Lorena M. Milligan, individually and on behalf of all others similarly situated, Plaintiff-Appellee,
CCC Information Services Inc., Defendant-Appellant, Geico General Insurance Company, Defendant-Appellant.
Argued: March 8, 2019
GEICO General Insurance Company ("GEICO") and CCC
Information Services ("CCC") appeal from an order
of the United States District Court for the Eastern District
of New York (Azrack, J.), denying their motions to
compel appraisal in a suit brought by Plaintiff-Appellee
Lorena Milligan, a GEICO policyholder. GEICO argues that the
district court erred in refusing to grant its motion to
compel appraisal because Milligan's policy requires her
to submit a dispute over the value of her loss to a panel of
appraisers. CCC argues that the doctrine of equitable
estoppel entitles it to compel Milligan to comply with the
appraisal procedure in her policy. Both GEICO and CCC assert
that we have jurisdiction over this interlocutory appeal
pursuant to the Federal Arbitration Act, 9 U.S.C.
§§ 1 et seq. The order of the district
court is AFFIRMED.
Altman, Excolo Law Group, Southfield, MI, (Ari Kresch, Excolo
Law Group, Southfield, MI, Sharon S. Almonrode, Dennis A.
Lienhardt, The Miller Law Firm, P.C., Rochester, MI, on the
brief) for Plaintiff-Appellee.
Kathleen Lally, Latham & Watkins LLP, Chicago, IL, (Mark
S. Mester, Latham & Watkins LLP, Chicago, IL, Benjamin W.
Snyder, Latham & Watkins LLP, Washington, DC, on the
brief) for Defendant-Appellant CCC Information Services Inc.
Biscone, Rivkin Radler LLP, Uniondale, NY (Cheryl F. Korman,
Rivkin Radler LLP, Uniondale, NY, on the brief) for
Defendant-Appellant GEICO General Insurance Company.
Before: Jacobs and Lynch, Circuit Judges, and Vilardo,
District Judge. [*]
E. LYNCH, CIRCUIT JUDGE:
M. Milligan filed this putative class action in the United
States District Court for the Eastern District of New York
(Joan M. Azrack, Judge), asserting several causes of
action against GEICO General Insurance Company
("GEICO"), with whom she had an insurance policy,
and CCC Information Services ("CCC"), a GEICO
contractor, relating to a claim she filed with GEICO
following the total loss of her vehicle. GEICO and CCC both
moved to compel Milligan to comply with a provision of her
policy requiring her to submit disputes over the amount of
loss to a panel of appraisers. Milligan opposed the motions,
arguing that GEICO had not timely sought appraisal and that
appraisal was inappropriate because her claims against the
defendants concerned a legal dispute over the amount of
coverage under her policy. The district court agreed with
Milligan and denied the motions. For the reasons that follow,
we AFFIRM the order of the district court.
leased a 2015 Lexus automobile in March 2015. The lease
agreement with Lexus Financial Services, the company from
which she leased the Lexus, stated the purchase price of the
car as $51, 400. Milligan obtained an insurance policy with
GEICO (the "Policy") to cover bodily injury and
property damage to the Lexus. Approximately two months after
leasing the vehicle, Milligan was involved in a rollover
accident that resulted in the Lexus being damaged beyond
repair. Shortly thereafter, Milligan submitted a claim to
GEICO. GEICO obtained a Market Valuation Report from CCC,
which valued Milligan's vehicle at $45, 924. GEICO paid
Milligan's lienholder, Toyota Lease Trust, $45, 924 on
January 15, 2016, Milligan filed this putative class action
complaint asserting claims against GEICO and CCC for breach
of contract, negligence, unjust enrichment, and violations of
New York insurance law, 11 NYCRR § 216.7
("Regulation 64"), and New York General Business
Law § 349 (which bans unfair and deceptive trade
practices), seeking damages and declaratory and injunctive
relief. The complaint invokes federal jurisdiction pursuant
to the Class Action Fairness Act of 2005, 28 U.S.C. §
thrust of Milligan's complaint is that GEICO violated
Regulation 64, a New York State insurance regulation that
requires an insurer, in the case of a total loss of a current
model year vehicle, to reimburse the owner for the reasonable
purchase price less any applicable deductible and
depreciation allowances. As relevant herein, Regulation 64
A private passenger automobile of the current model year
means a current model year automobile that has not been
superseded in the marketplace by an officially introduced
succeeding model, or an automobile of the previous model year
purchased new within 90 days prior to the date of loss. If
the insured vehicle is a private passenger automobile of the
current model year, the insurer shall pay to the insured the
reasonable purchase price to the insured on the date of loss
of a new identical vehicle, less any applicable deductible
and an allowance for depreciation in accordance with [a set
schedule], except [under circumstances not relevant here].
11 NYCRR § 216.7(c)(3).
alleges that her vehicle was a "current model year"
automobile as defined by Regulation 64. She contends,
however, that rather than paying her the reasonable purchase
price of a new identical vehicle on the date of loss less any
applicable deductible and depreciation allowances, as
required by Regulation 64, GEICO paid Milligan the amount
contained in CCC's Market Valuation Report, which
calculated her loss using the average of three similar dealer
vehicles that were available or recently sold in the
marketplace at the time of the valuation. Milligan's
complaint sets forth class allegations suggesting that the
practices alleged affected many GEICO insureds.
March 8, 2016, GEICO's counsel communicated a demand for
appraisal to Milligan's counsel pursuant to ...