Dead plaintiff's estate may carry on class action lawsuit

Steve Gonzalez Jul. 28, 2006, 11:46am

Circuit Judge Dan Stack

Anthony Martin

Jeffrey Millar

Madison County Circuit Judge Daniel Stack ordered a plaintiff's attorney to send the insurance company he's suing a copy of his client's death certificate.

At a case management conference July 26, Stack told Jeffrey Millar of the Lakin Law Firm he must provide American Family Insurance a certified copy of Manuel Hernandez's death certificate.

In 2002, Hernandez was certified as a class representative alleging the insurer improperly reduced payouts on medical claims resulting from auto accidents. Hernandez died Jan. 25, 2004, but Millar failed to advise the court of his death.

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

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."

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.

At the hearing, Stack overruled the motion to compel Millar to answer the questions, but he did order Millar to send the death certificate.

Millar notified Stack that he would withdraw the amended complaint submitted on May 19, and file a new one. Stack gave Millar 21 days to file a proposed amended complaint and will hold a hearing on Oct. 3 to decide if he will accept the complaint.

Millar told Stack that he plans to make Hernandez's estate a plaintiff in the case along with the Ohio resident.

Steve Korris contributed to this report

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