Weber dismisses 'fatally defective' class action

Steve Gonzalez Jun. 7, 2006, 8:02am

Circuit Judge Don Weber

Troy Bozarth

United Parcel Service successfully convinced Madison County Circuit Judge Don Weber to dismiss a class action case filed by a customer who wanted a $5 refund because an "overnight" package he sent did not arrive on time.

In his order, Weber chided plaintiff's argument as "fatally defective."

Jeffrey Hicks of Financial Planning Advisors filed the lawsuit in 2002. He could have received a full refund of $14.95 for the late delivery of his package, but he chose to be the named plaintiff in a nationwide class action lawsuit filed by the Wood River-based Lakin Law Firm.

Hicks did not keep record of the transaction.

In his order, Weber stated he "assumes" Hicks is telling the truth because he "must construe all pleadings and supporting documents in the light most favorable to the plaintiff."

According to the UPS shipping document and the company's service guide, the courier guarantees that it will either attempt delivery by a stated time or refund or credit the "entire" shipping charge.

At the time Hicks filed his suit, UPS charged $14.95 for overnight and $9.95 for second day delivery. Hicks had 15 days to ask for a refund or credit if UPS failed to attempt delivery by the time promised.

"There is apparently no dispute that the UPS guarantee was adequately disclosed and known to the plaintiff," Weber wrote. "The court finds as a matter of law that the UPS refund or credit provision is reasonable."

Hicks had asked Weber to rewrite the contract and fashion a new "common law" remedy despite UPS' refund and credit policy.

"This class action plaintiff is not happy with the $14.95 credit or refund; he asks instead for a refund of $5 per class member per package," Weber wrote.

"This 'common law' remedy would result in each class member receiving $5 less that the contractual remedy stated in the UPS guarantee. Of course, if successful, this purported nationwide class action would generate millions of dollars in plaintiff's attorney's fees.

"The remedy suggested by plaintiff is fashioned of legalistic arguments and hair-splitting, not common sense," Weber wrote.

"Further, the remedy advanced is not proper as a matter of law, since the stated contractual remedy is clear and unambiguous."

Hicks also filed a class action suit against Airborne Express (now DHL) in 2002. However former Circuit Judge Phillip Kardis threw that case out after granting DHL summary judgment.

If DHL does not make its deliveries on time the company gives customers free shipments.

When dismissing that suit Kardis wrote, "This is an either or clause. I don't see how anybody could ever interpret it any differently."

Weber said Hicks was asking him to ignore Kardis' decision and opinion.

Hicks also asked Weber to ignore the plain language of the UPS contract and to ignore the 15-day requirement.

"Plaintiff then argues that this court should give each individual class member less that UPS offered in the agreement," Weber wrote.

"If the plaintiffs win the lawsuit on those terms, it is conceivable that each class member who availed themselves of the contractual remedy (a credit or refund of $14.95) would end up owing UPS $5 per package that was not delivered on time."

"In effect, plaintiff asks this court to paint the contractual roses red, fashion a remedy out of whole cloth that could end up hurting the class members and award millions of dollars in attorney's fees. The court will not allow such an unreasonable and illogical result," Weber wrote.

Weber then points out that even if he considered all the facts and pleadings in the light most favorable, Hicks does not state a cause of action.

"The complaint is fatally defective," he wrote. "The theory of liability advanced is insufficient as a matter of law."

Hicks' complaint was filed by attorney Gary Peel, who left the firm after being indicted for child porn, obstruction of justice and bankruptcy fraud.

Attorney Gerald Walters took over the case.

Troy Bozarth, a partner at Burroughs, Hepler, Broom, MacDonald, Hebrank & True of Edwardsville, represented UPS.

Last month, Weber granted National City Mortgage Company's motion for summary judgment and dismissed a $20 fax fee class action case brought by the Lakin Law Firm.

Donald and Patricia Agney had accused the lender of charging an unreasonable fee for faxes in refinancing their loan in 1999.

Weber also turned a nationwide class action case filed against United Life Insurance in Madison County into an Illinois-only action using two recent Illinois Supreme Court decisions to make his ruling. That case was also filed by the Lakin Law Firm.

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