Plaintiff says payment for upgrade is immaterial in 'cheap' rental vehicle suit

Steve Korris Feb. 1, 2006, 9:38am

When attorney Lanny Darr sued Affirmative Insurance for trying to put him in a cheap rental vehicle, the insurer sent him a check for the nicer vehicle he ordered.

Darr did not sign the check, nor dismiss the suit. He exploded his little claim for miscellaneous relief into a proposed class action lawsuit.

Darr seeks to represent everyone who rented vehicles during repairs to their own vehicles after collisions with Affirmative policyholders.

He sued last year, as his own attorney, alleging that Affirmative violated insurance provisions of Illinois Administrative Code.

The suit claims that an Affirmative driver rear ended his Ford Explorer. He asked for a reasonable replacement, and Affirmative told him it would provide $19 a day, the suit claims.

He wrote that $19 was not appropriate. He asserted a further dispute over whether Affirmative should have paid up front or by reimbursement.

Darr, after the crash, had rented a vehicle that cost more than $19. He had submitted the bill to Affirmative for reimbursement.

Affirmative, upon receiving his miscellaneous relief claim, sent him a check for the reimbursement he had requested.

Defense attorney Peter Morse of Chicago moved to dismiss June 10.

Darr retained Evan Schaeffer as his attorney. Schaeffer filed an amended complaint July 11, alleging consumer fraud and seeking certification of a class action.

Affirmative moved to dismiss Aug. 17. Morse wrote that Darr was not a consumer and lacked standing. He wrote that the transaction did not involve the sale of insurance.

The case lay in Circuit Judge George Moran's court, but he recused himself Sept. 8.

Chief Judge Edward Ferguson assigned Circuit Judge Daniel Stack, who granted leave Oct. 26 for a second amended complaint.

Schaeffer filed it the next day, alleging consumer fraud and misrepresentation.

Affirmative moved to dismiss Nov. 17. Morse wrote that Darr apparently acknowledged his inability to state a cause of action under Illinois consumer fraud law.

Morse wrote that Affirmative did not violate state insurance code. Even if it had, he wrote, Darr should take his claim to the state insurance department.

Morse attached an insurance department statement that read, "…the company does not have to pay for a rental of the same type."

It read, "If the company offers to pay a flat amount (for example $20.00 a day), the company must tell you where you can rent a vehicle for that amount."

Morse wrote that in any event, Darr failed to allege the elements of fraud.

He wrote that Darr rented a vehicle for more than $19, and Affirmative had paid the bill in full.

Schaeffer opposed the motion Jan. 13, arguing that facts about the check Affirmative sent to Darr were "unverified and immaterial at the motion to dismiss stage."

Schaeffer wrote that Affirmative sent a check only after Darr sued, that a release accompanied the check, and that Darr had not cashed the check.

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