WEST VIRGINIA RECORD

CHARLESTON - Allstate Insurance wants the West Virginia Supreme Court of Appeals to relieve it of a duty to analyze 10 years of property damage claims.

According to Allstate, a survey that Ohio Circuit Judge Martin Gaughan ordered would cost $553,500.

According to attorneys who propose a class action suit against Allstate, the survey would cost only $140,000. They say the price does not matter anyway.

Justices plan to hear oral arguments Wednesday, Nov. 1.

In the proposed class action, plaintiff Douglas Arensburg claims that when Allstate paid for property repairs it failed to include overhead and profit for general contractors.

Arensburg owned rental property that a fire damaged in 2002.

According to Allstate, Arensburg said he needed no contractor because he would repair the property himself. Allstate says it sent him a check for $14,357.74.

He complained that the check should have included a $3,000 contractor payment. Allstate sent him a check for $993.46.

Arensburg did not cash the check. He filed suit, seeking to represent a class of Allstate policyholders with claims of partial losses.

He then claimed a total loss. Allstate sent him the remainder of a $66,000 policy limit.

Allstate sought an order declaring that Arensburg, as a total loss claimant, could not represent a class of partial loss claimants. Gaughan denied the motion.

Arensburg's attorneys asked for a review of all West Virginia property damage claims from 1993 through 2002. Allstate said that would cover 18,000 claims.

The two sides agreed that as a first step, Allstate would review all claims from 2001 and 2002 involving more than $2,500.

According to Allstate the review identified 12 claims that involved contractor overhead and profit. Allstate argued that further review was not warranted.

Gaughan disagreed. In June he ordered Allstate to analyze all claims for 10 years.

In July Allstate attorney Nathan Bowles Jr., of Charleston, asked the Supreme Court of Appeals to block enforcement of the order.

Bowles argued that Arensburg's claim was moot and Gaughan should not allow him to move forward with a class action.

He wrote, "…an individual is not allowed to bring a class action on behalf of others just because he wants to. He must have suffered the same injury."

In response, Robert Fitzsimmons of Wheeling argued that Arensburg's claim is not moot because he seeks punitive damages.

He argued that Allstate estimated the cost of the survey before the two sides agreed to limit it to claims above $2,500.

He wrote that the cost of the survey has nothing to do with Gaughan's order.