Martinez v. Progressive Preferred Ins. Co., et al.

A United States District Court authorized a Notice because you have the right to know about the proposed Settlement of this class action lawsuit and about all of your rights and options before the Court decides whether to grant final approval to the Settlement. The Notice you received explains the Lawsuit, the Settlement, your legal rights, what benefits are available, who is eligible for the benefits, and how to get them.

Federal Judge Jerry H. Ritter of the United States District Court for the District of New Mexico is overseeing this class action. The case is known as Diane Martinez, et al. v. Progressive Preferred Ins. Co., et al., United States District Court for the District of New Mexico, Case No. 1:19-cv-00004-JHR-SCY. The persons who filed this Lawsuit are called the “Plaintiffs” or “Class Representatives,” and the companies they sued—Progressive Preferred Insurance Company, Progressive Classic Insurance Company, Progressive Casualty Insurance Company, Progressive Direct Insurance Company, Progressive Advanced Insurance Company, Progressive Specialty Insurance Company, and Progressive Northern Insurance Company—are called “Progressive” or the “Defendants.”

Plaintiffs allege that Progressive violated New Mexico law by misrepresenting Underinsured Motorist (“UIM”) coverage in their written materials and applying an offset due to the insurance coverage limits of third parties responsible for injuries or property damage (the “Lawsuit”). The Plaintiffs asserted claims for (1) negligence, (2) violations of New Mexico’s Unfair Trade Practices Act, (3) violations of New Mexico’s Unfair Insurance Practices Act, (4) policy reformation, (5) breach of the implied duty of good faith and fair dealing, (6) unjust enrichment, (7) negligence misrepresentation, (8) declaratory judgment, and (9) injunctive relief.

Progressive denies any wrongdoing, and no court or other entity has made any judgment or other determination of any wrongdoing, or that any law has been violated. Progressive denies these and all other claims made in the Litigation. By entering into the Settlement, Progressive is not admitting any wrongdoing.

In a class action, one or more people called Class Representatives sue on behalf of all people who have similar claims. Together all these people are called a Settlement Class or Settlement Class Members. One court resolves the issues for all Settlement Class Members, except for those Settlement Class Members who timely exclude themselves from the Settlement Class.

The proposed Class Representatives in this case are the Plaintiffs: Diane Martinez and Erin Martin.

Plaintiffs and Progressive do not agree on the claims made in this Litigation. The Litigation has not gone to trial, and the Court has not decided in favor of Plaintiffs or Progressive. Instead, Plaintiffs and Progressive have agreed to settle the Litigation. Plaintiffs and the attorneys for the Settlement Class (“Class Counsel”) believe the Settlement is best for all Settlement Class Members because of the Settlement benefits, the risks and uncertainty associated with continued litigation, and the nature of the defenses raised by Progressive.

You are a Settlement Class Member if you received a Notice of Settlement. If the Settlement Administrator mailed or emailed you a notification, you are a Settlement Class Member.

Yes. Excluded from the Settlement Class are: 1) any Claimant who has separately filed suit against Progressive up to the Notice Date, the subject of which suit includes the reduction or denial of benefits on the basis of the offset described in FAQ 2; 2) any individual who has settled a claim for benefits reduced or denied on the basis of the offset described in FAQ 2, whose claim was adjusted or readjusted without applying the offset described in FAQ 2, and signed a final release prior to the Notice Date; 3) any Claimant for whom, at Claimant’s request, Progressive has already readjusted a claim for benefits reduced or denied on the basis of the offset described in FAQ 2 prior to the Notice Date; 4) the Judge(s) presiding over this Action; and 5) Progressive and any employee of Progressive.

If you are still not sure whether you are a Settlement Class Member, you may call the Settlement Administrator at 1-844-451-2728.

The Settlement provides the following Settlement benefits to Settlement Class Members:

• Progressive will readjust certain wrongful death claims for Settlement Class Members who suffered a fatality reported to Progressive between May 8, 2014, and March 22, 2022, without the need to file a Claim (the “Automatic Payments”). This benefit is valued at approximately $25,000 per Settlement Class Member or may be more if you purchased more than minimum limits coverage or have stacked benefits.
• Settlement Class Members not eligible for the Automatic Payments must file a Claim to receive payment under one of two options:
  • OPTION 1: BODILY INJURY AND/OR PROPERTY DAMAGE CLAIM. If you believe you made or could have made a UIM claim to Progressive between January 1, 2004, and March 22, 2022, for an automobile accident and/or property damage that was subject to an offset in coverage due to the insurance coverage limits of a third party responsible for your injuries and/or property damage, then you can submit a Settlement Claim to have your claim readjusted or to make a new claim. This benefit is valued at approximately $25,000 per Settlement Class Member for bodily injuries, or may be more if you purchased more than minimum limits coverage or have stacked benefits. The property damage value is the amount on your applicable declaration pages. Progressive will process claims made under Option 1 through its ordinary claims process.
  • OPTION 2: RETURN OF PREMIUMS. If you are a Progressive policyholder Settlement Class Member not eligible under Option 1, you may make a Claim for a refund of 18% of all premium paid for Uninsured/Underinsured Motorist (“UM/UIM”) benefits between January 1, 2004, and March 22, 2022. The amount of your benefit will be based on the amount of UM/UIM premium paid to Progressive during the class period. Benefits under Option 2 are subject to a $2,500,000 aggregate cap for all Valid Claims. If the value of aggregate Valid Claims made exceeds $2,500,000, Settlement Class Members who submit Valid Claims under this Option 2 shall be paid a pro rata share of $2,500,000.

UIM Claim Readjustment and Appeal Process. Progressive will process all Automatic Payments and Option 1 Settlement Claims received through its claims department. All Automatic Payments and Option 1 Settlement Claims shall be adjusted expeditiously, as they would be in the ordinary course of business. You must submit all reasonable, required supplemental documentation concerning your UIM claim in order to obtain any additional UIM benefit payment. If you have made a Claim under Option 1, Progressive shall send you a Notice of Determination, which shall set forth (i) the amounts (if any) of the Settlement Class Payment to be paid; (ii) where not otherwise obvious, a brief explanation of the calculation and basis for the determination of those amounts; and (iii) if any Claims or dollar amounts are rejected, a brief explanation of the reasons for the rejection.

If you disagree with Progressive’s Notice of Determination, you may appeal that determination by mailing a demand for a Neutral Evaluation on Appeal to the Settlement Administrator at:

Martinez v. Progressive Settlement Administrator
P.O. Box 2350
Portland, OR 97208-2350

The Neutral Evaluation on Appeal form will be available on the Documents section of this website prior to the Notice of Determination being sent. Your demand must be postmarked within 30 days from the date on which the Notice of Determination was postmarked or emailed.

Unless you exclude yourself, you are choosing to remain in the Settlement Class. If the Settlement is approved and becomes final, all of the Court’s orders will apply to you and legally bind you. You will not be able to sue, continue to sue, or be part of any other lawsuit against Progressive and the Released Parties about the legal issues in this Litigation that are released by this Settlement. The specific rights you are giving up are called “Released Claims.”

The Settlement Agreement, in Section VII, Paragraph 48, describes the Release, Released Claims, and the Released Parties in necessary legal terminology, so please read these sections carefully. The Settlement Agreement is available in the Documents section of this website or in the public court records on file in this Lawsuit. For questions regarding Releases and what they mean, you can also contact one of the lawyers listed in FAQ 14 for free, or you can talk to your own lawyer at your own expense.

Settlement Class Members entitled to Automatic Payments do not need to make a Claim to have their Claim readjusted.

To receive benefits under Options 1 or 2, you must complete and submit a Valid Claim Form to the Settlement Administrator, postmarked or submitted online on or before August 10, 2023. Claim Forms may be submitted here or downloaded here and mailed to the Settlement Administrator at the address on the form. The quickest way to submit a Claim is online. Claim Forms are also available by calling 1-844-451-2728 or by writing to:

Martinez v. Progressive Settlement Administrator
P.O. Box 2350
Portland, OR 97208-2350

If you change your mailing address or email address after you submit a Claim Form, it is your responsibility to inform the Settlement Administrator of your updated information. You may notify the Settlement Administrator of any changes by calling 1-844-451-2728 or by writing to:

Martinez v. Progressive Settlement Administrator
P.O. Box 2350
Portland, OR 97208-2350

If you make a Valid Claim, payment will be provided by the Settlement Administrator or Progressive after the Settlement is approved by the Court and becomes final, including the end of any dates to appeal the final approval of the Settlement. The date of payment will vary depending on which benefit you may receive, whether you are required to submit additional documentation to Progressive, and whether you appeal a determination under Option 1. Automatic Payments and payments under Option 2 will be paid within 60 days after the Settlement becomes final. Payment dates under Option 1 vary, but many Valid Claims should be paid within 180 days of the date the Settlement becomes final.

It may take time for the Settlement to be approved and become final. Please be patient and check this website for updates.

Yes. The Court has appointed Kedar Bhasker of Bhasker Law (2741 Indian School Rd. NE, Albuquerque, NM 87106), Corbin Hildebrandt of Corbin Hildebrandt P.C. (2741 Indian School Rd. NE, Albuquerque, NM 87106), and Geoffrey Romero of Law Offices of Geoffrey R. Romero (4801 All Saints Rd. NW, Ste. A, Albuquerque, NM 87120) as Class Counsel to represent you and the Settlement Class for the purposes of this Settlement. You may hire your own lawyer at your own cost and expense if you want someone other than Class Counsel to represent you in this Litigation.

Class Counsel will file a motion asking the Court to award them attorneys’ fees not to exceed $2,500,000 to be paid by Progressive. They will also ask the Court to approve a $10,000 service award to each of the two named Plaintiffs for participating in this Litigation and for their effort in achieving the Settlement. Plaintiffs also shall have their own UIM claims readjusted to $25,000 each (equivalent to what they would receive under Option 1) by Progressive as part of the Settlement. The Court may award less than these amounts. If awarded by the Court, Progressive will pay fees, costs, expenses, and incentive awards directly.

Class Counsel’s application for attorneys’ fees, expenses, and service awards will be made available on the Documents section of this website before the deadline for you to object to the Settlement.

If you are a Settlement Class Member and want to keep any right you may have to sue or continue to sue Progressive or the Released Parties on your own based on the claims raised in this Litigation or released by the Released Claims, then you must take steps to get out of the Settlement. This is called excluding yourself from, or “opting out” of, the Settlement.

To opt out of the Settlement, you must mail written notice of a request for exclusion. The written notice must state that you want to be excluded from the Settlement in Diane Martinez, et al. v. Progressive Preferred Ins. Co., et al., United States District Court for the District of New Mexico, Case No. 1:19-cv-00004-JHR-SCY. The written notice must be signed and clearly state that you wish to be excluded from the Settlement Class. The exclusion request must be postmarked and sent to Progressive’s counsel and Class Counsel at the following addresses by June 26, 2023:

You cannot exclude yourself by telephone or by email.

No. If you exclude yourself, you are telling the Court you do not want to be part of the Settlement. You can only get Settlement benefits if you stay in the Settlement and submit a valid Claim Form requesting benefits under Options 1 or 2.

No. Unless you exclude yourself, you give up any right to sue Defendants and the Released Parties for the claims this Settlement resolves relating to the Litigation. You must exclude yourself from this Litigation to start or continue with your own lawsuit or be part of any other lawsuit against the Defendants or any of the Released Parties. If you have a pending lawsuit, speak to your lawyer in that case immediately.

If you are a Settlement Class Member, you can tell the Court you do not agree with all or any part of the Settlement or requested attorneys’ fees and expenses. You can also give reasons why you think the Court should not approve the Settlement or attorneys’ fees and expenses. To object, you must file a timely written notice as provided below no later than June 26, 2023, stating you object to the Settlement in Diane Martinez, et al. v. Progressive Preferred Ins. Co., et al., United States District Court for the District of New Mexico, Case No. 1:19-cv-00004-JHR-SCY.

To be valid, an objection must state the following: (a) the objector’s full name, address, telephone number, and email address (if any); (b) information identifying the objector as a Settlement Class Member; (c) a written statement of all grounds for the objection, accompanied by any legal support the objector cares to submit; (d) the identity of all lawyers (if any) representing the objector; (e) the identity of all of the objector’s lawyers (if any) who will appear at the Final Fairness Hearing; (f) a list of all persons who will be called to testify at the Final Fairness Hearing in support of the objection; (g) a statement confirming whether the objector intends to personally appear and/or testify at the Final Fairness Hearing; and (h) the objector’s signature or the signature of the objector’s duly authorized lawyer or other duly authorized representative (along with documentation setting forth such representation).

In addition to the foregoing, objections should also provide the following information: (a) a list, by case name, court, and docket number, of all other cases in which the objector (directly or through a lawyer) has filed an objection to any proposed class action settlement within the last three (3) years; (b) a list, by case name, court, and docket number, of all other cases in which the objector’s lawyer (on behalf of any person or entity) has filed an objection to any proposed class action settlement within the last three (3) years; and (c) a list, by case number, court, and docket number, of all other cases in which the objector has been a named plaintiff in any class action or served as a lead plaintiff or class representative.

To be timely, written notice of an objection in the appropriate form containing the case name and docket number (Diane Martinez, et al. v. Progressive Preferred Ins. Co., et al., United States District Court for the District of New Mexico, Case No. 1:19-cv-00004-JHR-SCY) must be filed with the Clerk of the Court (address below) and mailed to the following:

Any Settlement Class Member who fails to comply with the requirements for objecting in Section IX of the Settlement Agreement shall waive and forfeit any and all rights he or she may have to appear separately and/or to object to the Settlement Agreement and shall be bound by all the terms of the Settlement Agreement and by all proceedings, orders, and judgments in the Litigation.

Objecting is simply telling the Court you do not like something about the Settlement or requested attorneys’ fees and expenses. You can object only if you stay in the Settlement Class (that is, do not exclude yourself). Requesting exclusion is telling the Court you do not want to be part of the Settlement Class or the Settlement. If you exclude yourself, you cannot object to the Settlement.

The Court will hold a Final Fairness Hearing on August 2, 2023, at 9:00 a.m. before Judge Jerry H. Ritter, United States District Court, Pete V. Domenici U.S. Courthouse, 333 Lomas Blvd NW, Courtroom 530, Albuquerque, NM 87102.

At this hearing, the Court will consider whether the Settlement is fair, reasonable, and adequate and decide whether to approve the Settlement, Class Counsel’s application for attorneys’ fees, costs and expenses, and the incentive awards to Plaintiffs. If there are objections, the Court will consider them. The Court will also listen to people who have asked to speak at the hearing.

Note: The date and time of the Final Fairness Hearing are subject to change. The Court may also decide to hold the hearing via Zoom or by phone. Any change will be posted on the Home Page of this website.

No. Class Counsel will answer any questions the Court may have. However, you are welcome to attend at your own expense. If you send an objection, you do not have to come to Court to speak about it. As long as you file or mail your written objection on time, the Court will consider it.

Yes, as long as you do not exclude yourself, you can (but do not have to) participate and speak for yourself in this Litigation and Settlement. This is called making an appearance. You also can have your own lawyer speak for you, but you will have to pay for the lawyer yourself.

If you want to appear, or if you want your own lawyer instead of Class Counsel to speak for you in this Litigation, you must follow all of the procedures for objecting to the Settlement listed in FAQ 19 and specifically include a statement on whether you and your counsel will appear at the Final Fairness Hearing.

If you are a Settlement Class Member and you do nothing, you will not receive any Settlement benefits unless you are entitled to Automatic Payments. You will give up rights as explained in the “Excluding Yourself from the Settlement” section of the Notice, including your right to start a lawsuit, continue with a lawsuit, or be part of any other lawsuit against Defendants or any of the Released Parties about the legal issues in this Litigation that are released by the Settlement Agreement relating to the Litigation.

This website summarizes the proposed Settlement. Complete details are provided in the Settlement Agreement. The Settlement Agreement and other related documents are available on the Documents page, by calling 1-844-451-2728, or by writing to:

Martinez v. Progressive Settlement Administrator
P.O. Box 2350
Portland, OR 97208-2350