Death of plaintiff interrupts landmark ruling

Steve Korris Oct. 27, 2005, 12:20pm

Ola Austin would have made history, if she had lived a little longer.

The Illinois Supreme Court had agreed to hear Austin’s proposed Madison County class action suit against Farmers Insurance, but her death this summer closed the case.

A Supreme Court decision would have guided Illinois judges and attorneys in choosing whether to sue or arbitrate.

Plaintiff attorneys often pursue cases after clients die, but Austin’s attorney, Jeffrey Millar of the Lakin Law Firm in Wood River, moved the Supreme Court to dismiss.

On the other hand, defense attorneys seldom pursue cases after plaintiffs die.

But, Troy Bozarth of Burroughs, Hepler, Broom, MacDonald, Hebrank & True, in Edwardsville, opposed Millar’s motion.

The Supreme Court granted the motion.

Austin carried a Farmers auto policy in 1996, when she suffered a mild cervical strain or sprain in an auto accident. A chiropractor treated her 61 times in 71 weeks.

In 1998, Farmers denied charges for all but the first two months of treatment. The denial applied to $2,852 in claims.

In 2001, Austin sued Farmers for breach of contract and consumer fraud. She moved to represent a class of Farmers policyholders.

Farmers sent Millar notice that it would invoke a binding arbitration clause in its policy. Farmers moved to compel arbitration.

Millar amended Austin’s complaint to allege that the arbitration clause was part of a fraudulent scheme.

Bozarth, in a memorandum for Circuit Judge Phillip Kardis, called Millar’s argument “an all-out assault on the very concept of arbitration.”

At a hearing in 2003, Kardis echoed Millar’s argument. He said, “The company uses these biased reports as part of the fraudulent scheme, to say that we are not going to pay all of your bills, we are going to pay some amount less.”

“Then as part of the scheme they have put in the arbitration clause, and the company now says, for you to determine this as to who is right and who is wrong, you must go to arbitration,” said Kardis.

“But the way we have set this up, the arbitration will cost you more than what the initial dispute is,” he said.

Kardis denied the motion to compel.

Farmers appealed to the Fifth District in Mt. Vernon. In August 2004, the appellate judges affirmed Kardis’s decision.

Other insurers had lost similar cases in the Fifth District and had tried to appeal to the Supreme Court, but the Supreme Court had never granted leave to appeal.

For Farmers, however, the Supreme Court granted leave to appeal.

As attorneys prepared briefs for the Supreme Court, Austin died. The record does not give the date.

The Supreme Court received notice of her death and Millar’s motion to dismiss July 8. Bozarth opposed the motion July 18.

In an Aug. 5 order, the Supreme Court vacated the Fifth District decision and remanded the case to Madison County with instructions to dismiss.

Kardis retired Sept. 2, without dismissing the suit. Circuit Judge Nicholas Byron dismissed it Sept. 28.

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