A divided Ninth Circuit panel recently affirmed a district court’s denial of class certification based on a lack of predominance. See Ambrosio v. Progressive Preferred Ins. Co., 2025 WL 2628179 (9th Cir. Sept. 12, 2025). The plaintiffs sought to represent a class of drivers asserting breach-of-contract and other related claims against an auto insurer. The drivers alleged the insurer’s use of a “projected sold adjustment” (“PSA”) to calculate the market value of insured drivers’ vehicles after a total loss led the insurer to uniformly underestimate vehicle value, which they contended violated the terms of their insurance policies. Agreeing with the district court’s reasoning, the Ninth Circuit held that, because the insurer’s use of the PSA did not by itself violate the terms of the policies, each plaintiff would need to adduce individual evidence to prove that the PSA had caused them measurable damages—an essential element of a claim for breach of contract under Arizona law.
The Ninth Circuit majority rejected the plaintiffs’ theory that the PSA was itself common evidence of liability for the entire proposed class on three grounds. First, the majority noted nothing in the policies explicitly prohibited using the PSA to calculate market value. Second, it held that the use of the PSA did not alone establish that all class members suffered measurable damages. While Ninth Circuit precedents say that class certification cannot be denied based solely on individualized questions about the quantification of damages, applicable law still requires class-wide proof to show that all class members suffered some measurable damage, and reference to the PSA could not satisfy this requirement, as it would not necessarily result in underpayments in all cases. Finally, the court pointed to evidence that some members of the proposed class in fact received higher-than-market payouts, which meant they had no damages and therefore no claim.
Ambrosio is the latest in a string of appellate decisions (including decisions from the Third, Forth, and Seventh Circuits) finding lack of predominance based on similar failures to present adequate common evidence that all class members actually suffered damage from the challenged practice. We covered one of these decisions, Drummond v. Progressive Specialty Insurance Co., 142 F.4th 149 (3d Cir. 2025), earlier this summer. Ambrosio drives home the importance of developing robust arguments and evidence to address questions relating to the fact of damage, even in a jurisdiction that may apply a liberal standard in permitting certification in the face of individualized issues about the quantification of damages.