Dead plaintiff should answer questions, class counsel argues

Steve Korris Jul. 20, 2006, 2:44am

Jeffrey Millar

Anthony Martin

For two-and-a-half years the Lakin Law Firm has carried on a Madison County class action lawsuit with a dead plaintiff.

Manuel Hernandez of Granite City, who Circuit Judge Daniel Stack certified to represent a class of plaintiffs in a suit against American Family Insurance, died Jan. 25, 2004, but Jeffrey Millar of the Lakin firm did not tell Stack.

Stack received the news at last this year, but not from Millar. After two years, American Family had uncovered Millar's secret and shared it with Stack.

Since Hernandez died, Stack has held hearings and signed orders in the case.

Now, even with a death certificate on file, the insurer still cannot get off the hook. The Lakin firm intends to keep the suit going with a plaintiff from Ohio.

Millar moved May 19 to amend the complaint -- for the fifth time -- in order to substitute Helen Nemeth as class representative.

Meanwhile Millar maintains a fiction. In a June 13 motion to schedule a management conference he wrote, "Respectfully submitted, Manuel Hernandez."

Millar's signature appeared below.

Millar has confirmed the death of his client, but he has not answered questions that American Family Insurance submitted about his knowledge of it.

Millar objected to the questions, arguing to Stack that American Family Insurance should submit them not to Hernandez's attorney but to Hernandez himself.

American Family Insurance moved in May to overrule Millar's objections. Stack set a July 26 hearing on the motion.

Hernandez sued American Family Insurance in 2000, claiming the insurer improperly reduced a payout on a medical claim resulting from an auto accident.

Millar moved to certify Hernandez as representative of everyone who received improper payouts in the 17 states where American Family Insurance did business, back to 1990.

Millar named no plaintiff but Hernandez.

Circuit Judge George Moran took the case, but Hernandez moved for substitution.

In Illinois any party can substitute a judge once without cause, if the judge has not made a substantial ruling.

Lakin attorneys used to substitute for Moran as automatically as they now substitute for Circuit Judge Don Weber.

The case bounced to Circuit Judge Andy Matoesian but he recused himself and it bounced to Stack.

In 2002, Stack certified Hernandez to represent a class in all 17 states.

Millar could have put out a class action notice but did not propose one to Stack.

In 2003, American Family Insurance moved to decertify Hernandez.

Stack denied the motion Feb. 12, 2004. Hernandez had died 18 days earlier.

Stack's order expressed doubts about managing laws of 17 states. He set a hearing to decide which states belonged in the suit.

At the hearing Millar represented Hernandez, who had died 46 days earlier.

Stack heard arguments and took the matter under advisement.

In February 2005, Stack held a hearing on a motion of Hernandez to compel American Family Insurance to produce evidence. Stack granted Hernandez's motion.

On July 26, 2005, Stack signed an order certifying Hernandez -- who had died 18 months prior -- to represent plaintiffs in 12 states.

On March 28, attorney Anthony Martin of Sandberg, Phoenix, and von Gontard in St. Louis filed a suggestion of death on behalf of American Family Insurance.

Martin wrote that he had learned recently of Hernandez's death. He wrote that class counsel still had not notified the court.

He attached a copy of a death certificate showing Hernandez died of myocardial infarction, or heart attack.

It showed he was born in Mexico in 1941 and he worked as a bricklayer.

Martin asked Stack for approval of interrogatories to confirm Hernandez's death. Stack approved.

Martin sent Millar a request for admission of facts. He sought to pin down Millar on how long he knew Hernandez was dead.

Millar objected April 27, writing that under Illinois court rules a party must submit such a request to a party, not to a party's attorney.

Millar moved May 19 to file a fifth amended complaint with Nemeth as plaintiff.

He wrote that Hernandez died and "…subsequently, class counsel learned of his death."

He wrote that Nemeth qualified as substitute because she belonged to the class Hernandez represented.

Nemeth's claim arose from an auto accident in 2004, according to Millar.

Defense attorney Timothy Sansone of the Sandberg firm moved May 25 to compel answers from Millar.

Martin, aiming to nip a fifth amended complaint in the bud, moved June 5 to dismiss the fourth amended complaint.

He argued that failure to send notice to the class deprived the court of jurisdiction over anyone but Hernandez and American Family Insurance.

Sansone moved July 10 to stay all proceedings except briefing and arguments on the motion to dismiss.

"Granting the motion to dismiss will moot all other pending motions," he wrote.

He wrote that if Stack considered substitution prior to ruling on the motion to dismiss, Stack would have to revisit class certification.

He wrote, "This would be a waste of judicial resources…"

He wrote that substitution of Nemeth would require addition of an Ohio defendant.

"Neither this Court nor any other court in Illinois has jurisdiction over Nemeth's insurer…," he wrote.

He wrote that substitution also would raise issues of standing and forum.

Stack has not set hearings on Millar's motions for a new plaintiff, a new complaint and a management conference, or on defense motions to stay and dismiss.

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