GEICO relies on 'Avery' for decertifying class

Steve Korris May 11, 2006, 9:22am

Attorney Robert Schmieder

Judge Nicholas Byron

Insurer GEICO wants Madison County Circuit Judge Nicholas Byron to ignore a Lakin Law Firm argument that the Illinois Supreme Court has not changed the law of class action litigation.

Attorney Joseph Brown, in a May 1 response to a brief by Robert Schmieder of the Lakin firm, called on Byron to decertify a class action he certified in 2003 or send the case to the Fifth District appellate court in Mount Vernon.

Brown wrote, "…to say that Illinois courts should operate in the same manner after the highest Court in the state issues two thorough, well reasoned, 100-page plus majority opinions overturning billion dollar judgments would be considered folly for most."

Schmieder had told Byron in an April 5 brief that Supreme Court decisions in the Avery and Price cases did not change Illinois class action law.

In the five-year-old suit, plaintiffs Myron Billups and Patricia Singleton claim GEICO paid less than full value for vehicles that the insurer declared total losses.

Brown argued in his May 1 brief that Avery requires each class member to prove breach of contract.

He wrote that Avery and Price require each class member to prove deception.

Under Avery, he wrote, a plaintiff cannot transform a breach of contract claim into a consumer fraud agency.

Under Price, he wrote, GEICO faces no liability because it complied with directives of a government agency.

Byron has set a May 22 hearing on decertification

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