The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOANNE WOLFF, individually and on No. 4:19-CV-01596
behalf of a Class of Similarly Situated
Individuals, (Chief Judge Brann)
Plaintiff,
v.
AETNA LIFE INSURANCE
COMPANY,
Defendant.
MEMORANDUM OPINION
NOVEMBER 22, 2022
I. BACKGROUND
In 2020, Joanne Wolff, on behalf of herself on all similarly situated
individuals, filed a second amended complaint1 against Aetna Life Insurance
Company (“Aetna”) raising claims for: a violation of the Employee Retirement
Income Security Act of 1974,2 breaches of fiduciary duties, conversion, money had
and received, intentional misrepresentation, negligent misrepresentation, unjust
enrichment, theft by deception, attempted theft, a violation of Pennsylvania’s Unfair
1 Wolff originally filed this action in Pennsylvania state court on August 8, 2019, and the action
was later removed to federal court by Aetna. Doc. 1.
Trade Practices and Consumer Protection Law, and a violation of the Pennsylvania
Fair Credit Extension Uniformity Act.3
Wolff avers that she was previously insured for long-term disability benefits
under the terms of a group plan (the “Plan”) issued by Aetna through Bank of
America Corporation—Wolff’s employer.4 In September 2015, Wolff was
temporarily disabled as a result of a motor vehicle accident that caused Wolff
injuries.5 Wolff submitted a claim to Aetna under the Plan and received long-term
disability benefits exceeding $50,000.6
Wolff separately filed a civil action against the other party involved in the
accident.7 Wolff and the defendant eventually settled the matter, with Wolff
receiving monetary compensation from the defendant in that matter.8 Aetna and
another entity with which it worked, the Rawlings Company (“Rawlings”), sought
reimbursement of the benefits that Aetna had paid to Wolff under the terms of the
Plan, although the Plan allegedly not permitting such reimbursement.9 After
negotiations between Wolff and Rawlings, Wolff agreed to reimburse Aetna and
Rawlings $30,000.10
3 Doc. 44.
4 Id. ¶ 6.
5 Id. ¶ 8.
6 Id. ¶¶ 9-10.
7 Id. ¶ 11.
8 Id. ¶ 12.
9 Id. ¶¶ 13-16.
Despite agreeing to pay that sum to Aetna, Wolff asserts that the Plan did not
permit Aetna to pursue reimbursement for her personal injury recovery. As relevant
here, Wolff alleges that the Plan permitted Aetna to obtain reimbursement only for
“Other Income Benefits,” and personal injury recoveries are not included in the
Plan’s definition of “Other Income Benefits.”11
Wolff later filed a motion to certify a class pursuant to Federal Rule of Civil
Procedure 23,12 which this Court granted after finding that the Rule 23 requirements
were met.13 The Court determined that Wolff had satisfied numerosity,
commonality, typicality, and adequacy of representation. As to numerosity, the
Court concluded that there are at least 48 individuals who qualify for the class, which
is sufficient to satisfy the numerosity requirement.14
In reaching this conclusion, the Court rejected Aetna’s assertion that
variations in plan language meant that certain individuals would not qualify for the
class. Specifically, the Court found that the “Other Income Benefits” language from
the various plans were substantially similar, and any variations were not
determinative of any claims and therefore did not prevent certification.15 Although
one plan contained broad language that could theoretically encompass personal
11 Doc. 44 ¶¶ 35-40.
12 Doc. 107.
13 Doc. 126, 127.
14 Doc. 126 at 5-11.
injury settlements, the Court expressed significant doubt that the language actually
encompassed such settlements.16
The Court further determined that commonality and typicality were met, as
the dispositive legal question was the same for all class members, the same general
factual circumstances would underlie each claim, and no affirmative defense would
prevent certification.17 The Court also found that Wolff could adequately represent
the class.18 Finally, this Court held that the Rule 23(b)(3) requirements were met, as
a single issue is more prevalent than any non-common issues, and class certification
is superior to other methods of adjudication.19
Aetna has now filed a motion for reconsideration, asserting that intervening
case law from the United States Court of Appeals for the Third Circuit requires that
this Court decertify the class.20 Aetna notes that, one month after this Court certified
the class, the Third Circuit issued its opinion in Allen v. Ollie’s Bargain Outlet,21
wherein that court held that, when deciding issues of commonality, courts “must
resolve all factual or legal disputes relevant to class certification.”22 Aetna contends
that this Court left a key factual issue unresolved in granting class certification—
whether the language contained in the different plans permits reimbursement of
16 Id. at 8-9; see id. at 9 n. 41.
17 Id. at 11-16.
18 Id. at 16-17.
19 Id. at 17-26.
20 Doc. 133.
21 37 F.4th 890 (3d Cir. 2022).
personal injury recoveries.23 Aetna points to several variations in the relevant
language which it believes entitled it to seek reimbursement, although Aetna
contends that the Court deferred any finding on whether that language actually
permitted reimbursement, in contravention of the requirements set forth in Allen.24
Aetna further argues that the Court failed to resolve factual issues regarding
Wolff’s misrepresentation-based claim, including what representations or omissions
were made by Aetna to the class members.25 Finally, Aetna asserts that the class
definition creates an impermissible fail-safe class.26
Wolff responds that, as an initial matter, Allen did not create any new
standards such that it may constitute intervening case law upon which a party may
base a motion for reconsideration, and Allen is otherwise distinguishable from this
case.27 Wolff further argues that the Court analyzed every criteria necessary to
certify a class, and Aetna improperly seeks to litigate the merit of the underlying
claims.28 Nor, Wolff states, were any issued left unresolved as to her fiduciary duty
claim.29 Finally, Wolff asserts that any argument related to a fail-safe class is moot,
as Wolff is willing to largely adopt Aetna’s proposed formulation of the class.30
23 Id. at 9-13.
24 Id. at 10-12.
25 Id. at 13-14.
26 Id. at 16-18.
27 Doc. 139 at 4-8.
28 Id. at 9-19.
29 Id. at 19-21.
Aetna has filed a reply brief, and the motion is now ripe for disposition.31 For
the following reasons, Aetna’s motion for reconsideration will be granted in part and
denied in part.
II. DISCUSSION
To properly support a motion for reconsideration, a party must demonstrate
“at least one of the following: (1) an intervening change in the controlling law; (2)
the availability of new evidence that was not available when the court granted the
motion; or (3) the need to correct a clear error of law or fact or to prevent manifest
injustice.”32 “Thus, [to warrant reconsideration, Aetna] must show more than mere
disagreement with the earlier ruling; [it] must show that the . . . Court committed a
direct, obvious, or observable error, and one that is of at least some importance to
the larger proceedings.”33
A. Whether There has Been an Intervening Change in Controlling
Law
First, the parties dispute whether the Third Circuit’s opinion in Allen
constitutes an intervening change in controlling law such that reconsideration based
upon that opinion may be appropriate. Wolff argues that Allen announced no new or
changed law but, instead, simply applied existing law to the facts of that case.34
31 Doc. 140.
32 In re Vehicle Carrier Servs. Antitrust Litig., 846 F.3d 71, 87 (3d Cir. 2017) (ellipsis and internal
quotation marks omitted).
33 In re Energy Future Holdings Corp., 904 F.3d 298, 312 (3d Cir. 2018) (brackets, quotation
marks, and citation omitted).
Aetna in contrast asserts that Allen is an “important decisional development” that
warrants reconsideration.35
To merit reconsideration based on a new decision, that decision must not only
be intervening, but must constitute a “change in the controlling law.”36
Consequently, where an opinion merely “explore[s] and reaffirm[s] its earlier
precedents,” such a “decision does not represent ‘an intervening change in the
controlling law’” that may support a motion for reconsideration.37 In circumstances
where a new decision does not represent a change in controlling law, a motion for
reconsideration is more properly viewed “merely [as an] attempt[] to reargue a
position that [has] already [been] rejected, which is improper.”38
In Allen, the Third Circuit examined a district court’s decision to certify a
class that included anyone “with qualified mobility disabilities who have attempted,
or will attempt, to access the interior of any store owned or operated by Ollie’s within
the United States and have, or will have, experienced access barriers in interior paths
of travel.”39 That court noted that, in certifying the class, the district court “relied on
a syllogism”40 as the district court held that “‘Ollie’s policies are uniform and
35 Doc. 140 at 4-5.
36 In re Vehicle Carrier Servs., 846 F.3d at 87 (emphasis added).
37 Eichorn v. AT&T Corp., No. CIV.A. 96-3587 (MLC), 1999 WL 33471890, at *3 (D.N.J. Aug.
23, 1999).
38 United States ex rel. Brown v. Pfizer, Inc., No. CV 05-6795, 2018 WL 11416558, at *1 n.1
(E.D. Pa. Oct. 12, 2018). See also Eichorn, 1999 WL 33471890 at *3 (rejecting motion for
reconsideration because movant only “proffers reasons why they disagree with the Court’s
[prior] conclusion”).
39 Allen, 37 F.4th at 894.
company-wide’” and, therefore, “‘[i]f Ollie’s policies and procedures do, in fact,
cause access barriers to unlawfully restrict individuals with disabilities from
obtaining their desired goods, then proposed members who endured violations have
suffered the same injury, the resolution of which will resolve a central issue in one
fell stroke.’”41
In analyzing commonality, the Third Circuit in Allen restated established
caselaw and noted that “‘[c]ommonality requires the plaintiff to demonstrate that the
class members have suffered the same injury. This does not mean merely that they
have all suffered a violation of the same provision of law.’”42 “Instead, the claims
‘must depend upon a common contention.’”43 That court reiterated that such a
“‘common contention, moreover, must be of such a nature that it is capable of
classwide resolution—which means that determination of its truth or falsity will
resolve an issue that is central to the validity of each one of the claims in one
stroke.’”44 The Third Circuit then repeated its prior holding that “[w]hen deciding
whether the class raises a common question, ‘the court cannot be bashful. It must
resolve all factual or legal disputes relevant to class certification, even if they overlap
with the merits—including disputes touching on elements of the cause of action.’”45
41 Id. (brackets omitted).
42 Id. at 900 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50 (2011)).
43 Id. (quoting Dukes, 564 U.S. at 350).
44 Id. (quoting Dukes, 564 U.S. at 350).
Having restated those foundational principles, the Third Circuit held that
“[t]he District Court abused its discretion when finding commonality for two
reasons. First, it misapplied the relevant standards and certified a geographically
overbroad class. Second, as we explained in Steak ’n Shake, a broad term like ‘access
barriers’ does not give rise to a common injury under the ADA.”46 The court
observed that:
Before certifying the proposed class, the District Court must answer the
very question it asked: whether plaintiffs have significant proof that
Ollie’s corporate policies, procedures, or practices in fact cause
discrimination by stores nationwide. Posing a hypothetical common
question is not enough to satisfy plaintiffs’ burden of proof. There must
be evidence the class proceeding will likely “produce a common
answer.”47
The Third Circuit concluded that, “[b]y failing to answer the commonality question,
the District Court deferred plaintiffs’ need to show commonality.”48
As that opinion makes clear, the Third Circuit broke no new ground, nor did
it alter in any way its prior precedent for addressing motions to certify a class. In
addressing numerosity, the court in Allen was clear that it was merely “[a]pplying
[its prior legal] principles.”49 And in addressing the issue of commonality, the court
cited to its prior legal precedent, announced no new rules, and emphasized that the
46 Id. at 900-01.
47 Id. at 901 (quoting Dukes, 564 U.S. at 352).
48 Id.
district court “misapplied the relevant standards” and overlooked binding precedent
as to a specific term that it used in defining the class.50
Consequently, the Third Circuit in Allen did not introduce a “change in the
controlling law,”51 but instead simply applied well-established law to the facts at
issue in that case. It is clear that that Aetna is displeased with the Court’s decision
to certify the class, but mere displeasure with a ruling is not a ground to reconsider
that ruling, nor is a motion for reconsideration a proper vehicle to reargue a position
that this Court has already rejected.52 Because Aetna fails to present a proper ground
for reconsideration, its motion will be denied to the extent that it relies upon Allen.
B. Merits of Aetna’s Motion
Even if the Court were to consider the merits of Aetna’s motion, the motion
would largely fail, as the Court addressed the relevant factual issues necessary to
determine commonality. Despite the fact that these issues were previously discussed,
the Court will further explicate its reasoning here.
1. Whether Varying Plan Language Prevents Certification
In ruling on Wolff’s motion for class certification, this Court addressed
Aetna’s contention that varying plan language meant that numerosity, commonality,
and predominance were absent.53 Specifically, the Court determined that the “Other
50 Id. at 900-01.
51 In re Vehicle Carrier Servs., 846 F.3d at 87 (emphasis added).
52 See Brown, 2018 WL 11416558, at *1 n.1 (collecting cases).
Income Benefits” portions of the various plans were “substantially similar” and any
differences were not legally relevant to the question of whether Aetna was permitted
to pursue reimbursement of personal injury settlements.54
The Court did—perhaps erroneously—fail to definitively rule on the language
contained in one of the plans, and instead concluded only that it “is highly unlikely”
that the language permitted Aetna to recover funds from personal injury
settlements.55 To the extent that this failed to satisfy the Third Circuit’s requirement
that courts “resolve all factual or legal disputes relevant to class certification,”56 the
Court will provide clarification here: nothing in the relevant plans leads the Court to
conclude that variations in the plan language prevents certification.57
In interpreting an insurance contract, courts must “determine the intent of the
parties.”58 “Courts are to consider not the inner, subjective intent of the parties, but
rather the intent a reasonable person would apprehend in considering the parties’
behavior.”59 “The strongest objective manifestation of intent is the language of the
contract” and, “where the words of the contract clearly manifest the parties’ intent,
a court need not resort to extrinsic aids or evidence.”60 “The parties are bound by the
54 Id. at 9.
55 Id. at 9 n. 41; see id. at 8-9.
56 Allen, 37 F.4th at 900.
57 Of course, the Court undertakes this analysis without any briefing on this issue by either of the
parties.
58 Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 75 (3d Cir. 2011) (internal quotation
marks omitted).
59 Id. (internal quotation marks omitted).
objective definition of the words they use to express their intent, including the
specialized meaning of any legal terms of art.”61 “Thus, a provision in a [contract] is
ambiguous only when, from an objective standpoint, it is reasonably susceptible to
at least two different interpretations.”62
Turning to the plans at issue here, as to the plan that the Court found
potentially encompassed personal injury settlement recoveries, a close reading of
that plan demonstrates by a preponderance of the evidence that the language this
Court previously cited does not permit such recoveries. The language to which the
Court reference permitted recovery for, inter alia, any “permanent impairment” or
“loss of bodily function or capacity.”63 However, that language is linked by semi
colons and the conjunctive “and,” and preceded by a paragraph that states
“[t]emporary or permanent, partial or total, disability benefits under any Workers’
Compensation law or similar law meant to compensate a worker for:”64 This means
that the terms “permanent impairment” or “loss of bodily function or capacity” are
connected and modified by the previous paragraph. Clearly then, despite an
erroneous placement of the bullet points in that portion of the definition of “Other
Income Benefits,” the above language is linked only to workers’ compensation type
laws and does not apply to personal injury recoveries in civil court. Consequently,
61 United States v. State of New Jersey, 194 F.3d 426, 430 (3d Cir. 1999) (internal quotation
marks omitted).
62 Id.
63 Doc. 112-3 at 10-11.
such language does not prohibit class certification, as it is irrelevant to the legal
theory of this case.
Aetna next argues, as it argued in opposing class certification, that language
such as “[a]utomobile no-fault wage replacement benefits required by law” means
that varying plan language prevents certification.65 The Court previously rejected
Aetna’s argument, holding that such a “term applies only to ‘wage replacement
benefits,’ not personal injury recoveries that compensate for medical bills, pain and
suffering, and other damages.”66 Indeed, that specific language, along with the other
language cited by Aetna such as “loss of past and future wages,” is explicitly listed
as examples for the paragraph that grants Aetna the right to recover funds paid as a
result of “[d]isability, retirement or unemployment benefits required or provided for
by government law.”67 That language necessarily excludes personal injury
recoveries, which do not constitute disability, retirement, or unemployment benefits
provided for by government law.
Aetna next notes that several plans provide that recoverable “Other Income
Benefits” includes “[d]isability payments for lost wages or time from work from
underinsured motorist (UIM), uninsured motorist coverage (UM), liability insurance
65 Doc. 134 at 10-11. The fact that Aetna previously raised this argument, and the argument was
unambiguously rejected by the Court, reinforces the fact that this motion simply seeks to
reargue Aetna’s previous position and is not a proper motion for reconsideration.
66 Doc. 126 at 8 n. 38.
67 Doc. 112-1 at 11; Doc. 112-2 at 13; Doc. 112-3 at 10-11; Doc. 112-4 at 13; Doc. 112-5 at 13;
or other source for a disability caused by a third party. ‘Other sources’ include (but
are not limited to) damages or a settlement received through legal action.”68 Aetna
further notes that two plans define other income benefits to include “[d]isability
payments from insurance or other sources for a disability caused by a third party.
‘Other sources’ include (but are not limited to) damages or a settlement received
through legal action.”69
In asserting that this language defeats commonality, Aetna again ignores
critical modifying language contained within those provisions. Specifically, that
language only applies to “[d]isability payments,” and not personal injury recoveries
through tort actions.70 The fact that the language references damages or settlements
“received through legal action” is immaterial, as legal action may sometimes be
necessary to recover disability payments that are owed to an individual. But the fact
of a legal action does not convert those funds from a disability payment to a personal
injury recovery. Accordingly, this differing language likewise does not defeat
commonality or numerosity.
Finally, Aetna asserts that the Court failed to resolve key factual issues related
to Wolff’s “misrepresentation-based claim.”71 In this regard, Aetna argues that the
68 Doc. 134-2 at 2; Doc. 112-3 at 11; Doc. 112-4 at 1; Doc. 112-5 at 13.
69 Doc. 134-2 at 2; Doc. 112-3 at 11.
70 This conclusion is buttressed by the language contained in the paragraph addressing
underinsured motorist and uninsured motorist coverage, which further modifies the subsequent
“legal action” language.
Court failed to resolve what representations or omissions were made by Aetna to
each individual class member.72
As the Court held in granting class certification, this claim satisfies
commonality, typicality, and predominance, and no outstanding factual issues
prevent certification.73 Essentially, there are no real disputed factual issues that could
undermine commonality. Wolff’s essential averments are that Aetna allegedly
misrepresented—by making a request for reimbursement of personal injury
recoveries in the first instance—that it was permitted to recover such funds, and that
Aetna allegedly failed to disclose to the class members that it was not permitted to
recover such funds.
These facts are common for every class member. Although the specific facts
of each claim may vary slightly—such as the specific manner that requests were
made or how the claimants responded to those requests—the claims share at their
core the same key dispositive facts that will ultimately be determinative of each class
member’s claim. Therefore, there again are no unresolved factual issues that would
preclude class certification.
2. Whether the Class Definition Creates a Fail-safe Class
Lastly, the Court will address Aetna’s claim that the class definition creates
an impermissible fail-safe class by defining the class so that membership depends
72 Id. at 13-14.
on whether the potential member has a valid claim.74 It does not appear that this
section of Aetna’s motion for reconsideration is related in any way to the Third
Circuit’s decision in Allen and, consequently, will be treated instead as proceeding
on the ground that the Court committed clear error in adopting Wolff’s proposed
class definition. In reviewing for clear error, reconsideration is warranted only if the
“[C]ourt is left with the definite and firm conviction that a mistake has been
committed.”75
Here, Aetna is correct that the class definition twice refers to the validity of a
claim by including the language “who suffered harm and damages” and “as a result
of defendants’ wrongful reimbursement demands and actions based on a violation
of the policy.”76 The Court therefore created a fail-safe class, although it is far from
certain whether such a class is in fact impermissible.77 Nevertheless, the language
referencing the validity of a claim appears legally unnecessary to the class definition,
and Wolff has agreed to largely adopt Aetna’s proposed class definition, with minor
modifications.78 The Court will therefore amend the class definition in line with this
compromise, which Aetna acknowledges “would help resolve the fail-safe nature of
74 Doc. 134 at 16-18.
75 Prusky v. ReliaStar Life Ins. Co., 532 F.3d 252, 258 (3d Cir. 2008) (internal quotation marks
omitted).
76 Doc. 127 at 1-2.
77 See Pelletier v. Endo Int’l PLC, 338 F.R.D. 446, 478 (E.D. Pa. 2021) (noting that a “class is
fail-safe if it is defined so that whether a person qualifies as a member depends on whether the
person has a valid claim” but also that “courts in this circuit regularly certify class definitions”
that include such language).
the current class definition.”79 Therefore, Aetna’s motion for reconsideration will be
granted to the limited extent that the Court will amend the class definition.
III. CONCLUSION
For the foregoing reasons, Aetna’s motion for reconsideration will be granted
in part and denied in part.
An appropriate Order follows.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge
79 Doc. 150 at 9. While Wolff has agreed to largely adopt Aetna’s proposed class definition, she
has not provided time limitations in her new definition, nor does she object to the dates