendants' insurance policies include the necessary form, but specifically state that the form is not part of the policy. Thus, according to the SAC, the attempted limitation of Rule 82 fees in the USAA Defendants' policies is ineffective and "Sadlon's Policy actually provided unlimited Rule 82 attorney fee coverage."
Ms. Wheeler initiated this action in Alaska Superior Court on June 10, 2010 and filed a First Amended Complaint on January 14, 2011. The USAA Defendants removed the action to federal court on the basis of diversity on February 14, 2011. Pursuant to a stipulation by the parties, the Court granted Ms. Wheeler leave to file a Second Amended Complaint on February 27, 2012.
Ms. Wheeler seeks to represent a class of plaintiffs that she alleges have suffered a similar injury. The SAC defines the proposed class as follows:
[A] class of persons: A) Injured in Alaska since 2001 by persons or entities insured by the USAA Group for legal liabilities, and B) To whom the USAA Group tendered an amount in settlement that it represented was its full policy limits, and C) To whom the USAA Group tendered an amount in settlement that was calculated as though it had complied with the requirements of Alaska law for limiting its Rule 82 attorney fee coverage, and D) Who signed releases in exchange for payment of funds not including unlimited Rule 82 attorney fees.
Ms. Wheeler has indicated that she expects the class size to exceed 136 members.
The SAC asserts three individual claims for relief on behalf of Ms. Wheeler: (1) Reformation of Settlement Agreement, (2) Misrepresentation, and (3) Rescission for Mutual Mistake. It asserts the following "questions of law and fact common to the class":
a. Whether the USAA Group's standard liability insurance policies are in compliance with Alaska law ...