Avery decision invoked by Madison County defendant

Steve Korris Nov. 2, 2005, 8:09am

Circuit Judge George Moran

Pekin Insurance Company has invoked the Illinois Supreme Court’s blockbuster decision in Avery vs. State Farm, in a motion to dismiss a proposed Madison County class action suit.

The suit, filed in February by chiropractor Frank Bemis, accuses Pekin Insurance of improperly reducing payouts on medical bills.

Bemis seeks to represent a class of plaintiffs in at least five states.

In June, Pekin Insurance attorney David Osborne moved Madison County Circuit Judge George Moran to dismiss. Osborne wrote that Bemis failed to state a cause of action.

In August, the Supreme Court overturned a $1.2 billion verdict in the Avery case. The decision profoundly changed the rules of class action litigation in Illinois.

Osborne moved Oct. 11 for leave to revise his motion to dismiss. Moran granted it.

Osborne argued in his revised motion that under Avery, a plaintiff must plead that the defendant committed a deceptive act or practice and must also plead that the defendant intended for the plaintiff to rely on the deception.

Under Avery, Osborne continued, a plaintiff must plead that the deception involved trade or commerce, that the plaintiff suffered actual damage, and that the deception was the proximate cause of the damage.

Osborne wrote that Bemis’s complaint fails on all five of those points.

Osborne wrote that the Supreme Court put to rest the notion that a plaintiff can base a consumer fraud claim on a breach of contract.

“Plaintiff respectfully suggests that the Supreme Court’s controlling decision in Avery mandates dismissal with prejudice in this case” wrote Osborne.

Moran ordered Bemis to respond by Dec. 9.

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